Smith v. SC Department of Transportation

THIS OPINION HAS NO PRECEDENTIAL
VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT
AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Joyce Smith and Brenda L. Warren Brown, as Personal Representatives of
the Estate of Christopher Bernard Smith,       
Appellants,

v.

The South Carolina Department of Transportation, an Agency of the State
of South Carolina, and William P. Cannington,       
Defendants,

of whom William P. Cannington is       
Respondent.

Appeal From Aiken County

Robert A. Smoak, Jr., Special Circuit
Court Judge

Unpublished Opinion No. 2004-UP-190

Submitted March 8, 2004- Filed March
22, 2004   

AFFIRMED

James H. Moss, of Beaufort, for Appellants.

Robin A. Braithwaite, of Aiken, for Respondent.

PER CURIAM: Joyce Smith and Brenda L. Warren
Brown, as personal representatives of the Estate of Christopher Bernard Smith
(“the Estate”), commenced this wrongful death action against the South Carolina
Department of Transportation (“SCDOT”) and William P. Cannington.  In this appeal,
the Estate argues the trial court erred in granting summary judgment to Cannington
and in finding insufficient evidence existed for the submission of a conscious
pain and suffering claim against Cannington.  We affirm. [1]

FACTS

This case arose out of an automobile
accident, which occurred on November 10, 1997.  Christopher Bernard Smith (“the
Decedent”) drove a tractor-trailer from Jasper County, South Carolina to Augusta,
Georgia where he picked up a load of fertilizer.  As he was returning to Ridgeland,
South Carolina along Highway 278 in Aiken County, he encountered a detour, which
routed him off Highway 278 and onto a series of secondary roads.   

SCDOT created the detour due to construction on
the closed portion of Highway 278.  The detour eventually led travelers to DeSoto
Road, which intersects back into Highway 278 at a T-type intersection.  Travelers
on DeSoto Road encountered a steep downgrade for a short distance prior to the
intersection with Highway 278.  For unknown reasons, the Decedent failed to
stop when he reached the intersection, and as he turned the tractor-trailer
to the right and onto the highway, it overturned resulting in his death. 

Following the accident, the Estate commenced wrongful
death and conscious pain and suffering actions against SCDOT and William P.
Cannington.  The Estate alleged SCDOT was negligent in several particulars related
to the detour.  For example, the Estate averred SCDOT was negligent in its failure
to erect proper signs warning travelers of the T-type intersection at DeSoto
Road and Highway 278.  

As to Cannington, the owner of the tractor-trailer
the Decedent was operating at the time of the accident, the Estate alleged inter
alia that he was negligent in failing to provide a vehicle in suitable
mechanical condition, and that this failure caused or contributed to the Decedent’s
death. 

On April 26, 2001, SCDOT moved for summary judgment
on the Estate’s cause of action for conscious pain and suffering.  On May 22,
2002, the trial court issued an order granting SCDOT’s motion, stating that
no issue of material fact existed which would establish that the Decedent was
conscious prior to his death.  Following the grant of summary judgment, the
Estate and SCDOT reached a settlement, and thus, SCDOT is no longer a party
to this action. 

Cannington moved for complete summary
judgment on April 4, 2002, arguing no evidence rising beyond mere speculation
was presented that the vehicle was in an unsafe condition.  On June 18, 2002,
the trial court granted Cannington’s motion.  The Estate filed motions to alter
or amend; those motions were denied by order dated August 16, 2002. 

LAW/ANALYSIS

The Estate argues the trial court erred
in granting summary judgment to Cannington.  We disagree.

“In reviewing the grant of a summary judgment motion,
this Court applies the same standard which governs the trial court under Rule
56(c), SCRCP.”  Fisher v. Stevens, 355 S.C. 290, 294, 584 S.E.2d 149,
151 (Ct. App. 2003) (citing Baughman v. Am. Tel. & Tel. Co., 306
S.C. 101, 410 S.E.2d 537 (1991)). Accordingly, summary judgment is appropriate
when “‘there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.’”  Id. (quoting Rule
56(c), SCRCP).  “In determining whether any triable issue of fact exists, as
will preclude summary judgment, the evidence and all inferences which can be
reasonably drawn therefrom must be viewed in the light most favorable to the
nonmoving party.”  McNair v. Rainsford, 330 S.C. 332, 341, 499 S.E.2d
488, 493 (Ct. App. 1998).

