United States District Court, D. South Carolina, Florence Division
Kimberly L. Jackson, Administratrix of the Estate of Jerry D. Jackson, Jr., Plaintiff,
United States of America, Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
Bryan Harwell United States District Judge.
Kimberly L. Jackson (“Plaintiff”), who represents
the estate of her deceased husband Jerry D. Jackson, Jr.
(“Mr. Jackson”), brings this negligence and
wrongful death action against the United States pursuant to
the Federal Tort Claims Act, 28 U.S.C. §§
1346(b)(1), 2671-2680. The Court held a bench trial on
February 20-23, 2018, and now issues this order summarizing
its evidentiary rulings and setting forth its findings of
fact and conclusions of law.
case arises from the tragic death of Plaintiff's husband,
Jerry D. Jackson, Jr., who passed away in a motorcycle
accident on September 12, 2015. As Mr. Jackson and nine other
motorcyclists were traveling home to North Carolina on U.S.
Highway 701 North in Horry County, South Carolina, a rural
mail carrier employed by the United States Postal Service
entered the northbound lane from a private drive. As a
result, two motorcyclists in front of Mr. Jackson collided
with the postal employee's vehicle, and Mr. Jackson, who
did not come into contact with the postal employee's
vehicle, was ultimately ejected from his motorcycle and died
at the scene.
trial, Plaintiff offered testimony from seven of the nine
motorcyclists who were riding with Mr. Jackson at the time of
the accident and are listed in the order they testified:
Woody Hodges (who testified by written
deposition), Ron McLeod, Patrick
Burgess, Paul Godwin,
William Strickland, Roy (Joe)
Joffrion, and Harry Halstead.
Plaintiff also called the following witnesses: Tony
Howard, an independent unbiased witness who was
riding behind the ten motorcyclists in his SUV at the time of
the accident and had been following them for several miles;
Cpl. Christopher Costa, a trooper with the
South Carolina Highway Patrol who responded to the scene and
investigated the accident; Jessica Williams,
a family friend of the Jacksons who testified regarding
wrongful death damages of the family; Dr. Jesse
Raley, an expert in forensic psychiatry who
evaluated two of the statutory beneficiaries;
Michelle McSpadden, the Horry County Deputy
Coroner who responded to the scene and investigated Mr.
Jackson's death; Alan Campbell, an
expert in civil engineering and human factors; Jerri
McLamb, Plaintiff's sister-in-law;
Kimberly Jackson, Mr. Jackson's
surviving wife and the plaintiff in this case; Cacey
Jackson, Mr. Jackson's surviving elder son;
Hunter Jackson, Mr. Jackson's surviving
younger son; Dewayne Stancil, a family
friend of the Jacksons; Dr. Oliver Wood,
Jr., an economic loss expert; and Carolyn
Cole, the rural mail carrier employee involved in
offered testimony from Erin Higinbotham, an
expert in mechanical engineering with qualifications in
accident reconstruction and motorcycle operations;
Dr. Marc Glaser, the former Emergency
Services Medical Director for Harnett County, North Carolina;
and Kendrick Richardson, an expert in
mechanical engineering with qualifications in accident
reconstruction and vehicle dynamics.
addition to the testimony, the Court has carefully reviewed
the numerous exhibits submitted by the parties.
Admissibility of Motorcyclist Literature
filed a motion in limine seeking to limit and/or exclude the
testimony of Defendant's experts regarding the North
Carolina Motorcyclists' Handbook, the Motorcycle Safety
Foundation Operator Manual, and the related Motorcycle Safety
Foundation Riding Tips document. See ECF No. 50;
see also Def. Exs. 56, 57, & 58. Plaintiff
objected to these materials being admitted into evidence and
to any testimony (expert or otherwise) about them, asserting
the accident at issue occurred in South Carolina and thus is
subject only to South Carolina motor vehicle law.
See ECF No. 50-1. Defendant filed a response in
opposition arguing these publications were relevant and were
properly relied upon by its two expert engineer witnesses,
Erin Higinbotham and Kendrick Richardson, to establish the
industry standard for safe motorcycle group riding.
