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Johnson v. Sam English Grading, Inc.

Court of Appeals of South Carolina

May 6, 2015

Paige Weeks Johnson, as Personal Representative of the Estate of Christie Lane Valenzuela, Respondent,
v.
Sam English Grading, Inc., Appellant

Heard January 6, 2015.

Page 545

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Page 547

Appeal From Aiken County. Doyet A. Early, III, Circuit Court Judge. Appellate Case No. 2012-213307.

Charles E. Carpenter, Jr., of Carpenter Appeals & Trial Support, LLC, and James C. (Trey) Cox, III and Danielle F. Payne, both of Grier, Cox, & Cranshaw, LLC, all of Columbia, for Appellant.

John Paul Detrick, of Peters Murdaugh Parker Eltzroth & Detrick, PA, of Hampton, Ronald A. Maxwell, Sr., of Maxwell Law Firm, of Aiken, L. Lisa McPherson, of McWhirter Bellinger & Associates, PA, of Lexington, and Robert Norris Hill, of Law Office of Robert Hill, of Lexington, for Respondent.

OPINION

Page 548

[412 S.C. 440] KONDUROS, J.

In this appeal from a negligence action, Sam English Grading, Inc. (The Company) contends the trial court erred in admitting certain evidence and denying its motions for directed verdict or judgment notwithstanding the verdict (JNOV). It also argues the trial court erred in giving a coercive version of an Allen [1] charge. We affirm.

[412 S.C. 441]FACTS/PROCEDURAL HISTORY

On August 7, 2009, Michael Valenzuela was driving his motorcycle on Redds Branch Road in Aiken County, with his wife, Christie Valenzuela, as a passenger on the back. The speed limit was forty-five miles per hour, and Michael testified he was driving between forty to forty-five miles per hour. As they approached the driveway to Owens Corning (Corning), Christie tapped Michael on his side to alert him to a problem. Michael did not see anything at first and then noticed a lot of dust coming from a large piece of equipment, a pan[2], driving on a private driveway owned by Corning, towards Redds Branch Road, which was about twenty to thirty feet away from the intersection. Michael estimated the pan was traveling at least thirty miles per hour. Michael believed the driver did not see him and they were going to crash if he continued driving his motorcycle, so after braking and skidding, he " threw the [motorcycle] down." As a result, Christie died and Michael suffered injuries. The pan did not enter the roadway but stopped by making a quick right turn and coming to rest on top of the stop sign. The motorcycle and pan came to rest within five to ten feet of each other.

The Company has collected Corning's debris for many years. Every few years, the Company would use the pan to take dirt from a pit Corning owned and move it to fill Corning's landfill, which required it to cross Redds Branch Road.

Paige Weeks Johnson, as personal representative of Christie's estate, brought an action for negligence against the Company for acts including the failure to warn with signs or other devices the motoring public of the danger the Company created. At trial, Michael testified he had one to two seconds to react. He testified no flagman was near the intersection or anywhere else near the site but he wished a sign, a flagman, or some kind of warning had been present. Michael stated he also wished the driver of the pan would have acknowledged him once he was skidding. He provided the driver did not begin braking until Michael had already put his motorcycle [412 S.C. 442] down. Michael testified that before the day of the accident, he had not driven though that area in the last ten years.

Three witnesses testified, over the Company's objections, about prior incidents with the Company's equipment at the intersection. Ann Johnson testified she frequently traveled on Redds Branch Road by the driveway and it was dangerous because equipment was always going back and forth across the road. She provided that a few days prior to the accident, as she passed the driveway, she looked in her rearview mirror and a " huge piece of equipment just zoomed across right behind [her]." She indicated she had never seen a flagman or warning signs at the site.

Laura Boozer testified she traveled by the incident site up to six or eight times a day because she worked at Corning's plant. She provided that about a month before the Valenzuelas' accident, she and her husband were driving down the road and her husband had to slam on his brakes to avoid hitting the pan crossing the road. She testified no flagman or warning signs were in the area. She indicated that because she and her husband were familiar with the spot, they would slow down and watch for trucks in the road.

Virginia Gunter testified she had regularly driven past the intersection where the accident occurred for many years. She indicated it was rare for the equipment to stop and she had to remind herself to slow down and look around when she drove through the area. She stated she had never seen a flagman or warning signs there.

