THE STATE OF SOUTH CAROLINA

In The Supreme Court

Alice Creech, Respondent,

v.

South Carolina Wildlife and Marine

Resources Department and

Charleston County, Appellants.

Appeal From Charleston County

B. Hicks Harwell, Circuit Court Judge

Opinion No. 24677

Heard March 18, 1997 - Filed August 11, 1997

AFFIRMED

Matthew H. Henrikson, of Barnwell, Whaley, Patterson & Helms, LLC, of

Charleston, for Appellants.

Daniel W. Williams, of Bedingfield & Williams, of Barnwell, for Respondent.

TOAL, A.J.: Appellants South Carolina Wildlife and Marine Resources Department

("Wildlife Department") and Charleston County ("County") appeal the verdict in favor of

Respondent Alice Creech, arguing, inter alia, that the trial court erred in failing to direct a

verdict for Wildlife Department and County. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Respondent Alice Creech fell off a public dock at Steamboat Landing in Charleston

County. The dock had railing on only one side, and Creech fell from the other side. She

fell approximately ten feet and suffered numerous injuries.

Creech sued Wildlife Department and County under the South Carolina Tort Claims

Act, S.C. Code Ann. §§ 15-78-10 to -190 (Supp. 1996). She alleged that the defendants

were negligent in failing to provide rails on both sides of the dock. Wildlife Department and

County defended primarily on the bases that: (1) County was entitled to discretionary

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immunity; (2) because the condition at issue was open and obvious, County had not

breached any duty to Creech, who was a public invitee; (3) Creech's injuries resulted from

her own negligence rather than from any negligence of the defendants; and (4) the dock was

designed as a boating dock rather than as a fishing pier, so erecting a second rail would have

been inappropriate.

The jury returned a verdict in favor of Creech, finding her 49% negligent, County

16% negligent, and Wildlife Department 35% negligent. County and Wildlife Department

now appeal.

LAW/ANALYSIS

A. COUNTY'S APPEAL -- DIRECTED VERDICT ISSUE

County argues the trial court erred in failing to grant it a directed verdict. We

disagree.

I . Discretionary Immunity

County' first argues that its placement of a single rail on the dock at Steamboat

Landing was a discretionary decision and that, therefore, County was immune from suit under

S.C. Code Ann. § 15-78-60(5) (Supp. 1996). It argues that it was entitled to a directed

verdict based on section 15-78-60(5). We disagree.

Section 15-78-60(5) provides that a governmental entity "is not liable for a loss

resulting from . . . the exercise of discretion or judgment by the governmental entity or

employee or the performance or failure to perform any act or service which is in the

discretion or judgment of the governmental entity or employee." This discretionary act

immunity constitutes an affirmative defense that the governmental entity has the burden of

proving. Strange v. South Carolina Dep't of Hwys. & Pub. Transp., 314 S.C. 427, 445

S.E.2d 439 (1994) (citing Niver v. South Carolina Dep't of Highways & Pub. Transp.,

302 S.C. 461, 395 S.E.2d 728 (Ct. App. 1990)). Specifically, the governmental entity

must show that when faced with alternatives, it weighed competing considerations and made

a conscious choice, and that it used accepted professional standards to make that choice.

Foster v. South Carolina Dep't of Hwys. & Pub. Transp., 306 S.C. 519, 413 S.E.2d

31 (1992).

As noted above, County argues made a conscious choice to erect only one rail and

that, therefore, it was entitled to a directed verdict. The standard of review as regards the

refusal to grant a directed verdict is well established:

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 party opposing the motions and

to deny the motions where either the evidence yields more than one inference

or its inference is in doubt. The trial court can only be reversed by this Court

when there is not evidence to support the ruling below.

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Strange, 314 S.C. at 429-30, 445 S.E.2d at 440 (citations omitted).

