Meswaet Abel v. Lack's Beach Service

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Meswaet Abel, as Personal Representative of the Estate
of Zerihun Wolde and as Natural Parent and Legal
Guardian of Adam Wolde and Wubit Wolde,
Respondent,

v.

Lack's Beach Service, City of Myrtle Beach, and John
Doe Lifeguard, Defendants,

Of which Lack's Beach Service is the Appellant.

Appellate Case No. 2023-000569

Appeal From Horry County
Kristi F. Curtis, Circuit Court Judge

Opinion No. 6118
Heard February 12, 2025 – Filed July 16, 2025

AFFIRMED

C. Mitchell Brown and Blake Terence Williams, both of
Nelson Mullins Riley & Scarborough, LLP, of Columbia;
Joseph DuRant Thompson, III, of Hall Booth Smith, PC,
of Mount Pleasant; and Elizabeth Fulton Morrison, of
Whelan Mellen & Norris, LLC, of Charleston, all for
Appellant.

William Mullins McLeod, Jr., and Harry Cooper Wilson,
III, both of McLeod Law Group, LLC, of Charleston;
George Murrell Smith, Jr., of Smith Robinson Holler
DuBose Morgan, LLC, of Sumter; Austin Tyler Reed and
Frederick Newman Hanna, Jr., both of Smith Robinson
Holler DuBose Morgan, LLC, of Columbia; and John
Christopher Pracht, V, of Pracht Injury Lawyers, LLP, of
Anderson, all for Respondent.

TURNER, J.: In this wrongful death action involving a fatal drowning, Lack's
Beach Service (Lack's) appeals a jury award of approximately $20 million in
damages to Meswaet Abel and her four children. Specifically, Lack's appeals the
trial court's denial of its post-trial motions for judgment notwithstanding the verdict
(JNOV) and a new trial absolute and the award of punitive damages. We affirm.
FACTS/PROCEDURAL HISTORY

Lack's contracted with the City of Myrtle Beach (the City) as its "Water Safety
Program" provider and "Concessionaire" for beach rentals. In 2018, Lack's and the
City entered into a seven-year "Water Safety Franchisee" Agreement (Franchise
Agreement) for the 2018-2025 seasons. The Franchise Agreement stated that
Lack's would "operate a water safety service and beach concession" on the City's
public beaches from April 15 to September 30, Monday through Sunday, from
8:00 a.m. to 5:00 p.m. In addition to staffing permanent lifeguard stands in
eighty-nine zones across the beach, Lack's also agreed to provide "mobile
lifeguards," referred to as "Lifeguard Onlys" (LGOs), at various ratios throughout
the zones. 1 From the first week of June through Labor Day, Lack's was required to
provide at least one LGO for every six permanent stands on the beach and one
off-stand supervisor for every ten stands. The Franchise Agreement also required
that each lifeguard "[s]uccessfully complete a course consisting of . . . not less than
40 hours in open water life saving which [met] the criteria of the United States
Life[saving] Association" (USLA). Additionally, the Franchise Agreement
authorized Lack's to rent chairs, umbrellas, floats, and boogie boards; it also
required Lack's to "be responsible for the cleanliness of its franchise zone(s)."

On August 23, 2018, Abel arrived at the Sea Crest Resort in the City with her
father; her fiancé, Zerihun Wolde; and their four children. Around noon the next
day, the family walked down to the beach using the private access from the hotel
and set up their chairs and umbrellas near lifeguard stand L-22. Abel stayed on the
beach with the youngest children while Wolde went into the water with the two

1
The lifeguard stands were placed approximately every block along the beach.
oldest—Adam and Wubit. Abel testified she did not see any red flags or signs on
the beach warning of dangerous conditions, and she observed lots of people on the
beach and in the water. Abel testified that approximately thirty to forty-five
minutes later, Adam came running up to her shouting that Wolde needed help. She
left the other children with her father and ran down the beach to the right, past the
lifeguard stand, where she saw Wolde. Abel testified that several bystanders
administered assistance to Wolde, including giving him CPR, and an ambulance
transported him to the hospital. When she arrived at the hospital, she was
informed that Wolde had died from drowning.
Adam testified that when he went into the water with Wubit and Wolde, they were
initially in waist deep water, but he soon noticed that he was "unintentionally
getting deeper and deeper" until the water was up to his neck and he started
treading water. He stated he was in front of his father, who was "hugging" Wubit,
just out of arm's reach. Adam testified that they tried to swim back into shore but
continued to be pulled further away, so all three of them began waving their arms
and yelling for help as loudly as they could. Adam was able to swim safely to
shore, but he became separated from Wolde and Wubit who were "still in trouble."
He saw a bystander, who had seemingly heard their yells for help, making his way
out into the water towards Wolde and Wubit. Adam testified that from the time he
first felt the water pulling him out until the time he got out of the water, he never
saw a lifeguard and no lifeguard entered the water to assist his family.
Wubit testified similarly. She stated Wolde was trying to hold onto her and tread
water and he yelled for help approximately twenty times. She recalled that Wolde
"was struggling to keep his head above water" and would go under and come back
up, "gasp," and yell for help. Wubit testified this struggle lasted around ten to
fifteen minutes. She stated she could see people on the beach who appeared to be
"trying to see what was going on," and eventually, three or four people came into
the water, and a woman helped her to shore. Wubit asserted that, by that time,
Wolde had stopped yelling and his entire body was submerged as she held onto his
shirt. She testified that she did not see a lifeguard until her father was on the beach
receiving medical attention.

Two bystanders, Jeffrey Bender and Julian Chandler, also testified. Bender
recalled that his family was in the water near the L-21 lifeguard stand when they
heard screams for help. He did not see a lifeguard, so he told his wife and children
to go find one, and he went into the water toward the screams. Bender stated he
reached a woman who was yelling for help; she was with a young girl, and the girl
was clinging to a man who was bobbing facedown in the water. Bender flipped the
man over and saw he was foaming at the mouth. Bender stated the woman carried
the girl to shore while he dragged the man by the torso; he recalled fighting against
a "very strong current." Bender stated he did not see a lifeguard until after Wolde
was already on shore.

Chandler testified his family arrived at the beach shortly before noon and set up
near the L‑22 lifeguard stand. He recalled seeing a lifeguard sitting on the back of
the stand talking to two people with his back to the water.2 Chandler did not see
any warning flags on the beach. Approximately five to ten minutes later, Chandler
heard calls for help and saw two men and a woman assisting another man and a
young girl out of the water. He went out in the water to assist with bringing Wolde
to shore. Chandler stated that when they got Wolde to the beach, "[h]e was in a
very desperate situation" with "a lot of water and sand coming out of his mouth."
He recalled another bystander began CPR, during which time the lifeguard he had
seen by the lifeguard stand earlier appeared in the crowd; he asserted the lifeguard
did "nothing" to assist Wolde. Chandler asserted the lifeguard should have been
able to hear the bystanders' yells for assistance.

