Results of this injury during a sailing race are scary. Federal judge unloaded on the defendant when a girl could not figure out to move when the boom shifts. Judge wanted to see safety orientation and warning labels on a personal sailboat!Posted: April 9, 2018
The liability created by this decision will hopefully remain off shore and solely related to sailing and admiralty law; If not, never take someone outdoors again.
When your buddy wants to bring his bartender your boat for a sailing race, don’t let him. Court created liability when it found no safety training or warning labels for a group of people going sailing.
State: South Carolina, United States District Court for the District of South Carolina, Charleston Division
Plaintiff: Raven Renee Ray
Defendant: Steve A. Lesniak
Plaintiff Claims: Negligence
Defendant Defenses: never could figure that out
Holding: for the plaintiff
Either the defendant failed to present a defense or the court ignored it. Either way, this decision creates massive liability on the part of a trip leader in what was once referred to as common adventure activities. A group of people going out to recreate together on the weekend.
It is going to be easier to pull quotes from the decision than to outline the facts in this case. It will also give you a better understanding of the court’s position from the beginning.
At the time of the incident at issue, Ray was a 29-year-old female working two jobs in the food and beverage industry, volunteering at an acupuncture clinic, and simultaneously pursuing advanced degrees in psychology and clinical counseling at The Citadel. Ray had never been on a sailboat before the day of the incident.
Colin Skinner (“Skinner”), who Ray knew as a “regular” customer at the Oak Bar Tavern where she worked. Skinner was a crew member on the Celadon. Skinner has been sailing with Lesniak for “[r]oughly five years.” Lesniak allowed Skinner to invite a guest on the boat.
Lesniak did not give safety instructions to any of the guests, including Ray, who was on the Celadon. He also did not give any written instructions to guests. Furthermore, he did not have a written safety checklist or conduct a safety and operational briefing before the Celadon left the marina. At the time of the incident, there were no safety placards or visual displays on the Celadon stating that there were dangerous places to sit on the boat, such as “around any rope, boom.” Lesniak delegated the giving of safety instructions to two crew members, neither of whom testified during the trial.
Lesniak testified that members of his crew told Ray to move “several times” and that the crew members were aware that she did not move–even after Lesniak had called for the gybe maneuver. For example, Truog was aware that Ray was sitting in front of the main sheet when Lesniak gybed. Truog saw “the boom [come] over, and that [Ray] was pushed down to the side of the boat.”
If Lesniak had waited to gybe or made sure that Ray was in a safe location, Ray would not have been hit by the main sheet.
After Lesniak did the gybe maneuver, Ray was hit by the main sheet, the force of which threw her from her seated position onto the deck of the boat.
The plaintiff said she was OK; the race continued. Later that day and the next week she again said she was OK. However, eventually, she sued.
Analysis: making sense of the law based on these facts.
The defendant, owner of the board, did not put up a good defense. In fact, the way the court restated his positions, it seemed the court thought he was pretty arrogant. The plaintiff hired an expert witness who started out stating the personal sailboat should be labeled like an amusement ride.
There were also no written instructions on the “hull or deck of the boat or bow or the stern, starboard side” that said where to sit, and no one gave written instructions to Ray when she was on the boat. There was also no formal verbal safety briefing.
The plaintiff’s expert further stated that only experts should have been on the boat.
Wahl opined that competitive sailboat racing “requires a large number of experienced crew to adequately handle the fast-paced activities normally observed during this often dangerous and close quarters style of competitive sailing.” Wahl further opined that “[o]nly highly experienced persons should be aboard for these events.” Id. Based on his review of the evidence, Wahl testified that “there appeared to be a lot of people” on the Celadon, and that “safe places . . . were probably a little bit difficult to find.”
Based on the one-sided statement of facts and testimony only from the plaintiff’s expert, the court easily found the defendant liable.
Lesniak had a duty to: (1) properly administer safety briefings to Ray that included where the safe places to sit on the boat were during the race; (2) warn Ray that the gybe maneuver was going to be undertaken; (3) not gybe until Ray was no longer sitting in front of the main sheet; and (4) not hit Ray with the main sheet rope during the gybe maneuver.
The court then piled it on, following basic first-year law school tort classes in explaining why the defendant was liable.
The court further finds that it was completely foreseeable to Lesniak that Ray could be injured by his failure to warn her that a gybe maneuver was going to be undertaken that would involve moving the main sheet that she was sitting directly in front of, and his failure to prevent the main sheet from hitting Ray. Lesniak’s negligence was a proximate cause of Ray’s injuries; but for this breach of duty, Ray’s injuries would not have occurred.
The court then proceeded to find all four required components of negligence were proven. The first was whether the defendant owed the plaintiff a duty.
It is well-established in general maritime law that a vessel operator has a duty to exercise reasonable care for the safety of his passengers. Lesniak was the captain, and so was in charge of the vessel at the time of Ray’s injury. As such, he was charged with a duty of care to his passengers. This standard of care owed to a passenger by a vessel operator under maritime law is reasonable care under the circumstances at that particular time in each case. “The extent to which circumstances surrounding maritime travel are different than those encountered in daily life and involve more danger to passengers, will deter-mine how high a degree is reasonable in each case.
However, the court’s findings were just out there. The court found the defendant had a duty to determine if the plaintiff had any prior sailing experience.
In this case, the circumstances surrounding a sailboat participating in a race in the Charleston harbor call for a heightened degree of care. Additionally, before stepping on board the Celadon, Ray had never before been on a sailboat, a fact of which Lesniak was unaware of and failed to inquire about.
Second was whether the defendant had breached that duty to the plaintiff.
The court finds that Lesniak failed to act as a prudent mariner in failing to: (1) provide adequate posted, written, or verbal warnings to Ray regarding the potential dangers of movement and position on the Celadon and how to avoid those dangers; and (2) in failing to make sure that his passengers were in a safe location at all times, especially before performing a gybe maneuver which causes the boom and its related parts to swing quickly from port to starboard or vice versa. The court finds that these acts and omissions constitute a breach of Rule 5 of the Inland Navigation Rules, the common-law lookout duty, and the general duty of due care under Admiralty and South Carolina law.
For causation, the court determined it was the defendant’s job to prove there was no causation. That is not how causation normally works!
The court’s determination that Lesniak breached his duty to keep a proper lookout imposes upon him the burden to show by clear and convincing evidence that his breach of duty did not contribute to the incident. The record here does not support such a showing. Therefore, the court concludes that Lesniak’s negligence caused the main sheet to strike Ray’s head and, therefore, Ray’s resulting injuries.
The judge did find the plaintiff was 25% liable for her injuries under the theory of comparative negligence.
Specifically, Ray failed to pay attention to warnings from multiple crew members to move from her position in front of the main sheet rope. Ray was to blame, in part, for being hit by the main sheet. The court finds that Ray was 25% to blame, and so reduces her damages by 25%.
The court found the following four specific times when the plaintiff was liable.
1. Ray was told to move away from the main sheet by multiple crew members, including Truog and Becker, but did not move.
2. After getting hit by the main sheet, Ray did not ask anyone for medical attention and did not appear to be in need of any medical attention.
3. When Ray got off the Celadon at the conclusion of the race, Lesniak asked her if she was “okay” and she replied that “she was fine.”
4. A few days after the incident, Lesniak contacted Ray to give her the option of going to see Bill Lynch, a crew member on the Celadon during the incident and a doctor, at no cost. Ray declined.
The judge then started looking at damages and found every single medical damage the plaintiff had presented had been proved and gave the plaintiff all the damages she requested including pain and suffering, past and future emotional distress and loss of enjoyment of life. Basically, the trifecta of damages.
Those damages totaled:
$958,758.15,6 plus prejudgment interest in the amount of twenty-two thousand, nine-hundred and fifty-two dollars and forty-four cents $22,151.44, and postjudgment interest at the legal rate from the date of this order.
So Now What?
The defendant did not put up a fight, or if he did it was ignored by the court. In fact, the entire decision is a review of the plaintiff’s case and nothing more.
What is scary, is the requirements that a trip leader on a common adventure now has a duty to enquire, duty to educate and a duty to warn.
Sailboats are not going to come with stickers and warning labels.
Copyright 2018 Recreation Law (720) 334 8529
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Raven Renee Ray, Plaintiff, v. Steve A. Lesniak, Defendant.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, CHARLESTON DIVISION
2018 U.S. Dist. LEXIS 28301
February 22, 2018, Decided
February 22, 2018, Filed
CORE TERMS: sheet, boat, brain, crew members, traumatic, pain, sailboat, captain, gybe, admiralty, passenger, maneuver, sailing, vessel, medication, symptoms, present value, guest, experienced, emotional, headaches, safe, hit, suffering, lookout, sit, citation omitted, concussion, sitting, opined
COUNSEL: [*1] For Raven Renee Ray, Plaintiff: Benjamin Catlett Smoot, II, William P Early, LEAD ATTORNEY, Pierce Herns Sloan and McLeod, Charleston, SC; Theodore Augustus Consta Hargrove, II, Pierce Herns Sloan and Wilson LLC, Charleston, SC.
For Steve A Lesniak, Defendant: Joseph R Weston, Stephanie A Phillips, LEAD ATTORNEYS, Weston Law Firm, Mt Pleasant, SC.
JUDGES: DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.
OPINION BY: DAVID C. NORTON
Plaintiff Raven Renee Ray (“Ray”) brought this admiralty action against Defendant Steve A. Lesniak (“Lesniak”) pursuant to Federal Rule of Civil Procedure 9(h). Ray is suing Lesniak for personal injuries and other damages she sustained as a result of being struck by the main sheet during a sailing race on Lesniak’s boat “the Celadon.”
The court tried this case without a jury on September 18, 2017. Having considered the testimony and the exhibits admitted at trial, as well as the parties’ pre-trial briefs and post-trial proposed findings and conclusions, the court now makes the following findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). It finds that Lesniak was negligent in his captaining of the Celadon, that Ray suffered an injury while an invited guest on the Celadon as a result of Lesniak’s negligence, and [*2] that as a result of this injury Ray has a permanent traumatic brain injury. It awards $958,758.15 in damages. This award, in the court’s eyes, gives Ray what she deserves–“just some justice, some recognition and help.” Tr. 135:24.
FINDINGS OF FACT1
1 These findings are based on the preponderance of the evidence presented to the court.
1. At the time of the incident at issue, Ray was a 29-year-old female working two jobs in the food and beverage industry, volunteering at an acupuncture clinic, and simultaneously pursuing advanced degrees in psychology and clinical counseling at The Citadel. Ray had never been on a sailboat before the day of the incident.
2. At the time of the incident, 57-year-old Lesniak was the owner, operator, and captain of the sailboat Celadon on which the incident occurred. Lesniak is an experienced captain, who has 35 years of sailing experience–including 25 years of sailing experience in Charleston. Tr. 205:15-17. He has captained “several hundred, maybe a thousand” sailboat races. Tr. 205:18-20. He has been sailing with some of the crew members that were on the Celadon at the time of the incident for “15, 20 years.” Tr. 205:24-206:7.
3. The sailboat Celadon on which the incident occurred is a fifty-one foot, 1995 Beneteau Oceanis 510 registered in [*3] Charleston County, South Carolina. At the time of the incident, Lesniak had owned and operated the Celadon for approximately fifteen years.
4. Operation of the sailboat during a race requires several crewmembers. Thirteen crewmembers and a number of guests were aboard the sailboat on the day of the incident. Tr. 182:1-183:1.
A. The Accident:
1. The court now turns to the day of the incident, May 21, 2014. Ray was invited to a sailboat race by Colin Skinner (“Skinner”), who Ray knew as a “regular” customer at the Oak Bar Tavern where she worked. Tr. 106:14-20. Skinner was a crew member on the Celadon. Tr. 184:3-6. Skinner has been sailing with Lesniak for “[r]oughly five years.” Tr. 206:20-22. Lesniak allowed Skinner to invite a guest on the boat. Tr. 184:5-6.
2. The other crew members who were on the Celadon during the incident had years of sailing experience, many as crew members with Lesniak. Tr. 206:10-208:4. Of the crew members on the boat at the time of the incident, at least three had medical backgrounds, ranging from Emergency Room nurse to thoracic surgeon. Tr. 206:10-208:9. Lesniak testified that these crew members had previously taken action if anyone suffered an injury on the [*4] boat during sailing races and trips. Tr. 209:21-210:5.
3. Lesniak testified that all of his crew members “[knew] to look after new people.” Tr. 208:18-21.
4. Lesniak authorized crew members to perform tasks during the race, including telling guests when and where to move during the course of the race. Tr. 209:1-20.
5. Ray and Skinner arrived at the Carolina Yacht Club, the marina where the yacht was docked. Tr. 107:7-12. When she got to the boat, there were “many” people on the boat, including crew members and guests. Tr. 108:1-4. Ray testified that she did not know anyone on the boat other than Skinner. Tr. 108:5-6.
6. Before May 21st, 2014, Ray had never been on a sailboat. Tr. 106:21-107:1. She knew nothing about how a sailboat worked. Tr. 107:2-4.
7. Lesniak did not give safety instructions to any of the guests, including Ray, who was on the Celadon. Tr. 184:12-17. He also did not give any written instructions to guests. Tr. 187:2-6. Furthermore, he did not have a written safety checklist or conduct a safety and operational briefing before the Celadon left the marina. Tr. 187:16-21. At the time of the incident, there were no safety placards or visual displays on the Celadon stating [*5] that there were dangerous places to sit on the boat, such as “around any rope, boom.” Tr. 186:20-187:1. Lesniak delegated the giving of safety instructions to two crew members, neither of whom testified during the trial. Tr. 14:16-185:6. Lesniak did not hear what safety talks were given to guests because he was at the helm of the boat. Tr. 185:5-9.
8. Ray was late to the start of the boat race and was given an abbreviated version of the “safety talk” by crew members, which involved an instruction on where not to sit on the boat. Tr. 192:10-18.
9. Upon arriving on the Celadon, Skinner placed Ray at the position where she was sitting when the main sheet hit her. Tr. 264:8-265:19. Ray was seated on the deck of the Celadon, near the main sheet. Ex. 13.
10. The crew was aware of where Ray was sitting. Tr. 204:4-6.
11. Within 5-10 minutes of Ray stepping on board the Celadon, the incident occurred. Tr. 194:2-5.
12. Before she was hit, Ray was given instructions by crew members to “get more neighborly, get closer together.” Tr. 114:2-3. Specifically, crew member Dawn Truog (“Truog”) asked Ray, who was sitting in front of the main sheet, to “move back from the [main] sheet.” Tr. 250:16-25. There [*6] was no evidence presented that Ray knew what a “main sheet” was. Crew member Mary Anne Becker (“Becker”) also testified, stating that she “told [Ray] specifically to move, move up front, move forward” multiple times, because Ray “was going to be brushed by the sheets” when the boat gybed. Tr. 257:6-12. Becker further testified that even after these verbal warnings to move, Ray “didn’t move,” and “the next thing” Becker knew was Ray “down on the gutter” of the boat. Tr. 257:17-20.
13. Lesniak made the decision to gybe, which is the action that caused the main sheet to strike Ray. Tr. 199:16-17. When the captain executes a gybe maneuver, as Lesniak did here, the main sheet moves across the deck of the boat. Tr. 221:14-25.
14. Lesniak testified that members of his crew told Ray to move “several times” and that the crew members were aware that she did not move–even after Lesniak had called for the gybe maneuver. Tr. 213:22-214:5. For example, Truog was aware that Ray was sitting in front of the main sheet when Lesniak gybed. Tr. 254:25-255:3. Truog saw “the boom [come] over, and that [Ray] was pushed down to the side of the boat.” Tr. 251:9-18.
15. If Lesniak had waited to gybe or made sure [*7] that Ray was in a safe location, Ray would not have been hit by the main sheet. Tr. 202:9-13.
16. After Lesniak did the gybe maneuver, Ray was hit by the main sheet, the force of which threw her from her seated position onto the deck of the boat. Tr. 115:14-20. The main sheet carries a significant amount of pressure, “absolutely” enough to cause a serious injury. Tr. 237:6-25. Lesniak saw the main sheet strike Ray. Tr. 198:25-199:6.
17. The court considered the testimony of various crew members who were on the Celadon during the incident. For example, Dr. Bill Lynch testified about the main sheet hitting Ray. Additionally, he testified that he did not give any safety instructions to Ray, and was not aware of any sailing experience that she had. Tr. 247:1-6.
