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Clark v. South Carolina Department of Public Safety11/12/2002
care for the Department's supervisors. The policy mirrors the accepted standard of care for supervisors during a pursuit. The mere fact that the Department enacted a policy does not protect it from having to meet a standard of care that exists whether the policy was enacted or not. The underlying action is not brought as a violation of the Department's policy, but as a violation of the recognized duty of care that supervisors owe during the monitoring of a high-speed pursuit.
To the extent the Department appears to challenge the trial court's failure to charge the jury on this immunity provision, we find this issue is not preserved. In the order denying the Department's post-trial motions, the trial court specifically noted that the Department never objected to its failure to charge section 15-78-60(4).
IV. Jury Instruction Regarding Standard of Care
The Department next contends the trial court erred in failing to charge the jury on the legal duty or standard of care owed by law enforcement officers with respect to police pursuits. The Department asserts the trial court instead permitted the jury to determine the standard of care to be applied based upon the testimony of expert witnesses. We do not read the court's charge that way.
The trial court's charge did not allow the jury to determine the law. Rather, the court charged the jury on general principles of negligence law. Further, the Department did not clearly and specifically request a jury instruction regarding the existence and nature of any alleged duty by its supervisors to monitor all police pursuits. Thus, we find no reversible error in this regard. V. New Trial Absolute
The Department asserts it is entitled to a new trial absolute because the verdict is excessive and shockingly disproportionate to the damages sustained so as to indicate that the jury acted out of passion, caprice, prejudice, or other improper considerations.
A motion for new trial nisi remittitur asks the trial court in its discretion to reduce the verdict because it is "merely excessive," although not motivated by considerations such as passion, caprice, or prejudice. In contrast, if the amount of the verdict is "grossly excessive," so as to be the result of passion, caprice, prejudice, or some other influence outside the evidence, the trial judge must grant a new trial absolute, rather than a new trial nisi remittitur.
The jury's determination of damages is entitled to substantial deference. The denial of a new trial motion is within the discretion of the trial court and, absent an abuse of discretion, it will not be reversed on appeal.
Section 15-51-20 provides a wrongful death action may be brought for the benefit of the statutory beneficiaries, in this case, the parents. "Damages recoverable for wrongful death are the damages sustained by the statutory beneficiaries resulting from the death of the decedent, including pecuniary loss, mental shock and suffering, wounded feelings, grief, sorrow, and loss of society and companionship."
The jury awarded Clark a verdict of $3.75 million in total damages against Johnson and the Department on his wrongful death claim. The jury apportioned 80 per cent fault to Johnson and 20 per cent fault to the Department, resulting in verdicts against Johnson for $3.0 million and against the Department for $750,000. The trial court reduced the verdict against the Department to $250,000 as required by the Tort Claims Act. In Lucht v. Youngblood, our supreme court observed that losses to parents for the untimely death of a child "are intangibles, the value of which cannot be determined by any fixed yardstick." The "loss to the be
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