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Possibility Of Motorist's Negligence Created Jury Question

By: S.C. Lawyers Weekly staff//March 18, 2002

Possibility Of Motorist's Negligence Created Jury Question

By: S.C. Lawyers Weekly staff//March 18, 2002

Even though a woman collided with a Suburban as it crossed three lanes of a Myrtle Beach highway, she was not entitled to a directed verdict because there was evidence that she also might have been negligent, the Supreme Court ruled March 11 in a 3-2 decision.

The facts of the case left several possible inferences that the jury could draw, the court said, making a directed verdict improper. Among the factors:

* The woman had a duty to slow down for hazards and to keep a proper lookout, the court said.

* There were no indications that the woman tried to avoid the crash, according to the opinion.

That created a jury question on whether she also was negligent in the accident, despite the fact the other driver may have made an improper lane change.

The plaintiff’s attorney, Robert A. Muckenfuss of Charlotte, N.C., said there was no direct evidence that his client was negligent.

“I think most of the logic of the majority opinion was that inferences could be made from the lack of evidence, and I think the dissent pointed out that the record simply was devoid of evidence,” Muckenfuss told Lawyers Weekly.

“The majority said that the plaintiff’s car struck the defendant’s car from the back rear and I think the majority tried to make the inference that she actually struck him,” he said. “The problem is, it wasn’t a rear-end collision — it was still a side collision. He angled across and struck the front of her car.

“As far as the speed of the cars, there are prior cases where cars are speeding and usually the inference is made from the speed of the cars being high. There’s never been a case that would infer that the low-speed impact creates the inference that the plaintiff could have stopped,” Muckenfuss said.

“At oral argument, the point I tried to put forth was that if you can infer negligence from simply no evidence, then almost every personal injury case could be protected from summary judgment or directed verdict on that point,” he said.

The case is Thomasko v. Poole (South Carolina Lawyers Weekly No. 010-032-02, 12 pages). Justice E.C. Burnett III wrote the majority opinion and Justices James E. Moore and John H. Waller Jr. concurred. Chief Justice Jean Hoefer Toal wrote the dissent, which Acting Justice Marc H. Westbrook joined.


The defendant testified that he pulled out of a parking lot onto U.S. 17 in Myrtle Beach and attempted to cross three lanes to make a U-turn.

Traveling at about 10 mph, the defendant eased his truck from the far right to the far left lane before colliding with the plaintiff’s vehicle.

The plaintiff said that she didn’t see the defendant’s vehicle until just before impact. The defendant didn’t know there had been a collision until he saw the plaintiff’s car in his mirror.

In her testimony, the plaintiff said she had an uneasy feeling in the right side of her chest after the accident and had pain throughout her body the next day.

Several weeks after the collision, the plaintiff fell in a parking lot. She went to see a doctor about the pain in the right side of her chest and the doctor told her that a breast implant may have ruptured.

The plaintiff sued the defendant for personal injuries suffered in the wreck. She moved for a directed verdict on the defendant’s comparative negligence defense. The trial court denied the motion because the jury could reasonably find that the plaintiff was negligent for failing to take precautions to avoid the collision.

During jury deliberations, the foreman sent a note to the judge asking what the jurors should do if they felt the defendant was negligent, but they didn’t believe the wreck caused the injuries.

The judge instructed the jury that if the plaintiff didn’t prove damages from the accident, then she didn’t prove her case.

The jury deliberated for three minutes before returning a general verdict for the defendant. The plaintiff appealed. The Appeals Court affirmed in an unpublished opinion and the plaintiff appealed to the Supreme Court.


The plaintiff argued that the trial judge’s denial of her motion for directed verdict was an error that entitled her to a new trial. The Supreme Court disagreed.

Both drivers had duties, the court said. The defendant had a duty to yield to the favored driver before switching lanes, and the plaintiff had a duty to adjust her speed according to conditions and hazards. Both drivers had a duty to keep a reasonable lookout, the court said.

The Supreme Court cited Williams v. Kinney, 267 S.C. 163, 226 S.E.2d 555 (1976) and Wilson v. Marshall, 260 S.C. 271, 195 S.E.2d 610 (1973). In both cases, the Supreme Court ruled that directed verdicts were improper where the defendant was negligent, but the plaintiff may have been contributorily negligent in failing to keep lookout.

“Although nothing obstructed [the plaintiff] from seeing [the defendant’s] vehicle, she did not notice the vehicle until it was upon her,” Justice Burnett wrote. “There is no evidence [the plaintiff] attempted to stop before the crash.”

The location and small amount of damage to the vehicles could be interpreted to help the defendant’s case, the court said. The plaintiff argued that the trial court erroneously relied on the nature of the damage in denying the directed verdict.

The Supreme Court found no error. “Several inferences could be drawn from the facts, including, finding [the defendant] or [the plaintiff] could have failed to keep a proper lookout,” Justice Burnett wrote.

“This court is required to affirm the trial court’s denial of a motion for directed verdict where multiple inferences can be drawn from the evidence,” he wrote.


The trial court erred in denying a directed verdict for the plaintiff, the dissent stated.

“In my opinion, the evidence favoring [the defendant’s] defense of comparative negligence, even in the light most favorable to him, is insufficient to present a jury question,” Chief Justice Toal wrote.

There was no evidence before the jury that suggested the plaintiff was negligent, the dissent said. “The fact that [the plaintiff] does not remember seeing [the defendant] prior to the moment of impact creates, at most, mere speculation as to [the plaintiff’s] negligence,” Chief Justice Toal wrote.

“[M]ere accusation or speculation [the plaintiff] may have failed to keep a proper lookout, without more, cannot rise to the level of negligence as a matter of law,” she wrote.

The severity of the accident alone should not raise an inference of negligence, the dissent said. If it did, a directed verdict could hinge solely on the judge’s assessment of the crash’s severity.

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