18. Ray was left with an abrasion on her forehead as a result of the main sheet hitting her. Pl.’s Ex. 2.
19. After Ray was injured, Lesniak did not turn the boat around. Tr. 117:5-12. Lesniak continued with the boat race. Tr. 148:10-18.
B. Breach of Safety Protocol:
1. Ray testified about the instructions she was given when she got on the Celadon. Specifically, Ray stated that she was “told where the lines were” and where to sit. Tr. [*8] 109:18-23. She was given these instructions and told where to sit by a crew member, “Peggy.” Tr. 110:6-9. She was not warned that she “might get hit in the head with a boom or a rope or anything like that.” Tr. 110:10-17. There were also no written instructions on the “hull or deck of the boat or bow or the stern, starboard side” that said where to sit, and no one gave written instructions to Ray when she was on the boat. Tr. 110:18-24. There was also no formal verbal safety briefing. Tr. 111:4-7.
2. Ray did not hear, and “wouldn’t have understood” any instructions on whether the boom or main sheet were going to swing during the course of the race. Tr. 115:1-4.
3. The court also credits the testimony of Ray’s expert Captain Ken Wahl (“Wahl”), who the court qualified as a boating expert and marine safety consultant. Tr. 214:20-215:9. Wahl opined that competitive sailboat racing “requires a large number of experienced crew to adequately handle the fast-paced activities normally observed during this often dangerous and close quarters style of competitive sailing.” Ex. 1 at 8. Wahl further opined that “[o]nly highly experienced persons should be aboard for these events.” Id. Based on his [*9] review of the evidence, Wahl testified that “there appeared to be a lot of people” on the Celadon, and that “safe places . . . were probably a little bit difficult to find.” Tr. 220:1-9.
4. Wahl opined that Lesniak, who had captained hundreds of races, became “complacent” by delegating the “safety orientation” for guests to crew members. Tr. 225:9-226:3.
5. Wahl testified that when a boat race begins, “[t]here’s some very dangerous places to be on board the boat . . . [a]nd it’s certainly not a safe place to be right near the main sheet.” Tr. 221:10-13. Accordingly, Ray, who was seated on the deck of the boat near the main sheet, was in a dangerous position. Tr. 222:1-6.
6. Specifically, Wahl opined that “[m]oving isn’t quite enough” “when somebody doesn’t know anything about a sailboat, because they don’t know where to move to.” Tr. 223:23-25. The proper procedure for a crew member to ensure that Ray was moved safely to another area of the boat was for Lesniak or a crew member to physically ensure that she had been moved to a safer place. Tr. 226:14-227:16. Simply telling a novice passenger like Ray who had never been on a sailboat to move was insufficient, and a breach of safety protocol. [*10] Tr. 227:9-21.
7. Wahl further opined that it was in contravention of boat safety protocol for Lesniak to gybe while Ray was sitting next to the main sheet, as gybing the boat necessarily causes a movement of the main sheet. Tr. 223:14-19. Wahl offered suggestions on what safety protocol Lesniak should have followed in that scenario, such as “[d]elay the gybe, get somebody to move that person, tell them where to sit, where the safe spot is.” Tr. 223:16-22. Lesniak did none of these things.
8. When a captain changes the position of the sails, such as the gybe maneuver that Lesniak performed, Wahl testified that the captain “typically” will call out to the crew and let the crew members know that he will be changing the position of the sails. Tr. 238:16-239:4.
C. Comparative Negligence:
1. Ray was told to move away from the main sheet by multiple crew members, including Truog and Becker, but did not move. Tr. 257:17-20.
2. After getting hit by the main sheet, Ray did not ask anyone for medical attention and did not appear to be in need of any medical attention. Tr. 210:6-23.
3. When Ray got off the Celadon at the conclusion of the race, Lesniak asked her if she was “okay” and she replied that [*11] “she was fine.” Tr. 210:24-25.
4. A few days after the incident, Lesniak contacted Ray to give her the option of going to see Bill Lynch, a crew member on the Celadon during the incident and a doctor, at no cost. Tr. 210:1-5. Ray declined. Tr. 210:1-5.
D. Causation of Traumatic Brain Injury:
1. Two days after the incident, Ray went to Nason Medical Center because she was experiencing “extreme body pain.” Tr. 119:17-24. Within seven days of the incident, Ray began experiencing different symptoms–namely, debilitating nausea and headaches. Tr. 120:11-21. Ray was “extremely” confused when she went to the Medical University of South Carolina (“MUSC”) the week after the incident as a result of her new symptoms. Tr. 121:1-6. At MUSC, Ray was referred to a neurologist who diagnosed Ray with a concussion and prescribed medications for a head injury. Tr. 121:7-25.
2. The only medical expert who testified during the trial was Dr. Marshall Allen White (“Dr. White”), a board-certified neurologist.2 Tr. 8:15-16. Dr. White treats patients with traumatic brain injuries as part of his practice on “nearly a daily basis,” and has done so since 1991. Dr. White has testified in the past as to both the diagnoses [*12] and causation of traumatic brain injuries. The court credits Dr. White as an expert in the field of traumatic brain injuries. Tr. 9:21-10:17. Dr. White examined Ray, and reviewed the following medical records: (1) Nason Medical Center; (2) MUSC; (3) Dr. Jeffrey Buncher, a pain management physician in Charleston, South Carolina; (4) physical therapy records; (5) acupuncture records; (6) neuropsychological testing performed by Dr. Randolph Waid; and (7) psychiatric records from Dr. Kurtzman. Tr. 11:1-21. Dr. White testified that, based on his examination of Ray, a review of her medical records, and consulting with peer-reviewed articles, Ray sustained a traumatic brain injury. Tr. 12:5-12. Specifically, Dr. White testified that Ray had the symptoms of a concussion immediately following the incident, in that she was “dazed, confused,” and the morning after the event she felt “that she was not going to be able to wake up,” which Dr. White testified indicated “a level of hypersomnolence, which is typical following a concussion.” Tr. 12:17-13:1. Dr. White further testified that compared to “baseline records” that were “pretty close in proximity” to the incident, he observed that Ray had [*13] “heightened levels of anxiety, trepidation, moodiness, difficulty sleeping after the period of hypersomnolence, difficulty focusing, poor memory, and anxiety levels which were dramatically increased from her baseline levels.” Tr. 13:2-10. All of these symptoms of traumatic brain injury, according to Dr. White, were caused by the head trauma that Ray suffered during the incident. Tr. 13:11-15.
3. According to Dr. White, Ray’s traumatic brain injury is “permanent.” Tr. 13:16-18. All three of these opinions–that Ray had a traumatic brain injury, that the brain injury was permanent, and that the brain injury was the result of the incident on the Celadon–Dr. White testified that he held to a “reasonable degree of medical certainty.” Tr. 13:19-22. Specifically, in his report, Dr. White states that:
It is my opinion to a reasonable degree of medical certainty that Ms. Ray experienced traumatic brain injury as a result of her sailing incident, which occurred in 2014. There is ample evidence of headache, nausea, vomiting, and worsening in her neuropsychiatric syndrome and cognitive abilities following the incident . . . It is further my opinion that Ms. Ray would clearly have academic, social [*14] and occupational difficulties throughout every facet of her life.
Pl.’s Ex. 4. Dr. White further testified that when he examined Ray, she was having emotional and concentration issues that he attributed to her “residual [traumatic brain injury] symptomology,” and that this was consistent with a patient with her level of brain injury. Tr. 28:13-23.
4. Dr. White also testified at length about Ray’s post-incident treatment in the week after the incident, based on his review of her medical records. At Nason, Dr. White testified that no diagnostic testing was performed, and instead Nason “basically gave her pain medicine and sent her home.” Tr. 17:9-11. Then, Ray went to the MUSC emergency room, where she was “evaluated and treated” for “neck and back pain.” Tr. 17:14-15. Ray then returned to MUSC with “complaints of pain,” and returned once again within five days of the injury “complaining of headaches” as well as nausea and vomiting. Tr. 17:19-23. These symptoms of headaches, nausea, and vomiting, were, Dr. White testified, symptoms of a concussion. Tr. 18:11-14. Based on his review of Ray’s medical records and after taking her medical history, Dr. White concluded that Ray had “a lot” of [*15] the symptoms of the postconcussive syndrome. Tr. 20:5-9.
5. Lesniak argued at various points during the bench trial that Ray did not immediately experience any symptoms of headaches, nausea, and vomiting while on the Celadon or the next day. However, Dr. White testified that there can be “delayed effects from concussion.” Tr. 35:24. Furthermore, Ray had consumed at least one beer immediately before the incident. Alcohol consumption, Dr. White testified, would impair Ray’s ability to recognize her symptoms. Tr. 36:6-11.
6. Dr. White testified that postconcussive headaches such as the ones that Ray experienced can be developed “within seven days of the concussion itself.” Tr. 18:22-24. Indeed, Dr. White testified on the types of symptoms during the “days and weeks” after a concussion, and stated that there can be “difficulty concentrating, moodiness, hypersomnolence . . . [a]nxiety . . . headaches, nausea, and vomiting.” Tr. 19:1-17.
7. Ray had a CT scan done at MUSC, which had normal results, but Dr. White testified that the normal CT scan did not disturb his opinion that Ray had a traumatic brain injury, as mild traumatic brain injury patients will have “under almost all circumstances [*16] . . . normal imaging.” Tr. 21:18-22:2. Indeed, Dr. White testified that a normal CT scan was “expected” for patients with mild traumatic brain injury. Tr. 22:3-6.
8. The court considered that Ray was not diagnosed with traumatic brain injury, or indeed any injury at all, by any emergency room physicians in her visits to Nason or the MUSC ER. But, according to Dr. White, the peer-reviewed literature in the field is clear that mild traumatic brain injuries “can be overlooked,” even by emergency room physicians. Tr. 36:2-5. Furthermore, in none of the medical visits that Ray had in the immediate aftermath of the incident did she have any cognitive testing done that would have detected such cases of traumatic brain injury. Tr. 52:11-60:4.
9. Dr. Kurtzman, a psychiatrist who examined Ray on May 1st before the incident, indicated that Ray was working on her graduate thesis and had no “uncontrolled anxiety or crying spells.” This psychiatric record is closest in proximity to the incident. Tr. 14:13-15:11. Dr. Kurtzman’s psychiatric record further indicates that as of May 1st, Ray was a “student, working doing marketing, volunteering, and doing research–all while supporting herself financially.” [*17] Tr. 15:12-20. In his treatment notes for Ray after the incident, Dr. Kurtzman stated that Ray had “suffered . . . emotionally and physically from an injury sustained from being hit by a sailboat boom . . . I’m concerned about her emotional prognosis and her emotional upset secondary to the accident.” Tr. 23:6-24:4. Dr. Kurtzman also prescribed Ray the medication Adderall, which Dr. White testified is an “amphetamine stimulant” that is “used for patients with [traumatic brain injury] who are having difficulty concentrating.” Tr. 24:5-15. Concentration and attention problems such as those treated with Adderall are consistent with the diagnosis of mild traumatic brain injury, Dr. White testified. Tr. 24:16. Dr. White further testified that during his examination and interview with Ray, she stated that she experienced those symptoms for the first time after the date of the incident. Tr. 24:19-22. Ray testified that she had never been prescribed Adderall or psychostimulants before the incident. Tr. 101:14-102:7. At the direction of her doctor, Ray has been taking Adderall in increasing doses since the incident. Tr. 126:22-11.
10. The court acknowledges that prior to the incident, Ray was [*18] on the medication Klonopin to treat anxiety. Tr. 16:2-9. However, Dr. Kurtzman was on a successful program to wean Ray off of Klonopin. Tr. 16:10-16. Ray testified that she was in the process of “taper[ing] off” the anti-anxiety medication. Tr. 102:16-103:4. The court also acknowledges that Ray suffered from general anxiety disorder, which can have symptoms similar to those found in someone with a concussion. Relatedly, the court has considered Ray’s testimony about the circumstances of her unfortunate upbringing, including her time in foster care and her intermittent history with prescribed antidepressants and anti-anxiety medication. Tr. 92:1-99:3. The court credits Dr. White’s opinion–that the temporal relationship between the incident and the onset of symptoms supports a finding that Ray was not suffering from her historical general anxiety disorder, but from the head trauma she received as a result of the incident. Tr. 48:4-20.
11. Ray was seen by Dr. Woodard, a neurologist at MUSC, “several months” after the incident. Dr. Woodard also diagnosed Ray as having postconcussion syndrome, and placed her on gabapentin and nortriptyline. Nortriptyline is used to treat headaches, while [*19] gabapentin is used to treat headaches, mood disturbances, and sleep. Tr. 20:12-21:14.
12. On July 28, 2015, Ray had neuropsychological testing, which discerns whether there are “cognitive or emotional deficits related to injury” performed by Dr. Randolph Waid. Tr. 25:1-14. Specifically, Dr. Waid employed the Conners Continuous Performance Test II to assess Ray’s “attentional abilities.” Tr. 25:14-24. Based on Ray’s pre-incident level of functioning, Dr. Waid felt that Ray’s concentration abilities, which were in the ninth percentile, were low. Tr. 26:2-5. Ray had a “very high GPA” in her college and graduate work before the incident. Tr. 26:11-12. Ray had a 3.7 GPA at the College of Charleston. Tr. 101:5-7. The cause of the decrease in Ray’s attention between college and the day that Dr. Waid performed his neurophysical testing was, in Dr. White’s opinion, the traumatic brain injury that she suffered as a result of the incident. Tr. 26:15-18.
13. Ray also saw Dr. Jeffrey Buncher for injuries related to the incident. Ray had pain management issues before the incident, specifically with chronic neck and back pain. Ex. 8. But Ray’s pain problems with her sacrum were, in Dr. White’s opinion, [*20] “exacerbated” by the incident. Tr. 27:1-21.
14. Dr. White offered a future treatment plan to treat Ray’s permanent condition and opined that “there are a number of interventions that ought to be taken in her care that are currently not being taken” and that Ray was not receiving treatment from any doctors who treated traumatic brain injuries. Tr. 30:1-32:2. Dr. White also testified about the cash prices of the drugs necessary for the future treatment plan. Tr. 32:14-33:15.
15. The court also considered the testimony of Chad Houfek (“Houfek”), an acupuncturist and the owner of Charleston Community Acupuncture. Tr. 81:11-23. Houfek knew Ray as a patient as well as a volunteer at Charleston Community Acupuncture. Tr. 82:2. In her capacity as a volunteer, Ray worked answering phones, scheduling appointments, and also helped with bookkeeping. Tr. 82:11-83:8. Houfek testified about how Ray was different after the incident, from a treatment perspective, explaining that she came in for acupuncture a week after the incident, and that “she had a big mark on her temple, and she was very upset, she was crying and very scared, didn’t really know what to do, and she had a lot of neck pain.” Tr. 83:9-19. [*21] When Ray had her acupuncture appointment on May 28th, approximately one week after the incident, Houfek recorded in his session notes that Ray was “postconcussion,” and that what she was experiencing included sensitivity to stimulus and headaches. Tr. 84:9-18. After the incident, Houfek continued to treat Ray, and stated that he was treating her mostly for neck pain and lower back pain, as well as insomnia, and “extreme emotional.” Tr. 87:4-9.
16. Houfek also testified about the changes in Ray as a volunteer after the incident. Before the incident, Houfek described Ray as “awesome,” as an employee who was “very friendly,” who “always showed up on time,” and “took initiative.” Tr. 85:7-15. But after the incident, Houfek testified that Ray was “always late,” “very very scattered,” and that “communicating with her was difficult.” Tr. 85:17-25. Houfek further testified that he had not experienced any of those problems with Ray before the incident. Tr. 86:2-4.
17. The court has considered the reports and treatments notes of the doctors, including pain management specialists and neurologists, that Ray has seen since the incident. Ex. 10. In conjunction with Dr. White’s testimony, these medical [*22] documents support the conclusion that Ray suffered a traumatic brain injury as a result of the injury she suffered on the Celadon.
18. Prior to the incident, Ray testified that “[l]ife was great,” and that she “was excited for finishing” her master’s thesis at the Citadel and continuing on for her Ph.D. Tr. 103:18-25. In addition to being in the master’s program at the Citadel, Ray was also working at the restaurant Oak Barrel four nights a week, Tr. 104:19-24, in the tasting room at the restaurant Freehouse two nights a week, Tr. 104:15-105:1. She was also volunteering with Charleston Community Acupuncture and doing research. Tr. 105:17-24. She testified that despite this busy schedule she never had any problems with attention before the incident. Tr. 106:1-11.
