Tort/Negligence – Inadmissible Photographs – Curative Jury Instruction

The trial court erred in denying its motion for a new trial because Plaintiff presented inadmissible photographs to the jury during her opening argument and the trial court refused to offer a curative instruction.

We reversed the jury’s verdict awarded to Plaintiff and remanded the matter for a new trial.

The Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P. Defendants appealed a jury verdict awarded to Plaintiff. Wal-Mart argued the trial court erred in denying its motion for a new trial because Plaintiff presented inadmissible photographs to the jury during her opening argument and the trial court refused to offer a curative instruction. We agreed.

In 2018, Plaintiff sued Wal-Mart for negligence, alleging she stepped on a nail in the store in 2015, which caused her to eventually have an above-the-knee amputation. Four years after the incident, Plaintiff’s counsel and associates entered Wal-Mart, without scheduling a site inspection pursuant to Rule 34 of the South Carolina Rules of Civil Procedure and took pictures and video. The group was seen with gloves and a hammer. The photos taken by the group depict nails in wooden pallets on the sales floor of Wal-Mart, a broken pallet, and one photo shows a nail placed on the floor next to a wooden pallet. Wal-Mart filed a motion in limine to exclude the photos, arguing they were not relevant or admissible under Rules 401 and 403 of the South Carolina Rules of Evidence. The trial court partially granted the motion, ruling the photos of the broken pallet were inadmissible, but it denied the motion as to any photos used to show Wal-Mart’s alleged failure to comply with the standards from the American National Standards Institute (ANSI). However, the trial court specified that any photos admitted during trial would be accompanied by a limiting instruction.

We held the trial court erred in denying Wal-Mart’s motion for a new trial because Plaintiff’s counsel improperly showed the jury inadmissible photographs. The photos were taken four years after Plaintiff’s alleged injury and depicted damaged pallets and nails that were not proven to be of the same type, in the same condition, or even present on the day of the injury. Plaintiff presented no evidence to demonstrate that the condition of the pallets in the photos was the same at the time of her alleged injury. Furthermore, the photos were not only presented to demonstrate that Wal-Mart’s pallets were non-compliant with ANSI standards as originally intended by Plaintiff and approved by the trial court. Rather, Plaintiff also used the photos to assert Wal-Mart’s pallets were in that damaged condition at the time of the incident and continued to endanger customers in the years following the accident. Thus, we found the photos irrelevant. We also found the photographs are clearly prejudicial and prohibited by Rule 403, SCRE. Moreover, the trial court’s refusal to issue a curative instruction upon Wal-Mart’s request was error resulting in an abuse of discretion.

Reversed and remanded.

Jones v. Ringer (Lawyers’ Weekly No. 011-035-25, 4 pp.) (H. Bruce Williams, C.J.) Appealed from Florence County Circuit Court (Michael G. Nettles, J.) Miles Edward Coleman and Abigail Louise Wood, of Nelson Mullins Riley & Scarborough, LLP, of Greenville; Robert Canna Blain, of Collins & Lacy, PC, of Columbia; and Nashiba F. Boyd, of Orangeburg, all for Appellants. George M. Hearn, Jr., of Hearn & Hearn, PA, of Conway; Lane Douglas Jefferies, Eric Marc Poulin and Roy T. Willey, IV, all of Poulin, Willey, Anastopoulo, LLC, of Charleston; Robert Brian Critzer, of Columbia, and Kaye Gorenflo Hearn, of Conway, both of Wyche, PA, all for Respondent. South Carolina Court of Appeals