In The Court of Appeals

Josephine Washington and Annie Brown,        Respondents,


Kimberly Eve Miller,        Appellant.

Appeal From Charleston County
A. Victor Rawl, Circuit Court Judge

Unpublished Opinion No. 2004-UP-276
Heard April 6, 2004 – Filed April 22, 2004


Patrick W. Carr, of Charleston, for Appellant.

Akim A. Anastopoulo, Constance A. Anastopoulo and Eric S. Brock, all of Charleston, for Respondents.

PER CURIAM:  In this negligence case, Kimberly Eve Miller (Appellant) appeals from an order of the circuit court granting summary judgment to Josephine Washington and Annie Brown (collectively, Respondents) as to both negligence and proximate cause, while leaving the determination of the amount of damages to the jury.  We affirm in part, reverse in part, and remand.


This case arises from an automobile accident which occurred on May 4, 2001, between Appellant and Respondent Josephine Washington.  Respondent Washington’s mother, Annie Brown, was a passenger in her daughter’s car, which was being driven in the left hand lane.  Appellant changed from the middle lane to the left lane so that she would be in position to make a left hand turn.  Prior to changing lanes, Appellant checked her side mirror, but did not realize how close the Respondents’ car was to Appellant’s vehicle.  As a result, Appellant struck the Respondents’ car.

During her deposition, the Appellant was asked: “Do you believe sitting here today that you could have avoided this accident?”  Appellant answered: “I think – yes, yes, I think that if I had realized that I didn’t have enough space to get over, then I would have not tried to go over in her lane.”  Based on this admission and affidavits from a physician that the Respondents’ injuries were proximately caused by the accident, the Respondents moved for summary judgment.  Appellant did not submit any affidavits at the summary judgment hearing regarding duty, breach, or proximate cause.  Instead, Appellant relied on the denials and defenses found in the pleadings.

The circuit court granted summary judgment as to duty, breach, and proximate cause, leaving the determination of the amount of damages to the jury.


Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.  Hansen ex rel. Hansen v. United Servs. Auto. Ass’n, 350 S.C. 62, 67, 565 S.E.2d 114, 116 (Ct. App. 2002) (citing Rule 56(c), SCRCP; Tupper v. Dorchester County, 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997)).


1.  Summary Judgment as to Liability

In a claim of negligence, the plaintiff must show the: (1) defendant owes a duty of care to the plaintiff; (2) defendant breached the duty by a negligent act or omission; (3) defendant’s breach was the actual and proximate cause of the plaintiff’s injury; and (4) plaintiff suffered an injury or damages.  Andrade v. Johnson, 356 S.C. 238, 245, 588 S.E.2d 588, 592 (2003).  In this case, the Respondents presented Appellant’s deposition testimony admitting she could have avoided the accident if she had realized that she did not have enough space to change lanes without striking the Respondents’ vehicle.  Appellant did not file any counter-affidavits or introduce any deposition testimony. [1]   South Carolina law requires that:

Where the plaintiff relies solely upon the pleadings, files no counter-affidavits, and makes no factual showing in opposition to a motion for summary judgment, the lower court is required under Rule 56, to grant summary judgment, if, under the facts presented by the defendant, he was entitled to judgment as a matter of law. . . .

Humana Hospital-Bayside v. Lightle, 305 S.C. 214, 216, 407 S.E.2d 637, 638 (1991).

Appellant argues that because her deposition contains statements that she had turned on her left-hand turn signal and checked for other cars using the mirror and looking over her shoulder, an issue of comparative negligence has been created.  This argument is not compelling in light of Appellant’s admission that she breached her duty to yield to the favored driver before switching lanes.  See S.C. Code Ann. § 56-5-1900(a) (1991).  While courts should be reticent to endorse summary judgments in cases involving comparative negligence, this reticence does not mean that simply pleading comparative negligence will operate as a bar to summary judgment.  Cf. Thomasko v. Poole, 349 S.C. 7, 12, 561 S.E.2d 597, 599 (2002) (stating that “[i]n a comparative negligence case, the trial court should grant the [directed verdict] motion if the sole reasonable inference from the evidence is the non-moving party’s negligence exceeded fifty percent.”).  In this case, because of Appellant’s admission, the sole reasonable inference is that Appellant’s negligence caused the accident.  Accordingly, the circuit court properly granted summary judgment after considering the admission in the deposition and the lack of opposition by Appellant.

2.  Summary Judgment as to Proximate Cause

Despite the grant of summary judgment regarding liability, the Respondents are not relieved of their responsibility to prove that Appellant’s breach was the actual and proximate cause of the Respondents’ injuries.  See Andrade v. Johnson, 356 S.C. 238, 245, 588 S.E.2d 588, 592 (2003).  A physician’s affidavit stating that “in [his] professional opinion, to a reasonable degree of medical certainty most probably, [the Respondents’] injuries . . . were a proximate result of the injuries [they] sustained in the automobile accident” does not foreclose a jury’s opportunity to measure the credibility of the evidence as to proximate cause.  “The fact that testimony is not contradicted directly does not render it undisputed.  There remains the question of the inherent probability of the testimony and the credibility of the witness or the interests of the witness in the result of the litigation.”  Black v. Hodge, 306 S.C. 196, 198, 410 S.E.2d 595, 596 (Ct. App. 1991) (citation omitted).

In contrast to the physician’s affidavit, the following facts exist: (1) the Respondents refused medical treatment at the scene of the accident; (2) the automobile air bags did not deploy; and (3) the Respondents’ car was driven away from the scene of the accident.

“In determining whether any triable issue of fact exists, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the non-moving party.”  Summer v. Carpenter, 328 S.C. 36, 42, 492 S.E.2d 55, 58  (1997).  Taking the deposition testimony in the light most favorable to Appellant, inferences could be drawn that this was a minor accident that would not normally cause injury to the Respondents.  In light of these facts, a determination about the extent to which the accident did or did not cause injuries should be left to a jury.  Accordingly, the circuit court’s grant of summary judgment as to proximate cause is reversed.

In light of our ruling as to proximate cause, it is not necessary to address Appellant’s allegation that the circuit court improperly considered Appellant’s payment to Respondent Washington in settlement of property damage.  Additionally, the verdict form ordered by the circuit court is no longer appropriate as it required the jury to return a monetary verdict for the Respondents.  This Court would suggest that the appropriate verdict form to be used is one that offers two choices for each of the Respondents: (1) “We, the jury, find for the Plaintiff in the amount of  ______ actual damages”; and (2) “We, the jury, find for the Defendant.”


Accordingly, based on the foregoing reasons, the decision of the circuit court is


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

[1] Appellant stated the deposition of the investigating officer had been scheduled for the week following the summary judgment hearing.  However, the deposition statement by Appellant is a clear admission that could not be refuted by the limited testimony of an investigating officer.