19. Since the incident, Ray has had suicidal ideations. Tr. 124:22-125:9. She has also been suffering from giggling issues and other inappropriate responses to stimuli, which never occurred before the incident. Tr. 127:19-25. As a result of these issues, as well as the problems in concentration and attention, her professors at the Citadel have expressed “legitimate concerns” about her ability to complete the graduate program. [*23] Tr. 127:19-25; 132:1-9. Furthermore, since the incident Ray has lost her jobs at the Oak Barrel and the Freehouse. Tr. 128:16-19. Ray attributes both of these job losses to the incident. For example, as a result of the injuries she sustained, Ray has had to ask her customers and friends to come and help her while she was at the bar. Tr. 129:1-10. Additionally, when there were stimuli such as music or “certain sounds,” Ray would run out of the bar and “leave the entire bar empty, and cry in the alley.” Tr. 129:4-11. Before the incident, Ray did not have these problems at work.
20. Since the incident, Ray has had physical and psychological problems. Physically, she has had trouble sleeping, has “nerve pain down the back of her leg,” and tension headaches. Tr. 130:13-131:21. She now also has communication issues, which have affected her interpersonal, professional, and educational goals. Tr. 136:21-137:13.
21. The court considered the medical bills that Ray has incurred, between the date of the incident and present. Pl.’s Ex. 10. Ray does not have health insurance. Tr. 123:4-7. The total medical bills for her injury totaled $20, 480.70. Pl.’s Ex. 10. By the time of trial, Ray had incurred [*24] the following expenses to treat her injuries:
|a.||Nason Medical Center||$127.00|
|g.||Charleston Community Acunpuncture||$3,130.00|
2 Lesniak objects to allowing Dr. White to testify on the subject of future treatment. However, Ray disclosed Dr. White as one of her treating physicians and produced Dr. White’s medical evaluation of Ray, wherein Dr. White opined that Ray had sustained a permanent traumatic brain injury. The court is convinced that Dr. White’s written report and opinion of Ray’s permanent injury gave Lesniak adequate notice that Ray would need continued medical evaluation and treatment for her condition for the rest of her life. Ray disclosed Dr. White as an expert in neurological medicine and pain management in compliance with all relevant expert disclosure requirements and deadlines. Lesniak made the decision to decline to take Dr. White’s deposition, offer his own medical expert disputing the diagnosis of traumatic brain injury or offer an alternative future treatment plan, or to request any additional information from Dr. White regarding his evaluation of Ray. At the very least, Lesniak was on notice that as a result of the incident, Ray had already spent a significant amount of money on medical treatment including $2,255.70 on medication alone. Certainly, Ray’s medical bills were turned over during discovery. Therefore, the court overrules Lesniak’s objection.
III. CONCLUSIONS OF LAW
Based on the testimony of all of Lesniak’s crew members and all experts, including Ray’s expert Captain Wahl, Lesniak was negligent in doing a gybe maneuver when he and his crew members knew or should have known that Ray was sitting in front of the main sheet which is a dangerous place to sit. Prior to undertaking the gybe maneuver during the sailboat race, Lesniak had a duty to: (1) properly administer safety briefings to Ray that included where the safe places to sit on the boat were during the race; (2) warn Ray that the gybe maneuver was going to be undertaken; (3) not gybe until Ray was no longer sitting in front of the main sheet; and (4) not hit Ray with the main sheet rope during the gybe maneuver. A failure to follow safety precautions, including telling Ray where to move and delaying the gybe maneuver until Ray had moved to a safe place, was [*25] a breach of Lesniak’s duty to Ray. The court further finds that it was completely foreseeable to Lesniak that Ray could be injured by his failure to warn her that a gybe maneuver was going to be undertaken that would involve moving the main sheet that she was sitting directly in front of, and his failure to prevent the main sheet from hitting Ray. Lesniak’s negligence was a proximate cause of Ray’s injuries; but for this breach of duty, Ray’s injuries would not have occurred.
However, Lesniak has presented sufficient evidence to support the allegation in his Answer that Ray was comparatively negligent. Specifically, Ray failed to pay attention to warnings from multiple crew members to move from her position in front of the main sheet rope. Ray was to blame, in part, for being hit by the main sheet. The court finds that Ray was 25% to blame, and so reduces her damages by 25%.
As a direct result of Lesniak’s failure to exercise the proper degree of skill required, Ray sustained injuries and damages, as discussed below. In making the above findings of fact, reference has been made to pertinent portions of the testimony and exhibits introduced into evidence; however, the court has taken [*26] into consideration all of the evidence presented. The court specifically finds the evidence, after considering the appearance, demeanor and qualifications of the witnesses and the testimony as a whole, supports each of its findings by a preponderance of the evidence.
A. Jurisdiction and Applicable Law
Federal admiralty jurisdiction exists where, as here, conditions of both (1) location and (2) a connection with maritime activity are satisfied. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S. Ct. 1043, 130 L. Ed. 2d 1024, (1995). Admiralty jurisdiction extends to injuries involving recreational vessels such as the Celadon. See Oliver by Oliver v. Hardesty, 745 F.2d 317, 320 (4th Cir. 1984) (admiralty jurisdiction exists over a case involving a collision between a swimmer and a pleasure boat because the claim was based on an allegation of negligent navigation of the boat). The portion of the Charleston Harbor where the incident occurred constitutes navigable waters of the United States, and being struck by the main sheet of a racing sailboat has a connection to maritime activity. Accordingly, the court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1333. See Sisson v. Ruby, 497 U.S. 358, 364-65, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990).
Cases involving a tort committed on navigable waters are governed by federal admiralty law. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981) (citation omitted). However, if there is no admiralty rule for a particular [*27] issue, the court looks to state law to supply the rule of decision. Id. “This rule is especially true in negligence causes of action,” which is the cause of action that Ray asserts. Schumacher v. Cooper, 850 F. Supp. 438, 447 (D.S.C. 1994) (citation omitted). Therefore, to the extent admiralty law is not directly on point, ordinary negligence law applies.
B. Lesniak’s Liability
To establish her claim, Ray must prove that Lesniak’s negligent operation of the Celadon harmed her. The elements of negligence are duty, a breach of that duty, proximate cause, and resulting injury. Schumacher, 850 F.Supp. at 447 (internal citations omitted).
It is well-established in general maritime law that a vessel operator has a duty to exercise reasonable care for the safety of his passengers. See Bubla v. Bradshaw, 795 F.2d 349, 353 (4th Cir. 1986) (quoting Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)). Lesniak was the captain, and so was in charge of the vessel at the time of Ray’s injury. As such, he was charged with a duty of care to his passengers. This standard of care owed to a passenger by a vessel operator under maritime law is reasonable care under the circumstances at that particular time in each case. Id. “The extent to which circumstances surrounding maritime travel are different than those encountered in daily life and involve more danger to passengers, will determine [*28] how high a degree is reasonable in each case.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (quoting Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2nd Cir. 1983)). In this case, the circumstances surrounding a sailboat participating in a race in the Charleston harbor call for a heightened degree of care. Additionally, before stepping on board the Celadon, Ray had never before been on a sailboat, a fact of which Lesniak was unaware of and failed to inquire about.
A vessel operator also “has a duty to maintain a proper lookout by sight and by hearing” while the boat is travelling through navigable waters. Schumacher, 850 F.Supp. at 447. “This duty stems from general concepts of prudent seamanship as well as from the [regulations] governing the navigation of vessels.” Id. As a matter of prudent seamanship, “the performance of lookout duty is an inexorable requirement of prudent navigation.” Anthony v. Int’l Paper Co., 289 F.2d 574, 580 (4th Cir. 1961). Rule 5 of the Inland Navigation Rules states that “[e]very vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.” 33 C.F.R. § 83.05. Rule 5 perpetuates the common-law duty discussed in Anthony. Schumacher, 850 F.Supp. at 448 (citation omitted). It imposes a duty of proper lookout upon the operator of a pleasure [*29] craft such as the Celadon. See Todd v. Schneider, 2003 U.S. Dist. LEXIS 25192, 2003 WL 23514560, at *11 (D.S.C. Dec. 8, 2003). Importantly, “[w]hoever is keeping a lookout must be able to give proper attention to that task and should not . . . undertake duties that would interfere with this function.” Schumacher, 850 F.Supp. at 448 (citation omitted).
“The duty to maintain a proper look-out, whether regulatory or customary, varies with the circumstances of each situation. When circumstances demand unusual care in navigation, such care should be used.” Id. at 449-50 (internal citations omitted). That higher level of care was required here, as Ray was an invited guest aboard a sailboat involved in a race in the Charleston harbor.
Lesniak was the owner, captain, and operator of the sailboat and was in control of its operation at all times. Ray was Lesniak’s passenger and guest. Although Lesniak designated his crewmembers to administer safety instructions to the passengers, as captain, Lesniak was ultimately responsible for the safety of the crewmembers and guests. Thus, Lesniak owed Ray a duty to maintain a proper lookout at all times during the Celadon’s outing.
Ray offered the testimony of Captain Wahl as her liability expert with regard to safe vessel operation. Captain Wahl has extensive knowledge about the safe [*30] operation of vessels. He obtained this knowledge from his many years of personally operating vessels, obtaining credentials, holding an array of maritime positions, authoring several books, and teaching well over 18,000 students in the subject. The court finds the testimony of Captain Wahl to be credible. Lesniak offered no liability expert at trial.
Captain Wahl testified that as the captain of the Celadon at the time of the incident, good seamanship practices required Lesniak to have the ultimate responsibility to look out for persons aboard his vessel–even if he delegated some of those responsibilities to crew members. Wahl testified that this ultimate responsibility includes providing adequate instructions, warnings, guidance, or lessons to all passengers, including late arriving ones, regarding the potential dangers of movement and position on his vessel and how to avoid those dangers. He also testified that looking out for passengers aboard a vessel includes refraining from performing a gybe maneuver until ensuring that all of the passengers are seated safely out of the path of the boom and its related parts such as the main sheet. Captain Wahl further testified that, even if [*31] a passenger is told verbally to move from a certain spot before a maneuver is performed, it would be a best practice to physically ensure that the person, especially if that person is a novice passenger with no sailing experience, has been moved to a safer place on the sailboat before proceeding to perform the maneuver. It is also Captain Wahl’s opinion that only highly experienced persons should be aboard for racing events, because inexperienced persons may not be able to handle the fast-paced activities normally observed during competitive sailing.
The court finds that Lesniak failed to act as a prudent mariner in failing to: (1) provide adequate posted, written, or verbal warnings to Ray regarding the potential dangers of movement and position on the Celadon and how to avoid those dangers; and (2) in failing to make sure that his passengers were in a safe location at all times, especially before performing a gybe maneuver which causes the boom and its related parts to swing quickly from port to starboard or vice versa. The court finds that these acts and omissions constitute a breach of Rule 5 of the Inland Navigation Rules, the common-law lookout duty, and the general duty of due care [*32] under Admiralty and South Carolina law.
General tort principles require a plaintiff asserting a negligence claim to show that the defendant’s breach of duty proximately caused her injuries. Schumacher, 850 F.Supp. at 451. However, a finding that the defendant breached his duty to maintain a proper lookout imposes upon him the burden of showing by clear and convincing evidence that such failure did not contribute to the accident. Id. This burden shift occurs regardless of whether the breach is viewed as a violation of Rule 5 or as breach of the common-law lookout duty. Id.
The court’s determination that Lesniak breached his duty to keep a proper lookout imposes upon him the burden to show by clear and convincing evidence that his breach of duty did not contribute to the incident. The record here does not support such a showing. Therefore, the court concludes that Lesniak’s negligence caused the main sheet to strike Ray’s head and, therefore, Ray’s resulting injuries.
d. Comparative Negligence
Since jurisdiction is premised upon admiralty, federal common law governs. As such, the doctrine of comparative negligence applies. See, e.g., Mullenix v. United States, 984 F.2d 101, 104 (4th Cir. 1993) (citing United States v. Reliable Transfer Co., 421 U.S. 397, 407, 411, 95 S. Ct. 1708, 44 L. Ed. 2d 251, (1975)). Thus, in the context of an admiralty case, damages should “[b]e allocated [*33] among the parties proportionately to the comparative degree of their fault.” Reliable Transfer Co., Inc. 421 U.S. at 411, 95 S.Ct. 1708.
The court finds that Ray’s recovery should be reduced because Ray shares in the fault attributable as a result of the incident. Lesniak is required to prove the elements of duty, breach, causation, and injury as to Ray’s alleged negligence. Schumacher, 850 F. Supp. at 452 (citing Wilson v. Marshall, 260 S.C. 271, 195 S.E.2d 610, 612 (S.C. 1973)). Namely, an individual has a “duty to exercise due care for one’s own safety.” Id. The court finds that Ray’s conduct contributed to her injuries, and reduces her damages by 25%.
The court finds that Ray was instructed by multiple crew members on multiple occasions on safety protocol, including where to sit. Ray admits that she was aware of potential dangers on the Celadon, and that she was told to “get closer together” and to “get more neighborly” in the moments immediately before the main sheet hit her. Lesniak and all four members of his crew who testified at trial indicated that there was a safety protocol, that Becker, an individual with sixty plus years of sailing experience, and her fellow crew member Truog, were delegated the duty of administering safety instructions and watching out for new, inexperienced passengers. Becker and Truog testified at trial [*34] that these were duties bestowed by their captain, Lesniak, and that they had a present-day recollection of communicating with Ray directly. The court further finds that Ray did not follow the instructions to move. Thus, Ray failed to take responsibility for herself, a duty which is imposed under the law. However, the court considers Ray’s inaction against the backdrop of Captain Wahl’s testimony that Ray as a novice passenger would not know what the safe places were on the boat without being physically guided to those places.
Substantive admiralty law governs all cases brought under federal admiralty jurisdiction; however, it does not automatically displace state law. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996). If there is no admiralty law on point, the court may look to the laws enacted by the state legislature or declared to be law by the state’s highest courts. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981). Accordingly, the court may look to the law of the State of South Carolina in regard to the award of damages arising out of a negligence cause of action in admiralty. Id.
In a personal injury case such as this, the elements of damages potentially recoverable “include past and future medical expenses, past and future pain and suffering, past and future loss [*35] of income and earning power, disfigurement, loss of enjoyment of life, and loss of family services.” Schumacher, 850 F.Supp. at 453 (citing Watson v. Wilkinson Trucking Co., 244 S.C. 217, 136 S.E.2d 286, 291 (S.C. 1964)). Mathematical precision in ascertaining damages is not required. Brooks v. United States, 273 F.Supp. 619, 629 (D.S.C. 1967). Instead, the injured party must be awarded damages sufficiently proportionate to the injuries sustained. Drennan v. Southern Railway, 91 S.C. 507, 75 S.E. 45 (S.C. 1912).
The evidence in this case reveals Ray has suffered and will suffer such past and future damages, and she is entitled to recover for all of them.
a. Past Medical Expenses
Ray seeks to recover certain expenses for her prior medical care. At trial, she submitted a medical bill summary totaling $20,480.70 in prior care. Those expenses are recoverable, as they consist of services such as emergency medical treatment, imaging, physical therapy, psychiatric treatment, and pain management. Those expenses resulted from Lesniak’s negligence and were reasonably necessary. See Sossamon v. Nationwide Mut. Ins. Co., 243 S.C. 552, 135 S.E.2d 87, 91 (S.C. 1964). Moreover, the court is satisfied that the invoiced amounts are reasonable. See Haselden v. Davis, 353 S.C. 481, 579 S.E.2d 293, 295 (S.C. 2003) (citation omitted). Therefore, the court awards Ray $20,480.70 in past medical expenses.
b. Future Medical Expenses
Ray seeks damages to cover her anticipated future medical expenses. “[R]ecovery of damages based on future consequences of an injury may be had only if [*36] such consequences are reasonably probable or reasonably certain.” Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1160 (4th Cir. 1986). “Reasonably certain” is “a consequence ‘which follows the original act complained of in the usual, ordinary, and experienced course of events.'” Rabb v. Orkin Exterminating Co., 677 F.Supp. 424, 426 (D.S.C. 1987) (quoting Ford v. AAA Highway Express, Inc., 204 S.C. 433, 29 S.E.2d 760, 762 (S.C. 1944)). In other words, damages can be recovered only if there is “[a] greater than 50% chance that a future consequence will occur.” Lohrmann, 782 F.2d at 1160.