See ECF No. 52.
Court addressed the motion before trial began, noting the
case was a nonjury/bench trial and ruling it would permit
Defendant's experts to testify about their reliance on
the publications and to give their opinion as to whether or
not Mr. Jackson was operating his motorcycle in a safe
manner. However, the Court noted it would reserve the right
to disregard such expert opinions.
fully considered this issue and heard the disputed testimony,
the Court reaffirms its prior ruling regarding those portions
of the publications relied upon by Defendant's experts.
First, those particular portions are admissible under Federal
Rules of Evidence 402 and 403. Second, Higinbotham's and
Richardson's expert opinions relying on these
publications are admissible under Rule 703. Initially, the
Court notes the typical concerns contemplated by Rule 703
were not at play in this bench trial. See Williams v.
Illinois, 567 U.S. 50, 69 (2012) (discussing Rule 703
and explaining that “[w]hen the judge sits as the trier
of fact, it is presumed that the judge will understand the
limited reason for the disclosure of the underlying
inadmissible information and will not rely on that
information for any improper purpose”).
the publications were reasonably relied upon by Higinbotham
and Richardson in forming their opinions about Mr.
Jackson's following distance and whether it was a cause
of his fatal injuries. As Defendant correctly points out,
see ECF No. 52 at p. 3, all ten riders were
residents of North Carolina with motorcycle endorsements on
their driver's licenses, and this case requires an
understanding of the industry standard for safe motorcycle
group riding, a matter outside the layman's common
knowledge or experience. See Babb v. Lee Cty. Landfill SC,
LLC, 747 S.E.2d 468, 481 (S.C. 2013) (explaining that in
the context of negligence and causation, “[t]he general
rule in South Carolina is that where a subject is beyond the
common knowledge of the [factfinder], expert testimony is
required”); Green v. Bradley Co., No.
3:15-CV-02581-JMC, 2017 WL 4012298, at *5 (D.S.C. Sept. 12,
2017) (quoting Babb in a diversity case). Moreover,
these publications aid Defendant's experts in
establishing the standard of care that Mr. Jackson-a North
Carolina motorcyclist- should have been using and whether he
deviated from that standard of care because, as explained
below, this case involves comparative negligence. See
generally Doe ex rel. Doe v. Wal-Mart Stores, Inc., 711
S.E.2d 908, 912 (S.C. 2011) (“Once a duty has been
established, it is the further function of the court to
determine and formulate the standard of conduct to which the
duty requires the defendant to conform. The factfinder may
consider relevant standards of care from various sources in
determining whether a defendant breached a duty owed to an
injured person in a negligence case. The standard of care in
a given case may be established and defined by . . .
industry standards . . . .”
(internal citations and quotation marks omitted) (emphasis
the Court notes those relevant portions of the three
publications-the North Carolina Motorcyclists' Handbook,
the Motorcycle Safety Foundation Operator Manual, and the
Motorcycle Safety Foundation Riding Tips document-can be read
harmoniously with South Carolina law and the South Carolina
Driver's Manual that was also relied upon by
Defendant's experts. See Def. Ex. 55.
Accordingly, the Court DENIES
Plaintiff's motion in limine.
Testimony of Dr. Oliver Wood, Jr.
end of trial, Defendant renewed its
Daubert motion to exclude the testimony of Dr.
Oliver Wood, Jr., Plaintiff's economic loss expert. The
Court had previously denied the motion in a text order on
October 26, 2017. See ECF No. 35 (“[T]he
[C]ourt respectfully denies Defendant's motion to exclude
the testimony of Dr. Wood. Because this case will be tried
non-jury, the Court would prefer to hear the disputed
testimony before it makes a decision whether to exclude or
disregard any part or all of the testimony.”). Having
now heard Dr. Wood's testimony, the Court finds it proper
to disregard his conclusions and opinions only to the extent
they are based on an assumed earning capacity of $48, 000 per
year because, as explained later in this Order, this figure
is too speculative to be considered as
reliable information consistent with
Daubert principles and Federal Rule of Evidence 702.