Chris Brewster, chairman of USLA's National Certification Committee, testified
USLA sets the national standard of care for ocean lifeguards. He asserted USLA's
position was that lifeguards should not be assigned any task other than watching
the water while he or she is on the stand, and he stated requiring lifeguards to "sell
chairs" while on the stand was inconsistent with USLA standards. Brewster
explained that when Lack's first submitted its application for certification in 1995,
USLA "had never received an application . . . from a private lifeguard operation
that was vending as well as providing lifeguards," and "a decision was made that
[USLA] would allow lifeguard agencies that allowed their lifeguards to vend . . . to
be certified so long as the lifeguards who were assigned on the stand watching the
water . . . could never be involved in commerce" while on the stand. Brewster
asserted that after USLA sent a letter to Lack's in January 1996 inquiring whether
any lifeguards would be involved in commercial activities, he had a phone call
with Lack's owner, who indicated that "none of the lifeguards assigned to the tower
would be responsible for watching the water and vending goods at the same time." 3
He testified that afterwards, he was convinced that Lack's met the USLA standard
and Lack's was certified. He further testified that when Lack's requested

2
Lack's asserted the lifeguard was "explaining the meaning of different [colors] of
the flags" to someone who inquired, not engaging in rental sales.
3
Lack's objected to the admission of letters from USLA dated January 21, 1996;
January, 27, 1996; September 11, 2007; October 24, 2007; and March 26, 2008.
recertification periodically thereafter, Lack signed a portion of the application
verifying that it would not have lifeguards watching the water and vending goods
at the same time. However, when Brewster visited Myrtle Beach in 2007, he
walked down the beach and observed "lifeguards who were assigned to water
surveillance [who] were renting and vending." He stated he felt Lack's had lied to
USLA. Brewster testified he notified the National Certification Committee of his
observations and the committee undertook an investigation, which ultimately
resulted in the revocation of Lack's certification due to its violation of USLA's
standards.

Brewster also testified about USLA's training requirements, specifically that
lifeguards "successfully complete a course consisting of not less than 40 hours" of
open-water training. He explained that such training includes "recognizing what a
victim in distress looks like, learning about rip currents so [lifeguards] understand
what rip currents are and what somebody in distress in a rip current might look
like," as well as "mock rescues" to learn to rescue victims. He asserted that
"training in a manner that allows the person on the stand to be involved in vending
would be inconsistent with the USLA's training standards."

Dr. Thomas Griffiths testified as an expert in aquatic safety. He stated Lack's
breached the standard of care in this case by (1) requiring lifeguards to sell
merchandise and clean the beach in addition to their lifeguarding duties, (2)
providing sub-standard training that did not comply with the Franchise Agreement
or USLA standards, (3) failing to warn beachgoers of known hazardous conditions
or to close the affected sections of the beach, (4) failing to recognize Wolde as a
distressed swimmer, and (5) understaffing the beach on the day of the incident.
Specifically, Dr. Griffiths pointed out that Lack's training fell short of the forty
hours required by the Franchise Agreement and was conducted improperly. He
noted that records for the lifeguards on stands L-20, L-21, and L-22 were either
incomplete or stated training had taken place on dates the lifeguards were not in
Myrtle Beach. He stated that based on the personnel records he reviewed, it did
not appear that the lifeguards had enough time to complete the forty hours of
training between the time they arrived in Myrtle Beach and when they began their
lifeguarding duties. Dr. Griffiths also opined that all lifeguards should be
"lifeguard onlys" and based on the dual role required by Lack's, their training could
not comply with USLA standards. Additionally, he noted that on the day of the
drowning, Lack's received a rip current warning at approximately 10:00 a.m., but
there was no evidence Lack's put up additional warnings or closed affected
portions of the beach. Dr. Griffiths asserted that Wolde "was a distressed victim
that could have and should have been easily recognizable by attentive lifeguards"
and opined that Lack's operated in a dangerous and unsafe manner, which was "a
direct cause of his death."

Lack's acknowledged Abel and her family set up closest to the L-22 stand; Wolde
and the older children drifted down the beach to the south; and Wolde and the
children were closest to the L-21 stand when Wolde became distressed and the
bystanders pulled him out of the water. It was undisputed that the lifeguard
assigned to L-21 was on his lunch break at the time of the incident, leaving that
stand unmanned. Lack's asserted that a red flag was up in front of the L-22 stand;
however, because the lifeguard at L-21 was at lunch, there was no flag in front of
his stand. Lack's explained that the lifeguards would close their stand and remove
their flags when they went to lunch, but they did not close the beach to beachgoers;
rather, the lifeguards on either side were expected to watch that stretch of water or
an LGO would cover it. Lack's admitted that the three lifeguards stationed at L-20,
L-21, and L-22 missed several training sessions because they were not yet in the
country when training began. Lack's also acknowledged that it did not have any
sign-up sheets or "proof of the training" for the lifeguards involved in this incident.

Lack's asserted that it had been a "dual-role agency" for many years, which meant
its lifeguards were required to engage in selling "beach concessions" as well as
performing their lifeguarding duties. Lifeguards also received commissions based
on their rental sales. Lack's agreed that "there is a national standard of care when it
comes to lifeguards" and acknowledged the January 1996 letter from USLA stating
that, in order to maintain Lack's USLA certification, it had agreed that "lifeguards
assigned to water surveillance [would] not be assigned to any other duties."
However, Lack's denied representing to USLA that its lifeguards would not be
responsible for any other tasks; rather, it averred the agreement was "to provide
[LGO] personnel" in a ratio determined by Lack's and USLA. Lack's asserted that
because the Franchise Agreement specifically called for and defined LGOs, it
implicitly acknowledged that its other lifeguards operated in a dual role. Lack's
personnel testified that on August 24, there were only three LGOs—the only
personnel whose "sole responsibility was water observation"—on a more than
two-mile stretch of beach. Lack's agreed that pursuant to the Franchise Agreement
staffing requirements, it was at least one LGO short that day and that the additional
LGO could have made a difference if he or she had been present.
Over Lack's objection, the trial court admitted evidence regarding the sales revenue
generated by the beach concessions for the month of August 2018—including the
daily totals for the lifeguards at L-20, L-21, and L-22 on August 24—as well as
Lack's total rental revenue for 2018. Abel also questioned Lack's regarding a 2002
workers' compensation case in which it asserted that its lifeguards engaged in
beach concession duties 99.995% of the time and lifeguarding duties 0.00047% of
time.
The jury found Lack's was negligent and its negligence caused Wolde's death; the
jury found no negligence on the part of Wolde. The jury awarded actual damages
for Wolde's conscious pain and suffering in the amount of $3.73 million and
wrongful death damages of $10 million. The jury also found Lack's acted in "a
reckless, willful, or wanton manner." The parties then proceeded to try the issue of
punitive damages. Lack's testified it had $3 million in total insurance and, as of
December 31, 2021, it had a net worth of negative $473,350.51. The jury
ultimately awarded $7 million in punitive damages.