Dr. White, the only medical expert offered in this case, testified at trial that Ray’s condition is permanent and will require ongoing future treatment and medication. The court concludes that Ray has established a reasonable certainty that her condition is permanent and will require ongoing future treatment, including seeing a psychiatrist and a neurologist quarterly, and medication, potentially including anti-inflammatories (anti-inflammatory patch), amphetamines or an amphetamine substitute (Nuvigil), a benzodiazepine (Klonopin), a sedative-hypnotic (Belsomra), an anxiolytic (Buspar), and a selective serotonin reuptake inhibitor (Cymbalta). Dr. White testified that Nuvigil costs approximately $800.00 per month, Cymbalta costs approximately $200.00-300.00 per month, and Belsomra costs approximately $400.00-500.00 per month.
Ray’s birthday [*37] is May 8, 1985. At the time of the incident she was 29 years old. Thus, at the time of the incident, Ray had a life expectancy of 52.53 years, or 630.36 months, under S.C. Code Ann. § 19-1-150.
Adjusted for present value,3 the future medications, frequency, current cost, duration, and present value are as follows:
|Medication||Frequency||Current Cost||Duration||Present Value|
3 Lesniak contends that Ray needs an expert economist on the issue of present value of future damages and needed to present evidence at trial on the calculation of present value discounts. However, he cites no caselaw–and the court is aware of none–that there is a requirement of obtaining expert testimony on the issue of present value of future damages. The court can find no clear requirement in relevant federal case law that plaintiff must present expert evidence of the present value of her claim for future damages. The court draws guidance from the Western District of North Carolina’s recent opinion in Talley v. City of Charlotte, 2016 U.S. Dist. LEXIS 17604, 2016 WL 1212369, at *2 (W.D.N.C. Feb. 12, 2016), appeal dismissed (Aug. 31, 2016), which observed:
[t]he courts are split on whether it is necessary to introduce expert testimony to explain the concept of discounting an award to present value or to supply suggested discount and inflation rates and/or mathematical calculations. While some courts have permitted, for example, a local banker to testify as to the fair return on a safe investment, or a mathematician an actuary, or an accountant to testify concerning the procedure by which the reduction to present value should be calculated, other courts have held that expert testimony is permitted but not required, and that the jury should generally be left to its own discretion as to what discount factors should be used.
Here, the court calculated the present value discounts employing a discount rate of five percent to damages for future medical care. See Faust v. S.C. State Highway Dep’t, 527 F. Supp. 1021, 1036 (D.S.C. 1981), rev’d on other grounds, 721 F.2d 934 (4th Cir. 1983) (“I find that he is entitled to be properly compensated for his pain, suffering, damages and permanent partial disability, before and after trial, and taking into consideration future pain and suffering and discomfort, and reducing that amount to its present cash value by use of a discount rate of five (5%) percent, which this court feels is reasonable and fair.”).
Future [*38] medication costs are increased at an expected inflation rate for prescription drugs of 3.61 percent, compounded annually.4 The present value of the total future medications that Dr. White opined were reasonable and necessary for Ray’s treatment ranges in cost from $578,100 (using the low figures of the cost of medicine needed) to $660,689 (using the high figures of the cost of medicine needed).5 The court awards the average of the cost of medicine needed, and so awards $619,394.50 for future medical expenses associated with her injuries resulting from the May 21, 2014, incident.
4 This rate is based on inflation rates as reported by the Bureau of Labor Statistics for the period 1992-2016.
5 All future medication costs are discounted to present value at a rate of 5 percent, compounded annually. This is a rate that an ordinary person with average financial knowledge, with access to commonly available investment outlets, and facing the full range of financial risks might be expected to earn over a long period of time.
d. Pain and Suffering
Ray’s pain and suffering because of this incident is well documented through her deposition and trial testimony as well as her medical records. She endured months of frequent headaches, nausea, muscle pain, and back pain as a result of her physical injuries. Raven Ray seeks $75,000.00 for past and future pain and suffering. Based on the entire record, the court concludes that $50,000.00 is the appropriate amount of compensation for both past and future pain and suffering. See Schumacher, 850 F.Supp. at 453.
e. Past and Future Emotional Distress
Injured plaintiffs are entitled to recover for mental anguish and permanent emotional [*39] scarring. Steeves v. United States, 294 F. Supp. 446, 458 (D.S.C. 1968). Ray’s severe psychological and emotional injuries because of this incident are well-documented by Houfek. Testimony from Ray and Houfek, in addition to Dr. Kurtzman’s and Dr. Waid’s records, show the extent and severity of Ray’s psychological and emotional injuries proximately caused by Lesniak’s negligence. After a careful review of the entire record, the court finds $75,000.00 for her psychological and emotional injuries reasonable. Therefore, it awards judgment against Lesniak in the amount of $75,000.00 for Ray’s past and future psychological and emotional injuries.
f. Loss of Enjoyment of Life and Permanent Impairment
Next, Ray seeks $100,000.00 as compensation for losing her ability to enjoy the athletic and recreational activities in which she used to participate, as well as her loss of enjoyment of other normal activities of life. Based on the entire record, the court concludes that $100,000.00 is the appropriate amount of compensation for this loss.
Additionally, Ray is permanently impaired due to this traumatic brain injury and must be compensated for her permanent impairment. Ray’s birthday is May 8, 1985. At the time of the incident, she was 29 years old. Thus, [*40] at the time of the incident, Ray had a life expectancy of 52.53 years, or 19,173.45 days, under S.C. Code Ann. § 19-1-150. Finding a valuation of a traumatic brain injury at $20.00 per day to be reasonable, the court awards Ray $383,469.00 for her impairment. In sum, the Court awards Raven Ray $483,469.00 for her loss of enjoyment of life and permanent impairment.
g. Lost Wages/Inconvenience and Disruption of Normal Daily Life
At the time of the incident, Ray was working in the food and beverage industry and attending The Citadel to obtain a graduate degree. Because of her injuries resulting from Lesniak’s negligence, Ray was forced to miss work and experienced difficulty in completing her graduate coursework at The Citadel. The court finds $30,000.00 to be appropriate compensation for Ray’s lost wages and difficulties experienced in completing her graduate coursework at The Citadel. See Schumacher, 850 F.Supp. at 453.
D. Prejudgment Interest
Ray asks the court to add prejudgment interest to her damages. In maritime injury cases, “the awarding of prejudgment interest is the rule rather than the exception, and, in practice, is well-nigh automatic.” U.S. Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 828 (4th Cir. 1992) (citation omitted). The court may decline to award prejudgment interest when it finds that “peculiar [*41] circumstances” would make such relief inequitable. Id. This is an action instituted under the court’s admiralty jurisdiction and no peculiar or exceptional circumstances existed that would prevent Ray from recovering pre-judgment interest. This court, in its discretion, finds no such peculiar circumstances here and finds that Ray is entitled to pre-judgment interest in the amount of $22,952.44 from the date of the accident until the date of this order.
Based on the foregoing, it is ORDERED that judgment be entered for Ray against Lesniak in the sum of nine-hundred and fifty-eight, and seven-hundred and fifty-eight dollars and fifteen cents $958,758.15,6 plus prejudgment interest in the amount of twenty-two thousand, nine-hundred and fifty-two dollars and forty-four cents $22,151.44, and postjudgment interest at the legal rate from the date of this order.
6 The tabulation of damages is $1,278,344.20 before the application of a 25% reduction in proportion to Ray’s comparative negligence. After applying the 25% reduction, the total damages award is $958, 758.15.
AND IT IS SO ORDERED.
/s/ David C. Norton
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
February 22, 2018
Charleston, South Carolina
South Carolina Uniform Electronic Transactions Act
TITLE 26. NOTARIES PUBLIC AND ACKNOWLEDGMENTS
(B) Consistent with the provisions of the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7002(a), this chapter provides alternative procedures or requirements for the use of electronic records to establish the legal effect or validity of records in electronic transactions.
As used in this chapter:
(1) “Agreement” means the bargain of the parties in fact, as found in their language or inferred from other circumstances and from rules, regulations, and procedures giving the effect of agreements under law otherwise applicable to a particular transaction.
(2) “Automated transaction” means a transaction conducted or performed, in whole or in part, by electronic means or electronic records, in which the acts or records of any of the parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract, or fulfilling an obligation required by the transaction.
(3) “Computer program” means a set of statements or instructions used directly or indirectly in an information processing system to bring about a certain result.
(4) “Contract” means the total legal obligation resulting from the agreement of the parties as affected by this chapter and other applicable law.
(5) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(6) “Electronic agent” means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, without review or action by an individual.
(7) “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.
(8) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
(9) “Governmental agency” means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.
(10) “Individual” means a single natural person; one human being.
(11) “Information” means data, text, images, sounds, codes, computer programs, software, databases, or other forms for the communication or reception of knowledge.
(12) “Information processing system” means an electronic system for creating, generating, sending, receiving, storing, displaying, or processing information.
(13) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation, or other legal or commercial entity.
(14) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(15) “Security procedure” means a procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures.
(16) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a state.
(18) “United States Postal Service Electronic Postmark” means an electronic service provided by the United States Postal Service that provides evidentiary proof that an electronic document existed in a certain form at a certain time and the electronic document was opened or the contents of the electronic document were displayed at a time and date documented by the United States Post Office.
(B) This chapter does not apply to a transaction:
(1) in connection with an order for prescription drugs; or
(2) to the extent the transaction is governed by:
(a) a law governing the creation and execution of wills, codicils, or testamentary trusts;
(c) the Electronic Signatures in Global and National Commerce Act, 114 Stat. 464, 15 U.S.C. at 7001 et seq., but it is not intended to limit, modify, or supersede Section 101(c) of the act, and to the extent that the notices exempted below are excluded from the scope of the Electronic Signatures in Global and National Commerce Act, 114 Stat. 464, 15 U.S.C. at 7003, this chapter of Title 26 does not apply to a notice required by law regarding:
(i) the cancellation or termination of utility services (including water, heat, and power);
(ii) default, acceleration, repossession, foreclosure, eviction, or the right to cure under a credit agreement secured by a primary residence of an individual or a rental agreement for a primary residence of an individual;
(iii) the cancellation or termination of health insurance or benefits or life insurance benefits, excluding annuities;
(iv) the recall of a product or material failure of a product, that risks endangering health or safety; or
(v) a law requiring a document to accompany any transportation or handling of hazardous materials, pesticides, or other toxic or dangerous materials.
(C) This chapter applies to an electronic record or electronic signature otherwise excluded from the application of the chapter pursuant to subsection (B) to the extent it is governed by a law other than those specified in subsection (B).
This chapter applies to an electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after the effective date of this chapter.
(A) This chapter does not require a record or signature to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form.
(B) This chapter applies only to transactions between parties who agree to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the conduct of the parties.
(C) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. This right of refusal shall not be waived by agreement.
(D) Except as otherwise provided in this chapter, the effect of its provisions may be varied by agreement. The presence in certain provisions of this chapter of the words “unless otherwise agreed”, or words of similar import, does not imply that the effect of other provisions may not be varied by agreement.
(E) Whether an electronic record or electronic signature has legal consequences is determined by this chapter and other applicable laws.
This chapter must be construed and applied to:
(1) facilitate electronic transactions consistent with other applicable law;
(2) be consistent with reasonable practice concerning electronic transactions and with continued expansion of those practices; and
(3) effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
(A) A record or signature must not be denied legal effect or enforceability solely because it is in electronic form.
(B) A contract must not be denied legal effect or enforceability solely because an electronic record is used in its formation.
(C) An electronic record satisfies a law requiring a record to be in writing.
(D) An electronic signature satisfies a law requiring a signature.
(A) If parties agree to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, the requirement is satisfied if the information is provided, sent, or delivered in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.
(B) If another provision of law requires a record to be posed or displayed in a certain manner, be sent, communicated, or transmitted by a specified method, or contain information formatted in a certain manner, the record must:
(1) be posted or displayed in the manner specified in the other law;
(2) be sent, communicated, or transmitted by the method specified in the other law, except as otherwise provided in subsection (D)(2); and
(3) contain the information formatted in the manner specified in the other law.
(C) The electronic record is not enforceable against the recipient if a sender inhibits the ability of a recipient to store or print an electronic record.
(D) The requirements of this section shall not be varied by agreement, except that:
(1) to the extent a law other than this chapter requires information to be provided, sent, or delivered in writing but permits that requirement to be varied by agreement, the requirement pursuant to subsection (A) that the information be in the form of an electronic record capable of retention also may be varied by agreement; and
(2) a requirement pursuant to a law other than this chapter to send, communicate, or transmit a record by first-class mail, postage prepaid, or regular United States mail, may be varied by agreement to the extent permitted by the other law.
(A) An electronic record or electronic signature is attributable to a person if it is the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of a security procedure applied to determine the person to which the electronic record or electronic signature was attributable.
(B) The effect of an electronic record or electronic signature attributed to a person pursuant to subsection (A) is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties’ agreement, if any, and as otherwise provided by law.
(A) If a change or error occurs in the transmission of an electronic record between parties to a transaction:
(1) the conforming party may avoid the effect of the changed or erroneous electronic record, if the parties have agreed to use a security procedure to detect changes or errors and one party has conformed to the procedure but the other party has not and the nonconforming party would have detected the change or error had he also conformed;
(2) an individual may avoid the effect of an electronic record that resulted from an error made by the individual in dealing with the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual:
(a) promptly notifies the other person of the error and that the individual did not intend to be bound by the electronic record received by the other person;
(b) takes reasonable steps, including steps that conform to the reasonable instructions of the other person, to return or destroy, as instructed, the consideration received as a result of the erroneous electronic record; and
(c) has not used or received any benefit or value from the consideration received from the other person.
(B) If subsection (A) does not apply, the change or error has the effect provided by other law, including the law of mistake, and the parties’ contract, if any.
(C) The provisions of subsections (A)(2) and (B) shall not be varied by agreement.
A law requiring a signature or record to be notarized, acknowledged, verified, or made under oath is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.
(A) A law requiring a record to be retained is satisfied by retaining an electronic record of the information that:
(1) accurately reflects the information in the record after it was first generated in its final form as an electronic record or otherwise; and
(2) remains accessible for later reference.
(B) A requirement to retain a record in accordance with subsection (A) does not apply to information whose only purpose is to enable the record to be sent, communicated, or received.
(C) A person may satisfy subsection (A) by using the services of another person if the requirements of that subsection are satisfied otherwise.
(D) A law requiring a record to be presented or retained in its original form, or providing consequences if the record is not presented or retained in its original form, is satisfied by an electronic record retained in accordance with subsection (A).
(E) A law requiring retention of a check is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with subsection (A).
(F) A record retained as an electronic record in accordance with subsection (A) satisfies a law requiring a person to retain a record for evidentiary, audit, or like purposes, unless a law enacted after the effective date of this chapter specifically prohibits the use of an electronic record for the specified purpose.
(G) This section does not preclude a governmental agency of this State from specifying additional requirements for the retention of a record subject to the agency’s jurisdiction.
Evidence of a record or signature may not be excluded in a proceeding solely because the record or signature is in electronic form.
In an automated transaction:
(1) a contract may be formed by the interaction of electronic agents of the parties, even if an individual was not aware of or reviewed the electronic agents’ actions or the resulting terms and agreements;
(2) a contract may be formed by the interaction of an electronic agent and an individual, acting on the individual’s own behalf or for another person, including by an interaction in which the individual performs actions that the individual is free to refuse to perform and which the individual knows or has reason to know will cause the electronic agent to complete the transaction or performance; and
(3) the terms of the contract are determined by the substantive law applicable to it.
(A) Unless otherwise agreed between the sender and the recipient, an electronic record is sent when it:
(1) is addressed properly or otherwise directed properly to an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record;
(2) is in a form capable of being processed by that system; and
(3) enters an information processing system outside the control of the sender or of a person that sent the electronic record on behalf of the sender or enters a region of the information processing system designated or used by the recipient and under the control of the recipient.
(B) Unless otherwise agreed between a sender and the recipient, an electronic record is received when it:
(1) enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; and
(2) is in a form capable of being processed by that system.
(C) Subsection (B) applies even if the place the information processing system is located is different from the place the electronic record is considered to be received pursuant to subsection (D).
(D) Unless otherwise expressly provided in the electronic record or agreed between the sender and the recipient, an electronic record is considered to be sent from the sender’s place of business and to be received at the recipient’s place of business. For purposes of this subsection, the place of business is:
(1) the place having the closest relationship to the underlying transaction, if the sender or recipient has more than one place of business; and
(2) the sender’s or recipient’s residence, if the sender or the recipient does not have a place of business.
