Smith Moore Leatherwood's Transportation Newsletter

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Attorneys at Law

Fall 2010

Transportation Industry Newsletter

Inside This Issue:

Court Holds Punitive Damages Are Recoverable From Underinsured Motorist Carriers ..................................2

South Carolina Courts Hold That There is No Recovery for Pre-Impact Fear........................3

Team Updates..........................5

US Supreme Court Ends Dispute: COGSA (not Carmack) Applies to Land Segment of Ocean Shipments Subject to Through Bills of Lading............7

South Carolina Court Holds CDL Manual Not Standard of Care for Commercial Truck Driver

In Johnson v. Horry County Solid Waste Authority, Opinion No. 4716 (S.C. Ct.App. July 28, 2010) the South Carolina Court of Appeals dealt with expert testimony in a commercial vehicle accident involving a pedestrian. Susan Johnson was involved in a single vehicle rollover accident at 4:00 a.m. After her car came to rest she exited her vehicle and was standing alongside the highway when she was struck by a sanitation vehicle. The case raised several issues including the requirement and basis for expert testimony. The first issue dealt with the plaintiff’s intoxication at the time of the accident. In a post mortem test, the plaintiff’s blood alcohol was measured to be .14, which exceeds the legal limit. The Court affirmed the trial court’s decision to exclude the decedent’s blood alcohol. The Court justified its decision to exclude the evidence because no expert testimony was proffered for the trial court’s consideration regarding how the decedent’s judgment would have been impaired with respect to staying out of the roadway. It appears that this decision is based solely on the facts in this particular case. The second issue raised in this case was the jury charge by the judge which stated that the South Carolina Commercial Drivers License Manual requires the driver of a commercial vehicle to keep a safe clearance on either side of the roadway. Also, there were other references to a CDL manual creating a standard for following distances. The Court of Appeals held that the CDL manual did not carry the force of law and should not have been charged; however, the Court refused to reverse the case holding that “on the whole” the trial judge’s charge contained the appropriate standard of care and that the defendant did not prove prejudice. While this decision did not help the defendant in this particular case, the decision should prevent trial judges from charging the CDL manual as a standard of care in future cases.


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