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Jackson v. United States

United States District Court, D. South Carolina, Florence Division

April 12, 2018

Kimberly L. Jackson, Administratrix of the Estate of Jerry D. Jackson, Jr., Plaintiff,
United States of America, Defendant.


          R. Bryan Harwell United States District Judge.

         Plaintiff 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.


         This 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.

         Evidence Presented

         At 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 the accident.

         Defendant 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.

         In addition to the testimony, the Court has carefully reviewed the numerous exhibits submitted by the parties.

         Evidentiary Issues

         I. Admissibility of Motorcyclist Literature

         Plaintiff 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.

         The 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.

         Having 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.[1] 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”).

         Furthermore, 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.[2] 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 added)).

         Finally, 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.

         II. Testimony of Dr. Oliver Wood, Jr.

         At the end of trial, Defendant renewed its Daubert[3] 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.

         Legal Standard for a Nonjury Civil Trial

         “In 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).

         Although Plaintiff and Defendant both moved for “directed verdicts, ”[4] 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.[5] Rule 52(c) provides:

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. Cir. 2017).

         Having 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.

         Findings of Fact

         I. Parties

         1. 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.

         2. 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.

         II. Underlying Accident

         3. At 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.

         4. 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 wearing raingear.

         5. Mr. 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).

         6. On 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.

         7. Cole 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.

         8. Cole 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.

         9. Cole 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 herself.

         10. 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.

         11. 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.

         12. 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.[6] See Pl. Ex. 2; Def. Ex. 40.

         13. The 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.

         14. Although negligent, Cole's actions were completely accidental and unintentional.

         III. The Motorcyclists

         15. By 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 riding backgrounds:

• 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 Health hospital.
• 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.

         16. The 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.

         IV. Defendant's Expert Witness Testimony

         17. 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.

         18. 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:

         A. 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 second ...

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