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THE STATE OF SOUTH CAROLINA
In The Supreme Court
Clarence Rutland, as Personal Representative of the
Estate of Tiffanie Rutland, Petitioner,
South Carolina Department of Transportation,
Appellate Case No. 2010-178606
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Orangeburg County
George C. James, Jr., Circuit Court Judge
Opinion No. 27185
Heard March 7, 2012 – Filed November 7, 2012
AFFIRMED AS MODIFIED
J. Christopher Wilson, of Wilson, Luginbill &
Kirkland, of Bamberg; Lee D. Cope, R. Alexander
Murdaugh and Matthew V. Creech, all of Peters,
Murdaugh, Parker, Eltzroth & Detrick, of Hampton,
Richard B. Ness and Norma Jett, both of Ness & Jett,
of Bamberg, for Respondent.
JUSTICE HEARN: Tiffanie Rutland (Tiffanie) was killed when the
car in which she was riding rolled over and fell on top of her after she was
partially ejected. This case presents the novel issue of whether "pre-impact
fear" should be recognized as a cognizable element of damages in a survival
action. We granted a writ of certiorari to review the decision of the court of
appeals that pre-impact fear is not compensable in this State. Rutland v. S.C.
Dep't of Transp., 390 S.C. 78, 85, 700 S.E.2d 451, 455 (Ct. App. 2010).
Finding no evidence of conscious pain and suffering under the facts of this
case, we reserve judgment on this question for another day and affirm as
Tiffanie was riding in the back seat of a 1999 S-10 Chevrolet Blazer
with her husband Clarence Rutland (Rutland) and their infant son when it hit
accumulated water on the roadway. The driver of the Blazer, Joseph Bishop,
lost control of the vehicle when it began to hydroplane, and it eventually
flipped over into a nearby ditch. Tiffanie was partially ejected from the side
window of the vehicle, which fell upon her when it overturned. Rutland was
completely ejected through the back window of the Blazer, but he was able to
walk back over to the vehicle after the accident. When he got there, he saw
Tiffanie's head hanging out of the window. She made no noise and was cold
and unresponsive, which lead him to believe she was already dead. Although
a bystander told Rutland that Tiffanie still had a pulse, he did not believe him
and assumed he just wanted Rutland to get out of the way.
Rutland settled with Bishop's insurance company for $30,000 and filed
a wrongful death action against the South Carolina Department of
Transportation (SCDOT) alleging negligent maintenance and repair of the
stretch of highway where the accident occurred. He later amended his
complaint to add General Motors (GM) as a defendant for its failure to equip
the Blazer's side windows with laminated glass instead of tempered glass.
Rutland subsequently settled with GM for $275,000. Including the $30,000
from Bishop's insurance company, Rutland received a total of $305,000 in
settlement monies, which Rutland and GM agreed to allocate as follows:
$138,000 to conscious pain and suffering under the potential (but not yet
filed) survival claim and $167,000 for wrongful death. Judge Diane
Goodstein approved the settlement, noting that no survival action had ever
been filed, but concluding "without making any factual findings" that "there
exists some evidence, however slight, that [Tiffanie] survived the crash and
consciously endured pain and suffering prior to her death." Judge
Goodstein's order further clarified that SCDOT would still be allowed to
"argue against the allocation or apportionment of the wrongful death and
survival proceeds or findings herein, to which SCDOT does not stipulate . . .
for purposes of setoff to which SCDOT may be entitled." Ultimately,
Rutland never filed a survival claim against any party.
In the trial against SCDOT for wrongful death, the jury returned a
verdict in the amount of $300,000. SCDOT subsequently made a motion for
set-off, alleging that the entire amount of the settlement should be equitably
reapportioned to the wrongful death action because there was no evidence to
support the putative survival claim for which settlement funds were allocated.
The trial court agreed and found that "there is not sufficient evidence from
which a jury could have concluded Tiffanie Rutland experienced conscious
pain and suffering of any kind before, during, or after the accident." This
effectively rendered the verdict a zero dollar judgment.