Lack's timely filed post-trial motions for JNOV, a new trial absolute, and a new
trial nisi remittitur. Before a hearing could be held on the motions, the trial court
issued an order upholding the constitutionality of the punitive damages award.
Lack's subsequently filed a Rule 59(e), SCRCP, motion to reconsider. After a
hearing on the pending post-trial motions, the trial court issued an order denying
the motions. This appeal followed.

ISSUES ON APPEAL

I. Did the trial court err in denying Lack's JNOV motion?

II. Did the trial court err in denying Lack's motion for a new trial absolute?

III. Did the trial court err in upholding the jury's punitive damages award?

DIRECTED VERDICT AND JNOV MOTIONS

"A motion for a JNOV is merely a renewal of the directed verdict motion." RFT
Mgmt. Co. v. Tinsley & Adams L.L.P., 399 S.C. 322, 331, 732 S.E.2d 166, 171
(2012). Therefore, "only the grounds raised in the directed verdict motion may
properly be reasserted in a JNOV motion." Id. at 331, 732 S.E. 2d at 170-71.
"When reviewing the trial court's ruling on a motion for a directed verdict or a
JNOV, this [c]ourt must apply the same standard as the trial court by viewing the
evidence and all reasonable inferences in the light most favorable to the
nonmoving party." Id. at 331-32, 732 S.E.2d at 171. "The trial court must deny a
motion for a directed verdict or JNOV if the evidence yields more than one
reasonable inference or its inference is in doubt." Id. at 332, 732 S.E.2d at 171.
"Moreover, '[a] motion for JNOV may be granted only if no reasonable jury could
have reached the challenged verdict.'" Id. (alteration in original) (quoting
Gastineau v. Murphy, 331 S.C. 565, 568, 503 S.E.2d 712, 713 (1998)). "In
deciding such motions, neither the trial court nor the appellate court has the
authority to decide credibility issues or to resolve conflicts in the testimony or the
evidence." Id. "An appellate court will reverse the trial court's ruling only if no
evidence supports the ruling below." Id.

1. Dual Role

Lack's argues the trial court erred in denying its motions for a directed verdict and
JNOV because the dual-role arrangement for its lifeguards was expressly permitted
by its contract with the City and pursuant to section 5-7-145 of the South Carolina
Code (2004). Further, Lack's asserts "the applicable standard of care in this case
was set forth in the Franchise Agreement." It also argues Abel did not produce any
direct evidence that would "allow the jury to conclude that the relevant lifeguards
were engaged in commercial activity at the time of the drowning." We disagree.

In cases of professional negligence, "the standard of care that the plaintiff must
prove is that the professional failed to conform to the generally recognized and
accepted practices in his profession." Doe v. Am. Red Cross Blood Servs., S.C.
Region, 297 S.C. 430, 435, 377 S.E.2d 323, 326 (1989). A court may "define the
standard of care by looking to the common law, statutes, administrative
regulations, industry standards, or a defendant's own policies and guidelines."
Roddey v. Wal-Mart Stores E., LP, 415 S.C. 580, 589, 784 S.E.2d 670, 675 (2016).

Although the Franchise Agreement appears to acknowledge that some of Lack's
lifeguards would engage in a dual role because it specifically provides for a
subcategory of LGOs, it merely implies that dual roles will exist; it does not
"expressly" approve the dual-role set up. Additionally, the Franchise Agreement
does not set forth any standards or guidelines for how Lack's dual-role employees
should perform their duties. Further, although a court may look to statutes for
guidance as to the applicable standard, the particular statute relied upon by Lack's,
section 5-7-145, does not set forth a standard of care. Section 5-7-145(B) merely
states that coastal municipalities may provide lifeguard services for its beaches
"using municipal employees or by service agreement with a private beach safety
company." The section further provides that if the municipality elects to contract
with a private company, "the municipality may grant the exclusive right to the
beach safety company to rent only the beach equipment and to sell only the items
to the public on the beach that are allowed by the municipality." See
§ 5-7-145(B)(3). However, the statute does not specifically authorize lifeguards to
rent equipment.

Abel presented expert testimony regarding the standard of care for professional
lifeguards and asserted that Lack's breached that standard by requiring its
lifeguards to sell merchandise and clean the beach in addition to their lifeguarding
duties. Abel further presented bystander testimony that the L-22 lifeguard was
sitting on the back of the stand, facing away from the ocean, talking to two people
near the "umbrella line" five to ten minutes before bystanders rendered aid to
Wolde.4 Abel also introduced sales revenue data showing that the lifeguards at
L-20, L-21, and L-22 made approximately $1,100 in combined sales on the day of
the incident. Moreover, Abel introduced evidence of correspondence between
Lack's and USLA regarding Lack's certification. Significantly, based on the
correspondence alone, we find the jury could conclude that Lack's knew the
dual-role requirement was an unsafe practice and in violation of the accepted
standard of care in the industry.

Therefore, we hold the trial court properly submitted to the jury the issue of
whether the lifeguards' dual role breached the standard of care and was a factor in
Wolde's death, and we affirm the denial of the JNOV and directed verdict motions
as to this ground. See RFT Mgmt. Co., 399 S.C. at 332, 732 S.E.2d at 171 ("The
trial court must deny a motion for a directed verdict or JNOV if the evidence yields
more than one reasonable inference or its inference is in doubt.").

2. Standard of Care and Proximate Cause

Lack's argues the trial court erred in denying its motions for a directed verdict and
JNOV because the evidence failed to establish that Lack's breached the standard of
care or proximately caused Wolde's drowning. We disagree.

Initially, we find Lack's arguments regarding the standard of care—other than the
dual-role issue addressed above—are not preserved for appellate review because
they were not raised to the trial court during Lack's directed verdict motion.

4
Chandler testified that just before he heard a commotion in the water, he walked
down to the water and then, on his way back to his family's spot, he noticed "the
lifeguard was in the same position that we saw when we first came out. He was
sitting on the back end of the lifeguard stand chatting with a few individuals with
his back to the water." When asked if the people the lifeguard was speaking to
were "within . . . the umbrella line," Chandler replied that "they were near them."
Similarly, Lack's arguments regarding proximate cause—specifically its arguments
as to training and understaffing—are not preserved. See RFT Mgmt. Co., 399 S.C.
at 331, 732 S.E.2d at 171 ("A motion for a JNOV is merely a renewal of the
directed verdict motion."); id. at 331, 732 S.E. 2d at 170-71 ("[O]nly the grounds
raised in the directed verdict motion may properly be reasserted in a JNOV
motion.").

