Rivero v. Loftis

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

Madel C. Rivero, as Personal Representative for the
Estate of Lilia Lorena Blandin, Respondent,

v.

Sheriff Steve Loftis, in his capacity as Sheriff of
Greenville County, Appellant.

Appellate Case No. 2016-000548

Appeal From Greenville County
Robin B. Stilwell, Circuit Court Judge

Unpublished Opinion No. 2018-UP-340
Heard May 17, 2018 – Filed July 25, 2018

AFFIRMED

Russell W. Harter, Jr. and Carly H. Davis, both of
Chapman, Harter & Harter, P.A., of Greenville, and
Andrew F. Lindemann, of Lindemann, Davis & Hughes,
PA, of Columbia, for Appellant.

Daniel Joseph Farnsworth, Jr., of Farnsworth Law
Offices, LLC, of Greenville, J. Christopher Wilson and
Daniel W. Luginbill, both of Wilson & Luginbill, LLC,
of Bamberg, and Blake A. Hewitt, of Bluestein
Thompson Sullivan, LLC, of Columbia, for Respondent.
PER CURIAM: In this wrongful death action, Appellant Sheriff Steve Loftis
(Sheriff Loftis) challenges the denial of his motion for a new trial and the denial of
his motion for a judgment notwithstanding the verdict (JNOV). Sheriff Loftis asserts
the circuit court erred by denying his request for an evidentiary hearing to address a
juror's intentional concealment of an incident involving her husband twisting her
wrist when presented with a voir dire question intended to screen out victims of
criminal domestic violence (CDV). Sheriff Loftis argues the concealed information
would have been a material factor in the use of his peremptory challenges had it been
disclosed. Sheriff Loftis also argues the circuit court erred by denying his directed
verdict and JNOV motions because (1) there was no evidence of causation in fact,
and (2) he was entitled to absolute sovereign immunity under the South Carolina
Tort Claims Act, sections 15-78-10 to -220 of the South Carolina Code (2005 &
Supp. 2017).1 We affirm.

I. Juror Misconduct

Sheriff Loftis argues the circuit court erred by (1) failing to conduct an
evidentiary hearing concerning a juror's concealment of an incident involving her
husband twisting her wrist, and (2) concluding Sheriff Loftis did not show the
concealment was intentional.

"Under South Carolina law, litigants are guaranteed the right to an impartial
jury." Alston v. Black River Elec. Co-op., 345 S.C. 323, 326, 548 S.E.2d 858, 859
(2001) (citing S.C. Code Ann. § 14-7-1050 (Supp. 2000)); see § 14-7-1050 (2017)
("[I]n all civil cases any party shall have the right to demand a panel of twenty
competent and impartial jurors from which to strike a jury."). Our supreme court
"has recognized trial judges and attorneys cannot fulfill their duty to screen out
biased jurors without accurate information." State v. Kelly, 331 S.C. 132, 145, 502
S.E.2d 99, 106 (1998).

Necessarily it is expected and required that jurors in their
answers shall be completely truthful and that they shall
disclose, upon a general question, any matters [that] might
tend to disqualify them from sitting on the case for any
reason. It therefore becomes imperative that the answers
be truthful and complete. False or misleading answers

1
Specifically, section 15-78-60 of the South Carolina Code (2005).
may result in the seating of a juror who might have been
discharged by the [c]ourt, challenged for cause by
counsel[,] or stricken through the exercise of peremptory
challenge.

Id. at 145–46, 502 S.E.2d at 106 (quoting State v. Gulledge, 277 S.C. 368, 371, 287
S.E.2d 488, 490 (1982)). "Through the judge, parties have a right to question jurors
on their voir dire examination not only for the purpose of showing grounds for a
challenge for cause, but also, within reasonable limits, to elicit such facts as will
enable them intelligently to exercise their right of peremptory challenge." State v.
Woods, 345 S.C. 583, 587, 550 S.E.2d 282, 284 (2001) (quoting Gulledge, 277 S.C.
at 370, 287 S.E.2d at 490).

When a juror conceals information inquired into during
voir dire, a new trial is required only when the court finds
the juror intentionally concealed the information[] and that
the information concealed would have supported a
challenge for cause or would have been a material factor
in the use of the party's peremptory challenges.

Id.