Rutland appealed, arguing the trial court erred in failing to recognize
Tiffanie's pre-impact fear as damages supporting the survival action and in
reallocating the full amount of the settlement toward SCDOT's judgment.
Rutland, 390 S.C. at 78, 700 S.E.2d at 451. The court of appeals affirmed,
concluding that South Carolina does not recognize pre-impact fear as an
element of damages and the reallocation of the settlement was proper. Id. at
85, 700 S.E.2d at 455. We granted certiorari to review the court of appeals'
Did the court of appeals err in failing to recognize damages for preimpact fear and in finding there was no evidence of conscious pain
Did the court of appeals err in affirming the circuit court's equitable
reallocation of settlement proceeds?
CONSCIOUS PAIN AND SUFFERING
Rutland first argues the court of appeals erred in finding there was no
evidence Tiffanie experienced conscious pain and suffering.1 In particular,
Rutland argues we should recognize pre-impact fright or fear as a cognizable
element of damages in a survival action.2 Because we find no evidence of
conscious pain or suffering either prior to or after impact, we disagree and
reserve the novel question3 of whether South Carolina should allow recovery
for pre-impact fear for another day.
Because Rutland never brought a survival claim against any of the
defendants, any direct evidence to support that claim would have been
irrelevant in a wrongful death action. Nevertheless, he contends the record
contains evidence to support a survival claim against GM sufficient to justify
the settlement allocations and limit SCDOT's set-off to the $167,000 as
allotted by GM and Rutland to the wrongful death claim.
In a survival action, damages may be recovered for a decedent's conscious
pain and suffering prior to death. Smalls v. S.C. Dep't of Educ., 339 S.C. 208,
216, 528 S.E.2d 682, 686 (Ct. App. 2000). Rutland essentially argues that
"pre-impact fear" should be incorporated as compensable "suffering" in a
We clarify that to the extent the court of appeals concluded that the question
of damages for pre-impact fear was resolved by Hoskins v. King, 676 F.
Supp. 2d 441 (D.S.C. 2009), it was in error. The district court acknowledged
In urging us to recognize pre-impact fear damages, Rutland asserts the
majority of jurisdictions addressing the issue have found pre-impact fear
compensable and that South Carolina should follow suit. Generally speaking,
those courts have determined the timing of the impact should not determine
the availability of an award for damages pertaining to mental distress because
it is illogical to bar recovery for pre-impact distress when one can recover for
post-impact suffering. E.g. Solomon v. Warren, 540 F.2d 777, 793 (5th Cir.
1976) ("While in the garden variety of claims under survival statutes . . . fatal
injuries sustained in automobile accidents and the like[,] the usual sequence
is impact followed by pain and suffering, we are unable to discern any reason
based on either law or logic for rejecting a claim because in this case as to at
least the part of the suffering, this sequence was reversed."); Lin v.
McDonnell Douglas Corp., 574 F. Supp. 1407, 1416 (S.D.N.Y. 1983) ("In
several cases it has been held that a decedent's estate may recover for the
decedent's pain and suffering endured after the injury that led to his death.
From this proposition, it is only a short step to the allowing of damages for a
decedent's pain and suffering before the mortal blow and resulting from the
apprehension of impending death.") (internal citations omitted), rev'd in part
on other grounds, Lin v. McDonnell Douglas Corp., 742 F.2d 45 (2d. Cir.
1991); Monk v. Dial, 441 S.E.2d 857, 859 (Ga. Ct. App. 1994) ("The fright,
shock, and mental suffering experienced by an individual due to the wrongful
acts of negligence will authorize a recovery where attended with physical
injury. . . . [W]e find no requirement that the physical injury precede the
mental pain and suffering.") (internal citations omitted); Nelson v. Dolan, 434
N.W.2d 25, 31 (Neb. 1989) ("[W]e are persuaded that there exists no sound
legal or logical distinction between permitting a decedent's estate to recover
as an element of damages for a decedent's conscious postinjury pain and
suffering and mental anguish and permitting such an estate to recover for the
there was not direct support for this claim in South Carolina law and found
the cases from other jurisdictions recognizing pre-impact fear were factually
distinguishable. Id. at 451. Accordingly, this remains an open question in
conscious prefatal-injury mental anguish resulting from the apprehension and
fear of impending death.").