(E) An electronic record is received pursuant to subsection (B) even if an individual is not aware of its receipt.
(F) Receipt of an electronic acknowledgment from an information processing system described in subsection (B) establishes that a record was received but is not sufficient to establish that the content sent corresponds to the content received.
(G) If a person is aware that an electronic record purportedly sent pursuant to subsection (A), or purportedly received pursuant to subsection (B), was not actually sent or received, the legal effect of the sending or receipt is determined by other applicable law. Except to the extent permitted by the other law, the requirements of this subsection shall not be varied by agreement.
(A) In this section, “transferable record” means an electronic record that:
(1) would be a negotiable instrument under Chapter 3 of Title 36 or a document of title under Chapter 7 of Title 36 if the electronic record were in writing; and
(2) the issuer of the electronic record expressly has agreed is a transferable record.
(B) A person has control of a transferable record if a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the person to which the transferable record was issued or transferred.
(C) A system satisfies subsection (B), and a person is considered to have control of a transferable record, if the transferable record is created, stored, and assigned in such a manner that:
(1) there exists a single authoritative copy of the transferable record that is unique, identifiable, and, except as otherwise provided in items (4), (5), and (6), unalterable;
(2) the authoritative copy identifies the person asserting control as the person to which the transferable record was:
(a) issued; or
(b) most recently transferred, if the authoritative copy indicates that the transferable record has been transferred;
(3) the authoritative copy is communicated to and maintained by the person asserting control or its designated custodian;
(4) copies or revisions that add or change an identified assignee of the authoritative copy are made only with the consent of the person asserting control;
(5) each copy of the authoritative copy and a copy of a copy are readily identifiable as copies that are not the authoritative copy; and
(6) a revision of the authoritative copy is readily identifiable as authorized or unauthorized.
(D) Except as otherwise agreed, a person having control of a transferable record is the holder, as defined in Section 36-1-201(20), of the transferable record and has the same rights and defenses as a holder of an equivalent record or writing pursuant to Title 36, including the rights and defenses of a holder in due course, a holder to which a negotiable document of title has been duly negotiated, or a purchaser, respectively if the applicable statutory requirements pursuant to Section 36-3-302, 36-7-501, or 36-9-308 are satisfied. Delivery, possession, and endorsement are not required to obtain or exercise the rights pursuant to this subsection.
(E) Except as otherwise agreed, an obligor under a transferable record has the same rights and defenses as an equivalent obligor under equivalent records or writings pursuant to Title 36.
(F) The person seeking to enforce the transferable record shall provide, upon request, reasonable proof that he is in control of the transferable record. Proof may include access to the authoritative copy of the transferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record.
Each governmental agency of this State shall determine if, and the extent to which, it will create and retain electronic records and convert written records to electronic records.
(A) Each governmental agency of this State shall determine if, and the extent to which, it will send and accept electronic records and electronic signatures to and from other persons and otherwise create, generate, communicate, store, process, use, and rely upon electronic records and electronic signatures.
(B) To the extent that a governmental agency uses electronic records and electronic signatures pursuant to subsection (A), the governmental agency, in consultation with the South Carolina State Budget and Control Board, giving due consideration to security, may specify:
(1) the manner and format in which the electronic records must be created, generated, sent, communicated, received, and stored and the systems established for those purposes;
(2) if electronic records must be signed by electronic means, the type of electronic signature required, the manner and format in which the electronic signature must be affixed to the electronic record, and the identity of, or criteria that must be met by, a third party used by a person filing a document to facilitate the process;
(3) control processes and procedures appropriate to ensure adequate preservation, disposition, integrity, security, confidentiality, and auditability of electronic records; and
(4) other attributes required for electronic records which are specified for corresponding nonelectronic records or reasonably necessary under the circumstances.
(C) Except as otherwise provided in Section 26-6-120, this chapter does not require a governmental agency of this State to use or permit the use of electronic records or electronic signatures.
(A) The South Carolina State Budget and Control Board shall adopt standards to coordinate, create, implement, and facilitate the use of common approaches and technical infrastructure, as appropriate, to enhance the utilization of electronic records, electronic signatures, and security procedures by and for public entities of the State. Local political subdivisions may consent to be governed by these standards.
(B) The Secretary of State may develop, implement, and facilitate the use of model procedures for the use of electronic records, electronic signatures, and security procedures for all other purposes, including private commercial transactions and contracts. The Secretary of State also may promulgate regulations as to methods, means, and standards for secure electronic transactions including administration by the Secretary of State or the licensing of third parties to serve in that capacity, or both.
(C) In accordance with Sections 26-6-20(18) and 26-6-195, and in reference to all South Carolina laws, rules, and regulations pertaining to service of process where service shall be made on entities described in Rule 4(d)(3) of the South Carolina Rules of Civil Procedure, those entities shall be served under Rule 4(d)(8) of the South Carolina Rules of Civil Procedure by:
(1) registered or certified mail-return receipt requested, addressed to the office of the registered agent;
(2) registered or certified mail-return receipt requested, addressed to the office of the secretary of the corporation at its principal office;
(3) e-mailing the service of process that has been postmarked by a United States Postal Service Electronic Postmark in a manner approved by the South Carolina Supreme Court to an e-mail address registered with the Secretary of State for the corporation; or
(4) e-mailing the service of process that has been postmarked by a United States Postal Service Electronic Postmark in a manner approved by the South Carolina Supreme Court to an e-mail address registered with the Secretary of State for the agent for service of process for the corporation.
Notwithstanding any other provisions in this chapter, a governmental agency may use, in accordance with policies and procedures developed by the South Carolina Budget and Control Board and as circumstances allow, in order to perfect service of process of any communication, an e-mail address from any vendor, entity, or individual the governmental agency regulates or does business with, or an e-mail address from the agent for service of process of that vendor, entity, or individual. Such communication postmarked by a United States Postal Service Electronic Postmark shall have the same force of law as the United States Post Office certified mail-return receipt requested. The South Carolina Budget and Control Board shall devise policies and procedures for the use of the United States Postal Service Electronic Postmark in respect to state agencies and operations. These policies and procedures, where necessary, must consider the persons or entities which do not have an e-mail address.
The Computer Crime Act, as contained in Chapter 16 of Title 16, is expressly made applicable to and incorporated into this chapter.
Judgment included $1,110,000 in punitive damages, which is not covered by insurance and not dischargeable in bankruptcy.
Plaintiff: Lawrence Keeter, Ronald Travis Keeter, and Rebecca Keeter,
Defendant: Alpine Towers International, Inc., and Ashley Sexton
Plaintiff Claims: strict liability, negligent design, and negligent training
Defendant Defenses: (1) judgment notwithstanding the verdict as to all causes of action and punitive damages, (2) a new trial, (3) an order requiring Larry to elect between the three causes of action, (4) set-off of the settlement paid by Fort Mill.
Holding: for the plaintiff’s in the amount of $3,400,500.00 actual damages and $1,110,000.00 in punitive damages.
This is the appeal that I first reported at “$4.7 million-dollar verdict in climbing wall case against Alpine Towers in South Carolina Court” The plaintiff at the time of his injury was a 17-year-old student who after falling 20’ was rendered a paraplegic.
This is sad, tragic, and honestly, a disaster of a case for both the defendant and the plaintiff. Worse, this case will have far-reaching effects into the climbing wall and ropes’ course industry. It probably won’t have any effect on those association’s writing standards; however, here again, this case is proof that writing standards by an association creates the cause of action needed by the plaintiff to win and in this case, win big.
The facts of the case are convoluted and made so not by what happened, but by the contracts created by the defendant.
The defendant built an Alpine Tower and sold it to an amusement park, Carowinds. The owner, Fort Mill purchased the Alpine Tower from Carowinds. Fort Mill (former defendant who probably settled out of the case) hired the defendant Alpine Towers International “to move it, install it, and train Fort Mill’s faculty to use it safely.” The term “it” in the sentence means the alpine tower. The contract to provide those services was probably the normal contract used when selling a tower by the defendant because it referred to Alpine Towers as the “Seller.” This came back to haunt the defendant because a seller has a greater degree of liability than just a mover. The agreement stated the seller would do much more than just move the tower.
The plaintiff was climbing the tower with another student belaying him. The belay rope became stuck in the belay device. The instructor was close by, and the student attempted to un-stick the rope herself. In doing so the belayer lost control of the rope, and the climber/plaintiff fell to the ground breaking his back. The plaintiff was rendered a paraplegic by the fall.
The plaintiff sued based on three causes of action.
(1) Alpine Towers was strictly liable for the manufacture and sale of a defective and unreasonably dangerous product; (2) Alpine Towers negligently designed the climbing tower without adequate safety equipment, instructions, and warnings; and (3) Alpine Towers was negligent in failing to properly train Fort Mill’s faculty on how to safely use the climbing tower, particularly in failing to train the faculty to teach student belayers to safely use the belay system.
The jury found for the plaintiff and his parents on all causes of action and awarded the plaintiff damages.
It awarded $500.00 for strict liability, $900,000.00 in actual damages and $160,000.00 in punitive damages for negligent design of the tower, and $2,500,000.00 in actual damages and $950,000.00 in punitive damages for Alpine Tower’s negligence in training Fort Mill’s faculty. The jury also returned a verdict for Larry’s parents for $240,000.00 in actual damages.
Summary of the case
The defendant appealed only the injured plaintiff’s claims and judgment, not the plaintiff’s parent’s claims. The defendant lost all of its arguments on appeal.
The first issue and the third most aggravating issue in this decision was how the court accepted the jury’s decision on the strict liability theory claim. The plaintiff’s experts argued that the belay device being used on the tower was operated manually and if the defendant has supplied automatic devices the fall would not have occurred.
…Gerald George, Ph.D., testified that the Trango Jaws relies on the absence of human error to safely belay a climber. He explained that it was feasible to use an alternative design for the climbing tower incorporating a belay device called a GriGri.
“Absence of human error” is how all accidents occur.
Dr. George testified that without incorporating a “fail-safe” belay device such as the GriGri into the design of a climbing tower used for students, the climbing tower is defective and unreasonably dangerous.
So by using a particular belay device, which was not part of the climbing wall, the defendant was strictly liable. The defendant was liable for the injury because the tower was “defective” based upon the choice of belay devices.
The next issue was the negligent design claim. Negligent design in South Carolina is a failure to exercise due care with the focus on the conduct of the seller or manufacturer. The proof the court accepted in this case was:
[Plaintiff] presented evidence that Alpine Towers conducted a ten-year study ending in 1999 that concluded the majority of accidents on its climbing towers were caused by human error, specifically belayers dropping their climbers.
Proof of the negligent design claim is knowing you have a problem that injures people and failing to do anything about it. The study was the proof of the knowledge, and the plaintiff’s injury was proof of failing to do anything about the problem.
Granted, it seems to be a stretch to apply design to belayers dropping climbers; however, if you look at the structure as including the ropes and belay devices, then the claim makes more sense.
The negligent training claims the final claim and the one that will create the most problems for other people within the industry. The contract signed by the defendant for moving the tower stated that defendant would teach the owner how to use the tower. The purchaser, Fort Mill, intended to use it to teach climbing and belaying. The defendant had manuals, curriculums and classes in how to belay; however, it did not teach the owner how to teach how to belay.
First, Alpine Towers uses a written syllabus when it conducts classes to teach adults how to belay. However, it did not provide the syllabus to Fort Mill to enable Fort Mill to effectively teach students. Second, the belay system designed by Alpine Towers relies on a faculty supervisor to ensure the students are properly belaying the climbers. In addition to [defendant’s employee’s] testimony as to where the faculty supervisor should be positioned, the CEO of Alpine Towers, Joe Lackey, testified, “the staff member should stand directly behind the climber, . . . not thirty feet away.”
However, it gets worse. The plaintiff’s expert testified that no one should belay until they have been tested.
Moreover, despite knowing that Fort Mill would be teaching students to belay and that students were more susceptible to making belaying errors than adults, Alpine Towers did not teach Fort Mill that it should test the students’ competency before allowing them to belay a climber. [Plaintiff’s expert] testified “as a matter of course in my industry, participants are tested,” including whether they are “able to . . . belay in a competent manner, catch falls, lower somebody . . . off a climb.”
However, the statements of the plaintiff’s experts were reinforced by the trade association that the defendant belonged to and that his own employees served on.
Alpine Towers has several employees who serve on the standards committee for the Association for Challenge Courses Technology, which [defendant] called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested.
Once again, the trade association (or as the defendant described it the “climbing society”) created standards which instead of helping the defendant win a trial, were used at trial to prove the defendant was negligent.
The final defense to the jury verdict raised by the defendant was Intervening Causation. Basically, this is an argument that something happened after the negligent acts of the defendant caused by a third party who either relieved the defendant of liability or is the real cause of the injury. If the intervening act was foreseeable, then it does not break the chain of liability between the parties. To be a defense, the intervening act must be the “bolt of lightning” without a thunderstorm, which came out of nowhere.
The test for whether a subsequent negligent act by a third party breaks the chain of causation to insulate a prior tortfeasor from liability is whether the subsequent actor’s negligence was reasonably foreseeable. “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.”
The defendant argued that the actions of the belayer, a co-defendant and the Fort Mill’s actions were an intervening cause. However, in this case, the acts of the defendant were foreseeable. In fact, for the belayer dropping a climber, the defendant had a study which showed what would happen.
So Now What?
The list of errors here is massive. Those errors were magnified by the plaintiff’s experts and trade association to which it belonged.
Marketing makes promises that Risk Management (actually your insurance company in most cases) must pay for. Here the wrong agreement was used where too many promises were made that were not kept by the defendant. If you put it in writing, you better make sure you are doing it; you have to complete the terms of the contract.
Add to that the language of the agreement using the term seller. The defendant created greater liability for itself. A mover moves; a seller agrees to move, set up, and in this case train.
It appears the plaintiff hired better experts. The court quoted from two of the plaintiff’s experts liberally. The court did not make a single quote from the defendant’s experts, or even mention if the defendant had an expert witness.
The defendant did a ten-year study on how people were injured using its towers. As usual, with a study that is not thought-out or done so with legal help, even when there could be legal consequences. The study was used by the plaintiff and the court to prove how negligent the design of the tower was. The study showed that most people were injured by belayers that dropped the climbers. That is what happened in this case.
The defendants own study showed the event was foreseeable, and occurred frequently. That was all the proof the plaintiff needed. If you do a study about injuries, you better solve the problems the study identifies. You just can’t look at the study and say, wow, what a great study.
Remember the big maps in ski patrol headquarters at ski resorts. Patrols used to stick a push pin or mark on the map were accidents occurred. Those maps are no longer found at the headquarters because they were proof that the ski area knew that accidents occurred at the locations with lots of holes in the map. If the injured skier can show his injury occurred at a holey part of the map, winning became much easier.
The worst part of this case is not in how it affects the defendant. The worst part is how this is going to affect climbing walls and rope’s courses across the US.
· Instructors are going to have to stand behind belayers.
· Instructional manuals have to be written in conjunction with an attorney. In this case, valuable information was removed from the manual which the judge attributed to a cause leading to the accident.
· Belay devices are going to be a nightmare. Do you use one that does not fail, but that humans fail to use properly or do you use a static device.
· Before allowing anyone to belay anywhere in the future the belayer is going to have to be tested.
The coup d’état or fait accompli of the case was the judge accepted that the defendant, who had several employees serving on the ACCT standards committee, failed to meet the standards created by the ACCT. What standard? The standard created on how to teach and test belayers.
Alpine Towers has several employees who serve on the standards committee for the Association for Challenge Courses Technology, which Lackey called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested.
Then the defendants own instruction manual was quoted by the court as proof the defendant had not followed its own standards.
Ashley testified she was not given a written test, but was required to do a “demonstration” and be watched by a faculty member to make sure she “knew how to do it.” There was no evidence; however, that Alpine Towers took any steps to ensure Fort Mill gave an adequate test of her competency. In fact, Alpine Towers’ instruction manual says only that students “will demonstrate proficiency in belaying before being permitted to belay.”
This is an appellate court decision; I searched but could not find out if this has been appealed to the South Carolina Supreme Court. Hopefully……
What do you think? Leave a comment.
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Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171
Lawrence Keeter, Ronald Travis Keeter, and Rebecca Keeter, Appellants/Respondents, v. Alpine Towers International, Inc., and Ashley Sexton, Defendants, Of Whom Alpine Towers International, Inc., is Respondent/Appellant.