"[I]ntentional concealment occurs when the question presented to the jury on
voir dire is reasonably comprehensible to the average juror and the subject of the
inquiry is of such significance that the juror's failure to respond is unreasonable."
Id. at 588, 550 S.E.2d at 284. "Unintentional concealment, on the other hand, occurs
where the question posed is ambiguous or incomprehensible to the average juror, or
where the subject of the inquiry is insignificant or so far removed in time that the
juror's failure to respond is reasonable under the circumstances." Id. "Necessarily,
whether a juror's failure to respond is intentional is a fact intensive determination
which must be made on a case by case basis." Id. Twelve years after issuing the
Woods opinion, the court continued to rely on Woods for its analysis: "[J]uror
concealment claims are governed by the analysis set forth in Woods, and such case-
by-case determinations are most appropriately made after a hearing, which allows
the factual circumstances to be more fully developed." McCoy v. State, 401 S.C.
363, 372, 737 S.E.2d 623, 628 (2013).

During voir dire in the present case, the circuit court asked the prospective
jurors, "Is there anyone among you who has been a victim of [CDV]?" The juror in
question, Robin Burns, remained silent despite a recent incident involving her
husband twisting her wrist. Burns called 911 to report the incident, and police
officers arrived at her home to investigate but made no arrests. When Sheriff Loftis
learned of the nondisclosure, he filed a new trial motion.

Subsequently, the circuit court reviewed the incident report from Burns' 911
call as well as the tape, transcript, and responding officers' affidavits. Based on this
review, the circuit court concluded Burns was not a CDV victim and, thus, Sheriff
Loftis had "failed to establish the 'fact of disqualification' so as to obtain a new trial
based upon disqualification of a juror." The circuit court also concluded, "The
question the court posed in voir dire was clear and unambiguous, and there [was] no
evidence that [Burns], either objectively or subjectively, concealed information."
The court then stated that it was unnecessary to conduct an additional hearing for the
purpose of examining Burns under oath.

Sheriff Loftis contends the circuit court erred in concluding that he had to
establish the fact of disqualification because juror disqualification is not an absolute
requirement under the Woods test. We acknowledge the merit to this argument. See
Woods, 345 S.C. at 590, 550 S.E.2d at 285 ("No motion to disqualify Juror B was
made, thus there is no discretionary ruling by the trial judge for this [c]ourt to review.
However, we need not decide whether [Juror B's] relationship with the solicitor's
office would support a challenge for cause because we find her failure to disclose
the relationship prevented the respondent's intelligent exercise of his peremptory
challenges."). Nonetheless, we conclude that the question, "Is there anyone among
you who has been a victim of [CDV]?" was ambiguous. Including the term
"criminal" in the question could cause a potential juror to believe any experience she
or he had with domestic violence had to result in an arrest at the very least.
Therefore, Burns' concealment was unintentional. See Woods, 345 S.C. at 588, 550
S.E.2d at 284 ("Unintentional concealment . . . occurs where the question posed is
ambiguous . . . .").2

2
At oral argument, Sheriff Loftis asserted that the question of ambiguity was not
before this court on appeal because Rivero did not appeal the circuit court's statement
that the question was "clear and unambiguous," and therefore, this statement became
the law of the case. See Judy v. Martin, 381 S.C. 455, 458, 674 S.E.2d 151, 153
(2009) ("Under the law-of-the-case doctrine, a party is precluded from relitigating,
after an appeal, matters that were either not raised on appeal, but should have been,
or raised on appeal, but expressly rejected by the appellate court." (citing 5 C.J.S.
Appeal & Error § 991 (2007))). The circuit court's statement is not binding on this
court. 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.");
Rivero correctly maintains that Woods and McCoy do not require an
examination of Burns under oath, although the key language in Woods and McCoy
certainly encourage this type of evidentiary hearing. In any event, given the
ambiguity of the question posed to the prospective jurors in the present case, the
circumstances do not merit an evidentiary hearing. Therefore, we affirm the circuit
court's denial of the motion for an evidentiary hearing or new trial.

II. JNOV/Causation in Fact

Sheriff Loftis asserts the circuit court erred by submitting the question of
causation in fact to the jury rather than concluding there was no causation in fact as
a matter of law. We disagree.