We decline, however, to decide the issue of whether to recognize preimpact fear as an element of damages in a survival action given the lack of
evidence in this record to support the claim. Rutland offers only a recount of
his personal fears and apprehensions prior to impact as proof that Tiffanie
must have felt them as well. The accident appears to have occurred quickly
and the evidence suggests she died instantaneously. She therefore would
have had little if any time to contemplate her demise. Furthermore, Rutland
offers no other evidence of Tiffanie's pain and suffering. He himself testified
that he knew Tiffanie was dead at the scene and that although he was told by
a bystander that she had a pulse, he did not believe him. Additionally, even
assuming she had a pulse, that fact alone is not evidence of conscious pain
and suffering. Rutland further stated she was not responsive when he called
her name nor did she react when he rubbed her head. Based on this evidence,
a jury could not reasonably have concluded Tiffanie consciously experienced
any pain or suffering prior to or after impact. Thus, Rutland has not adduced
sufficient evidence even if we were to recognize pre-impact fear as an
element of damages in a survival action.
Rutland also argues that because there is sufficient evidence of
conscious pain and suffering, the court of appeals erred in affirming the trial
court's equitable reallocation of the settlement. We disagree.
A non-settling defendant is entitled to credit for the amount paid by
another defendant who settles for the same cause of action. Welch v. Epstein,
342 S.C. 279, 312-13, 536 S.E.2d 408, 425 (Ct. App. 2000). "The trial
court's jurisdiction to set off one judgment against another is equitable in
nature and should be exercised when necessary to provide justice between the
parties." Id. at 313, 536 S.E.2d at 425. Allowing this credit prevents an
injured person from obtaining a double recovery for the damage he sustained,
for it is "almost universally held that there can be only one satisfaction for an
injury or wrong." Truesdale v. S.C. Highway Dept., 264 S.C. 221, 235, 213
S.E.2d 740, 746 (1975), overruled on other grounds by McCall v. Batson,
285 S.C. 243. 329, S.E.2d 741 (1985).
As previously discussed, we find no evidence that Tiffanie endured
conscious pain and suffering, and we therefore agree with the court of
appeals that the trial court acted within its discretion by reallocating the
settlement funds to the wrongful death claim. Furthermore, the allocation
consistently tracks our prior case law. The facts here closely resemble those
of Welch.4 In Welch, the decedent—who was in the hospital for back
surgery—died of a massive pulmonary embolism following a respiratory
arrest allegedly due to a narcotics overdose under the supervision of Dr.
Epstein. 342 S.C. at 294, 536 S.E.2d at 416. Welch's personal representative
settled with an unnamed defendant for $450,000 total, allocating $445,000 to
the survival action and $5,000 to the wrongful death claim. Id. at 312, 536
S.E.2d at 425. The personal representative then proceeded to a jury trial
against Dr. Epstein and received a verdict of $3,000,000 for wrongful death,
$28,535.88 in the survival action—which was the amount of medical
expenses incurred—and $3,900,000 in punitive damages. Id. at 287, 536
S.E.2d at 412. The trial court, however, granted Dr. Epstein's motion for setoff and reallocated the amount of the settlement to $28,535.88 for the
survival action and $421,464.12 for the wrongful death claim. Id. at 312, 536
S.E.2d at 425. The court of appeals affirmed, noting that the decedent had
slipped into a coma at the time of his respiratory arrest and never awoke from
The dissent advocates overruling Welch and disallowing the reallocation of
settlement proceeds between different causes of action. However, Rutland
has not asked us to do so, nor did he petition to argue against precedent as
required by Rule 217, SCACR. We decline, as we must, to entertain
arguments not presented to us. See Langley v. Boyter, 284 S.C. 162, 181, 325
S.E.2d 550, 561 (Ct. App. 1984), quashed on other grounds, 286 S.C. 85, 332
S.E.2d 100 (1985) (“[A]ppellate courts in this state, like well-behaved
children, do not speak unless spoken to and do not answer questions they are
it; thus, there was no evidence he consciously suffered so the survival claim
was properly limited to medical expenses. Id. at 313, 536 S.E.2d at 426.
