SC Judicial Department

2011-UP-302 - Black v, Cayia

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

William Black and Debbie Black, Appellants,

Danielle P. Cayia, Deborah Davis Cayia, Michael R. Knox and Tung Van Dao, Respondents.

Appeal From Richland County
Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2011-UP-302
Submitted March 1, 2011 � Filed June 17, 2011

AFFIRMED

Ralph S. Kennedy, Jr. and Robert M. Cook, II, both of Batesburg-Leesville, for Appellants.

L. Darby Plexico, III, of Columbia, for Respondents.

PER CURIAM: William Black and Debbie Black^[1] (the Blacks) appeal from the trial court's order granting summary judgment to Michael Knox and Tung Van Dao (collectively, Respondents).� The Blacks argue the court erred in granting summary judgment to Knox because there was evidence his negligence was not limited to his speeding.� We affirm.[2]

FACTS

William Black was a passenger in a vehicle driven by Respondent Knox and owned by Respondent Dao.� The vehicle driven by Knox was involved in an accident with a vehicle driven by Danielle Cayia and owned by Deborah Cayia.� The Blacks filed a complaint against both drivers and owners, alleging the individual and joint negligence of both drivers caused the collision.� Black testified in his deposition that Knox was driving as fast as 45 miles per hour on a four-lane road with a 35 mile per hour speed limit.� Cayia was stopped in the median and waiting to make a left turn.� The cars in the left on-coming lane had stopped or were slowing down to let Cayia make her left turn.� Knox, who was traveling in the left lane, changed lanes to the right lane, possibly to avoid the stopped or slowed cars in the left lane.� The cars in the left lane obscured Knox's vision of Cayia's vehicle in the median, and Cayia's vision of Knox's vehicle in the right lane.� Knox's and Cayia's cars collided when Cayia was making her turn, crossing the path of Knox's vehicle.� Cayia's vehicle had only made it about two feet into the right lane where Knox's car was traveling when the accident happened.��

Respondents moved for summary judgment on the basis that Knox's speeding was not the proximate cause of the accident.� A hearing was held on February 6, 2009.� The only depositions taken at the time of the hearing were the depositions of William Black and Danielle Cayia.� On May 5, 2009, the court granted summary judgment to Respondents.� This appeal followed.

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, the appellate court applies the same standard that governs the trial court under Rule 56(c), SCRCP, which provides summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.� Rule 56(c), SCRCP; see Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002).� On appeal from an order granting summary judgment, the appellate court reviews all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below.� Willis v. Wu, 362 S.C. 146, 151, 607 S.E.2d 63, 65 (2004).�

Summary judgment should only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.� Hedgepath v. Am. Tel. & Tel. Co., 348 S.C. 340, 354, 559 S.E.2d 327, 335 (Ct. App. 2001).� "Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law."� Id. at 355, 559 S.E.2d at 335.� "However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted."� Id. at 355, 559 S.E.2d at 336.

LAW/ANALYSIS

The Blacks argue the trial court erred in granting summary judgment to Respondents because the evidence of Knox's negligence was not limited to his speeding.� We disagree.

To succeed in a negligence cause of action, a plaintiff must establish: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached the duty by a negligent act or omission; (3) the defendant's breach was the actual and proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury or damages.� Burnett v. Family Kingdom, Inc., 387 S.C. 183, 189, 691 S.E.2d 170, 173 (Ct. App. 2010).� "Negligence is not actionable unless it proximately causes the plaintiff's injuries."� Bailey v. Segars, 346 S.C. 359, 366, 550 S.E.2d 910, 914 (Ct. App. 2001).� "A negligent act or omission proximately causes an injury if, in a natural and continuous sequence of events, it produces the injury, and without it, the injury would not have occurred."� Id.� "Ordinarily, the question of proximate cause is one of fact for the jury."� Id. at 367, 550 S.E.2d at 914.� "The trial court's sole function regarding the issue is to determine whether particular conclusions are the only reasonable inferences that can be drawn from the evidence."� Id.� "Only in rare or exceptional cases may the issue of proximate cause be decided as a matter of law."� Id.�

In Horton v. Greyhound Corp., 241 S.C. 430, 128 S.E.2d 776 (1962), our supreme court held the trial court properly directed a verdict for the defendants because the plaintiff had failed to produce evidence of a causal connection between the speed of the bus and the fatal collision.� The court noted it was "clear that the only evidence of a negligent or unlawful act by the bus driver relates to excessive speed, which could not have resulted in harm to [the plaintiff] if the truck had remained in its proper lane of travel."� Id. at 438-39, 128 S.E.2d at 781.� "The concurrence of excessive speed with this primary, efficient cause of the collision does not impose liability on the defendants unless, without it, the collision would not have occurred."� Id. at 439, 128 S.E.2d at 781.� "That speed was a contributing factor in placing the bus at a particular location on the highway when the emergency arose is without legal significance, because the defendants had the legal right to occupy that portion of the highway."� Id.� The court found "[t]his is simply one of those rare cases in which the evidence, although sufficient to support an inference of concurrent negligence by the defendants, is insufficient to support a reasonable inference that without such negligence the collision would not have occurred."� Id. at 441, 128 S.E.2d at 782.� The court rested its conclusion on "the absence of evidence sufficient to raise a reasonable inference that it would not have occurred but for the negligence of the bus driver, which amounts to a failure of proof of an essential element of plaintiff's cause of action."� Id.��

