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2004-UP-397 - Foster v. Greenville Memorial Hospital System


In The Court of Appeals

Tony Foster, Sr., and Belinda Keaton, as Personal Representatives of the Estate of Tony Foster, Jr., (deceased),        Appellants,


Greenville Memorial Hospital System,        Respondent.

Appeal From Greenville County
Joseph J. Watson, Circuit Court Judge

Unpublished Opinion No. 2004-UP-397
Submitted March 8, 2004 – Filed June 22, 2004


Fletcher N. Smith, Jr., of Greenvill, for Appellants.

Sarah S. Purnell, G. Dewey Oxner, Jr., of Greenville, for Respondent.

PER CURIAM:  The estate of Tony Foster, Jr. (the Estate) filed a wrongful death claim against the Greenville Memorial Hospital System (Greenville Memorial).  The trial court granted Greenville Memorial’s motion to dismiss, finding a prior judicial determination, that Greenville Memorial was not negligent, barred the subsequent wrongful death claim.  The Estate appeals.  We affirm. [1]


In January 1992, four-year-old Tony Foster, Jr., was brought into the Greenville Memorial emergency room suffering from dizziness, vomiting, and diarrhea.  Although a CT scan was ordered upon Tony’s admittance to the hospital, a delay in obtaining the CT scan led to a delay in diagnosing him with hydrocephalus.  Tony subsequently sustained severe neurological injuries and thereafter remained in a vegetative state.   Tony’s mother, acting as his guardian ad litem, brought a medical malpractice action in May 1993, arguing the doctors employed by Greenville Memorial were negligent in failing to timely diagnose and treat Tony’s condition. [2]   After the trial in November 1995, the jury returned a verdict for Greenville Memorial.  This Court affirmed in Keaton v. Greenville Mem’l Hosp., Op. No. 97-UP-379 (S.C. Ct. App. filed Aug. 28, 1997).  Our state Supreme Court affirmed, as modified, this Court’s opinion and upheld the jury’s verdict for Greenville Memorial.  Keaton v. Greenville Mem’l Hosp., 334 S.C. 488, 514 S.E.2d 570 (1999). 

Tony died November 28, 1999, as a result of his injuries.  The Estate filed a wrongful death action against Greenville Memorial in October 2001, alleging negligence by Greenville Memorial’s employees resulted in Tony’s injuries.  In its answer, Greenville Memorial denied the allegations and affirmatively pled the defenses that the complaint failed to state a cause of action pursuant to Rule 12(b)(6), SCRCP, and that the case was barred by res judicata.  At the hearing on the motion to dismiss pursuant to Rule 12(b)(6), SCRCP, Greenville Memorial informed the trial court that the negligence issues had already been determined in the prior personal injury case.

The trial court granted the motion based upon several grounds.  The judge found the Estate’s complaint failed to state facts sufficient to constitute a cause of action because it did not allege: (1) that Tony died; (2) the date Tony died; or (3) that Greenville Memorial’s negligence caused his death.  After considering information presented by Greenville Memorial regarding the prior lawsuit, the trial court further found the instant case was barred by both the wrongful death statute and the doctrine of collateral estoppel.  The Estate appeals.


The Estate appeals the trial court’s decision to dismiss the complaint pursuant to Rule 12(b)(6), SCRCP.  However, as in the present case, if the trial court considers matters outside the complaint on a motion to dismiss pursuant to Rule 12(b)(6), SCRCP, “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”  Rule 12(b), SCRCP; Gilbert v. Miller, 356 S.C. 25, 27, 586 S.E.2d 861, 862 (Ct. App. 2003) (holding that where the trial court considers matters outside the pleadings the motion to dismiss is converted to one for summary judgment). [3]


The Estate argues the trial court erred in granting Greenville Memorial’s motion because “a prior determination in a tort action does not bind nor bar a subsequent action for wrongful death.”   We do not agree.

Section 15-51-10 of the wrongful death statute provides:

Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages. . . .

S.C. Code Ann. § 15-51-10 (1977) (emphasis added).

Section 15-51-60 of the wrongful death statute addresses the effect of an action filed prior to the individual’s death.  This section states the wrongful death statute “shall not apply to any case in which the person injured has, for such injury, brought action, which has proceeded to trial and final judgment before his or her death.”  S.C. Code Ann. § 15-51-60 (1977). 