Similarly, here there is no evidence showing Tiffanie experienced
conscious pain and suffering which would support a survival claim. Instead,
she appears to have died instantaneously. In the absence of any support for a
survival action, we find the trial court properly reallocated that portion of the
settlement to the wrongful death claim.
The dissent contends this reallocation produces inequitable results by
effectively reducing the judgment against SCDOT to zero, a view we do not
share. Compensatory damages are intended to make the plaintiff whole, not
to punish the tortfeasor. See 22 Am. Jur. 2d Damages § 27; see also
Haselden v. Davis, 353 S.C. 481, 486, 579 S.E.2d 293, 296 (noting the
"central tenet of compensatory damages [that] awards are intended to make
an injured person whole by placing him in the position enjoyed prior to the
injury and no more"). Where reallocation of damages furthers that policy, we
do not believe the result is inequitable. Moreover, the fact that the amount
awarded by the jury for the wrongful death action -- $300,000 -- essentially
mirrors the settlement amount of $305,000 lends further support for our view
that Rutland has been duly compensated for his damages. Furthermore, we
note the court order approving the settlement expressly reserved the right for
SCDOT to contest the allocation of the proceeds, indicating that both
SCDOT and Rutland were aware that a reallocation may be made.
Therefore, we find the trial court properly reallocated the settlement proceeds
and set-off the judgment against SCDOT.
Based on the foregoing, we affirm the court of appeals' opinion finding
no evidence of conscious pain and suffering and upholding the equitable
reallocation of the settlement. However, we modify it to clarify that the issue
of whether "pre-impact" fear is a compensable element of damages remains
an open question in South Carolina.
TOAL, C.J., BEATTY and KITTREDGE, JJ., concur. PLEICONES, J.,
concurring in part and dissenting in part in a separate opinion.
JUSTICE PLEICONES: I concur in part and dissent in part. I agree with
the majority in declining on this record to recognize pre-impact fear as an
element of damages in a survival action. However, in my view, reallocation
of a plaintiff’s settlement agreement from one cause of action to another is
not warranted. Thus, I would reverse the circuit court’s reallocation of the
settlement agreement that was set off in full against Rutland’s judgment
against SCDOT on this wrongful death action.
Wrongful death and survival actions are different claims for different injuries.
Bennett v. Spartanburg Railway, Gas & Electric Co., 97 S.C. 27, 29-30, 81
S.E. 189, 189-90 (1914). In a wrongful death action, damages are for the
benefit of the statutory heirs, and no damages are allowed for injuries to the
decedent. See id. Evidence going only to the issue of the decedent’s pain
and suffering would be irrelevant and prejudicial and should not be admitted
in an action only for wrongful death. In this case, Rutland sued SCDOT only
on a wrongful death claim. Thus, it is hardly surprising that the record
contains little evidence on the issue of the decedent’s pre-impact fear.5
Prior to trial, Rutland settled his claims against GM and the at-fault driver,
allocating a greater proportion of the proceeds to the wrongful death than to
the survival action. Following trial, at which only a wrongful death action
was tried against the remaining defendant, SCDOT, the circuit court granted
SCDOT’s motion to have the settlement proceeds reallocated wholly to the
wrongful death action. The resulting setoff extinguished the entire judgment
In my view, reallocation of the settlement proceeds was improper. In
approving reallocation, the majority relies on Welch v. Epstein, 342 S.C. 279,
536 S.E.2d 408 (Ct. App. 2000). The Welch court recognized the rule that
“the reduction in the [plaintiff’s] judgment must be from a settlement for the
In Welch v. Epstein, 342 S.C. 279, 536 S.E.2d 408 (Ct. App. 2000), discussed
infra, both the wrongful death and survival actions were tried.