During the directed verdict stage of trial, Lack's argued only that Abel had failed to
prove proximate cause because there was no evidence of the "amount of time the
family struggled" or that "a lifeguard could get from his or her location to [] Wolde
to change th[e] outcome." As to these two grounds, we find Abel presented
sufficient evidence such that a reasonable jury could have concluded Lack's
negligence proximately caused Wolde's death. See Madison ex rel. Bryant v.
Babcock Ctr., Inc., 371 S.C. 123, 147, 638 S.E.2d 650, 662 (2006) ("The question
of proximate cause ordinarily is one of fact for the jury, and it may be resolved
either by direct or circumstantial evidence."); Gastineau, 331 S.C. at 568, 503
S.E.2d at 713 ("A motion for JNOV may be granted only if no reasonable jury
could have reached the challenged verdict.").

First, Wubit testified Wolde was in distress for "a long period of time," around ten
to fifteen minutes. Additionally, it was undisputed that L-21, the lifeguard stand
closest to where Wolde became distressed and was ultimately pulled from the
water, was not staffed at the time of the incident; however, the beach in front of the
stand was not closed. Dr. Griffiths opined that Lack's breached the standard of
care by failing to appropriately train its lifeguards in compliance with the
forty-hour requirement and further engaged in unsafe practices by allowing
lifeguards to leave their stand unattended during their lunch break without
appropriate backup coverage. Further, Dr. Griffiths asserted that Wolde "was a
distressed victim that could have and should have been easily recognizable by
attentive lifeguards" and opined that Lack's operated in a dangerous and unsafe
manner that was "a direct cause of his death." Indeed, the bystanders who
ultimately pulled Wolde from the water did so because they were able to see and
hear Wolde in distress in the ocean in front of the stand. Although Lack's disputed
whether it did in fact provide sufficient coverage for the vacant stand, we find the
evidence was such that it could yield "more than one reasonable inference," and
therefore, we affirm the denial of the motions for a directed verdict and JNOV on
this ground. See Roddey, 415 S.C. at 590, 784 S.E.2d at 676 ("The defendant's
negligence does not have to be the sole proximate cause of the plaintiff's injury;
instead, the plaintiff must prove the defendant's negligence was at least one of the
proximate causes of the injury."); RFT Mgmt. Co., 399 S.C. at 332, 732 S.E.2d at
171 ("The trial court must deny a motion for a directed verdict or JNOV if the
evidence yields more than one reasonable inference or its inference is in doubt.");
id. ("In deciding such motions, neither the trial court nor the appellate court has the
authority to decide credibility issues or to resolve conflicts in the testimony or the
evidence.").

3. Conscious Pain and Suffering

Lack's argues the trial court erred in submitting Abel's survival claim to the jury
because there was no evidence of conscious pain and suffering. Specifically,
Lack's equates Wolde's "pre-drowning struggles," as testified to by Wubit, with
"pre-impact fear," which South Carolina has not recognized as an element of
recoverable damages. 5 Lack's argument, somewhat confusingly, seems to imply
that a person is not actively drowning unless they are unconscious or no longer
resurfacing. For example, it characterizes the record as "reflect[ing] gasping and
yelling prior to the tragic drowning," and states that "[a] struggling swimmer who
recovers and comes ashore and escapes the drowning is not entitled to recover."
Moreoever, Lack's argues expert testimony regarding the drowning process was
required. We disagree.

"Damages in a survival action include recovery for the deceased's conscious pain
and suffering . . . ." Smalls v. S.C. Dep't of Educ., 339 S.C. 208, 216, 528 S.E.2d
682, 686 (Ct. App. 2000). Wubit testified that her father struggled in the water for
ten to fifteen minutes—repeatedly going under, resurfacing, and "gasping" for
breath. Further, bystander testimony indicated that upon his retrieval from the
water, Wolde had "a lot of water and sand coming out of his mouth."

Although we could not locate any South Carolina cases directly on point, common
sense dictates that the struggle to "escape the drowning" is, in fact, part of the
active drowning process. Further, we could not locate any authority supporting
Lack's proposition that expert testimony is required in South Carolina in order to
submit the issue of pain and suffering to a jury. Thus, we hold the testimony from
Adam, Wubit, Bender, and Chandler—all of whom were eyewitnesses to the
drowning—was sufficient to submit the survival claim to the jury, particularly in
light of the standard of review, which requires us to construe the evidence in the

5
"Pre-impact fear" is the mental trauma a person experiences because of his
knowledge of his impending death. See Rutland v. S.C. Dep't of Transp., 390 S.C.
78, 84, 700 S.E.2d 451, 454 (Ct. App. 2010), aff'd as modified by, 400 S.C. 209,
734 S.E.2d 142 (2012).
light most favorable to Abel, as the nonmoving party. See RFT Mgmt. Co., 399
S.C. at 332, 732 S.E.2d at 171 ("The trial court must deny a motion for a directed
verdict or JNOV if the evidence yields more than one reasonable inference or its
inference is in doubt."); id. at 331-32, 732 S.E.2d at 171 ("[T]his [c]ourt must
apply the same standard as the trial court by viewing the evidence and all
reasonable inferences in the light most favorable to the nonmoving party.");
Smalls, 339 S.C. at 217‑18, 528 S.E.2d at 686-87 (finding "evidence existed from
which the jury could have determined the victim experienced conscious pain and
suffering" when the victim's father testified that "his daughter was gasping for air
and moaning somewhat" immediately after being struck by a vehicle, even though
he acknowledged the daughter was unconscious when transported to the hospital
and never regained consciousness before succumbing to her injuries). We
therefore affirm the denial of the JNOV motion as to this ground.

4. Punitive Damages

Lack's also argues the trial court erred in failing to grant its JNOV motion because
Abel failed to prove recklessness by clear and convincing evidence as required for
punitive damages. We hold Abel presented sufficient evidence of recklessness to
allow the issue to be submitted to the jury and to support the verdict.

"Negligence is the failure to exercise due care, while gross negligence is the failure
to exercise slight care." Solanki v. Wal-Mart Store No. 2806, 410 S.C. 229, 237,
763 S.E.2d 615, 619 (Ct. App. 2014). "[R]ecklessness implies the doing of a
negligent act knowingly . . . . [T]hat is, the conscious failure to exercise due care."
Yaun v. Baldridge, 243 S.C. 414, 419, 134 S.E.2d 248, 251 (1964) (quoting State v.
Rachels, 218 S.C. 1, 8, 61 S.E.2d 249, 252 (1950)). "If a person of ordinary reason
and prudence would have been conscious of the probability of resulting injury, the
law says the person is reckless or willful and wanton . . . ." Berberich v. Jack, 392
S.C. 278, 287, 709 S.E.2d 607, 612 (2011).

