Doretta McHugh v. John Doe

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Doretta McHugh, as Personal Representative of the
Estate of Daniel E. Coy, Appellant,

v.

John Doe, Respondent.

Appellate Case No. 2020-000757

Appeal From Berkeley County
Deadra L. Jefferson, Circuit Court Judge

Unpublished Opinion No. 2023-UP-347
Heard September 13, 2023 – Filed October 25, 2023

AFFIRMED

Daniel Carson Boles, of North Charleston, for Appellant.

Michael T. Coulter, of Clarkson, Walsh & Coulter, P.A.,
of Greenville, and Michelle N. Endemann, of Charleston,
both for Respondent.

PER CURIAM: Doretta McHugh, personal representative of the Estate of Daniel
Coy (the Estate), appeals a jury verdict in favor of John Doe, a possible
unidentified driver who left the scene of an accident involving her late son, Daniel
Coy. 1 McHugh argues the circuit court erred in (1) admitting evidence of Coy's
preexisting condition and prior motorcycle fall, and (2) denying the Estate's
motions for a directed verdict and for judgment notwithstanding the verdict
(JNOV). We affirm.

Facts and Procedural History

Coy was injured in a motorcycle accident while on his way to work the night shift
at a Berkeley County Circle K. Coy was in the turn lane preparing to turn into the
store parking lot when he suddenly felt a jerk. Although he tried to stop, he flew
over his handlebars and his motorcycle rolled over him. Initially, Coy believed his
"bike had seized up"; however, witnesses later told him he had been struck by
another vehicle. Coy testified in his deposition that he got off the ground as fast as
he could because he was still in the middle of the road near the turn lane. He did
not see or hear a vehicle behind him because he was "too busy paying attention to
the turn" into the parking lot. He noticed other vehicles in the lane beside him, but
not behind him.

Law enforcement and EMS responded to the scene, but Coy did not immediately
seek treatment. He suffered injuries to his left foot, road rash on several areas of
his body, and a scar where his glasses struck his face. Coy missed one shift at
Circle K and his motorcycle was totaled in the accident; he was without
transportation for three weeks until he could save for the down payment on a new
motorcycle. Coy's insurer, Progressive Insurance Company (Insurer), paid $10,500
for the damaged motorcycle.

Coy later filed a John Doe complaint alleging an unidentified defendant caused his
accident. Insurer appeared as Coy's uninsured motorist carrier and timely
answered on behalf of John Doe. Because Coy passed away before trial, the circuit
court allowed portions of his deposition to be read into evidence.

Coy's coworker, Aimee Goblet, testified that she witnessed the accident. Goblet
heard the motorcycle, went to the store's door, and saw "a car coming up behind
him rather fast" as Coy slowed down to turn into the parking lot. She explained
that Coy made a wide turn into the parking lot but never veered from his turning
lane. Goblet heard a screech and an impact—and claimed she saw the car hit Coy
from behind, causing him to be thrown from the bike—before the car went around
him and turned into a neighborhood. Goblet noted she saw Coy's turn signal was

1
Sadly, Coy died in a subsequent motorcycle accident.
on and was able to witness these events from inside the Circle K. She further
testified that when she rushed over to help Coy get out of the road, he was not
moving and appeared to be unconscious. Goblet and her daughter pulled Coy out
of the road, two men helped with his bike, and Coy then began moving around and
talking. Although Coy wanted to stay and work his shift, he was sent home
because he could not tell Goblet what day it was or identify the location where they
were working.

Goblet's daughter, Malea Ward, was at the Circle K that night to pick up her
mother. As Coy was running late, Ward was outside watching the road for him
when she noticed a black car getting "closer and closer behind him as if they were
trying to intimidate him to go faster." Ward saw the car hit the back of Coy's
motorcycle; Coy then "flew off the bike" over his handlebars before landing in the
road on the line between the turn lane and the adjacent lane. Ward's trial and
deposition testimony conflicted as to where the fleeing vehicle went as it left the
gas station.

Ward was unable to see the driver of the car due to the glare of the street lights and
the car's tinted windows. She admitted she was also unable to see the point of
contact between the car and Coy's motorcycle from where she was standing. Ward
further admitted she could not see a point of contact between the vehicles, but she
saw the car get very close to the motorcycle "where I would think that it was
touching the motorcycle when I saw the back tire stop." Because Ward was unsure
whether her mother witnessed the accident, she went inside the store to ask her to
call 911. According to Ward, Goblet was standing behind the counter inside the
Circle K—not at the door.

Doretta McHugh described her son's injuries and identified pictures of his damaged
motorcycle, noting damage to the rear license plate area, tail light, seat, and
handlebars. On cross-examination, McHugh admitted her son "had his doubts"
about whether another vehicle struck him from behind or whether "his motorcycle
had seized up."

After the defense called no witnesses and rested, the Estate moved for a directed
verdict, arguing the uncontroverted testimony was that John Doe was driving
aggressively behind Coy and caused the accident. Doe's counsel responded,
referencing Coy's deposition admission that he initially believed his motorcycle
had seized up and did not realize he had been struck by a vehicle. The circuit court
denied the Estate's motion, finding questions of fact for the jury remained.
The jury found for the defendant. The Estate moved for judgment notwithstanding
the verdict (JNOV), alleging "there must have been some confusion on that jury
verdict form, confusion of the facts in the case, but the only reasonable inference
was that liability lies with the defendant." The circuit court denied this motion,
finding two theories of the case were presented, the jury may have chosen to
disbelieve the Estate's witnesses due to their relationships with Coy, and sufficient
evidence supported the jury's verdict.