In arguing that it was entitled to a directed verdict because of its discretionary

immunity defense, County relies solely on the testimony of James Rogers as well as certain

exhibits to show it weighed the alternatives and made a conscious decision not to erect an

additional rail on the dock. Rogers, the director of public works for Charleston County,

testified concerning several memoranda and letters relating to a decision regarding safety rails

at Steamboat Landing. Among other evidence, there is: (1) a letter to the public works

construction superintendent noting a problem with the lack of safety rails at the dock at

Steamboat Landing; (2) a memo from Rogers authorizing the construction superintendent

to contact the Wildlife Department concerning the guardrail problem so that County and

Wildlife Department could discuss the issue and make recommendations for improvement;

(3) a letter from Rogers to Representative Holt, the Chairman of the Wildlife and

Environmental Committee, stating "Charleston County has recommended that handrails be

placed in reference piers and boat ramps, including Steamboat Landing. Rogers concluded

that after study of the issue, a decision "obviously" was made to erect only one handrail at

Steamboat Landing. Importantly, however, Rogers repeatedly testified that he "had no

independent recollection of any discussion in 1987 concerning boat rails being placed on the

pier at Steamboat Landing." Rogers admitted he was piecing together what probably

happened based on his review of the memoranda and correspondence. The cost estimates

for erecting rails at Steamboat Landing assume rails on both sides.

This evidence does not show a conscious choice by County to erect only one guardrail

at Steamboat Landing. We do not think one could infer, based on the evidence, that the

issue of how many safety rails to erect was examined and an informed decision was made to

erect only one rail at Steamboat Landing; any discretionary decision that was made concerned

whether to erect rails at all, not whether to erect one rail or two. James Rogers's statement

that a decision "obviously" was made to erect only one guardrail based on the fact that only

one rail was erected is mere conjecture about what might have happened, not real evidence

of an exercise of discretion. The trial judge did not err in refusing to grant a directed verdict

based on S.C. Code Ann. § 15-78-60.

2. "Open and Obvious" Hazard to Public Invitee

County next argues that the trial judge should have granted it a directed verdict based

on the fact the lack of a guard rail was an open and obvious condition against which Creech,

a public invitee, should have been able to protect herself. We disagree.

Neither party disputes Creech's status as a public invitee. In Callander v. Charleston

Doughnut Corp., 305 S.C. 123, 406 S.E.2d 361 (1991), this Court adopted the

Restatement approach to premises liability as relates to an invitee. Restatement (Second) of

Torts § 343A (1965), which is the principal section at issue here, provides:

(1) A possessor of land is not liable to his invitees for physical harm caused

to them by any activity or condition on the land whose danger is known or

obvious to them, unless the possessor should anticipate the harm despite such

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knowledge or obviousness.

Comment e to section 343A elaborates on the rule stated in the section itself. It states:

In the ordinary case, an invitee who enters land is entitled to nothing

more than knowledge of the conditions and dangers he will encounter if he

comes. If he knows the actual conditions, and the activities carried on, and the

dangers involved in either, he is free to make an intelligent choice as to

whether the advantage to be gained is sufficient to justify him in incurring the

risk by entering or remaining on the land. The possessor of the land may

reasonably assume that he will protect himself by the exercise of ordinary care,

or that he will voluntarily assume the risk of harm if he does not succeed in

doing so. Reasonable care on the part of the possessor therefore does not

ordinarily require precautions, or even warning, against dangers which are

known to the visitor, or so obvious to him that he may be expected to discover

them.

Based on this language, County argues that the absence of a rail on one side of a dock is an

obvious condition that an invitee should notice and that Creech made an informed decision

about whether to stay on the dock even though it had a rail on only one side.

Creech argues, however, that even assuming the danger was open and obvious,

County should have "anticipate[d] the harm despite such knowledge or obviousness." We

agree, finding that County actually did anticipate the kind of harm that occurred.

Callander, 305 S.C. 123, 406 S.E.2d 361, and Meadows v. Heritage Village

Church, 305 S.C. 375, 409 S.E.2d 349 (1991), are the seminal South Carolina cases

interpreting section 343A. In Meadows, the plaintiff brought a negligence action against

Heritage Village Church ("PTL") because of injuries she sustained when she slipped on some

wet grass while walking to her hotel. The jury awarded the plaintiff $25,000. On appeal,

PTL argued that the plaintiff "failed to meet her burden of proof of negligence because PTL

only owed [plaintiff] a duty to warn of hidden, latent dangers and that the wet grass was an

open and obvious danger." Id. at 376-77, 409 S.E.2d at 350.