Thus, an issue must be submitted to a
jury when material evidence exists tending to establish the point in the minds
of reasonable jurors.  Hurd v. Williamsburg County, 353 S.C. 596, 609,
579 S.E.2d 136, 142-143 (Ct. App. 2003).  However, this does not mean an issue
must be presented to a jury if the presentation rests on “speculative, theoretical
and hypothetical” views.  Id.  This is part and parcel of the firmly
established rule that “verdicts may not be permitted to rest upon surmise, conjecture
or speculation.”  Small v. Pioneer Machinery, Inc., 329 S.C. 448, 461,
494 S.E.2d 835, 841 (Ct. App. 1997); see also Hanahan v. Simpson,
326 S.C. 140, 149, 485 S.E.2d 903, 908 (1997).
[2]

The Estate points to eleven specific factors
the trial court failed to consider when granting Cannington’s summary judgment
motion.  However, only three of the eleven are even arguably relevant in making
the determination of whether something was wrong with Cannington’s vehicle. 
The Estate mentions the presence of skid marks showing the Decedent’s attempt
to make the turn, the speed at which the Decedent was attempting to make the
turn, and the fact that the brakes on the right side of the trailer “should
have loaded if, in fact, they were working.”  The Estate also points out that
the trial court failed to mention that the vehicle had brake problems. 

Although it is true the trial court did
not specifically state that the vehicle had previous brake problems, the court
does acknowledge that the vehicle passed the required safety inspection within
one year of the accident.  The trial court also noted that preventive maintenance
had been performed on the vehicle’s braking system in the weeks prior to the
accident.  In addition, Lonnie Grant, the mechanic who performed the maintenance
on the vehicle, testified he drove the truck the week he worked on it and that
it “[drove] good.”  It is also important to note, as the trial court did, that
the only person who inspected the actual vehicle, Officer Richard Todd Sawyer
of the South Carolina State Transport Police, testified that his visual inspection
of the vehicle produced no evidence from which it might be inferred that the
brakes were not working properly. 

The Estate points to the deposition testimony
of two accident reconstruction experts, Joe Wade Kent and Ronald Kirk, to support
its contention that something was wrong with the vehicle’s brakes.  However,
neither of these experts states with any reasonable degree of certainty that
the brakes were inoperable or contributed to causing the accident.  In fact,
Kent testified that “one of the possibilities and fairly likely probabilit[ies]
is that during the time the driver was trying to make this right turn he was
not on the brakes, that he was just trying to make the turn.”  His point was
not that the brakes were never applied, but that no physical evidence of braking
existed.  When specifically asked whether he could say with a reasonable degree
of “engineering certainty” that the brakes had anything to do with the accident,
Kent replied as follows: “I don’t think I could really state it anymore explicitly
than I already have.  There are [three] possible causes, and it could be any
one or any combination to [sic] any percentage of those [three].” 

Similarly, Kirk testified that he could
not state “to a reasonable degree of engineering certainty that there was anything
wrong with the truck brakes.”  When asked whether he had formed any opinions
within a reasonable degree of certainty as to the cause of the accident, Kirk
stated: “What led to [the accident], I don’t know.  Whether it was a braking
deficiency, whether its inattention, some combination, whether he didn’t see
the stop sign soon enough, I just don’t know.  Or whether some third vehicle
may have been somehow responsible.  I just don’t know all that.” 

Thus, because no evidence existed which
rose beyond conjecture or speculation that the brakes on the vehicle were defective,
we find the trial court did not err in granting Cannington summary judgment. [3]       

Accordingly, the trial court’s grant of summary judgment in favor
of Cannington is

AFFIRMED.

HEARN, C.J., ANDERSON and BEATTY,
JJ., concur.

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.

[2] The Estate appears to argue that the adoption of comparative negligence
has somehow changed the standard for the grant or denial of a motion for summary
judgment.  As is apparent by the cases relied on in the preceding paragraph,
however, this argument is without merit.

[3] Because we find the trial court did not err in
granting Cannington’s motion for complete summary judgment, we need not address
the Estate’s argument regarding the Decedent’s conscious pain and suffering.