same cause of action.” Welch, 342 S.C. at 313, 536 S.E.2d at 425. It
nonetheless proceeded to expand this accepted setoff principle to allow a
court to disregard a plaintiff’s pre-trial settlement agreement with a different
tortfeasor and reallocate the settlement monies among various causes of
action. Nothing in our precedents supports such a reallocation. I would
overrule Welch to the extent it authorizes reallocation of settlement proceeds
among different causes of action.6
Moreover, in my view equity is not served by a court’s revision of a
settlement agreement between the plaintiff and another tortfeasor. First,
doing so essentially requires a plaintiff to defend to the court the viability of a
claim she has not made. In my view, such a procedure violates the settled
rule that the plaintiff may choose her defendant. See Chester v. South
Carolina Dept. of Public Safety, 388 S.C. 343, 345-46, 698 S.E.2d 559, 560
(2010) (refusing to find the “firmly entrenched common law principle” of
plaintiff’s sole right to choose her defendant abrogated by the Tort Claims
Act even when the result was to make a nonsettling defendant liable for a
greater share of the damages).
Reallocating a settlement agreement may also inequitably reduce a plaintiff’s
recovery against at-fault defendants. See McDermott, Inc. v. AmClyde, 511
U.S. 202, 212-21 (1994), and sources cited therein (discussing possible
inequities of setting off judgment by full amount of settlement rather than
requiring a nonsettling defendant to pay its proportionate share of damages).
This case serves as an example, in that the jury’s verdict represented only its
determination of the wrongful death damages to the decedent’s family and
not her own survival damages. It is impossible to divine from that verdict
The majority places weight on the fact that Rutland and SCDOT were aware of
the possibility of reallocation. I find this fact both unsurprising in light of the
existence of Welch and irrelevant to my analysis. SCDOT was not a party to the
settlement agreement between Rutland and GM, and the circuit court properly
emphasized that SCDOT was bound by none of its terms.
what verdict a jury would have returned on the decedent’s own damages in a
survival action, had one been brought.
The circuit court’s ex post analysis also benefits from hindsight and
disregards a variety of legitimate bases for the parties’ ex ante decisions. See
McDermott, supra. For example, the parties to the settlement agreement
were able to bargain on the settlement amount in light of the unsettled law
regarding pre-impact fear as an element of damages in a survival action.
Further, the result of reallocation in this case is that SCDOT, an at-fault
defendant, is exempted from any payment to the decedent’s statutory heirs. I
see no equity in this result. See Chester, supra; McDermott, 511 U.S. at 219
(“The law contains no rigid rule against overcompensation [of the plaintiff].
Several doctrines, such as the collateral benefits rule, recognize that making
tortfeasors pay for the damage they cause can be more important than
preventing overcompensation.”). Finally, the unfortunate effect of
reallocation in a case such as this, where there is no suggestion of fraud or
other wrongdoing by the plaintiff, is to discourage plaintiffs from settling and
encourage joint tortfeasors to litigate, contrary to our strong public policy
favoring settlement. See Chester 388 S.C. at 346, 698 S.E.2d at 560.
Thus, in my view, the trial court erred when it reallocated the settlement. I
therefore respectfully dissent from that portion of the majority opinion
approving reallocation of the settlement in favor of SCDOT.
Tiffanie Rutland (Tiffanie) was killed when the car in which she was riding rolled over and fell on top of her after she was partially ejected. This case presented the novel issue of whether "pre-impact fear" should have been recognized as a cognizable element of damages in a survival action. The Supreme Court granted a writ of certiorari to review the decision of the court of appeals that pre-impact fear was not compensable. Finding no evidence of conscious pain and suffering under the facts of this case, the Supreme Court reserved judgment on this question and affirmed as modified.
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