This Court found that wet grass was an open and obvious danger and that absent a

showing by plaintiff that PTL should have anticipated the harm the plaintiff suffered, the trial

court should have granted PTL's motion for JNOV. Because the plaintiff had other options

-- for example, she could have moved her car closer to the hotel rather than walk across the

wet grass or she could have taken other paths provided by PTL -- the Court found she had

not shown that "PTL could reasonably have foreseen that she would choose to try to cross

the wet grass instead of using one of the other ways back to the hotel." Id. at 378, 409

S.E.2d at 351. The Court distinguished Henderson v. St. Francis Community Hospital,

303 S.C. 177, 399 S.E.2d 767 (1990), partially on the basis that in Henderson, the

defendant had been warned that the condition ultimately causing the plaintiff's injury was

dangerous.

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In Callander, 305 S.C. 123, 406 S.E.2d 361, the plaintiff was injured when he

backed onto a chair at a doughnut shop and the seat of the chair was missing. This Court

found the missing seat was not a latent defect in the chair. Nevertheless, it rejected the

argument by the doughnut shop that it was entitled to a directed verdict because of the lack

of any latent defect. Instead, the Court noted that "[t]he traditional 'no duty to warn of the

obvious' rule has been modified in many jurisdictions to hold that an owner is liable for

injuries to an invitee, despite an open and obvious defect, if the owner should anticipate

that the invitee will nevertheless encounter the condition, or that the invitee is likely

to be distracted." Id. at 125, 406 S.E.2d at 362 (emphasis added). The Court then

adopted Restatement (Second) of Torts § 343A. In holding that the doughnut shop was

not entitled to a directed verdict under this standard, the Court found that there was

evidence the owner of the doughnut shop knew senior citizens frequently backed onto their

chairs and that, therefore, they might not notice a defect in a chair. Id. at 126, 406 S.E.2d

at 363.

This case is far more like Callander than like Meadows. Here, there was ample

evidence that County had been warned the lack of safety rails could present a danger to

people fishing from the dock and could expose County to potential liability. Accordingly,

County was not entitled to a directed verdict based on the open and obvious nature of the

dangerous condition.

3. Comparative Negligence -- Plaintiff's Degree of Fault

County next argues it was entitled to a directed verdict because Creech was more than

fifty percent negligent as a matter of law. We disagree.

Comparison of a plaintiff's negligence with that of the defendant is a question of fact

for the jury to decide. See, e.g., Ott v. Pittman, 320 S.C. 72, 80, 463 S.E.2d 101, 106

(Ct. App. 1995)(citing trial judge's statement that "because this was a comparative

negligence case, even if the plaintiff's testimony amounted to an admission of negligence, it

was a question of fact for the jury to compare the plaintiff's negligence [with that of the

defendant]."); cf. Gruber v. Santee Frozen Foods, Inc., 309 S.C. 13, 21, 419 S.E.2d

795, 800 (Ct. App. 1992)("Generally, contributory negligence is a question for

determination by the jury. But when the evidence admits only one reasonable inference, it

becomes a matter of law for the determination of the court."), cert. denied, 1993. A

directed verdict is warranted only if the only reasonable inference that may be drawn from

the evidence is that the plaintiff's negligence exceeded fifty percent.

Here, evidence was presented suggesting that Creech, County, and Wildlife

Department were all negligent. In our view, the jury reasonably could have drawn many

different conclusions regarding the relative fault of the parties. Under such circumstances,

a directed verdict would have been wholly inappropriate. We find no error here.1 __________________________

1County and Wildlife Department also appear to argue that each of them was found

less negligent than was Creech herself and that it would be unfair to allow Creech to recover

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B. WILDLIFE DEPARTMENT's APPEAL -- DIRECTED VERDICT

Wildlife Department argues for several reasons that the trial court erred in failing to

grant a directed verdict in its favor. To the extent the issues raised by Wildlife Department

mirror those raised by County, our holdings above control the disposition of those issues.

We shall address each additional issue in turn.

1 . Lack of Ownership Interest in Steamboat Landing

Wildlife Department first argues that it owed no duty of care to Creech because it had

no ownership or possessory interest in Steamboat Landing at the time of the accident and

that, therefore, the trial court erred in failing to grant a directed verdict for Wildlife

Department. However, Wildlife Department did not raise this issue at trial in its motion for

directed verdict. Accordingly, the issue is not properly before this Court. See, e.g., Smith

v. Phillips, 318 S.C. 453, 458 S.E.2d 427 (1995) (with very limited exceptions, appellate

court cannot address an issue unless the issue was raised to and ruled upon by the trial court).

2. Design and Construction of the Dock

Wildlife Department next argues the trial court should have granted a directed verdict

because there was no evidence it breached any duty in designing and constructing the dock.

