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2008-UP-071 - Lee v. Regal

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Robert E. Lee, Respondent,

v.

Regal, Inc., d/b/a Diamonds, and Edward Bell, a/k/a Eddie Bell, Defendants,

of whom Regal, Inc., d/b/a Diamonds, is the Appellant.


Appeal From Charleston County
 Mikell R. Scarborough, Master In Equity


Unpublished Opinion No. 2008-UP-071
Submitted January 1, 2008 – Filed January 24, 2008


AFFIRMED


John F. Martin, of Charleston, for Appellant.

Kerry W. Koon and Philip A. Middleton, both of Charleston, for Respondent.

PER CURIAM: In this tort action, Regal, Inc. (Regal) appeals the trial court’s order finding Regal liable for the assault of Robert E. Lee by one of Regal’s employees.  We affirm.[1]

FACTS

I.  Background

At the time of the incident on March 28, 1996, Robert E. Lee (Lee) was married to Jennifer Diane Lee (Jennifer) and had two small children.  Lee was a carpenter who generally depended on government contracts for work.  However, approximately six months prior to March 28, Lee faced difficulty with his primary employer and was no longer receiving work from the government.  Due to the strain on the family’s budget resulting from Lee’s inability to find work, Jennifer decided to seek employment in the adult entertainment industry.  Subsequently, Jennifer became employed by Diamonds Gentlemen’s Club (Diamonds), located on Pittsburg Avenue in Charleston, South Carolina.[2]  

II.  The Incident

Diamonds has standard procedures regarding exotic dancers and requires each dancer disrobe by the “third song of a three song set when the exotic dancer is performing.”  However, Jennifer refused to follow the procedure and was suspended from her employment on March 27, 1996.  Despite her suspension, Lee took Jennifer to work the next evening.  When Jennifer entered the club, the assistant manager told her she had been fired and must leave the premises.  Consequently, Jennifer “waited for [Lee] to return to their home in Summerville and called him and told him what happened and asked him to come pick her up.”  Upon hearing of Jennifer’s dismissal, Lee called Diamonds and asked to speak with Eddie Bell, the club manager.  Following a heated discourse over the phone, Lee drove to Diamonds to pick up Jennifer.

After arriving at Diamonds, Lee told the assistant managers waiting at the entrance he wished to speak to Bell.  In response, “[Lee] was told on several occasions [Bell] would not speak with him, and further, it was inferred it would be unsafe for him to talk to [Bell].”  Nevertheless, Lee persisted in his attempt to speak with Bell for several minutes but finally turned and walked Jennifer back to their vehicle.  While Lee and Jennifer were returning to the vehicle, Bell “suddenly emerged from the club and viciously assaulted [Lee].”  

III.  Trial Proceedings

Subsequently, Lee brought an action against Regal and Bell, asserting Bell assaulted him in the course of Regal’s business.  At trial, Regal maintained Bell was acting outside the scope of his employment, and thus, Regal was not liable for the assault.  Despite Regal’s contention, the trial court ruled in favor of Lee finding (1) Bell was an employee of Regal; (2) Bell committed an assault upon Lee; (3) Bell was performing the business of Regal at the time of the assault; and (4) Lee’s injuries “were a direct and proximate result of the assault of [Regal’s] employee, [Bell].”  The trial court further concluded Regal was liable for Bell’s assault under the doctrine of respondeat superior and awarded Lee the sum of $116,000 damages, both actual and punitive, plus costs.[3]  This appeal followed.

STANDARD OF REVIEW

When ruling on a directed verdict motion, the trial court is required to view the evidence and the inferences reasonably drawn therefrom in the light most favorable to the nonmoving party.  Sabb v. S.C. State Univ., 350 S.C. 416, 427, 567 S.E.2d 231, 236 (2002).  This court must follow the same standard.  Welch v. Epstein, 342 S.C. 279, 299, 536 S.E.2d 408, 418 (Ct. App. 2000).  Accordingly, this court will only reverse the trial court when no evidence supports the trial court’s ruling.  Steinke v. S.C. Dep’t of Labor, Licensing, & Regulation, 336 S.C. 373, 386, 520 S.E.2d 142, 148 (1999).

LAW/ANALYSIS

I.  Directed Verdict Upon Release of Co-Defendant

Regal argues the trial court erred by failing to grant a directed verdict upon the dismissal of Regal’s co-defendant, Bell.  We disagree.

Regal was sued under a respondeat superior theory by which an employer is made liable for the acts of an employee acting within the scope of his employment.  To maintain this action, it is not necessary to sue both the employer and employee.  However, “when a principal and servant are sued together, a principal is not responsible for punitive damages under respondeat superior when the agent was exonerated from liability.”  Austin v. Specialty Transp. Servs., 358 S.C. 298, 319, 594 S.E.2d 867, 878 (Ct. App. 2004).  In the case sub judice, Bell was dismissed as a party to the case, but was not exonerated from liability.[4]  Accordingly, we find the trial court did not err in refusing to grant Regal a directed verdict upon Bell’s dismissal from the case.

II.  Course and Scope of Bell’s Employment

Regal also argues the trial court erred in failing to grant a directed verdict in favor of Regal because Bell was not acting within the course and scope of his employment at the time of the incident.  We disagree.