Opinion No. 4995
399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171
December 6, 2011, Heard
June 27, 2012, Filed
SUBSEQUENT HISTORY: Rehearing denied by Keeter v. Alpine Towers Int’l, Inc., 2012 S.C. App. LEXIS 248 (S.C. Ct. App., July 31, 2012)
PRIOR HISTORY: [***1]
Appeal From York County. Appellate Case No. 2009-137246. John C. Hayes, III, Circuit Court Judge.
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
COUNSEL: Richard A. Harpootlian and Graham L. Newman, both of Richard A. Harpootlian, P.A., of Columbia, for Appellants/Respondents.
Charles E. Carpenter, Jr., and Carmon V. Ganjehsani, of Carpenter Appeals & Trial Support, LLC, of Columbia, and Thomas C. Salane, of Turner, Padget, Graham & Laney, P.A., of Columbia, for Respondent/Appellant.
JUDGES: FEW, C.J. KONDUROS, J., concurs. THOMAS, J., concurring in a separate opinion.
OPINION BY: FEW
[*184] [**893] FEW, C.J.: Lawrence “Larry” Keeter and his parents brought this action against Alpine Towers International, Inc., for strict liability, negligent design, and negligent training after Larry broke his back and became a paraplegic as a result of a fall to the ground from a climbing tower designed, manufactured, and installed by Alpine Towers. The jury awarded actual and punitive damages in favor of Larry and actual damages in favor of his parents for Larry’s medical bills. After both sides filed post-trial motions, the trial court entered separate judgments in favor of Larry and his parents. Alpine Towers appeals the trial court’s decision [***2] to deny its motions for directed verdict and judgment notwithstanding the verdict (JNOV) as to actual and punitive damages, and its motion for a new trial due to an alleged error as to apportionment. Larry appeals the trial court’s ruling requiring him to elect between his three causes of action. We affirm the denial of Alpine Towers’ motions. However, we hold the trial court incorrectly interpreted the jury’s verdict and erred in requiring [*185] Larry to elect. We remand to the trial court with instructions to enter judgment in Larry’s favor against Alpine Towers in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. 1
1 The judgment in favor of Larry’s parents is not affected by this appeal.
On May 5, 2006, the senior students at Fort Mill High School (Fort Mill) participated in a spring fling recreational field day. During field day, Larry fell more than twenty feet from the climbing tower to the ground. When he hit the ground, Larry broke a vertebra and was rendered a permanent paraplegic. He was seventeen.
Alpine Towers originally sold the climbing tower to Carowinds amusement park near Charlotte, North Carolina. Fort Mill bought the tower from Carowinds [***3] in July 2004 and hired Alpine Towers to move it, install it, and train Fort Mill’s faculty to safely use it. Fort Mill’s contract with Alpine Towers identifies Alpine Towers as “seller” and provides: “Installation includes all hardware, materials, . . . labor, . . . design work, . . . and staff training.” The wooden climbing tower is fifty feet tall, has three sides, and is shaped liked an hourglass. The central safety feature of any climbing tower is the belay system. 2 Alpine Towers designed the belay system on this climbing tower to include four participants–the climber, a primary belayer, a back-up belayer, and a faculty supervisor. The system requires the climber to wear a harness, which is secured to a climbing rope. The rope passes through a pulley at the top of the tower and down to a belay device secured to the ground at the base of the tower. The rope is threaded through the belay device, which uses bends in the rope to create friction to control the speed at which the rope passes through the device. As the [**894] climber ascends, the belayer guides the rope through the belay device to keep the rope taut. If the climber falls from the tower while climbing, [*186] the belayer uses the friction [***4] the belay device creates on the rope to keep the rope from passing back through the device, and thus protects the climber from falling all the way to the ground.
2 Alpine Towers’ instruction manual defines “belay” as “the rope or technique . . . that is used to protect a climber from falling to the ground.” See also Merriam-Webster Collegiate Dictionary 111 (11th ed. 2004) (defining belay as “the securing of a person or a safety rope to an anchor point (as during mountain climbing)”).
After a successful climb, or in the event the climber falls before completing the climb, the belayer lowers the climber to the ground in a controlled fashion by guiding the rope back through the belay device. The friction created on the rope allows the belayer to control the speed of the climber’s descent. 3 Because of the hourglass shape of the tower, a climber being lowered to the ground by the belayer is suspended in air, away from the side of the tower.
3 Alpine Towers’ CEO explained that “not very much” strength is required to hold a climber in the air because the weight is transferred through the belay device to the rope attached to the ground, so that a lightweight belayer can easily lower even a heavy [***5] climber.
Ashley Sexton, a senior at Fort Mill, served as Larry’s primary belayer. Fort Mill trained Ashley to belay as a part of the Junior ROTC program. Larry had never been trained in belaying or climbing, but successfully climbed to the top of the tower. Ashley testified that while she was lowering Larry to the ground “the rope . . . got tight in the [belay device] almost as if it were stuck” and would not move. Neither Ashley nor anyone at Fort Mill had been taught what to do if the rope became stuck in the belay device. When Ashley tried to free the rope, she lost the assistance of the device, was unable to control the rope, and Larry fell more than twenty feet to the ground.
Alpine Towers designed the belay system on the climbing tower and trained Fort Mill’s faculty how to use it. Alpine Towers provided no notice or warning to Fort Mill’s faculty that the climbing rope could get stuck in the belay device it designed into the system. Alpine Towers also provided no training or instruction on how the belayer or faculty supervisor should handle the situation if it did. Alpine Towers chose not to incorporate into the design a readily available, automatically locking belay device [***6] Larry’s experts testified would have stopped Larry’s fall. Alpine Towers did not train Fort Mill’s faculty to require the faculty supervisor to stand directly beside the belayer, which Alpine Towers admitted at trial [*187] should always be done to ensure that proper procedures were followed in the climb and to assist the belayers in the event of a situation like the one that resulted in Larry’s fall. When Larry fell, no back-up belayer was present, and no faculty supervisor was close enough to assist Ashley.
II. Procedural History
All of Larry’s damages were caused by the broken back he suffered as a result of his fall. Larry asserted three causes of action presenting three alternative theories of Alpine Towers’ liability for those damages: (1) Alpine Towers was strictly liable for the manufacture and sale of a defective and unreasonably dangerous product; (2) Alpine Towers negligently designed the climbing tower without adequate safety equipment, instructions, and warnings; 4 and (3) Alpine Towers was negligent in failing to properly train Fort Mill’s faculty on how to safely use the climbing tower, particularly in failing to train the faculty to teach student belayers to safely use the belay [***7] system.
4 Because Alpine Towers did the “design work” for the installation of the tower at Fort Mill, Larry’s negligent design theory includes allegations of negligence in failing to design the tower to meet the specific safety needs of Fort Mill.
Larry also filed suit against Ashley for negligence. Larry’s parents filed suit against Alpine Towers and Ashley for Larry’s medical bills. Larry and his parents settled with Fort Mill before filing suit and dismissed Ashley as a defendant before trial. The jury returned a verdict for Larry on each cause of action. It awarded $500.00 for strict liability, 5 $900,000.00 in actual damages and $160,000.00 in punitive damages for negligent design of the tower, and $2,500,000.00 in actual damages and $950,000.00 in punitive [**895] damages for Alpine Tower’s negligence in training Fort Mill’s faculty. The jury also returned a verdict for Larry’s parents for $240,000.00 in actual damages.
5 The jury originally returned a verdict on the strict liability cause of action in favor of Larry, but with zero damages. After the trial court instructed the jury that it must either award damages to Larry or find in favor of Alpine Towers, it returned a $500.00 award.
[*188] Alpine [***8] Towers filed a post-trial motion seeking (1) judgment notwithstanding the verdict as to all causes of action and punitive damages, (2) a new trial, (3) an order requiring Larry to elect between the three causes of action, (4) set-off of the settlement paid by Fort Mill, and (5) apportionment under the Contribution Among Joint Tortfeasors Act. The trial court denied the JNOV, new trial, and apportionment motions. The court required Larry to elect between his causes of action and ordered that the settlement from Fort Mill be set-off against Larry’s recovery from Alpine Towers. Larry also filed a post-trial motion asking the trial court to enter judgment in the cumulative amount of the damage awards rather than require him to elect. The court denied Larry’s motion and ordered that judgment be entered in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages on the negligent training cause of action.
III. Alpine Towers’ Appeal
A. Directed Verdict and JNOV–Actual Damages
[HN1] “In ruling on motions for directed verdict and JNOV, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the [***9] party opposing the motions.” McMillan v. Oconee Mem’l Hosp., Inc., 367 S.C. 559, 564, 626 S.E.2d 884, 886 (2006). “When we review a trial judge’s . . . denial of a motion for directed verdict or JNOV, we reverse only when there is no evidence to support the ruling or when the ruling is governed by an error of law.” Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 42, 691 S.E.2d 135, 145 (2010).
In its motions for directed verdict and JNOV, Alpine Towers contested all liability issues, including the sufficiency of the evidence supporting each of Larry’s causes of action. In its Statement of Issues on Appeal, Alpine Towers contends only that the trial court should have granted its motions because the chain of causation was broken as a matter of law. Specifically, Alpine Towers contends the chain of causation was broken by (1) “the intervening and superseding negligent [*189] acts of Fort Mill High School and Ashley Sexton in failing to follow the warnings, directions, and instructions for proper use of the Tower” and (2) “the intervening and superseding negligent acts of Fort Mill High School in failing to undertake its independent duty to properly supervise its students.” However, because [***10] both Larry and Alpine Towers address in their briefs the sufficiency of the evidence supporting each of Larry’s causes of action, we do as well. We find ample evidence to support the jury’s verdict as to each. We also find ample evidence that Ashley’s negligence and any negligence by Fort Mill was foreseeable to Alpine Towers, and thus their negligence does not break the chain of causation from Alpine Towers’ tortious conduct.
1. Strict Liability
In his strict liability theory, Larry focused on Alpine Towers’ design of the climbing tower to incorporate a belay device called Trango Jaws. The Trango Jaws is operated manually and requires the belayer to properly position the climbing rope in the Trango Jaws to create the friction necessary to stop the rope and then control the rate of the climber’s descent. Larry’s expert witness in biomechanics and sports safety, Gerald George, Ph.D., testified that the Trango Jaws relies on the absence of human error to safely belay a climber. He explained that it was feasible to use an alternative design for the climbing tower incorporating a belay device called a GriGri. 6
6 The GriGri costs approximately $75, and the Trango Jaws costs approximately $24. [***11] The CEO of Alpine Towers testified the difference in cost is an “inconsequential amount of money.”
The GriGri is a mechanical device that, when properly threaded, does not rely on the absence of human error. In the event the belayer loses control of the rope, the GriGri automatically stops the rope, and thus protects the climber from falling to the ground. Larry’s climbing wall safety expert, Dan Hague, testified that the GriGri “locks up automatically, . . . you’re not relying on the actions of the belayer to lock the device up.” [**896] He emphasized that the automatic stopping feature of the GriGri is particularly important when students are belaying climbers because of the heightened likelihood of human error. To account for this foreseeable risk, Hague “always uses the GriGri with kids.” In Hague’s opinion, “this injury would not have occurred had a GriGri [*190] been in use that day.” As a normal part of its business, Alpine Towers sells the GriGri for a variety of uses, including on its own climbing towers. Dr. George testified that without incorporating a “fail-safe” belay device such as the GriGri into the design of a climbing tower used for students, the climbing tower is defective and unreasonably [***12] dangerous.
Alpine Towers’ argument that the evidence in support of Larry’s strict liability cause of action is insufficient is that there is no evidence the tower “was in a defective condition, unreasonably dangerous to the user . . . when it left the hands of the defendant.” See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 539, 462 S.E.2d 321, 326 (Ct. App. 1995). However, the evidence discussed above amply supports the jury’s finding that it was. Moreover, the GriGri qualifies as a “reasonable alternative design” as required under Branham v. Ford Motor Co., 390 S.C. 203, 225, 701 S.E.2d 5, 16 (2010). The trial court correctly denied Alpine Towers’ directed verdict and JNOV motions as to strict liability.
2. Negligent Design
[HN2] “A negligence theory imposes the additional burden on a plaintiff ‘of demonstrating the defendant . . . failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault.'” Branham, 390 S.C. at 210, 701 S.E.2d at 9 (quoting Bragg, 319 S.C. at 539, 462 S.E.2d at 326). In his negligent design theory, Larry also relied on the evidence that Alpine Towers should [***13] have used the GriGri in designing a climbing tower to be used by students, particularly student belayers. However, in addition to evidence that the tower was defective and unreasonably dangerous without the GriGri, Larry presented evidence that Alpine Towers failed to exercise reasonable care in the design. Specifically, Larry presented evidence that Alpine Towers conducted a ten-year study ending in 1999 that concluded the majority of accidents on its climbing towers were caused by human error, specifically belayers dropping their climbers. Despite this knowledge, Alpine Towers chose not to design for human error by including a belay device that would automatically lock and prevent the rope from passing back through the [*191] device, thus preventing a fall to the ground such as the one Larry suffered.
Moreover, Larry’s experts testified to several breaches of Alpine Towers’ duty of reasonable care in designing the warnings and instructions on the tower. In particular, Larry’s experts testified faculty supervisors should be instructed to remain within reaching distance of active belay ropes. Alpine Towers’ employee John Mordhurst conceded this instruction was necessary. Mordhurst testified [***14] a faculty supervisor should be at each belay point, and “[t]hey should be . . . in a position to intervene to grab a rope, . . . so they should be right next to the belayers and belay monitors.” In the 1997 edition of Alpine Towers’ instruction manual for the climbing tower, the section entitled “The Belay System” includes this requirement: “[P]rograms should require staff to check the belayer’s and climber’s systems prior to climbing and lowering; . . . the staff member should stand directly beside the climber.” However, Alpine Towers omitted the statement containing this requirement from the 2004 edition of the instruction manual, the edition it provided to Fort Mill.
Additionally, Dr. George testified Alpine Towers should have placed end user warnings on the tower for someone like Larry, who climbed for the first time without any instruction, and Ashley, who never received an instruction manual. Dr. George explained this was necessary to ensure an inexperienced climber such as Larry will know the dangers of climbing and understand how the belay system is designed to work before deciding to begin a climb. This evidence amply supports the jury’s finding that Alpine Towers failed to [***15] exercise reasonable care in designing a defective and unreasonably dangerous climbing tower. Therefore, the trial court was correct to deny Alpine Towers’ motions as to negligent design.
[**897] 3. Negligent Training
In his negligent training theory, Larry presented evidence that despite knowing Fort Mill’s faculty would not be doing most of the belaying, but rather would be teaching students to belay, Alpine Towers did not instruct the faculty how to teach belaying. Larry proved several key facts in support of this claim. First, Alpine Towers uses a written [*192] syllabus when it conducts classes to teach adults how to belay. However, it did not provide the syllabus to Fort Mill to enable Fort Mill to effectively teach students. Second, the belay system designed by Alpine Towers relies on a faculty supervisor to ensure the students are properly belaying the climbers. In addition to Mordhurst’s testimony as to where the faculty supervisor should be positioned, the CEO of Alpine Towers, Joe Lackey, testified, “the staff member should stand directly behind the climber, . . . not thirty feet away.” The obvious purpose of this requirement is to enable the supervisor to keep the students from making errors [***16] and, if they do, to prevent the tragic consequences Larry suffered. However, Larry presented evidence that Alpine Towers did not teach this to the faculty at Fort Mill. One member of Fort Mill’s faculty who attended the Alpine Towers course testified he did not recall being told that a faculty supervisor should stand beside the belayer. When asked why the requirement that “the staff member should stand directly beside the climber” in the 1997 instruction manual was not included in the 2004 edition, Lackey responded, “I’m not sure why it was taken out.”
Moreover, despite knowing that Fort Mill would be teaching students to belay and that students were more susceptible to making belaying errors than adults, Alpine Towers did not teach Fort Mill that it should test the students’ competency before allowing them to belay a climber. Hague testified “as a matter of course in my industry, participants are tested,” including whether they are “able to . . . belay in a competent manner, catch falls, lower somebody . . . off a climb.” He explained:
In a climbing setting you have to be able to assess whether or not the group as a whole is making progress. . . . Since we’re talking about life safety [***17] here and not about math, if someone is not learning at the same rate as the group, you can’t just move to the next topic. You have to slow down. You have to be able to address that one person until everybody’s caught up. In addition, at the end of the training, there needs to be some type of discrete competency test.