"Negligence is not actionable unless it is a proximate cause of the injuries,
and it may be deemed a proximate cause only when without such negligence the
injury would not have occurred or could have been avoided." McKnight v. S.C. Dep't
of Corr., 385 S.C. 380, 386, 684 S.E.2d 566, 569 (Ct. App. 2009) (quoting
Hanselmann v. McCardle, 275 S.C. 46, 48–49, 267 S.E.2d 531, 533 (1980)).
"Proximate cause is the efficient or direct cause; the thing that brings about the
complained of injuries." Id. "Proximate cause requires proof of (1) causation in fact
and (2) legal cause." Id. (quoting Bramlette v. Charter–Medical–Columbia, 302
S.C. 68, 72, 393 S.E.2d 914, 916 (1990)). "Causation in fact is demonstrated by
establishing the plaintiff's injury would not have occurred 'but for' the defendant's
negligence, while legal cause is proved by establishing foreseeability." Id. at 386–
87, 684 S.E.2d at 569.

"Ordinarily, proximate cause is a question for the jury, but when the evidence
is susceptible to only one inference, it becomes a matter of law for the court." Id. at
387, 684 S.E.2d at 569. "Only in rare or exceptional cases may the question of
proximate cause be decided as a matter of law. If there is a fair difference of opinion
regarding whose act proximately caused the injury, then the question of proximate
cause must be submitted to the jury." Hurd v. Williamsburg Cty., 353 S.C. 596, 613–

I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000)
(holding the appellate court may rely on a respondent's additional sustaining grounds
"or any other reason appearing in the record to affirm the lower court's judgment");
id. at 421, 526 S.E.2d at 723 ("An affirmance promotes judicial economy and finality
in private and public affairs, which are important public policies.").
14, 579 S.E.2d 136, 145 (Ct. App. 2003) (citations omitted), aff'd, 363 S.C. 421, 611
S.E.2d 488 (2005).

Here, in its order denying a JNOV, the circuit court stated, "There was
evidence that had Avery been arrested on December 9, 2011, he would likely have
still been in jail on December l0, 2011[,] when he killed Lilia." Sheriff Loftis argues
this reasoning is speculative and also insufficient to establish causation in fact
because it relies on merely a possibility rather than a probability. To illustrate this
point, Sheriff Loftis cites this court's opinion in Thomas v. South Carolina
Department of Highways & Public Transportation, which involved an uninsured
vehicle hitting and injuring a pedestrian. 320 S.C. 400, 401, 465 S.E.2d 578, 579
(Ct. App. 1995). The pedestrian filed a negligence action against the highway
department, alleging it was negligent in failing to recover the motorist's license
plates and motor vehicle registration after the motorist's insurance had been
cancelled. Id. at 401–02, 465 S.E.2d 578, 579–80. In affirming a directed verdict
in the highway department's favor, this court explained the pedestrian's failure to
show causation in fact:

To establish causation in fact, Thomas was required to
present evidence that showed the accident would not have
occurred had the Department complied with the statute in
question. He failed to do this. There is no evidence at all
that even if the Department had taken Green's license tag
and car registration, Green, who had a valid driver's
license, would not have been negligently operating either
the uninsured vehicle or some other vehicle at the time he
ran over Thomas. We can only speculate about what he
would or would not have done had the Department
recovered his license tag and car registration.

Id. at 402, 465 S.E.2d at 580 (citation omitted). While the reasoning of Thomas is
persuasive, the present case is distinguishable. If Avery had been in jail all day on
December 10, he certainly would not have had the opportunity to kill Lilia on that
day.

While we have found no South Carolina appellate opinions with comparable
facts, we find instructive the opinion of the Appellate Court of Connecticut in
Alexander v. Town of Vernon, 923 A.2d 748 (Conn. App. 2007). Alexander involved
a wrongful death action brought by a murder victim's estate against the town of
Vernon and seven members of the town's police department. Id. at 750. The trial
court granted summary judgment to the town and the officers, concluding that the
officers' inaction did not cause the victim's death. Id.

The Alexander court affirmed the superior court's award of summary
judgment to the town and the police officers, concluding the victim's estate could
not show causation. Id. at 757. The court's language provides an enlightening
contrast to the facts in the present case:

Here, to establish causation the plaintiff must demonstrate,
without resort to conjecture, that the murder would not
have occurred but for the defendants' alleged negligence
or recklessness. Under these facts, we are persuaded that
the plaintiff cannot satisfy that burden. One can only
speculate as to whether an attempt on the part of the
defendants to "try and find" Caldwell would have
succeeded. Furthermore, even if the defendants had found
and arrested Caldwell, it is quite possible that he would
have been released from custody on Monday morning.
The plaintiff has not presented evidence suggesting that,
more likely than not, Caldwell would not have been
released at his arraignment on Monday morning. Without
any assurance that Caldwell would have remained
incarcerated on Monday, there is no way to know whether
his arrest would actually have prevented the murder.