We disagree.

First, Wildlife Department's argument is premised on the assumption that Steamboat

Landing was designed as a boating dock. Although the Record certainly contains evidence

that it was indeed designed as a boating dock, there is also evidence that Steamboat Landing

was intended for use as a fishing pier, as well as testimony that safety rails are necessary on

a fishing pier. In short, based on the evidence, the jury reasonably could have inferred that

Wildlife Department was negligent in its design and construction of Steamboat Landing.

It is not this Court's job to agree or disagree with the jury's verdict. Rather, we must

determine whether there is evidence in the Record to support the trial judge's ruling on the

motion for directed verdict. Strange, 314 S.C. at 429-30, 445 S.E.2d at 440 (citations

omitted). Here, the Record contains support for the trial judge's decision. We find no error.

C. JURY CHARGE -- DISCRETIONARY IMMUNITY

County next argues that even if it was not entitled to a directed verdict on the issue

of discretionary immunity, it was entitled to a jury charge on discretionary immunity under __________________________

from a party when she was more at fault than the party. Our decision in Nelson v.

Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991), makes clear that if there

is more than one defendant, the plaintiff's negligence shall be compared to the combined

negligence of all defendants. Such a rule mandates that County and Wildlife Department's

argument fail.

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section 15-78-60(5). We disagree.

As noted in Part A.1 , the evidence presented regarding the exercise of County's

discretion concerned the question whether to erect railing at all, not how many rails to erect.

Because the Record contains no evidence from which one could infer that an actual decision

was made to put a guardrail on only one side of the dock, County was not entitled to a jury

charge on discretionary immunity.

D. EVIDENCE -- ADMISSION OF GUIDELINES AND MANUALS

Wildlife Department next argues the trial court erred in allowing to be admitted certain

manuals and guidelines regarding the construction of docks. Specifically, Wildlife Department

contends these manuals were not created until after the construction of the dock at

Steamboat Landing and that, therefore, they were irrelevant to the question of Wildlife

Department's negligence.

Although we agree that this evidence was irrelevant, we do not think Wildlife

Department (or County) were prejudiced by its admission. Both parties presented ample

evidence concerning whether County and Wildlife Department should have placed a second

safety rail at Steamboat Landing. The challenged evidence was simply one additional, minor

piece of such evidence. Accordingly, we find no reversible error. See, e.g., Knoke v.

South Carolina Dep't of Parks, _S.C._, 478 S.E.2d 256 (1996)(no prejudice and,

therefore, no reversible error where improperly admitted evidence is cumulative to other

evidence in Record).

E. JURY CONSIDERATION OF SOUTHERN BUILDING CODE

Finally, County argues the trial court erred in submitting to the jury the question

whether the Southern Building Code applied to docks and piers in Charleston County. This

issue is not preserved.

At trial, County contended that because the Southern Building Code was adopted by

ordinance, the question whether it applied to docks and piers was a legal question for the

judge's consideration. However, County backtracked on this position considerably,

requesting that the judge at least submit the issue to the jury as a question of fact. When the

judge submitted the issue to the jury as a question of fact, County did not object to the jury

charge.

Rule 51 of the South Carolina Rules of Civil Procedure provides that " [n]o party may

assign as error the giving or the failure to give an instruction unless he objects thereto before

the jury retires to consider its verdict, stating distinctly the matter to which he objects and

the grounds for his objection." See also, e.g., Belue v. City of Greenville, 226 S.C. 192,

84 S.E.2d 631 (1954)(refusing to consider on appeal a contention regarding the trial

court's jury instruction that was not raised at trial); Sierra v. Skelton, 307 S.C. 217, 414

S.E.2d 169 (Ct. App. 1992) (where party did not complain about judge's failure to instruct

jury on issue, party could not complain on appeal about lack of jury instruction). As best

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we can discern, County's complaint on appeal about the trial court's error in "submitting the

issue to the jury" is a complaint about the jury charge; i.e., the judge should not have

charged the jury to determine, as a question of fact, the applicability of the Southern Building

Code. Because County did not object to the jury instruction given -- and, in fact, requested

it -- this issue is not preserved for our review.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is AFFIRMED.

FINNEY, C.J., MOORE, and BURNETT, JJ., and Acting Associate

Justice George T. Gregory, Jr., concur.

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