When interpreting these statutes, we must determine the intent of the Legislature.  Hawkins v. Bruno Yacht Sales, Inc., 353 S.C. 31, 39, 577 S.E.2d 202, 207 (2003) (“The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature.”).  If the terms of the statute are clear, this Court must apply the terms according to their plain and ordinary meaning.  Paschal v. State Election Comm’n, 317 S.C. 434, 436, 454 S.E.2d 890, 892 (1995). 

Section 15-51-10 plainly states that a wrongful death action may be filed on behalf of a deceased in cases where the deceased would have been entitled to file a personal injury claim had he or she not died.  Further, section 15-51-60 is clearly intended to prevent a double recovery.  It excludes a right of action in the estate where the deceased brought and tried an action to a final judgment during the deceased’s lifetime.  As such, sections 10 and 60, when read together, stand for the proposition that a judgment in a prior personal injury case extinguishes the right to pursue a subsequent wrongful death claim.  Thus, as the Estate would have been prohibited from retrying Tony’s personal injury case before his death, it is prohibited from bringing such a suit at this time. 

Even interpreting the facts in the present case in the light most favorable to the Estate, the Estate is barred by statute from bringing the wrongful death action because Tony pursued a personal injury action to final judgment during his lifetime.  As such, the trial court did not err in granting summary judgment in favor of Greenville Memorial.

The Estate, however, cites two cases for the proposition that it was permitted to file both a personal injury action and a wrongful death action.  In Bennett v. Spartanburg Ry., Gas & Elec. Co., 97 S.C. 27, 81 S.E. 189 (1914), a husband alleged two causes of action in his complaint: he brought a survival action on both his behalf and the behalf of his children to recover for their loss in the wrongful death of his wife; and an action to recover for wife’s personal injuries and suffering.  Our state Supreme Court held the elements of damages recoverable in the two causes of action were different, and the cases should go forward in separate trials.  Bennett, 97 S.C. at 30-31, 81 S.E. at 190. 

The Estate also cites Deaton v. Gray Trucking Co., 275 F. Supp. 750 (D.S.C. 1967).  In Deaton, three women were killed in a car accident.  The estate of the first woman, Pamela, brought a wrongful death action wherein a verdict was rendered in favor of the trucking company.  Subsequently, an action was filed on behalf of the estates of all the women against the trucking company alleging a survival action for Pamela and wrongful death actions for the other two women.  Citing Bennett, the District Court for the District of South Carolina held Pamela’s wrongful death suit was separate and distinct from a survival action, and thus the prior judgment did not bar the survival action.  The court also held that the prior suit did not bar the wrongful death actions of the other women because it had not been previously litigated.  The court denied the defendant’s motion for summary judgment.  Deaton, 275 F. Supp. at 753-56.

These cases do not support the Estate’s argument in the present case.  Bennett discussed whether a claim for the death of the decedent and a survival claim could be brought in the same action.  Deaton dealt with whether a judgment in favor of the defendant in a wrongful death cause of action barred a subsequent survival action or subsequent wrongful death actions on behalf of the estates of different decedents.  Although Deaton dealt with the question of whether res judicata or collateral estoppel barred the wrongful death suits on behalf of the estates of the other two decedents, neither Deaton nor Bennett discussed whether a personal injury case filed and ultimately decided during the decedent’s lifetime barred a subsequent wrongful death claim for that same decedent.  Further, these cases were decided prior to the enactment of the current version of the wrongful death statute.  As such, the Estate’s argument has no merit. [4]  


Because section 15-51-10 read in conjunction with section 15-51-60 mandates that a wrongful death action may not be filed subsequent to the final determination of a personal injury action filed during the decedent’s lifetime, the trial court did not err in granting summary judgment to Greenville Memorial.  Thus, the trial court’s order granting summary judgment to Greenville Memorial Hospital System is


HUFF and STILWELL, JJ. and CURETON, AJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] The Estate subsequently filed an amended complaint in August 1994.

[3] The Estate did not complain below and does not complain now on appeal that the trial court improperly considered matters outside the complaint in ruling on the motion to dismiss for failure to state a claim. 

[4] We note the Estate also argued the trial court erred in finding the Estate’s complaint failed to state facts sufficient to constitute a cause of action and in finding the cause of action was barred by collateral estoppel.  However, as this case is barred by the wrongful death statute, it is not necessary to reach the issues raised concerning the adequacy of the pleadings or collateral estoppel.

[5] Although the parties and the trial court did not take notice that the trial court’s consideration of matters outside the complaint converted the motion to dismiss into one for summary judgment, we may affirm the grant of summary judgment based on the Record.  Rule 220(c), SCACR (“The appellate court may affirm any ruling, order, or judgment based upon any ground(s) appearing in the Record on Appeal.”).