Abel presented evidence that Lack's consciously failed to exercise due care in
training its lifeguards and staffing the beach. Dr. Griffiths opined that Lack's
breached the standard of care by failing to appropriately train its lifeguards in
compliance with the forty-hour requirement and by understaffing the beach on the
day of the incident with vacant stands and too few LGOs. Moreover, the Franchise
Agreement stated Lack's would "operate a water safety service and beach
concession" on the City's public beaches, and the lifeguards it employed would
"[s]uccessfully complete a course consisting of . . . not less than [forty] hours in
open water life saving which [met] the criteria of the [USLA]." Lack's admitted
the lifeguards involved here missed several training sessions and that it had no
proof the forty hours of training was actually completed. Further, it was
undisputed that Lack's was short staffed on August 24 because it had fewer than
the required number of LGOs on duty, the lifeguard at L-21 was on his lunch
break, and Lack's expected the lifeguards in the neighboring stands approximately
a block away to cover that section. Additionally, we find the jury could infer from
the letters between Lack's and USLA that Lack's knew dual-role lifeguarding was
dangerous and a violation of the national standard of care. Accordingly, we affirm
the denial of the JNOV motion as to this ground.

Based on the foregoing, we affirm the trial court's denial of Lack's directed verdict
and JNOV motions. See RFT Mgmt. Co., 399 S.C. at 332, 732 S.E.2d at 171 ("A
motion for JNOV may be granted only if no reasonable jury could have reached
the challenged verdict." (quoting Gastineau v. Murphy, 331 S.C. 565, 568, 503
S.E.2d 712, 713 (1998))); id. ("An appellate court will reverse the trial court's
ruling only if no evidence supports the ruling below.").

NEW TRIAL ABSOLUTE

"The grant or denial of new trial motions rests within the discretion of the [trial]
court, and its decision will not be disturbed on appeal unless its findings are wholly
unsupported by the evidence, or the conclusions reached are controlled by error of
law." Swicegood v. Lott, 379 S.C. 346, 355-56, 665 S.E.2d 211, 216 (Ct. App.
2008). "This [c]ourt has the duty to review the record and determine whether there
has been an abuse of discretion amounting to an error of law." Vinson, 324 S.C. at
406, 477 S.E.2d at 723-24. "In deciding whether to assess error to a court's denial
of a motion for a new trial, we must consider the testimony and reasonable
inferences to be drawn therefrom in the light most favorable to the nonmoving
party." Id. at 405, 477 S.E.2d at 723.

1. Admission of Evidence
Lack's argues this court should grant a new trial based on the erroneous admission
of unfairly prejudicial evidence—the 2018 sales data, the workers' compensation
testimony, and the evidence regarding USLA certification. Lack's asserts that it
was entitled to a new trial due to "error in the admission of irrelevant,
non-probative and grossly prejudicial evidence that can only be remedied by the
granting of a [n]ew [t]rial [a]bsolute."
"Only relevant evidence is admissible." State v. Hamilton, 344 S.C. 344, 354, 543
S.E.2d 586, 591 (Ct. App. 2001), overruled on other grounds by State v. Gentry,
363 S.C. 93, 610 S.E.2d 494 (2005). "Evidence is relevant if it tends to establish
or make more or less probable some matter in issue upon which it directly or
indirectly bears." Id. "Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury . . . ." Rule 403, SCRE. "To
warrant reversal based on the admission or exclusion of evidence, the appellant
must prove both the error of the ruling and the resulting prejudice . . . ." Vaught v.
A.O. Hardee & Sons, Inc., 366 S.C. 475, 480, 623 S.E.2d 373, 375 (2005).
"Prejudice is a reasonable probability that the jury's verdict was influenced by the
challenged evidence . . . ." Fields v. J. Haynes Waters Builders, Inc., 376 S.C. 545,
557, 658 S.E.2d 80, 86 (2008).

"The admission of evidence is within the sound discretion of the trial [court], and
absent a clear abuse of discretion amounting to an error of law, the trial court's
ruling will not be disturbed on appeal." Vaught, 366 S.C. at 480, 623 S.E.2d at
375. "An abuse of discretion occurs when the ruling is based on an error of law or
a factual conclusion without evidentiary support." Id. However, "[a] trial [court]'s
balancing decision under Rule 403 should not be reversed simply because an
appellate court believes it would have decided the matter otherwise because of a
differing view of the highly subjective factors of the probative value or the
prejudice presented by the evidence." Hamilton, 344 S.C. at 358, 543 S.E.2d at
593-94.

i. 2018 Sales Receipts

Lack's argues the trial court's admission of its gross sales data for all of 2018 was
reversible error entitling it to a new trial. Lack's argues the sales data evidence was
not limited in scope and was not relevant to whether the lifeguards involved were
"engaged in a commercial transaction at the time" of the incident. It argues that
only evidence of net worth is appropriate even in the damages phase of trial.
Lack's contends it was prejudiced because of the "false impression" the evidence
created about Lack's finances.

Although we agree that the admission of the evidence was arguably error due its
broad scope, we find Lack's was not prejudiced by its admission because there was
compelling evidence of Lack's negligence and recklessness, regardless of the sales
receipts. As to Lack's contention that the evidence created a "false impression"
about its finances, we are not convinced the damages award was influenced by this
evidence such that the jury would not have otherwise awarded this amount. We
note that although the sales data was likely irrelevant except for perhaps the week
of the incident, the totals for the day of the drowning show that the lifeguards
engaged in sales while on duty, which lends credibility to the bystander testimony
from Chandler. More importantly in this court's estimation, Abel presented
compelling evidence that Lack's knew its practices were negligent but continued
them for many years; we find this evidence, more than the sales data, influenced
the jury's award.

For example, Dr. Griffiths testified to numerous breaches of the standard of care,
including: (1) requiring lifeguards to sell merchandise and clean the beach in
addition to their lifeguarding duties, (2) providing sub-standard training that did
not comply with the Franchise Agreement or USLA standards, (3) failing to warn
beachgoers of known hazardous conditions or to close the affected sections of the
beach, (4) failing to recognize Wolde as a distressed swimmer, and (5)
understaffing the beach on the day of the drowning. Further, Lack's acknowledged
that the lifeguards involved in this incident missed several hours of training and
that Lack's did not have any records showing the lifeguards had completed any
aspect of their training, as required by the Franchise Agreement. Additionally, it
was undisputed that the lifeguard assigned to the L-21 stand, closest to where
Wolde became distressed, was on his lunch break. The stand was unmanned, there
were no flags displayed at the stand, and the beach in front of it was not closed.
The L-22 lifeguard, one of the lifeguards who was supposed to be covering that
section of beach from approximately one city block away, was seen talking to
people near the "umbrella line" with his back to the water for several minutes
shortly before the incident. Wubit testified her father struggled in the water for ten
to fifteen minutes and during that time no lifeguard came to assist the family; yet,
bystanders on the shore were able to hear the family's cries for help, locate them in
the water, and render aid. Thus, we find there was significant evidence of Lack's
negligent and reckless conduct that contributed to the drowning.