Id. at 755 (emphases added). The court added,

[T]here are too many variables involved to state with any
degree of certainty that the victim's murder would not have
occurred in the absence of the officers' alleged negligence
or recklessness. To reach the opposite conclusion, a jury
would first have to suppose that the officers could have
found Caldwell in the time preceding the murder. The jury
would then have to further assume that, once arrested,
Caldwell would not have been released from custody
before Monday afternoon. Because there is no evidence
in the record on which to make either of those critical
inferences, the jury would be forced to resort to sheer
speculation. Yet, a determination of causation on the basis
of conjecture or speculation is precisely what we cannot
permit.

Id. at 756–57 (emphasis added).

Here, unlike the presentation of evidence in Alexander, Rivero presented the
following evidence, which we view in the light most favorable to Rivero: Avery's
behavior prompting Lilia to call 911 on December 9 was a violation of the no-contact
condition of his bond for his prior CDV arrest.3 Therefore, the law enforcement
expert for Sheriff Loftis admitted on cross-examination that had Avery been arrested
and jailed on December 9, his prior CDV arrest and resulting bond violation would
make it unlikely that he would have been released on another bond the following
morning. Rather, the second bond would likely have been set at a higher amount
and he would have had to wait longer for his release. This evidence goes beyond
mere speculation as it shows more than a mere possibility but rather a probability,
i.e., more likely than not, Avery would have been in jail on December 10 rather than
stabbing Lilia had he been arrested on December 9.

Based on the foregoing, there was more than one reasonable inference to be
drawn by the jury as to causation in fact, and thus, the question was properly
submitted to the jury. See McKnight, 385 S.C. at 387, 684 S.E.2d at 569
("Ordinarily, proximate cause is a question for the jury, but when the evidence is
susceptible to only one inference, it becomes a matter of law for the court.").

III. JNOV/Tort Claims Act

Pursuant to Rule 220(b), SCACR, and the following authorities, we affirm the
circuit court's conclusion that a gross negligence standard applies to those exceptions
to the State's waiver of sovereign immunity asserted by Sheriff Loftis: S.C. Dep't of
Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d 903, 907
(2007) ("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." (brackets omitted) (quoting Wilder Corp. v. Wilke, 330 S.C. 71,

3
The record does not indicate the ultimate outcome of that CDV charge or whether
the December 5 hearing on that charge occurred as scheduled. Therefore, there is a
question as to the continuing viability of the bond conditions after December 5.
Nonetheless, this court must view the evidence in the light most favorable to Rivero;
thus, we are assuming the no-contact condition of the October 31 bond was still in
place.
76, 497 S.E.2d 731, 733 (1998))); TNS Mills, Inc. v. S.C. Dep't of Revenue, 331 S.C.
611, 617, 503 S.E.2d 471, 474 (1998) ("An issue conceded in a lower court may not
be argued on appeal."); Clark v. S.C. Dep't of Pub. Safety, 362 S.C. 377, 386, 608
S.E.2d 573, 578 (2005) ("The burden of establishing an exception to the waiver of
immunity is on the governmental entity asserting the defense."); S.C. Code Ann. §
16-25-70(I) (2015) ("In addition to the protections granted to the law enforcement
officer and law enforcement agency under the South Carolina Tort Claims Act, a
law enforcement officer is not liable for an act, omission, or exercise of discretion
under this section unless the act, omission, or exercise of discretion constitutes gross
negligence, recklessness, wilfulness, or wantonness." (emphasis added)); S.C. Code
Ann. § 15-78-60(25) (2005) (setting forth as an exception to the State's waiver of
sovereign immunity, "responsibility or duty including but not limited to supervision,
protection, control, confinement, or custody of any student, patient, prisoner, inmate,
or client of any governmental entity, except when the responsibility or duty is
exercised in a grossly negligent manner" (emphasis added)).

AFFIRMED.

HUFF, GEATHERS, and MCDONALD, JJ., concur.