THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Mondell Belton,        Appellant,

v.

Phillip Jordan,        Respondent.

Appeal From Kershaw County
G. Thomas Cooper, Jr., Circuit Court Judge

Unpublished Opinion No. 2003-UP-439
Submitted April 18, 2003 – Filed June 25, 2003

AFFIRMED

John Woodson Rabb, Jr., of Camden, for Appellant.

J. Kennedy DuBose, Jr., and Jonathan M. Robinson, of Camden, for Respondent.

PER CURIAM: Mondell Belton brought this action against Phillip Jordan for injuries resulting from the collision between Belton’s person and Jordan’s automobile.  Following the close of the defense’s case, the trial court granted the defense’s motion to strike punitive damages.  The case was submitted to the jury, who found that Belton was sixty percent negligent in the cause of the accident and entered a verdict for Jordan.  Belton appeals.  We affirm.

FACTS AND PROCEDURAL HISTORY

On January 14, 1999, Jordan was driving to the store to purchase some cigarettes.  As Jordan approached the median to make a left turn his vehicle collided with Belton who was standing in the median.  Earlier that evening Jordan had consumed two beers at dinner, however, both the police and a bystander, Elisha James Stevens, testified that Jordan did not appear to be under the influence of alcohol or to be impaired in any manner.  

About half and hour earlier, Belton was walking to the store to purchase a beer and a pack of cigarettes. Earlier that evening, Belton had consumed a pint of liquor shared with two other people, along with a beer.  While returning home from the store, Belton was standing in a left turn median waiting to cross the highway when he was hit by Jordan.  The police who responded to the scene and the bystander both noted that Belton reeked of alcohol.  Belton also testified that he was intoxicated.  Belton was dressed in dark green pants, a light green shirt and a dark green jacket.  The accident occurred at approximately 10 p.m. and the weather was misting rain. 

LAW/ANALYSIS

Belton contends that the trial court erred in striking punitive damages from the case.  Belton cites Rowe v. Frick, 250 S.C. 499, 159 S.E.2d 47 (1968) for the proposition that the violation of a state statute establishes negligence per se and some evidence of recklessness, willfulness and wantonness.  Belton contends that he presented evidence that Jordan violated S.C. Code Ann. § 56-5-3230 which provides in part that every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian. 

Belton contends that at trial he presented testimony that he was standing in a fourteen foot wide median and that when he saw Jordan’s car approach he began to waive his hands.  Belton testified that Jordan did not have his turn signal on nor did he sound his horn or apply his brakes until after he struck Belton.  Belton further testified that that the area where he was standing was illuminated.

During the trial, the judge stated that he did not see anything in the record that would lead this jury to consider punitive damages.   In the judge’s order denying Belton’s motion for a new trial, the judge cited Trivelas v. S.C. Dep’t of Transp., 348 S.C. 125, 558 S.E.2d 271 (Ct. App. 2001), stating that although the violation of a statute can establish duty and negligence per se, the finding of a statutory violation does not automatically lead to Plaintiff’s recovery of punitive damages.  Furthermore, the trial judge stated that our case law has recognized that a violation of a traffic statute does not constitute negligence per se under explanatory or excusatory circumstances.  The trial court further found that Belton failed to establish at trial that the Defendant violated a traffic statute. 

In the case of Wise v. Broadway, 315 S.C. 273, 277, 433 S.E.2d 857, 859 (1993), the supreme court found that it was reversible error for the trial court to strike punitive damages when there was evidence from which the jury could have concluded that the Defendant violated a statute.  The court went on to state that had the jury so found, the violation of the section would have been negligence per se and evidence of recklessness from which the jury could find that the respondent was guilty of reckless conduct, and, consequently, liable for punitive damages.  The court found that the striking of punitive damages was prejudicial, although the jury ultimately found for the defendant, because “the jury’s inability to consider the issue of reckless and wanton conduct on the part of respondent effectively eliminated appellant’s defense to respondent’s claim that he had been contributorily negligent.” Wise, Id at n.2, 433 S.E. 2d at n.2 citing Wilson v. Duke Power Co., 273 S.C. 610, 258 S.E.2d 101 (1979) (contributory negligence not available as a defense when defendant was reckless).

We distinguish Wise from the present case in that the Wise case involved the sole defense of contributory negligence and this case involves the defense of comparative and contributory negligence.  Under the contributory negligence doctrine, it was generally held that if the negligence of the plaintiff contributed in any respect to his damages, he was completely barred from recovering against a defendant guilty of even greater negligence.  Weaver v. Lentz, 348 S.C. 672, 684,  561 S.E.2d 362, 366 (Ct. App. 2002). One recognized exception to the contributory negligence rule was that simple negligence on the part of the plaintiff was not a defense to reckless or willful misconduct on the part of the defendant.  Oliver v. Blakeney, 244 S.C. 565, 569, 137 S.E.2d 772, 774 (1964).  However, under a comparative negligence scheme, “a plaintiff in a negligence action may recover damages if his or her negligence is not greater than that of the defendant.  The amount of the plaintiff's recovery [is] reduced in proportion to the amount of his or her negligence.”  Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991).

We find that the Plaintiff was not prejudiced by the striking of punitive damages. We find that the trial court did charge language regarding reckless and wanton conduct, and therefore the jury was able to consider such conduct when comparing the negligence of the two parties.  Both parties argued that the others’ actions were in violation of a statute, therefore, the jury would have been able to consider either parties’ violations when comparing the negligence of the two.  The trial court charged that:

A violation of the statute or ordinance is not however necessarily willfulness or wantonness, but such a violation may be considered by you, the jury, along with all the other facts and circumstances surrounding the event as evidence of recklessness or willful conduct.  

At the completion of the jury charge, there was no objection by either party.  As instructed, the jury considered the concepts of simple negligence and recklessness as matters of degree subsumed within the general term “negligence.” The jury performed its duties consistent with the unobjected--to instructions of the trial court, and we find the trial court appropriately exercised its duties pursuant to the concept of comparative negligence. We find that the Plaintiff was not prejudiced by the failure to include specific language pertaining to punitive damages because the jury ultimately found for the Defendant.

CONCLUSION

Based on the foregoing, the trial judge’s decision to grant Jordan’s motion to strike punitive damages is

AFFIRMED.

CURETON, ANDERSON and HUFF, JJ., concur.