Alpine Towers has several employees who serve on the standards committee for the Association for Challenge [*193] Courses Technology, which Lackey called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested. 7
7 Ashley testified she was not given a written test, but was required to do a “demonstration” and be watched by a faculty member to make sure she “knew how to do it.” There was no evidence, however, that Alpine Towers took any steps to ensure Fort Mill gave an adequate test of her competency. In fact, Alpine Towers’ instruction manual says only that students “will demonstrate proficiency in belaying before being permitted to belay.”
This evidence provides ample support for the jury’s finding that Alpine Towers [***18] was negligent in failing to properly train the Fort Mill faculty on how to safely use the tower, and thus the trial court properly denied Alpine Towers’ motions as to negligent training.
We affirm the trial court’s decision to deny Alpine Towers’ motions for directed verdict and JNOV as to the sufficiency of the evidence supporting all three of Larry’s causes of action.
4. Intervening Causation
[HN3] The test for whether a subsequent negligent act by a third party breaks the chain of causation to insulate a prior tortfeasor from liability is whether the subsequent actor’s negligence was reasonably foreseeable. “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.” McKnight v. S.C. Dep’t of Corr., 385 S.C. 380, 387, 684 S.E.2d 566, 569 [**898] (Ct. App. 2009) (internal quotation marks omitted). The trial court properly charged the jury as follows:
The chain of causation between a defendant’s negligence and the injury itself may be broken by the independent intervening acts or omissions of another person over whom the defendant had no control. In order to decide whether an intervening act breaks the chain of causation, [***19] you must determine whether the intervening act or omission was reasonably foreseeable by the defendant. If the intervening act or omission was a probable consequence of the defendant’s negligence, the defendant is responsible for the plaintiff’s [*194] injuries. If, however, you find that the intervening act or omission was not foreseeable, the defendant is not liable.
By finding in favor of Larry, the jury necessarily found the actions of Ashley and Fort Mill were foreseeable, and therefore the chain of causation was not broken to insulate Alpine Towers from liability. There is ample evidence to support this finding. See Cody P. v. Bank of Am., N.A., 395 S.C. 611, 621-22, 720 S.E.2d 473, 479 (Ct. App. 2011) (“Only in rare or exceptional cases may the question of proximate cause be decided as a matter of law. . . . If there may be a fair difference of opinion regarding whose act proximately caused the injury, then the question of proximate cause must be submitted to the jury.” (internal quotation marks and citations omitted)).
Larry presented evidence that Alpine Towers knew Fort Mill would be using high school students to belay climbers, that adolescents are more susceptible to belaying errors [***20] than adults, and that Alpine Towers conducted a study concluding human error is the most common cause of falls to the ground from climbing towers. Dr. George testified Alpine Towers “knew or should have known . . . of these risks.” He stated it was not merely foreseeable, but “almost predictable,” that high school students would not follow proper procedures for belaying climbers. Hague testified that he has trained “thousands and thousands” of people in belaying over fifteen years, including “many hundreds” of adolescents, he takes different approaches to training depending on the maturity level of the belaying student, adolescents “routinely do not” follow procedures, and Alpine Towers “could easily foresee that adolescents aren’t going to follow all the procedures.”
Therefore, the primary risk associated with the use of a climbing tower is that the belayer, back-up, or faculty supervisor might make an error belaying the climber. Each of Larry’s theories of recovery focused on the allegation that Alpine Towers failed to design for and train against human error in belaying and the supervision of students belaying. This is not a “rare or exceptional” case in which the issue of proximate [***21] cause may be decided as a matter of law. Alpine Towers’ argument that “the intervening and superseding negligent acts of Fort Mill High School and Ashley Sexton” broke the chain of causation fails because there is ample evidence in [*195] the record that precisely the same human error that resulted in Larry’s injury was not only foreseeable to Alpine Towers, but was actually foreseen. Accordingly, we find the trial court properly submitted the question of proximate cause to the jury, and we affirm its decision to deny Alpine Towers’ motions for directed verdict and JNOV as to intervening causation.
B. Directed Verdict and JNOV–Punitive Damages
Alpine Towers also argues the trial court erred in denying its directed verdict and JNOV motions as to punitive damages. We disagree.
[HN4] “When ruling on a directed verdict motion as to punitive damages, the circuit court must view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party.” Hollis v. Stonington Dev., LLC, 394 S.C. 383, 393-94, 714 S.E.2d 904, 909 (Ct. App. 2011) (internal quotation marks omitted). This court applies the same standard as the circuit court. 394 S.C. at 394, 714 S.E.2d at 910. [***22] “The issue of punitive damages must be submitted to the jury if more than one reasonable inference can be drawn from the evidence as to whether the defendant’s behavior was reckless . . . .” Mishoe v. QHG of Lake City, Inc., 366 S.C. 195, 201, 621 S.E.2d 363, 366 (Ct. App. 2005). “Recklessness implies the doing of a negligent [**899] act knowingly; it is a conscious failure to exercise due care. If a person of ordinary reason and prudence would have been conscious of the probability of resulting injury, the law says the person is reckless . . . .” Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011) (internal citation and quotation marks omitted).
Larry made two separate claims for punitive damages against Alpine Towers: (1) for reckless behavior in its design of the climbing tower and (2) for reckless behavior in its failure to properly train the Fort Mill faculty on how to safely use the climbing tower. The jury awarded punitive damages on each claim, so we address each independently.
As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in designing the tower, Larry presented evidence that Alpine Towers knew the majority [*196] of accidents occurring on its [***23] climbing towers were caused by human error by belayers and back-up belayers. Mordhurst conceded that of the three options for a belay device in the design of a climbing tower, “the GriGri has [the] highest likelihood of arresting the fall” of a climber and thus protecting him from falling to the ground if the belayer loses control of the rope. Lackey testified the additional cost of a GriGri is “inconsequential.” Alpine Towers’ decision to design its climbing tower to incorporate the Trango Jaws instead of the GriGri under these circumstances is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless design to the jury. 392 S.C. at 287, 709 S.E.2d at 612.
As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in failing to properly train the Fort Mill faculty, in addition to the evidence discussed above, Alpine Towers knew Fort Mill would be using student belayers, whom Alpine Towers knew to be less attentive to following procedures and more susceptible to errors in belaying than adults. Nevertheless, [***24] Alpine Towers (1) chose not to train Fort Mill’s faculty to teach others, particularly students; (2) did not include in the training materials given to Fort Mill the syllabus Alpine Towers uses to teach belaying; (3) removed from its training manual the specific instruction for faculty supervisors to “stand directly behind the climber”; (4) did not teach Fort Mill to follow the industry practice of testing belayers on the basic skills of belaying before allowing them to belay climbers; and (5) did not inform Fort Mill it had the option of an automatically locking belay device such as the GriGri to compensate for the greater risk posed by the use of student belayers. This also is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless training to the jury. Id.
Accordingly, we affirm the trial court’s decision to deny Alpine Towers’ directed verdict and JNOV motions as to punitive damages.
[*197] C. Apportionment of Fort Mill’s Fault
Alpine Towers contends it is entitled to a new trial because the trial court did not allow the jury to [***25] consider the fault of Fort Mill when it apportioned fault under section 15-38-15 of the South Carolina Code (Supp. 2011). 8 However, our ruling affirming the jury’s award of punitive damages makes it unnecessary to address this issue as [HN5] the apportionment statute “does not apply to a defendant whose conduct is determined to be . . . reckless.” § 15-38-15(F).
8 After the jury’s verdict as to liability, the trial court required it to apportion fault between Alpine Towers and Ashley. The jury determined that Ashley was 60% at fault and Alpine Towers was 40% at fault. The jury was not asked to consider the fault of Fort Mill.
IV. Larry’s Appeal
Larry appeals the trial court’s post-trial ruling entering judgment in his favor in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages. He contends the trial court erred in interpreting the verdicts as “three awards” and requiring him to elect which cause of action would be his remedy. We agree.
[HN6] “Election of remedies involves a choice between different forms of redress [**900] afforded by law for the same injury . . . . It is the act of choosing between inconsistent remedies allowed by law on the same set of facts.” Taylor v. Medenica, 324 S.C. 200, 218, 479 S.E.2d 35, 44-45 (1996). [***26] Larry asserted three causes of action, but sought only one remedy–damages–for only one injury–a broken back. When a plaintiff seeks only one remedy, there is nothing to elect. See Adams v. Grant, 292 S.C. 581, 586, 358 S.E.2d 142, 144 (Ct. App. 1986) (“Where a plaintiff presents two causes of action because he is uncertain of which he will be able to prove, but seeks a single recovery, he will not be required to elect.”).
The trial court in this case recognized that Larry’s three causes of action sought only one remedy. In its post-trial order, the court wrote:
Here, both products liability claims and the negligence claim represent three theories for recovery for the same injury and damages–personal injuries sustained by [Larry] in his [*198] fall. [Larry] had one fall and all his injury and damages flow therefrom regardless of the number of acts of omission or commission of [Alpine Towers].
Because Larry sought only one remedy, the doctrine of election of remedies does not apply. [HN7] “As its name states, the doctrine applies to the election of ‘remedies’ not the election of ‘verdicts.'” Austin, 387 S.C. at 57, 691 S.E.2d at 153 (defining a “‘remedy’ as ‘[t]he means by which . . . the violation [***27] of a right is . . . compensated.'” (quoting Black’s Law Dictionary 1163 (5th ed. 1979))).
This court addressed a similar situation in Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (Ct. App. 1998). The plaintiff in Creach “bit down on a hard substance in a steak biscuit made by Sara Lee Corporation,” “experience[d] severe pain,” and had to undergo “extensive dental work.” 331 S.C. at 463, 502 S.E.2d at 923-24. She sued Sara Lee and others “alleging negligence, breach of warranty, and strict liability.” 331 S.C. at 463, 502 S.E.2d at 923. After a verdict for Creach on all three causes of action, Sara Lee asked the trial judge to require her to elect her remedy. The judge refused to do so, and this court affirmed, holding “while the complaint stated three different causes of action, only one recovery was sought and only one recovery was awarded. Under these circumstances, no election was required.” 331 S.C. at 464, 502 S.E.2d at 924 (citing Taylor, 324 S.C. at 218, 479 S.E.2d at 44-45). Creach supports our holding that because Larry sought one remedy for one injury, the trial court erred in requiring him to elect.
Nevertheless, the trial court and this court must ensure that Larry [***28] does not receive a double recovery. See Collins Music Co. v. Smith, 332 S.C. 145, 147, 503 S.E.2d 481, 482 (Ct. App. 1998) ( [HN8] “It is well settled in this state that there can be no double recovery for a single wrong and a plaintiff may recover his actual damages only once.” (internal quotation marks omitted)). The determination of whether a verdict grants a double recovery begins with the trial court’s responsibility to interpret the verdict in order to ascertain the jury’s intent. The trial court interpreted the jury’s verdict in this case to be “three awards,” and therefore “inconsistent” because [*199] it allowed Larry a double recovery. We find the trial court erred in its interpretation of the verdict.
The error arose from the verdict form. Because Larry asserted three causes of action, the trial court correctly fashioned the verdict form to require the jury to write its verdict for each cause of action. However, because Larry sought only one remedy–damages–and because the amount of those damages could not vary from one cause of action to another, the trial court should have required the jury to write one amount for Larry’s actual damages, and should not have permitted the jury to write [***29] a damages amount for each of the three causes of action. The use of the three blanks for damages in the verdict form left the verdict ambiguous as to the amount of damages the jury intended to award.
[HN9] To determine the jury’s intent in an ambiguous verdict, the court should consider the entire proceedings, focusing on the events and circumstances that reasonably indicate what the jury intended. See Durst v. S. Ry. Co., 161 S.C. 498, 506, 159 S.E. 844, 848 (1931) (stating “the construction of a verdict should, and can, depend upon, not only the language used by the jury, but other things occurring in the trial may be, and [**901] should be, properly regarded in determining what a jury intended to find”); Howard v. Kirton, 144 S.C. 89, 101, 142 S.E. 39, 43 (1928) (stating it is “the duty of the trial judge to decide what the verdict meant, and, in reaching his conclusion thereabout, it was his duty to take into consideration not only the language of the verdict, but all the matters that occurred in the course of the trial”); see also 75B Am. Jur. 2d Trial § 1545 (2007) (“In the interpretation of an ambiguous verdict, the court may make use of anything in the proceedings that serves to show with [***30] certainty what the jury intended, and, for this purpose, reference may be had, for example, to the pleadings, the evidence, the admissions of the parties, the instructions, or the forms of verdict submitted.”).
To correctly interpret the verdict in this case, the trial court was required to consider several indications of the jury’s intention as to damages. First, the court should have considered its own conclusion that Larry sought only one remedy–damages–and that all of his damages flowed from the broken back resulting from his fall from the tower. Thus, it was not [*200] possible for the damages to vary from one cause of action to another. Second, after the jury returned the verdicts, Larry made a motion asking the court to inquire of the jury whether it meant for the damages awarded to be cumulative. Alpine Towers did not object to the request. While the jury was still in the courtroom, the judge asked the forelady if the jury intended the verdicts to be cumulative.
The Court: . . . Before you leave, I’ve got one last question. On the three causes of action you have awarded different amounts of damages. . . . Was it the jury’s intention to award those cumulatively, that is they add up to [***31] [$3.4 million and $500.00] . . . or did you simply mean that the damages as to each cause of action were to be separate . . . .
Forelady: Ask me that again.
. . .
The Court: . . . You have ordered [$500.00] on one, [$900,000.00] on one, and [$2.5 million] on one. Is it the jury’s intention that those are to be added, that is cumulative, or is the jury’s intention that as to each cause of action that award applies only to that cause of action?
Forelady: It’s cumulative.
The Court: Okay. How about . . . as to the punitive, you had [$160,000.00] and [$950,000.00], which adds up . . . to [$1.1 million] [sic]. Is it the same for that also?
Forelady: It’s cumulative.
The trial court then asked each side separately if there was “anything else before the jury’s dismissed?” Both Larry and Alpine Towers answered that they had nothing further, and the trial court dismissed the jury. 9
9 The trial court found, and Alpine Towers argues on appeal, that Larry should have sought further inquiry into the jury’s intent and that his failure to do so forecloses his argument that the jury intended the verdicts to be cumulative. We disagree. Larry is the party who initially asked the court to inquire whether the [***32] jury intended the verdict to be cumulative. Larry’s counsel stated to the court “you can either inquire of the jury here in the courtroom or you can send them out, whatever you’re comfortable with.” Alpine Towers’ counsel stated, “I wouldn’t oppose that request.” The trial court then made the decision to ask only the forelady. The forelady’s answer, “It’s cumulative,” was the answer Larry was looking for, and therefore Larry had no reason to inquire further on that subject. Alpine Towers, who at that point did have reason to inquire further, said nothing. Therefore, to the extent the lack of further inquiry should be considered, we believe it should be held against Alpine Towers.
[*201] In the context that Larry sought, and could obtain, only one damages award for the same injury, this dialogue adequately demonstrates the jury intended the damage amounts written in the three blanks on the verdict form to be added together for a total award to Larry of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. However, there was more to indicate this was the jury’s intention. During deliberations the jury sent a note to the court stating the jurors were deadlocked as to whether to award [***33] $4.5 million or $5 million and asking for suggestions. The court responded that it had no suggestions. The total amount of damages awarded, including the amount awarded to Larry’s parents, was $4.75 million, 10 which is between the two amounts [**902] listed in the note. Further, the court should have considered that it gave the jury no basis on which to find different damage awards on different causes of action. In fact, the only place in the damages instruction where the court differentiated between the causes of action at all was to explain to the jury it may award punitive damages only on the negligence theories of recovery.
10 At the point of the trial when the jury sent this note, the court had not instructed the jury it must award damages on the strict liability claim or find for the defendant. Thus, the $500.00 damages awarded on that cause of action is not included in this figure.