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The driver of the pan for the Company, Jeffery D. Lewis, testified that another employee, Johnny Tindel, directed him to come across the street just before the accident. Lewis believed this meant no traffic was coming and he could proceed through the intersection without stopping. When Lewis was about thirty feet from the intersection, Tindel motioned for him to stop. Lewis glanced to his left and saw the motorcycle and began braking and turned sharply to the right. He knocked over the stop sign with the pan. Lewis testified there was no way for Michael to tell he was going to brake and turn to the right to avoid entering the road. Lewis indicated the pan was not loaded at the time of the accident and was able to move faster than when it was loaded. Lewis [412 S.C. 443] also testified that on a typical day, he would drive back and forth across the road at least fifty times. He testified no warning signs were on the road the day of the accident.

Eric Pruitt, a dump truck driver, was regularly at the landfill and observed the accident. He believed Lewis was going to enter the road but instead made a right turn and ran over the stop sign. Pruitt testified Tindel acted as a spotter for Lewis, looking for traffic on Redds Branch Road.

James A. McLaurin, a state trooper at the time of the accident, was dispatched to the scene of the accident. He testified he did not notice any evidence of a flagman but did speak to Tindel. McLaurin believed Tindel was responsible for letting Lewis know whether it was clear or not clear for him to cross Redds Branch Road. He also testified that Christopher English (Chris), the co-owner of the Company, told him he had installed the stop sign at the end of the private driveway. During McLaurin's testimony, Johnson introduced into evidence, over objection, a contract between the Company and Corning from 1984. McLaurin indicated the contract specified advance warning signs should be placed one thousand feet from where trucks were entering the highway. He provided that was consistent with where the state normally places such signs. He further testified the contract required a flagman sign at five hundred feet from where trucks enter the highway, which was an adequate distance to warn the public. He stated these measures are for the safety of the motoring public.

Chris testified about a contract the Company had with Corning which had been in existence since 2009. That contract mandated the Company provide a flagman and was in existence at the time of the accident. He also testified that regarding the time in question, a flagman was not at the site. He stated the flagman was only necessary for flagging his equipment across the road, not for the public's safety. He provided he previously had a flagman directing the public at the intersection but stopped providing one when the flagman was almost hit by a motorist who refused to stop. Chris also testified an encroachment permit referenced in the contract required advance warning signs but those warning signs were not necessary if the flagman was not directing public motorists. [412 S.C. 444] He indicated he operated the pan when Lewis did not. Chris stated he placed the stop sign at the private drive but told his drivers they did not have to stop at it if they had someone motioning traffic was clear. He testified Tindel's main job was to sweep debris off the road.

Samuel Curtis English, Chris's brother, worked for the Company and testified Tindel's job was to use the equipment to sweep dirt not to control traffic. He testified the Company did not use a flagman.

The video deposition of Clifford A. Merritt, a professional engineer with Corning, was played for the jury. Merritt was involved with the Company and Corning's contract to construct an earthen perimeter berm[3] at the landfill. He testified Corning was required to get an encroachment permit in 1984 from the South Carolina Highway Department but it was now expired because it was no longer needed. He indicated because the permit was needed to do work along a public road, Corning needed it when it constructed the driveway. The permit required whoever was crossing the road with a piece of equipment to have a flagman and advance warning signs. He stated that even though the permit

Page 550

expired, the guidelines and the need for a flagman and warning signs were still required. He testified the Company agreed to the terms requiring the flagman and warning signs.

He also provided he issued an addendum to the contract dated May 22, 2009, that required the Company to provide a flagman and maintain road crossing signs and other road crossing safety measures in compliance with the 1984 encroachment permit. Merritt testified the Company was aware of the requirements for a flagman based on the previous construction projects it had done for Corning. Merritt indicated Corning required the flagman and signs to ensure proper traffic control and safety on Redds Branch Road and the Company was aware of that. Merritt also testified he had observed the flagman and warning signs at the incident site over the years during periodic reviews. He provided that the flagman and warning signs were only required during the time periods when an earthen berm was being constructed. Construction [412 S.C. 445] of an earthen berm started in August 2009 and finished in September or October 2009.[4]

Kelly B. Kennett testified for Johnson as an expert in accident reconstruction. When asked if he felt like a flagman was needed at the intersection, he replied:

[W]hen you have site distances and roadway configurations that just do not allow a motorist to see either a motorist driving a [pan] going this way or a motorist on Redds Branch Road here, then you need a different method to ...

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