Abel also presented evidence that Wolde was only forty-one years old at the time
of his death, and his survivors included a fiancée and four young children. Wolde
stayed at home with the children and was their primary caregiver, while Abel
worked full-time. Moreover, Wubit offered heartbreaking testimony about what
she witnessed and experienced, including holding onto Wolde and floating on him
like a life preserver as he repeatedly went under the water and resurfaced gasping
for breath.
Further, we note that Lack's presented evidence of its net worth—or lack thereof—
during the damages phase. Therefore, we find the record contains other
compelling evidence such that we find it was unlikely the 2018 sales data evidence
influenced the jury's verdict as to either liability or damages. Thus, we hold that
the admission of this evidence does not entitle Lack's to a new trial because even if
it was error to admit the evidence, Lack's was not prejudiced. See Vaught, 366
S.C. at 480, 623 S.E.2d at 375 ("To warrant reversal based on the admission or
exclusion of evidence, the appellant must prove both the error of the ruling and the
resulting prejudice . . . ." (emphasis added)); Fields, 376 S.C. at 557, 658 S.E.2d at
86 ("Prejudice is a reasonable probability that the jury's verdict was influenced by
the challenged evidence . . . .").

ii. Workers' Compensation Order and Testimony
Lack's asserts the trial court erred in admitting testimony and documentation
involving a workers' compensation proceeding regarding whether Lack's
employees should be classified as lifeguards for purposes of workers'
compensation premiums and that the admission of such evidence warrants a new
trial. It argues this was improper impeachment evidence because the issue in the
2002 proceeding was how often Lack's employees engaged in high-risk
lifeguarding activities like going into the ocean to rescue someone, not what their
job responsibilities were. Thus, Lack's asserts the evidence "only served to
mislead and confuse the jury." We disagree.

"To warrant reversal based on the admission or exclusion of evidence, the
appellant must prove both the error of the ruling and the resulting prejudice . . . ."
Vaught, 366 S.C. at 480, 623 S.E.2d at 375. We find this evidence was relevant to
Abel's overarching theme of the case—Lack's focus on dual-role lifeguarding and
how that focus influenced the actions of its employees. See Hamilton, 344 S.C. at
354, 543 S.E.2d at 591 ("Evidence is relevant if it tends to establish or make more
or less probable some matter in issue upon which it directly or indirectly bears.").
Further, we find this evidence was not unfairly prejudicial and did not mislead the
jury. See Fields, 376 S.C. at 557, 658 S.E.2d at 86 ("Prejudice is a reasonable
probability that the jury's verdict was influenced by the challenged evidence
. . . ."). There was a plethora of testimony regarding the dual-role issue and the
competing responsibilities of the lifeguards. See State v. Taylor, 333 S.C. 159,
172, 508 S.E.2d 870, 876 (1998) ("[T]he materiality and prejudicial character of
the error must be determined from its relationship to the entire case."). Although
Lack's asserted at trial that its employees had "a responsibility to perform lifeguard
duties 100% of the time," the documentation from the workers' compensation
proceeding revealed Lack's took a contrary position in that case and asserted its
employees "perform their beach chair concession duties 99.995% of the time and
that the lifeguard duties only have the potential to be performed 0.0047% of the
time." Further, Lack's owner was cross-examined regarding these statements and
had the opportunity to thoroughly flesh out Lack's contention that its position in
2002 was not inconsistent with its position at trial. See, e.g., State v. Joseph, 328
S.C. 352, 491 S.E.2d 275 (Ct. App. 1997) (explaining discrepancies in testimony
reflect upon the credibility of contested evidence, not its admissibility).
Accordingly, the trial court did not err in admitting this evidence, and we affirm its
denial of a new trial on this issue.

iii. Communications with USLA

Lack's next argues the trial court erred in failing to grant a new trial because it
improperly admitted evidence and testimony regarding Lack's history with USLA,
including correspondence from 1996 and 2007. It asserts Abel's presentation of the
evidence "conflated USLA certification with training in accordance with USLA
standards." It also argues Abel did not produce any evidence that USLA
certification was the applicable standard of care and certification was not required
by the Franchise Agreement. We disagree.

"To warrant reversal based on the admission or exclusion of evidence, the
appellant must prove both the error of the ruling and the resulting prejudice . . . ."
Vaught, 366 S.C. at 480, 623 S.E.2d at 375. We find this evidence was relevant to
whether Lack's was on notice that its dual-role lifeguarding violated an accepted
standard of care in the industry and whether its training complied with the
requirements of the Franchise Agreement, which stated lifeguards must
"[s]uccessfully complete a course consisting of not less than 40 hours in open
water life saving, which [met] the criteria of the [USLA]." See Hamilton, 344 S.C.
at 354, 543 S.E.2d at 591 ("Evidence is relevant if it tends to establish or make
more or less probable some matter in issue upon which it directly or indirectly
bears."). Indeed, we find this evidence was highly relevant to one of the central
issues in the case—Lack's knowledge of the dangers of dual-role lifeguarding. See
State v. Gray, 408 S.C. 601, 610, 759 S.E.2d 160, 165 (Ct. App. 2014) ("[A] court
analyzing probative value considers the importance of the evidence and the
significance of the issues to which the evidence relates."); id. ("The evaluation of
probative value cannot be made in the abstract, but should be made in the practical
context of the issues at stake in the trial of each case."); State v. Bratschi, 413 S.C.
97, 115, 775 S.E.2d 39, 48 (Ct. App. 2015) ("All evidence is meant to be
prejudicial; it is only unfair prejudice which must be avoided." (quoting State v.
Gilchrist, 329 S.C. 621, 630, 496 S.E.2d 424, 429 (Ct. App. 1998))); State v.
Hawes, 423 S.C. 118, 129, 813 S.E.2d 513, 519 (Ct. App. 2018) ("Unfair prejudice
means an undue tendency to suggest a decision on an improper basis." (quoting
State v. Lyles, 379 S.C. 328, 338, 665 S.E.2d 201, 206 (Ct. App. 2008))). We hold
the trial court did not err in admitting this evidence, nor was the evidence unfairly
prejudicial to Lack's, and we affirm the trial court's denial of a new trial on this
issue. See Hamilton, 344 S.C. at 357, 543 S.E.2d at 593 ("A trial [court]'s decision
regarding the comparative probative value and prejudicial effect of evidence
should be reversed only in 'exceptional circumstances.'" (quoting United States v.
Green, 887 F.2d 25, 27 (1st Cir. 1989))).

2. Punitive Damages

Lack's argues the trial court erred in refusing to grant a new trial absolute as a
result of the jury's $7-million-dollar punitive damages award because Abel "did not
identify any willful, wanton, or reckless action by Lack's." It further asserts that
because Lack's presented evidence that it had a negative net worth, the punitive
damages award amounts to "economic bankruptcy" and demonstrates the jury had
an improper motive. 6 We disagree.