The circuit court denied the Estate's subsequent Rule 59(e), SCRCP, motion and
motion for a new trial. The circuit court noted that although the Estate argued it
was entitled to a new trial under Rule 404, SCRE, the Estate did not present any
specific Rule 404 arguments at trial. The Estate filed another motion to reconsider
as to this post-trial order; the circuit court denied this motion as well.

I. Admission of Evidence of Coy's Preexisting Condition

The Estate argues the circuit court erred in admitting into evidence Coy's
deposition testimony regarding his prior fall from a motorcycle. The Estate
contends that because it did not place Coy's character or habit at issue, the evidence
should have been excluded under Rule 404, SCRE. The Estate further asserts
evidence of the prior fall was inadmissible under Rule 403, SCRE. We disagree.

Prior to trial, the circuit court addressed issues regarding the deposition excerpts,
including the Estate's objection to the following testimony in which Coy
volunteered information about his prior motorcycle training accident:

Q. Do you care—after we get through taking your
deposition, do you mind me taking a photograph of your
scar?

A. Sure. Sure. Sure. And it's not as frequent, but I still
get headaches from time to time because I also had a
minor fall with my bike where—it was where we were
practicing the training on motorcycle training where
you're moving along, and then basically flipping the bike
or flipping yourself off the bike, and I messed up and
went off the bike to the side and landed on my head with
a helmet on, but the accident six weeks later or whatever,
I basically incurred two concussions within principally
two months.
Q. So the other event was six weeks earlier?

A. Yes. At the motorcycle training course.

Coy further admitted he had experienced constant headaches since the training
accident.

As to whether the circuit court erred in admitting evidence of Coy's prior accident
under Rule 404, we note no Rule 404, SCRE, evidence was elicited by the defense.
Coy discussed the prior accident and headaches in response to a question about his
scarring and noted he still had headaches from the recent training fall. Whether
Coy had preexisting headaches was obviously relevant to his damages claim here.
Thus, we find the circuit court did not abuse its discretion in admitting this
deposition testimony because it was offered to establish the preexisting (and
continuing) headaches caused by the training accident. We further find the Rule
403 and opening statement arguments relating to this testimony are not preserved
for our review. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733
(1998) ("It is axiomatic that an issue cannot be raised for the first time on appeal,
but must have been raised to and ruled upon by the trial judge to be preserved for
appellate review.").

In the challenged portion of his closing argument, Doe argued, "[Coy] said, I've
got—there was some damages regarding pain and suffering for headaches. And
how is it that he—then you heard about the situation where six weeks before he is
turning and braking and making a maneuver on the bike and flies off and hits his
head." The circuit court sustained the Estate's objection here and instructed the
jury to "disregard counsel's last comment." Thus, this issue is not preserved for
review. See State v. Wilson, 389 S.C. 579, 583, 698 S.E.2d 862, 864 (Ct. App.
2010) ("[A]s the law assumes a curative instruction will remedy an error, failure to
accept such a charge when offered, or failure to object to the sufficiency of that
charge, renders the issue waived and unpreserved for appellate review.").

II. Motions for Directed Verdict and JNOV

The circuit court properly denied the Estate's motions for directed verdict and
JNOV because more than one inference can be drawn from the evidence presented
at trial. See Est. of Carr ex rel. Bolton v. Circle S Enters., Inc., 379 S.C. 31, 38,
664 S.E.2d 83, 86 (Ct. App. 2008) ("In ruling on a motion for directed verdict, the
trial court is required to view the evidence and the inferences that reasonably can
be drawn therefrom in the light most favorable to the party opposing the motion
and to deny the motion when either the evidence yields more than one inference or
its inference is in doubt."); Bass v. S.C. Dep't of Soc. Servs., 414 S.C. 558, 570, 780
S.E.2d 252, 258 (2015) (reiterating that on appeal, a jury's verdict "must be upheld
unless no evidence reasonably supports the jury's findings. Moreover, neither an
appellate court nor the trial court has authority to decide credibility issues or to
resolve conflicts in the testimony or the evidence." (citation omitted) (quoting
Curcio v. Caterpillar, Inc., 355 S.C. 316, 320, 585 S.E.2d 272, 274 (2003))).

There were numerous inconsistencies in Goblet, Ward, and Coy's testimonies. For
example, Coy testified, "I picked myself up off the ground" while Goblet testified
Coy seemed unconscious when she and Ward pulled him from the road. And, Coy
noted he saw vehicles in the lane beside him, but not behind him, yet Ward
claimed to see a vehicle right behind Coy that was louder than his motorcycle.
Perhaps more significantly, although Goblet claimed she was at the store door and
actually saw the accident, Ward testified Goblet was still behind the counter when
she ran inside to ask her to call 911. Other inconsistences and evidence in the
record provide further support for the circuit court's rulings.

Because the evidence presented more than one reasonable inference as to whether
the negligence of a John Doe driver caused Coy's accident, the circuit court
properly submitted the case to the jury and correctly denied the Estate's post-trial
motions.

AFFIRMED.

MCDONALD and VINSON, JJ., and LOCKEMY, A.J., concur.