This court has stated that [HN10] “it is the duty of the court to sustain verdicts when a logical reason for reconciling them can be found.” Daves v. Cleary, 355 S.C. 216, 231, 584 S.E.2d 423, 430 (Ct. App. 2003). In fulfilling this duty, we may not substitute our judgment for that of the jury. See Lorick, 153 S.C. at 319, 150 S.E. at 792 [***34] (stating the court has a right to give “effect to what the jury unmistakably found” but cannot “invade the province of the jury”). The jury’s verdict in this case is readily reconciled as we have explained. We can discern no other way to interpret the verdict consistent with the applicable law and the facts of this case, nor can we find in the record any reason to believe this interpretation does not reflect the intent of the jury. Moreover, during arguments on post-trial motions, counsel for Alpine Towers explained to the trial court what he believed the jury did:
[*202] Let me tell you what I think happened. . . . [When they sent the note asking for suggestions,] they advised that they had arrived at a general block of the amount of the damages that they wanted to give to compensate Mr. Keeter. What they then did because the verdict form is listed in such a way that it says actual damages and punitive damages leaving both blank that they went through and parceled out the total amount of compensatory damages that they wanted to award . . . . And the damages for all three claims are identical . . . , there is no differentiation on the damages . . . . [T]hey arrived at a larger figure then [***35] they parceled it up to fill in the blanks. 11
Interpreting the verdict based on “all the matters that occurred in the course of the trial,” Howard, 144 S.C. at 101, 142 S.E. at 43, we disagree with the trial court and find the jury did not make an “inconsistent damages award.” See 75B Am. Jur. 2d Trial § 1556 (2007) (“In order for a verdict to be deemed inconsistent, there must be inconsistencies within each independent action rather than between verdicts in separate and distinct actions.”). Rather, we find that the jury intended the amounts to be added together for a total verdict in Larry’s favor of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. Accordingly, we hold the trial court erred in its interpretation of the verdicts and judgment should have been entered in the cumulative amount of actual and punitive damages the jury wrote on the verdict form for each of Larry’s causes of action.
11 In fairness to counsel, the statement was made as part of his argument that the verdicts were inconsistent. However, we believe the statement accurately explains why the jury put different damage amounts in different blanks.
For the reasons explained above, we affirm [***36] the trial court’s decision to deny Alpine Towers’ motions for directed verdict, JNOV, and for a new trial. We reverse the trial court’s interpretation of the jury verdict and remand with instructions that judgment be entered against Alpine Towers in favor of Larry Keeter in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages.
[*203] AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
KONDUROS, J., concurs.
CONCUR BY: THOMAS
THOMAS, J., concurring in a separate opinion.
THOMAS, J.: I concur with the majority as to Alpine Towers’ appeal. As to Larry’s appeal, I concur in result. I agree that this case does not involve the need to elect remedies or an inconsistent verdict. I write separately to clarify that questioning the entire jury and then conforming the jury’s verdict to the jury’s intent are the best practices for ensuring a valid verdict.
[**903] First, when a party raises a question about the jury’s intent for the verdict, the best practice is to poll all of the jurors or allow the foreperson to answer the court’s questions after consulting with the entire jury. Lorick & Lowrance, Inc. v. Julius H. Walker Co., 153 S.C. 309, 314-15, 150 S.E. 789, 791 (1929). The need to clarify the jury’s [***37] intent almost invariably arises when the language used on the verdict form is problematic. Without an inquiry of the remaining jurors, questioning only the foreperson unnecessarily risks that the jury’s precise intent will remain unknown. This danger is heightened by the likelihood of arguments that the foreperson misunderstood the court’s questions or provided a response not reflecting the entire jury’s intent.
Second, if the initial inquiry shows the jury’s intent differs from what the jury wrote on the verdict form, the best practice is to either send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. Id. at 314-15, 150 S.E. at 791. After the jury is discharged, the court may construe the verdict in a manner that diverges from the language used by the jury only when the surrounding circumstances make the jury’s intent unmistakable and the court’s construction reflects that intent. Id. at 319-20, 150 S.E. at 792-93.
I disagree with the majority’s statement in footnote 9 that Larry had no reason to seek further inquiry of the jury’s intent after the foreperson testified the actual and punitive damages amounts [***38] were cumulative. The movant has the most [*204] incentive to ask the court to send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. These practices best ensure the verdict reflects the jury’s intent, and a verdict rendered in accordance with them is nearly impossible to attack by arguing the jury’s intent is unclear. See Billups v. Leliuga, 303 S.C. 36, 39, 398 S.E.2d 75, 76 (Ct. App. 1990) (stating “a jury verdict should be upheld when it is possible to do so and carry into effect the jury’s clear intention,” and holding the jury’s intent was clear despite “some confusion in the jury’s initial written verdict” because the foreperson testified as to the jury’s intent, the clerk published the jury’s intent after the foreperson put the intent in writing, and the remaining jurors were polled to ensure their intent complied with the published intent); cf. Joiner v. Bevier, 155 S.C. 340, 351, 354-55, 152 S.E. 652, 656-57 (1930) (stating the court has the “duty to enforce a verdict, not to make it” and holding that despite some initial difficulty in getting the jury to render a verdict proper in form, the jury’s intent [***39] was “entirely clear” when the verdict after a second set of deliberations “corresponded exactly” with the special findings obtained prior to sending the jury back to deliberate). Moreover, if the above practices are not used, the movant risks having to meet its burden of establishing that the jury’s intent is absolutely clear using solely the surrounding circumstances of the case. Lorick, 153 S.C. at 319-20, 150 S.E. at 792-93. Here, the jury did not conform the verdict to its intent, nor was the jury polled. 12 Therefore, because the burden to establish the jury’s intent remains on Larry as the movant, 13 he must establish the jury’s intent was unmistakable based on the surrounding circumstances of the case.
12 In fairness to Larry, he asked the trial court to determine whether the verdict in his favor was intended to be cumulative. He suggested to the trial court, “[E]ither inquire of the jury . . . in the courtroom or . . . send them out.” The trial court instead only questioned the foreperson in the presence of the other jurors.
13 In discussing the movant’s incentive and burden, I am not referring to our rules of preservation. This issue is preserved because Larry sufficiently raised [***40] it to the trial court by seeking to clarify the jury’s intent in the above-suggested manner before the jury was discharged and the trial court ruled on his motion.
[*205] Despite the uphill battle undertaken in this case to establish the jury’s intent, I agree to remand for an entry of judgment against Alpine Towers in favor of Larry for $3,400,500.00 actual damages and $1,110,000.00 punitive damages. The surrounding circumstances of this case make the jury’s intent unmistakable. Taken together, the forelady’s testimony, the jury note, the jury charge, the total damages awarded, and the single injury alleged can lead to only one conclusion: the jury intended to award Larry [**904] $3,400,000 in actual damages 14 and $1,110,000 in punitive damages.
14 This amount omits the damages awarded for the strict liability claim because the jury note was sent before the jury re-deliberated the strict liability claim.
SOUTH CAROLINA CODE OF LAWS ANNOTATED BY LEXISNEXIS®
TITLE 39. TRADE AND COMMERCE
CHAPTER 65. PAYMENT OF POST-TERMINATION CLAIMS TO SALES REPRESENTATIVES
GO TO SOUTH CAROLINA STATUTES ARCHIVE DIRECTORY
As used in this chapter:
(1) “Commissions” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders or sales or as a specified amount of each order or sale.
(2) “Person” means an individual, corporation, partnership, association, estate, or trust.
(3) “Principal” means a person who:
(a) manufactures, produces, imports, or distributes a tangible product for wholesale;
(b) contracts with a sales representative to solicit orders for the product; and
(c) compensates the sales representative, in whole or in part, by commission.
(4) “Sales representative” means a person who:
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(c) does not place orders or purchase for his own account or for resale; and
(d) does not sell or take orders for the sale of products to the ultimate consumer.
When a contract between a sales representative and a principal is terminated for any reason, the principal shall pay the sales representative all commissions that have or will accrue under the contract to the sales representative according to the terms of the contract.
A principal who fails to comply with the provisions of Section 39-65-20 is liable to the sales representative in a civil action for:
(1) all amounts due the sales representative plus punitive damages in an amount not to exceed three times the amount of commissions due the sales representative; and
(2) attorney’s fees actually and reasonably incurred by the sales representative in the action and court costs.
Where the court determines that an action brought by a sales representative against a principal under this chapter is frivolous, the sales representative is liable to the principal for attorney’s fees actually and reasonably incurred by the principal in defending the action and court costs.
A principal who is not a resident of this State who contracts with a sales representative to solicit orders in this State is deemed to be doing business in this State for purposes of the exercise of personal jurisdiction over nonresidents under Part 8, Chapter 2, Title 36.
Nothing in this chapter invalidates or restricts any other right or remedy available to a sales representative or precludes a sales representative from seeking to recover in one action on all claims against a principal.
A provision in any contract between a sales representative and a principal purporting to waive any provision of this chapter, whether by expressed waiver or by a contract subject to the laws of another state, is void.
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Allison v. Charter Rivers Hospital, Inc, 334 S.C. 611; 514 S.E.2d 601; 1999 S.C. App. LEXIS 43
Margaret H. Allison, Appellant, v. Charter Rivers Hospital, Inc., Respondent.
Opinion No. 2965
Court of Appeals of South Carolina
334 S.C. 611; 514 S.E.2d 601; 1999 S.C. App. LEXIS 43
February 9, 1999, Submitted
March 15, 1999, Filed
Prior History: [***1] Appeal From Lexington County. William P. Keesley, Circuit Court Judge.
Counsel: Robert J. Thomas and Robert P. Wood, both of Rogers, Townsend & Thomas, of Columbia, for appellant.
Monteith P. Todd, of Sowell, Todd, Laffitte, Beard & Watson, of Columbia, for respondent.
Judges: Hearn, J. Huff and Stilwell, JJ., concur.
Opinion By: Hearn
Opinion: [*612] [**602]
Hearn, J: Margaret Allison brought this action against Charter Rivers Hospital, Inc. for injuries she allegedly sustained while participating in a ropes course n1 as part of her treatment at Charter. The trial court denied Allison’s motion to strike Charter’s defense of assumption of risk as a total bar to her recovery and presented the issue to the jury. The jury returned a [*613] general verdict in favor of Charter. Allison appeals. We affirm. n2
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n1 A “ropes course” is an activity used to build trust and self-confidence. In the activity involved in this case, the participants walked across a rope strung between trees while holding onto an overhead wire. While one participant crosses the rope, four others follow on the ground, acting as spotters to catch the participant if he or she falls. [***2]
n2 We decide this case without oral argument pursuant to Rule 215, SCACR.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
Allison entered Charter in April of 1992 for treatment of her addiction to prescriptive medication. During the years preceding her admission, she had led a very inactive lifestyle.
Five days after she entered Charter, she learned she was scheduled to participate in a ropes course. Allison inquired about the ropes course from Katherine McCall, who was in charge of the activity. Katherine explained the course involved walking on a rope between three trees and that the activity would help Allison to build trust. Allison expressed to Katherine her reservations about doing anything physical because of her [**603] lack of past physical activity. Allison also asked several patients about the ropes course. A woman in her seventies and a younger girl with back problems told Allison that they chose not to participate in the course. After collecting this information, Allison decided to participate in the course.
At the beginning of the activity, Allison and the other participants circled around Katherine. Katherine asked them [***3] to raise their hands and pledge to at least attempt the activity. The group warmed up with a game similar to tag. As soon as she started to run, Allison fell on her left knee. She immediately told Katherine about her injury. Katherine instructed her to sit out the remainder of the tag game, which lasted around three or four minutes. The group then proceeded to the ropes course. While walking to the course, Allison again expressed her reservations about participating in the activity. Katherine asked her to at least try and assured her that if she fell, the group would catch her.
According to Allison, the purpose of the ropes course was to build trust and self-confidence. The object of the exercise was for the group to catch the participant as she fell, thereby building the participant’s trust in the group.
Allison explained that a participant was to walk backwards on a rope strung [*614] between trees while holding onto a wire from above. The bottom rope was approximately two and a half feet from the ground at the base trees but sagged and swayed in the middle. She stated the participants were instructed to let go of the wire from above if they fell. Four members of the group, acting as spotters, [***4] were to follow Allison to catch her if she fell.
Allison watched all the other participants and waited until last to try the tension traverse herself. She saw a male patient fall and scrape his shin. When it was her turn, the group lifted her up onto the rope, and she caught hold of the top wire. She testified she was about four feet from the tree when she fell.
The group was not able to break her fall, and she landed on her right knee.
Katherine and some of the participants tried to life her, but Allison passed out from the pain. She was taken by ambulance to the emergency room at Lexington Medical Center.
Allison filed a complaint against Charter in October of 1993. Charter asserted as defenses a general denial of negligence, assumption of risk, and contributory negligence. At the close of the evidence, Allison moved to strike the defense of assumption of risk. She argued that because of the South Carolina Supreme Court’s decision abolishing contributory negligence as a complete bar to recovery, n3 the doctrine of assumption of risk was narrowly limited and did not apply to her case. In the alternative, she argued that if the doctrine of assumption of risk applied, there was no [***5] evidence in the record to support the defense. The trial court denied the motion. The jury returned a general verdict in favor of Charter.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n3 The South Carolina Supreme Court abrogated the doctrine of contributory negligence in favor of comparative negligence for all causes of action arising on or after July 1, 1991. Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991). This cause of action arose in 1992. In response to Allison’s motion to strike, Charter withdrew the defense of contributory negligence at the trial.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
Allison argues the defense of assumption of risk was not available to Charter as a complete defense to her action. [*615] She relies on this court’s decision in Davenport v. Cotton Hope Plantation Horizontal Property Regime, 325 S.C. 507, 482 S.E.2d 569 (Ct. App. 1997), aff’d as modified, 333 S.C. 71, 508 S.E.2d 565 (1998). In Davenport, we held “assumption of risk is no longer a complete defense to an injured person’s negligence claim. Assumption of risk is [***6] to be treated as another facet of comparative negligence rather than as an absolute bar to recovery.” Davenport, 325 S.C. at 516, 482 S.E.2d at 574. The South Carolina Supreme Court recently affirmed this holding and abolished assumption of risk as a bar to absolute recovery. Davenport, 333 S.C. 71, 508 S.E.2d 565 (1998). The court held “that a plaintiff is not barred from recovery by the doctrine of assumption of risk unless the degree of fault arising therefrom is greater than the negligence [**604] of the defendant.” 333 S.C. at 87, 508 S.E.2d at 573-4.
The supreme court, however, limited its ruling to apply only to Davenport and to all causes of action arising or accruing after November 8, 1998, the date of the supreme court’s opinion. The court held: “Thus, except for this case, if a cause of action arose or accrued prior to our decision today, it will be governed by the common law form of assumption of risk, if applicable, as it existed under South Carolina case law before this opinion.” Davenport, 333 S.C. at 87-88, 508 S.E.2d at 574. In view of the supreme court’s decision to limit the application of its holding in Davenport, we hold the trial judge [***7] did not err in refusing to strike the defense of assumption of risk as a complete bar to Allison’s action.
Allison next asserts there was no evidence in the record to support the defense of assumption of risk. We disagree.
The defense of assumption of risk is generally a question of fact for the jury. Baxley v. Rosenblum, 303 S.C. 340, 347, 400 S.E.2d 502, 507 (Ct. App. 1991). Allison’s motion to strike the defense of assumption of risk was essentially a motion for a directed verdict on the issue. When ruling on a motion for a directed verdict, the trial judge must view the evidence in the light most favorable to the party opposing the motion. Moore v. Levitre, 294 S.C. 453, 454-5, 365 S.E.2d 730, 730 (1988); Baxley, 303 S.C. at 346, 400. N.E.2d at 506. If the evidence supports more than one reasonable inference with [*616] respect to a claim or defense, the judge must deny the motion and submit the case to the jury. Moore, 294 S.C. at 455, 365 S.E.2d at 730; Baxley, 303 S.C. at 346, 400. N.E.2d at 506. This court may only reverse the denial of a motion for directed verdict when there is no evidence to support the ruling below. Creech v. South Carolina Wildlife & Marine [***8] Resources Dep’t, 328 S.C. 24, 28-9, 491 S.E.2d 571, 573 (1997).
Under prior case law, the defense of assumption of risk required four elements: “(1) the plaintiff must have knowledge of the facts constituting a dangerous condition; (2) the plaintiff must know the condition is dangerous; (3) the plaintiff must appreciate the nature and extent of the danger; and (4) the plaintiff must voluntarily expose himself to the danger.” Davenport, 333 S.C. at 78-79, 508 S.E.2d at 569; see also Senn v. Sun Printing Co., 295 S.C. 169, 173, 367 S.E.2d 456, 458 (Ct. App. 1988).
The ropes course instructor and several patients explained the ropes course to Allison. Allison was aware that two patients had elected not to participate in the course because of their physical condition. She was also aware the object of the activity was for the participants to be caught by their fellow participants as they fell. Furthermore, before attempting the tension traverse, Allison observed the other participants’ attempts, including that of a man who skinned his shin and required medical attention.
We find the record contains sufficient evidence of the elements of assumption of risk to create [***9] a jury issue.
Huff and Stilwell, JJ., concur.