The Court will, however, consider Dr. Wood's testimony
concerning the projected loss of Mr. Jackson's
household/family services. The Court's relevant findings
are set forth in detail below.
Standard for a Nonjury Civil Trial
an action tried on the facts without a jury . . ., the court
must find the facts specially and state its conclusions of
law separately. The findings and conclusions may be stated on
the record after the close of the evidence or may appear in
an opinion or a memorandum of decision filed by the
court.” Fed.R.Civ.P. 52(a)(1).
Plaintiff and Defendant both moved for “directed
verdicts, ” there is no such motion in the Federal
Rules of Civil Procedure. See Benjamin v. Shaw, No.
4:15-cv-05110-RBH, 2017 WL 3205798, at *2 n.4 (D.S.C. July
28, 2017). The Court construes the parties' motions as
ones for judgment on partial findings pursuant to Rule 52(c)
of the Federal Rules of Civil Procedure. Rule 52(c)
If a party has been fully heard on an issue during a nonjury
trial and the court finds against the party on that issue,
the court may enter judgment against the party on a claim or
defense that, under the controlling law, can be maintained or
defeated only with a favorable finding on that issue. The
court may, however, decline to render any judgment until the
close of the evidence. A judgment on partial findings must be
supported by findings of fact and conclusions of law as
required by Rule 52(a).
Fed. R. Civ. P. 52(c). “Rule 52(c) expressly authorizes
district judges to resolve disputed issues of fact.”
M & M Poultry, 281 F.Supp.3d 610. Rule 52(c)
“requires that a party be ‘fully heard'
before a judgment is rendered on a particular issue.”
First Virginia Banks, Inc. v. BP Expl. & Oil
Inc., 206 F.3d 404, 407 (4th Cir. 2000) (quoting
Fed.R.Civ.P. 52(c)). “Under this Rule, a court assesses
the evidence presented and may render judgment if the
evidence is insufficient to support a claim or
defense.” Ethox Chem., LLC v. Coca-Cola Co.,
No. 6:12-cv-01682-KFM, 2015 WL 12807733, at *2 n.4 (D.S.C.
Sept. 30, 2015), aff'd 683 Fed.Appx. 958 (Fed.
studied the evidence, reviewed the parties' arguments,
and considered the applicable law, the Court now issues the
following Findings of Fact and Conclusions of Law pursuant to
Federal Rule of Civil Procedure 52(a). To the extent that any
findings of fact constitute conclusions of law, or
vice-versa, they shall be so regarded.
Plaintiff Kimberly L. Jackson is a citizen and resident of
Dunn, North Carolina (located in Harnett County), and she is
the Administratrix of the Estate of Jerry D. Jackson, Jr.,
her deceased husband. Plaintiff and Mr. Jackson had two sons,
Hunter and Cacey. Hunter was sixteen years old and living at
home at the time of the accident, and Cacey was emancipated
and living in California.
Defendant is the United States of America by virtue of the
Federal Tort Claims Act and a tort/automobile accident
involving Carolyn M. Cole, one of its rural mail carriers.
approximately 2:00 P.M. on September 12, 2015, Mr. Jackson
and nine other men were riding their motorcycles in a
staggered group formation on U.S. Highway 701 North in Horry
County, South Carolina, and were in the process of passing
Cannon Glass Service, a business located on the right side of
the northbound lane of Highway 701. The group was returning
to North Carolina from a planned trip they had taken to
Charleston, South Carolina. Mr. Jackson and the nine other
motorcyclists all lived in North Carolina and possessed North
Carolina driver's licenses with a motorcycle endorsement.