The Blacks maintain the court erred in relying on Horton because they assert Horton does not apply when the evidence of negligence is not limited to just speeding.� They argue this court narrowed Horton and its progeny in Davis v. Tripp, 338 S.C. 226, 235-36, 525 S.E.2d 528, 533 (Ct. App. 1999), in which the court held a court cannot, as a matter of law, find no liability "when there is evidence of additional negligence or that speed was a causative factor."� The Blacks assert the evidence presented showed Knox failed to slow down or keep a better lookout: (1) in light of the other traffic on the roadway; (2) in light of the entrances to commercial establishments on both sides of the roadway; (3) in light of his inability to see what was in the median; and (4) as he approached from the right lane several cars that were stopped or slowing in the left lane.� They also maintain there was evidence from which a jury could reasonably infer that Knox made an illegal lane change.� Therefore, the Blacks contend there was "evidence [Knox] was speeding through a heavily traveled commercial roadway under circumstances where it was reasonable to conclude that traffic was stopped (or slowing) in front of him to allow another vehicle to make a left turn across his lane of travel" and "[i]t should be left to the jury to decide whether the evidence of his negligence . . . warrants the imposition of liability for the collision."�

In Davis v. Tripp, the case relied upon by the Blacks, the appellants appealed the trial court's refusal to give a jury instruction in accordance with Horton.� 338 S.C. at 234, 525 S.E.2d at 532.� In finding the trial court did not err in refusing to give the jury charge, this court noted a court cannot find there was no liability as a matter of law when there is evidence of additional negligence or that speed was a causative factor.� Id. at 235-36, 525 S.E.2d at 533.� However, unlike the case at hand, Davis presented evidence that the defendant was not keeping a proper lookout in addition to speeding.� Specifically, the defendant admitted he: (1) was speeding; (2) saw plaintiff's truck in the median; (3) acknowledged a car there created the possibility of a problem; (4) did not reduce his speed or move to the right lane; (5) made a comment to his passenger that plaintiff needed to pull out in front of him because he needed a new car; and (6) could have pulled into the grassy median when he saw plaintiff pull out in front of him, but he did not because he thought he would "roll" the car.� Id. at 236-37, 525 S.E.2d at 533.

The Blacks also cite to Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528 (2000), and Tubbs v. Bowie, 308 S.C. 155, 417 S.E.2d 550 (1992); however, we find these cases distinguishable from the case at hand because, unlike here, speed was found to be a proximate cause of the accident.� In Clark, our supreme court determined the trial court properly refused to give a jury charge on speeding and proximate cause in accordance with Horton because the plaintiff presented evidence that the accident probably would not have occurred if the defendant had not been speeding.� 339 S.C. at 390, 529 S.E.2d at 539.� The court noted that a judge may grant a litigant's directed verdict motion under Horton when "it is without legal significance that speed was a contributing factor in a collision, and the record contains no evidence of other negligent or wrongful acts by the speeding driver."� Id. at 391, 529 S.E.2d at 540.� In Tubbs, our supreme court held the trial court properly denied the defendant's motion for directed verdict because there was evidence that the defendant failed to take appropriate action upon seeing the truck enter the highway; thus, the evidence did not show that the accident was inevitable, irrespective of the defendant's speed.� 308 S.C. at 157-58, 417 S.E.2d at 552.� The Blacks also cite to Umhoefer v. Bollinger, 298 S.C. 221, 379 S.E.2d 296 (Ct. App. 1989); however, we find it is distinguishable because there was more evidence of the defendant's negligence than presented in this case.� In Umhoefer, this court found the trial court properly denied the defendant's motion for directed verdict because there was evidence that just prior to the accident, the defendant was speeding, was weaving in and out of traffic, failed to yield the right of way, and entered the intersection on a red light; thus, a jury question existed as to whether the defendant's negligence was the proximate cause of the accident.� 298 S.C. at 224, 379 S.E.2d at 297.

