Woodward v. Norfolk Southern

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

Stella Woodward, Appellant,

v.

Norfolk Southern Corporation and Norfolk Southern
Railway Company, Mike Ford, Benjamin Aiken, and
James Thornton, Defendants,

Of Which Norfolk Southern Corporation and Norfolk
Southern Railway Company are the Respondents.

Appellate Case No. 2010-173687

Appeal From Aiken County
Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2012-UP-638
Heard November 13, 2012 – Filed December 5, 2012

AFFIRMED

Stephen P. Groves, Sr., and Paul A. Dominick, both of
Nexsen Pruet, LLC, of Charleston, for Appellant.

Ronald K. Wray, II, and Stephanie G. Flynn, both of
Gallivan, White & Boyd, P.A., of Greenville, for
Respondents.
PER CURIAM: This appeal arises out of Appellant Stella Woodward's
negligence claim against Respondents Norfolk Southern Corporation and Norfolk
Southern Railway Company (collectively "Norfolk Southern"). The trial court
granted Norfolk Southern's motion for summary judgment. On appeal, Woodward
argues she presented sufficient evidence to demonstrate a genuine issue of material
fact that (1) Norfolk Southern owed Woodward a duty of care, (2) Woodward's
person and property were damaged by chlorine gas, and (3) Norfolk Southern's
negligence was the proximate cause of Woodward's vehicle damages, yard
vegetation damages, personal injuries, and inconvenience damages. We affirm.

1. As to whether Woodward sustained vehicle damages, yard vegetation damages,
and personal injuries, we find Woodward failed to produce a scintilla of evidence
to withstand summary judgment. See Rule 56(c), SCRCP (noting summary
judgment is appropriate when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law"); Prince v. Liberty Life Ins. Co., 390 S.C.
166, 169, 700 S.E.2d 280, 282 (Ct. App. 2010) ("In determining whether a genuine
issue of fact exists, the evidence and all reasonable inferences from it must be
viewed in the light most favorable to the nonmoving party."); Rule 56(e), SCRCP
("When a motion for summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue for trial."); Hall v. Fedor,
349 S.C. 169, 175, 561 S.E.2d 654, 657 (Ct. App. 2002) ("Our appellate courts
have interpreted Rule 56(e) to mean materials used to support or refute a motion
for summary judgment must be those which would be admissible in evidence.");
Bailey v. Segars, 346 S.C. 359, 366, 550 S.E.2d 910, 913 (Ct. App. 2001) ("To
establish a cause of action for negligence, a plaintiff must prove the following
three elements: (1) a duty of care owed by defendant to plaintiff; (2) breach of that
duty by a negligent act or omission; and (3) damages proximately resulting from
the breach of duty."). As to vehicle damages, Woodward produced a receipt from
Back 2 Basics service company for a car wash and cleaning with a handwritten
note stating the cleaning was "due to chlorine evidence on car." No affidavit or
other authentication accompanied the receipt and, thus, the receipt was not
admissible evidence to create a genuine issue of material fact. See Rule 901(a),
SCRE ("The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims."). As to yard vegetation
damages, Woodward proffered as evidence her own speculative assertion that
chlorine gas came in the direction of her property, located approximately 3.75
miles away from the site of derailment. See Strickland v. Madden, 323 S.C. 63, 68,
448 S.E.2d 581, 584 (Ct. App. 1994) ("[A]n adverse party may not rely on the
mere allegations in his pleadings to withstand a summary judgment motion, but
must set forth specific facts showing there is a genuine issue for trial.").
Additionally, Woodward offered her hearsay testimony that TrueGreen lawn
service employees determined the vegetation had been affected by chlorine. See
Rule 802, SCRE ("Hearsay is not admissible except as provided by these rules or
by other rules prescribed by the Supreme Court of this State or by statute."); Hall,
349 S.C. at 175, 561 S.E.2d at 657 (holding "materials used to support or refute a
motion for summary judgment must be those which would be admissible in
evidence"). As to personal injuries, at the summary judgment hearing,
Woodward's counsel affirmatively indicated the record lacked evidence from a
medical standpoint that Woodward's injuries were more likely than not the
proximate result of chlorine exposure. See TNS Mills, Inc. v. S.C. Dep't of
Revenue, 331 S.C. 611, 617, 503 S.E.2d 471, 474 (1998) (finding "[a]n issue
conceded in the lower court may not be argued on appeal"). The trial court relied
on the concession of Woodward's counsel in its order granting summary judgment.
Moreover, Woodward's counsel did not file a motion to alter or amend the order.
See Grant v. S.C. Coastal Council, 319 S.C. 348, 356, 461 S.E.2d 388, 392 (1995)
(holding that an inaccuracy in the trial court's order must be raised to the trial court
by way of a Rule 59(e) motion to alter or amend the judgment). Because
Woodward failed to present a scintilla of evidence that she incurred vehicle
damages, yard vegetation damages, or personal injuries, her negligence cause of
action fails as a matter of law. See Rule 220(c), SCACR ("The appellate court may
affirm any ruling, order, decision or judgment upon any ground(s) appearing in the
Record on Appeal.").

2. Because Woodward's claims for personal injuries and property damages fail, we
find she also failed to establish the requisite connection to physical damages to
support her claim for inconvenience damages. See F. Patrick Hubbard & Robert L.
Felix, The South Carolina Law of Torts 54 (4th ed. 2011) (noting that plaintiffs
who suffer economic harm with no direct physical injury or direct relationship with
the defendant may not be able to recover in negligence); Potomac Leasing Co. v.
Otts Market, Inc., 292 S.C. 603, 606, 358 S.E.2d 154, 156 (Ct. App. 1987)
(holding an appellate court "may affirm a trial judge's decision on any ground
appearing in the record").

3. As to Woodward's remaining issues on appeal, we decline to address these
issues because the above findings are dispositive of the appeal. See Young v.
Charleston Cnty. Sch. Dist., 397 S.C. 303, 311, 725 S.E.2d 107, 111 (2012)
(declining to address additional remaining issues when the disposition of a prior
issue was dispositive of the appeal).

AFFIRMED.

FEW, C.J., and WILLIAMS and PIEPER, JJ., concur.