Rodney Stewart, Woodrow Hodges Jr., William Strickland, Harry
Halstead, and Roy Joffrion were in front of Mr. Jackson; and
Keith Honeycutt, Paul Godwin, Patrick Burgess, and Ron McLeod
were behind Mr. Jackson. All riders were wearing helmets. The
posted speed limit was 55 miles per hour, and the group was
traveling between 55 to 60 miles per hour in the northbound
lane of Highway 701. It had rained earlier that day, the road
was damp, and the air was misty. Some of the riders were
Jackson was driving a 2004 Harley-Davidson Road King
motorcycle, and he was positioned sixth in the staggered
group formation. Mr. Jackson was riding beside the fog line
(i.e., the solid white line bordering the roadway) directly
behind Halstead (who was also riding beside the fog line) and
diagonally/staggered behind and to the right of Joffrion (who
was riding beside the centerline).
September 12, 2015, Carolyn M. Cole was employed by the
United States Postal Service and acting within the scope of
her employment and performing her duties as a rural mail
carrier while driving her 2006 Saturn Ion sedan. Cole had
recently completed the Postal Service's training program,
and it was her first day delivering mail by herself. She was
driving her car by sitting in the center console area,
operating the steering wheel with her left hand, and
depressing the accelerator and brake with her left foot. This
driving position is the Postal Service's accepted method
for rural mail carriers operating left-hand drive vehicles.
was traveling southbound along the shoulder of Highway 701
when she missed a turn on her mail route, so she pulled into
the parking lot of Cannon Glass Service to turn around. This
portion of Highway 701 is a two-lane roadway that is straight
and flat with unobstructed views. Cole turned around in the
parking lot and drove toward the upward-sloping driveway
apron where the driveway intersected with the northbound lane
of Highway 701.
testified she brought her vehicle to a complete stop as she
approached the northbound lane of Highway 701. She looked to
her left after stopping and not only saw but also heard a
group of motorcycles traveling toward her in the northbound
lane of Highway 701. Intending to make a right turn onto the
shoulder of Highway 701 northbound, Cole looked to her right
to determine whether she would be able to navigate around a
mailbox located just to the right of the driveway where her
car was positioned and Highway 701 northbound. As she
prepared to make the right turn around the mailbox and onto
the shoulder of the road, she took her foot off the brake and
her car, which she described as being on a slight incline,
began slowly rolling backwards. She then pressed the
accelerator to start moving forward again, and as she did so,
she looked back left and noticed the motorcyclists were much
closer than before. Given their close proximity to the
driveway where her vehicle was located, Cole decided to delay
her right turn to let the approaching motorcyclists pass by.
However, when she attempted to press her brake with her left
foot, her car “jumped” forward and the accident
occurred almost instantaneously.
testified her best guess as to what happened was that she
went to apply the brake with her foot but her foot slipped
off the edge and hit the accelerator. Even though Cole was
using a method accepted and approved by her employer, the
Postal Service, it appears she was awkwardly having to
operate her vehicle with her left foot and left hand after a
very limited amount of training and while on the first day of
her job, after having missed a turn and attempting to reroute
Regardless of the exact reason why, it is clear Cole failed
to yield the right of way to the oncoming motorcyclists and
failed to maintain proper control of her vehicle, thereby
causing her vehicle to enter the roadway accidentally and
unintentionally, resulting in the accident.
Cole's car collided with the motorcycles that Halstead
and Joffrion were riding. Halstead's motorcycle hit
Cole's car first, striking the left side front quarter
panel of the Saturn Ion and causing the car to spin clockwise
and face the complete opposite direction as it came to a
resting stop in the northbound lane of Highway 701.
Joffrion's motorcycle hit Cole's car second, striking
the right side rear quarter panel of the Saturn Ion and
causing the car to spin clockwise facing the southern
direction but resting in the northbound lane. The witnesses
who saw the impact of Halstead's and Joffrion's
motorcycles with Cole's car described it as an explosion
with parts and pieces flying everywhere, and the collision
created a debris field. Halstead and Joffrion were injured as
a result of the collision. Their motorcycles and bodies came
to a rest in the southbound lane of Highway 701.