In addition to relying on Horton, the trial court cited many of the cases decided pursuant to Horton, in which the courts found speed was not a proximate or concurrent cause of the accident.� Most similarly to this case, in Alston v. Blue Ridge Transfer Co., 308 S.C. 292, 296, 417 S.E.2d 631, 633-34 (Ct. App. 1992), this court affirmed the trial court's grant of summary judgment for the defendant because the defendant's speed was not the proximate cause of the accident when the defendant and the plaintiff were proceeding in opposite directions and the defendant hit a patch of ice, causing his vehicle to cross over the center line.� Also, in Guyton v. Guyton, 244 S.C. 357, 361-62, 137 S.E.2d 273, 275 (1964), our supreme court affirmed a directed verdict for the defendant, whose vehicle collided with a dark-colored mule that darted into the roadway directly in front of the vehicle at night, because the defendant's speeding could not, as a matter of law, have caused the accident.� In Kennedy v. Carter, 249 S.C. 168, 178, 153 S.E.2d 312, 317 (1967), our supreme court reversed the denial of a directed verdict for the defendant, who swerved off the road to avoid an oncoming drunken driver, because the defendant's speeding could not, as a matter of law, have caused the accident, and the defendant's speeding would not have resulted in harm to the plaintiff if the drunken driver had remained in his proper lane of travel.� In Roumillat v. Keller, 252 S.C. 512, 516, 167 S.E.2d 425, 428 (1969), our supreme court found the defendant's speeding was not the proximate cause of the first collision, in which an oncoming vehicle crossed the median and struck his vehicle.� In Odom v. Steigerwald, 260 S.C. 422, 426-27, 196 S.E.2d 635, 637 (1973), our supreme court reversed the denial of the plaintiff's motion for directed verdict on liability because, as a matter of law, any speeding by the plaintiff could not have caused the accident where evidence showed the defendant's vehicle pulled directly into plaintiff's path.� In Blanding v. Hammell, 267 S.C. 352, 356-57, 228 S.E.2d 271, 272-73 (1976), our supreme court affirmed the directed verdict for the defendant because the testimony showed the plaintiff pulled directly in front of the defendant and the defendant's slight speeding could not, as a matter of law, have caused the accident.�

Addressing the failure to keep proper lookout, in Gunnels v. Roach, 243 S.C. 248, 252, 133 S.E.2d 757, 759-60 (1963), our supreme court reversed the denial of a directed verdict where the defendant hit an eight-year-old boy who had run from between two cars parked diagonally at a curb because there was undisputed evidence that the defendant did not see the boy, and he could not have been seen by a motorist exercising due care.� "In [these] rare cases . . . where speed has not been a causative factor, the court has focused on the inevitability of the accident, irrespective of the defendant's speed, due to an unexpected entry of the plaintiff into the defendant's right of way."� Blanding, 267 S.C. at 357, 228 S.E.2d at 272-73.�

When viewed in the light most favorable to the Blacks, we find there is no evidence for the jury to have found that the accident would not have occurred "but for" Knox's alleged speeding, alleged failure to keep a proper lookout, or alleged illegal lane change.� The Blacks assert there was evidence from which the jury could reasonably infer that Knox made an illegal lane change; however, the Blacks did not make this specific argument at the hearing on the motion for summary judgment, and the judge did not address the argument in his order.� In addition, the Blacks did not file a Rule 59(e), SCRCP, motion.� Therefore, we find this issue is not preserved for our review.� See Chastain v. Hiltabidle, 381 S.C. 508, 515, 673 S.E.2d 826, 829 (Ct. App. 2009) (holding when an issue is raised to, but not ruled upon by the trial court, the issue is preserved for appeal only if the party raises the same issue in a Rule 59(e) motion).� Even if the issue was preserved, we find the evidence presented does not support the argument.� Black testified Knox changed lanes, but it was a normal maneuver and was not to avoid anything in the road.� Furthermore, Black said Knox's vehicle was completely in the right lane at the time of impact.��

Regarding the Blacks' argument that Knox failed to keep a proper lookout, William Black testified that Knox was paying attention to the road and was not distracted in any way before the accident.� Black said he and Knox were not talking, the radio was not loud, they were not in a rush, and Knox was not talking on a cell phone.� Black also testified the vehicle in the left lane was a large SUV, and it blocked their view of Cayia's car, so he did not know if Knox could have avoided the accident.� Black even testified that Cayia pulled out in front of Knox.� Cayia's testimony does not establish Knox was negligent because she did not see Knox's vehicle prior to the accident.� Cayia testified she could see oncoming traffic in the right lane, and she waited to turn when she thought the road was clear.� Cayia admitted she was talking on her cell phone when the accident occurred.� Additionally, Cayia said she failed to yield the right of way, and she admitted she was at least partially at fault for the accident.�

The only evidence presented that Knox may have been speeding was Black's testimony that he estimated Knox may have been traveling 5 to 10 miles per hour above the speed limit when the accident occurred.� However, Black admitted he did not know for certain because he could not see the speedometer.� Black also said he was uncertain whether Knox's speed factored into causing the accident because he was not paying attention when the accident occurred.� Cayia testified she could not estimate Knox's speed because did not see his vehicle before the accident.

Accordingly, the evidence shows the accident would have occurred regardless of whether Knox was speeding, and Knox's speeding would not have harmed Black if Cayia had not turned in front of Knox's vehicle.� Therefore, because the Blacks failed to produce any evidence that Knox's alleged speeding or failure to keep a proper lookout was the proximate cause of the accident, we find the trial court properly granted summary judgment to Respondents.

CONCLUSION

Accordingly, the trial court's grant of summary judgment to Respondents is

AFFIRMED.

HUFF, SHORT and PIEPER, JJ., concur.

[1]� William Black was a minor at the time of the car accident.� Thus, Debbie Black, his mother, was named as a co-defendant in the action because of her responsibility for his medical expenses and the loss of her child's services from his injuries.

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