"The trial court has sound discretion when addressing questions of excessiveness
or inadequacy of verdicts, and its decision will not be disturbed absent an abuse of
discretion." Dillon v. Frazer, 383 S.C. 59, 63, 678 S.E.2d 251, 253 (2009). "When
considering a motion for a new trial based on the inadequacy or excessiveness of
the jury's verdict, the trial court must distinguish between awards that are merely

6
Lack's also argues it is entitled to a new trial because the trial court erred by
permitting the issue of recklessness to be tried during the liability phase of the trial,
and its requested instructions on bifurcation were rejected. However, Lack's
acknowledges it "agreed to a verdict form containing a finding of whether Lack's
had been 'reckless' in the first phase." It nonetheless contends the trial court should
have instructed the jury of the consequence of such a finding—i.e., that a second
phase of the trial would follow. We hold this issue is not preserved for this court's
review because Lack's consented to the jury determining recklessness during the
first phase of the trial. Further, Lack's cites no support for its contention that the
jury was required to be instructed that a finding of recklessness would result in a
second phase of trial to assess whether Abel was entitled to punitive damages. See
Mead v. Beaufort Cnty. Assessor, 419 S.C. 125, 139, 796 S.E.2d 165, 172-73 (Ct.
App. 2016) ("When an appellant provides no legal authority regarding a particular
argument, the argument is abandoned and the court can decline to address the
merits of the issue.").
unduly liberal or conservative and awards that are actuated by passion, caprice,
prejudice, or some other improper motive." Id. at 64, 678 S.E.2d at 253. "The trial
court must set aside a verdict only when it is shockingly disproportionate to the
injuries suffered and thus indicates that passion, caprice, prejudice, or other
considerations not reflected by the evidence affected the amount awarded." Welch
v. Epstein, 342 S.C. 279, 302, 536 S.E.2d 408, 420 (Ct. App. 2000). "In other
words, to warrant a new trial absolute, the verdict reached must be so 'grossly
excessive' as to clearly indicate the influence of an improper motive on the jury."
Becker v. Wal-Mart Stores, Inc., 339 S.C. 629, 635, 529 S.E.2d 758, 761 (Ct. App.
2000) (quoting Rush v. Blanchard, 310 S.C. 375, 379, 426 S.E.2d 802, 805
(1993)).

"The issue of punitive damages must be submitted to the jury if more than one
reasonable inference can be drawn from the evidence as to whether the defendant's
behavior was reckless, willful, or wanton." Welch v. Epstein, 342 S.C. 279, 301,
536 S.E.2d 408, 419 (Ct. App. 2000). Further, "the 'economic bankruptcy ' factor
is not an absolute bar to the imposition of punitive damages in South Carolina."
Id. at 309, 536 S.E.2d at 424.

As discussed throughout this opinion, we find there was plentiful evidence that
Lack's repeatedly and knowingly breached the standard of care for professional
lifeguards in multiple ways; thus, we find there was sufficient evidence to submit
the issue of punitive damages to the jury. Other than unsupported assertions that
the size of the award alone indicates an impropriety, Lack's points to no evidence
of any improper motive or prejudice by the jury. Thus, we affirm the trial court as
to this issue.

3. Survival Award

Lack's next contends the trial court should have granted its motion for a new trial
because of insufficient evidence of conscious pain and suffering and because the
$3.73 million survival award was so excessive that it "demonstrated the jury's
motivations of passion and prejudice." It cites to five cases from around the
country between 1978-2021, none of which awarded an amount (adjusted for
inflation) higher than $135,000, and one of which awarded $0. 7 This list is, of
course, not exhaustive and not persuasive. A more recent South Carolina case held

7
As to Lack's arguments regarding the evidence of conscious pain and suffering,
we have thoroughly addressed that issue, supra, and for the same reasons, we
affirm the trial court on this ground.
that a new trial absolute was not warranted in a medical negligence action in which
the jury awarded $1.2 million in actual damages. See Hamilton v. Reg'l Med. Ctr.,
440 S.C. 605, 637-38, 891 S.E.2d 682, 699-700 (Ct. App. 2023), cert. denied, S.C.
Sup. Ct. order filed May 1, 2024. In that case, the hospital argued "little testimony
was given regarding any pain and suffering" and "the size of the verdict alone
[was] sufficient to show that the jury must have been moved by passion or
prejudice. Id. at 637, 891 S.E.2d at 699. Our court rejected those contentions,
noting that "appellate courts give great deference to the trial court because the trial
court 'possesses a better-informed view of the damages than' [the] appellate court."
Id. at 638, 891 S.E.2d at 700 (quoting Vinson, 324 S.C. at 405-06, 477 S.E.2d at
723)). Accordingly, we affirm. 8 See Scott v. Porter, 340 S.C. 158, 170, 530
S.E.2d 389, 395 (Ct. App. 2000) ("Appropriate damages in survival actions include
those for medical, surgical, and hospital bills, conscious pain, suffering, and mental
distress of the deceased."); Mims v. Florence Cnty. Ambulance Serv. Comm'n, 296
S.C. 4, 7, 370 S.E.2d 96, 99 (Ct. App. 1988) ("The amount of damages a jury may
award for physical pain and suffering and for mental pain and suffering is

8
Lack's raised several other issues that are not preserved for our review. First,
Lack's argues the trial court improperly denied its motion for a new trial because of
the jury's alleged confusion over the applicability of the mortality tables to the
survival award. Lack's asserts that the trial court "mischaracterized" its position in
its order on the post-trial motions, which found Lack's failed to timely object.
However, Lack's did not file a Rule 59(e) motion as to that order, and therefore, its
argument is not preserved for our review as it never obtained a ruling on the
merits. See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d
716, 724 (2000) ("If the losing party has raised an issue in the lower court, but the
court fails to rule upon it, the party must file a motion to alter or amend the
judgment in order to preserve the issue for appellate review."); Nelums v. Cousins,
304 S.C. 306, 307, 403 S.E.2d 681, 681-82 (Ct. App. 1991) (explaining an issue
was not preserved for appellate review because "the trial court was never afforded
the opportunity to rule on the clarity of its order" when the appellant failed to file a
Rule 59(e) motion). Next, Lack's argues the trial court erred in failing to grant a
new trial on the wrongful death claim because the award was excessive and the
"return of a verdict even higher than what [Abel]'s counsel suggested"
demonstrated the improper motives of the jury. We hold this issue was abandoned
as Lack's does not cite any authority, or even to the record, to support its argument.
See Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691
(Ct. App. 2001) (holding that "short, conclusory statements made without
supporting authority are deemed abandoned on appeal and therefore not presented
for review").
incapable of exact measurement and is therefore left for determination by the
jury.").

POST-JUDGMENT REVIEW OF PUNITIVE DAMAGES

Lack's asserts the trial court erred in upholding the jury's award of punitive
damages. We disagree.