Based on the evidence presented, as Cole pulled onto Highway
701 North and collided with Halstead and Joffrion, Mr.
Jackson attempted to maneuver his motorcycle to the left of
Cole's vehicle (which had entered into his lane) and in
the process he lost control of his motorcycle, spilled onto
the roadway, and sustained fatal injuries. Mr. Jackson's
motorcycle came to a rest in a ditch alongside the southbound
lane of Highway 701, and his body was located in the
southbound lane. The testimony and evidence, including the
report completed by the South Carolina Highway Patrol
Multi-Disciplinary Accident Investigation Team
(“MAIT”), indicated Mr. Jackson did not make
contact or collide with any other motor
vehicle. See Pl. Ex. 2; Def. Ex. 40.
remaining four motorcyclists who were behind Mr.
Jackson-Honeycutt, Godwin, Burgess, and McLeod-were able to
maintain control of their motorcycles, stop safely, and avoid
involvement in the incident.
Although negligent, Cole's actions were completely
accidental and unintentional.
all accounts, this group of motorcyclists appeared to be a
responsible, mature, and experienced group of riders who
participated in the ride by invitation only. Multiple riders
testified that safety was paramount and that they would not
tolerate “hotdogging” or
“hot-rodding” in their group trips. The group
consisted of men from varying vocations, professions, and
• Plaintiff worked part-time as an emergency medical
technician for Dunn Emergency Services in Harnett County,
North Carolina, and he had 60, 000 miles on his Harley
Davidson going into the trip. Plaintiff was very particular
about his motorcycle and maintained it well in every respect.
• Halstead had been riding motorcycles for over forty
years, and he is a clinical systems analyst for Harnett
• Joffrion is a mechanic in the Army National Guard and
served four tours of duty in Iraq and Afghanistan.
• Hodges was the self-appointed “ride
captain” and had been functioning as such for many
years before the ride in question. Hodges testified most
members of the group had ridden thousands of miles without
any one of them ever bumping into the back of another rider.
• Strickland is a certified master technician for Harley
Davidson, works as a mechanic at Motorcycle Madness in Dunn,
North Carolina, and regularly serviced the motorcycles for
seven of the ten riders, including Plaintiff.
• Godwin is a thirty-five year veteran of the United
States Army and retired as an E-9 Command Sergeant Major.
• Burgess is an E-8 Master Sergeant in the Army and was
Joffrion's platoon sergeant.
• McLeod (who was riding a trike in the very back of the
group) was in his seventies, had been riding motorcycles
since he was a teenager, and had participated in numerous
prior group rides throughout the United States.
• The other two riders, Rodney Stewart and Keith
Honeycutt, did not testify.
ride itself was an invitation-only event to remember the
September 11, 2001 tragedy. The Court heard live testimony
from McLeod, Burgess, Godwin, Strickland, Joffrion, and
Halstead, all of whom were riding with Mr. Jackson at the
time of the accident. The Court had the opportunity to hear
and observe the riders who testified, except for Hodges who
testified by written deposition.
Defendant's Expert Witness Testimony
Defendant presented two experts in support of its position
that Mr. Jackson was negligent and could have avoided the
accident. While the Court agrees with some of the general
principles raised by these experts, the Court again finds
that degree of Cole's negligence far outweighed that
slight degree of Mr. Jackson's negligence. However,
because some slight degree of negligence is attributable to
Mr. Jackson, some discussion is necessary regarding the
evidence supporting that finding.
Defendant offered testimony from Erin Higinbotham, an expert
in mechanical engineering with qualifications in accident
reconstruction and motorcycle operations, and Kendrick
Richardson, an expert in mechanical engineering with
qualifications in accident reconstruction and vehicle
dynamics. Higinbotham and Richardson based their expert
opinions in part on several publications that provide the
industry standards for safe motorcycle operation while riding
in a group. These publications include:
The South Carolina Department of Motor Vehicles
Drivers Handbook, which indicates:
• The proper formation for group motorcycle riding is a
staggered pattern. When traveling in a group in the staggered
formation, each cyclist should be careful to maintain the
proper following distance at all times. Riding in a staggered
formation is the best way to keep ranks close and yet
maintain an adequate space cushion. In a staggered formation,
the leader rides to the left side of the lane, while the
second rider stays a little behind and rides to the right
side of the lane. A third rider would take the left position.
The fourth rider would be in a normal position behind the