"While states possess discretion over the imposition of punitive damages, it is well
established that there are procedural and substantive constitutional limitations on
these awards." State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416
(2003). "To the extent an award is grossly excessive, it furthers no legitimate
purpose and constitutes an arbitrary deprivation of property." Id. at 417. In
determining the constitutionality of an award of punitive damages, appellate courts
must consider: "(1) the degree of reprehensibility of the defendant's conduct; (2)
the disparity between the actual and potential harm suffered by the plaintiff and the
punitive damages award; and (3) the difference between the punitive damages
awarded by the jury and the civil penalties authorized or imposed in comparable
cases." Mitchell, Jr. v. Fortis Ins. Co., 385 S.C. 570, 585, 686 S.E.2d 176, 184
(2009) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996)). "In sum,
courts must ensure that the measure of punishment is both reasonable and
proportionate to the amount of harm to the plaintiff and to the general damages
recovered." Campbell, 538 U.S. at 426.

"[O]ur appellate courts must conduct a de novo review when evaluating the
constitutionality of a punitive damages award." Mitchell, 385 S.C. at 583, 686
S.E.2d at 183. However, this does not mean this court "conduct[s] a de novo
review of the jury's determination of the proper amount to award as punitive
damages." Hollis v. Stonington Dev., LLC, 394 S.C. 383, 405, 714 S.E.2d 904, 915
(Ct. App. 2011). Thus, "[i]f we find the jury's award unconstitutionally excessive,"
we may not substitute our own judgment and "set the amount we believe to
appropriate." Id. at 405, 714 S.E.2d at 915. Instead, "we may reduce it only to the
upper limit of what would be acceptable under due process." Id.

1. Reprehensibility

Lack's argues its conduct was not reprehensible and that four of the five factors
that courts must examine in determining reprehensibility weigh in its favor.

Courts reviewing a punitive damages award should first "consider the degree of
reprehensibility of the defendant's conduct." Mitchell, 385 S.C. at 587, 686 S.E.2d
at 185. "Reprehensibility is '[p]erhaps the most important indicium of the
reasonableness of a punitive damages award.'" Id. (quoting Gore, 517 U.S. at
565). In analyzing the reprehensibility factor,
a court should consider whether: (i) the harm caused was
physical as opposed to economic; (ii) the tortious conduct
evinced an indifference to or a reckless disregard for the
health or safety of others; (iii) the target of the conduct had
financial vulnerability; (iv) the conduct involved repeated
actions or was an isolated incident; and (v) the harm was
the result of intentional malice, trickery, or deceit, rather
than mere accident.

Id. at 587, 686 S.E.2d at 185.
We find that these factors indicate a moderate degree of reprehensibility. First, it
is undisputed that the harm in this case was physical—indeed, it resulted in the
complete loss of Wolde's life. Second, as discussed above, there is evidence to
support a finding that Lack's acted with indifference or recklessness in disregarding
the safety of others through its inadequate training, the use of dual-role lifeguards,
and its understaffing on the day of the incident. Moreover, we find the conduct at
issue here involved repeated actions by Lack's. Testimony indicated Lack's
practiced dual-role lifeguarding for many years and routinely understaffed the
beach, particularly during lunch hours when lifeguards in neighboring stands were
expected to cover additional area for those on their lunch break. See Gore, 517
U.S. at 577 ("Our holdings that a recidivist may be punished more severely than a
first offender recognize that repeated misconduct is more reprehensible than an
individual instance of malfeasance."); TXO Prod. Corp. v. All. Res. Corp., 509
U.S. 443, 462 n.28 (1993) (noting that courts should look to "the existence and
frequency of similar past conduct" in determining whether an award was excessive
(quoting Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21-22 (1991))). We
therefore affirm the trial court's finding that the reprehensibility factor was
satisfied.9

9
Lack's also argues the trial court should have considered the remaining factors
articulated in Gamble v. Stevenson. See 305 S.C. 104, 111-12, 406 S.E.2d 350,
354 (1991) ("[T]o ensure that a punitive damage award is proper, the trial court
shall conduct a post-trial review and may consider the following: (1) defendant's
degree of culpability; (2) duration of the conduct; (3) defendant's awareness or
concealment; (4) the existence of similar past conduct; (5) likelihood the award
2. Ratio of Punitive Damages to Actual Damages

Lack's acknowledges that the ratio factor is less than 1:1 in this case, but it argues
this factor alone "cannot be used to justify excessive punitive damages when the
actual damages award is excessive." We find this factor supports the
constitutionality of the punitive damages award.

The second factor courts should consider in reviewing a punitive damages award is
"the disparity between the actual or potential harm suffered by the plaintiff and the
amount of the punitive damages award." Mitchell, 385 S.C. at 587-88, 686 S.E.2d
at 185. "The ratio of actual or potential harm to the punitive damages award is
'perhaps the most commonly cited indicium of an unreasonable or excessive
punitive damages award.'" Id. at 588, 686 S.E.2d at 185 (quoting Gore, 517 U.S.
at 580). "[I]n practice, few awards exceeding a single-digit ratio between punitive
and compensatory damages, to a significant degree, will satisfy due process."
Campbell, 538 U.S. at 425.

Here, the jury awarded approximately $13 million in compensatory damages and
$7 million in punitive damages; thus, the punitive damages award is just over half
of the compensatory award, well within Campell's "single-digit ratio." See id.
Overall, we hold the Mitchell and Gore factors weigh in favor of the
constitutionality of the punitive damages award, and we affirm the trial court as to
this issue. 10 11

will deter the defendant or others from like conduct; (6) whether the award is
reasonably related to the harm likely to result from such conduct; (7) defendant's
ability to pay; and finally, (8) . . . 'other factors' deemed appropriate."). However,
the Mitchell court expressly held "that Gamble remains relevant to the
post-judgment due process analysis . . . only insofar as it adds substance to the
Gore guideposts." 385 S.C. at 587, 686 S.E.2d at 185. We find the analysis set
forth in Mitchell and Gore is sufficient in this instance.
10
The parties appear to agree that there are no directly comparable civil penalties
or cases. Thus, this factor is neutral regarding the constitutionality of the punitive
damages award. See Mitchell, 385 S.C. at 588, 686 S.E.2d at 186 ("Third, the
court should consider the difference between the punitive damages awarded by the
jury and the civil penalties authorized or imposed in comparable cases.").
11
Lack's also argues the trial court failed to consider all of the factors required by
section 15-32-520(E) of the South Carolina Code (Supp. 2024). We note that
CONCLUSION

Based on all of the foregoing, the judgment of the trial court is AFFIRMED.

WILLIAMS, C.J., and GEATHERS, J., concur.

Lack's filed a Rule 59(e) motion regarding the trial court's November 28, 2022
Order on Post-Trial Review of Punitive Damages Award and raised this issue;
however, there is no order ruling on that motion in the record and it is unclear
whether one was ever issued or if the motion remains pending in the trial court.
Accordingly, we decline to address this issue. See Matter of Est. of Moore, 435
S.C. 706, 715-16, 869 S.E.2d 868, 872-73 (Ct. App. 2022) (noting the appellant
"bears the burden of providing a sufficient record on appeal from which this court
can make an intelligent review" and declining to address an issue for which the
appellant failed to include relevant documents in the record).