As indicated, under the doctrine of respondeat superior, an employer is liable for the acts of an employee acting within the scope of employment.  S.C. Ins. Co. v. James C. Greene & Co., 290 S.C. 171, 179, 348 S.E.2d 617, 621 (Ct. App. 1986).  In Jamison v. Howard, 271 S.C. 385, 388-91, 247 S.E.2d 450, 451-53 (1978), appeal after remand, 275 S.C. 344, 271 S.E.2d 116 (1980), a majority of the supreme court rejected the Restatement approach in favor of the test applied in Jones v. Elbert, 211 S.C. 553, 34 S.E.2d 796 (1945).  Under the Jones test, finding the particular act creating liability was within the servant’s authority is unnecessary. Nor must the act have been made for the purpose of performing the work the servant was employed to do.  According to the Jones court, “[i]f the servant is doing some act in furtherance of the master’s business, he will be regarded as acting within the scope of his employment, although he may exceed his authority.”  211 S.C. at 558, 34 S.E.2d at 798-99 (quoting Cantrell v. Claussen’s Bakery, 172 S.C. 490, 174 S.E. 438, 440 (1934).  However, “if the servant acts for some independent purpose of his own, wholly disconnected with the furtherance of his master’s business, his conduct falls outside the scope of his employment.”  Crittenden v. Thompson-Walker Co., 288 S.C. 112, 115-16, 341 S.E.2d 385, 387 (Ct. App. 1986).  Finally, “if there is doubt as to whether the servant in injuring a third party was acting within the scope of his employment, the doubt will be resolved against the master, at least to the extent of requiring the question to be submitted to the jury for determination.” Id.

In Armstrong v. Food Lion, Inc., 371 S.C. 271, 639 S.E.2d 50 (2006), the court reiterated these principles and found that the employees therein were not acting within the scope of employment or in furtherance of the store’s business when they attacked some customers.  The Supreme Court distinguished Crittenden and Jones and noted that in those cases, the assaults occurred not only in connection with the employer’s business but also with the purpose in some way to further the employer’s business.  Id.

Similarly, in the present case, conflicting evidence in the record supports the trial court’s finding Bell acted not only in connection with the employer’s business but also in furtherance thereof when he assaulted Lee.  According to the record, the assault occurred near Diamonds’ premises during normal working hours.  Moreover, Bell testified he came to the club to prepare for a charity function and to consult with the assistant manager regarding the dismissal of Jennifer.  Both of these activities were incidental to Bell’s general duty as club manager to further the business of Diamonds.  Thus, Bell was working in connection with Regal’s business and within the scope of his employment at the time of the assault.  Furthermore, Bell’s relationship to Lee arose solely from his position as Diamonds’ manager.  Indeed, the purpose of the assault was to convince Lee and his wife to leave Diamonds’ premises.  Furthermore, Bell testified, “it was the policy of Diamonds not to call the police but rather handle disruptions on their own.”  Consequently, although Regal maintains the assault was outside the scope of Bell’s authority, the trial court was presented with conflicting inferences from which it may reasonably conclude the assault was an act in furtherance of Regal’s business.  Accordingly, since there is a factual basis to support the court’s decision, we may not substitute our judgment for that of the trial court and therefore affirm the court’s determination holding Regal liable for Bell’s assault on Lee.

III.  Comparative Fault, Doctrine of Mutual Combat, and Negligent Employment

Regal maintains the trial court erred by failing to apportion fault under the doctrine of comparative fault, by failing to apply the doctrine of mutual combat to bar Lee’s claim, and by finding Regal liable under the theory of negligent employment.  We find these issues are not preserved for our review.

In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial court.  See Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 511, 598 S.E.2d 712, 715 (2004); see also In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) (“An issue may not be raised for the first time on appeal.  In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court.”).  In the present case, the record contains no indication the trial court ruled on the issues of comparative fault,[5] mutual combat, or negligent employment.  Moreover, Regal did not file a Rule 59(e), SCRCP, motion requesting a ruling on any of these issues.[6]  Accordingly, Regal’s claims regarding comparative fault, mutual combat, and negligent employment are not preserved for our review. 

IV.  Punitive Damages

Regal also argues the trial court erred by awarding punitive damages in the amount of $50,000.  We disagree.

Punitive damages, also known as exemplary damages, are imposed as punishment.  Clark v. Cantrell, 339 S.C. 369, 378-79, 529 S.E.2d 528, 533 (2000).  Punitive damages are allowed in the interest of society in the nature of punishment and as a warning and example to deter the wrongdoer and others from committing like offenses in the future.  Id.  Moreover, punitive damages serve to vindicate a private right by requiring the wrongdoer to pay money to the injured party.  Id.  Accordingly, punitive damages serve at least three important purposes: (1) punishment of the defendant’s reckless, willful, wanton, or malicious conduct; (2) deterrence of similar future conduct by the defendant or others; and (3) compensation for the reckless or willful invasion of the plaintiff’s private rights.  Id. 

“On the issue of punitive damages, the highest burden of proof known to the civil law is applicable.” Austin v. Specialty Transp. Servs., Inc., 358 S.C. 298, 313, 594 S.E.2d 867, 875 (Ct. App. 2004).  Section 15-33-135 of the South Carolina Code (2005) provides: “In any civil action where punitive damages are claimed, the plaintiff has the burden of proving such damages by clear and convincing evidence.”  Thus, punitive damages can only be awarded where the plaintiff proves by clear and convincing evidence the defendant’s misconduct was willful, wanton, or in reckless disregard of the plaintiff’s rights.  Taylor v. Medenica, 324 S.C. 200, 220, 479 S.E.2d 35, 45-46 (1996), appeal after remand, 331 S.C. 575, 503 S.E.2d 458 (1998).

While there is no formula or standard used as a measure for assessing punitive damages, factors relevant to consideration of punitive damages include: (1) the character of the defendant’s acts; (2) the nature and extent of the harm to plaintiff which defendant caused or intended to cause; (3) defendant’s degree of culpability; (4) the punishment imposed; (5) duration of the conduct; (6) defendant’s awareness or concealment; (7) the existence of similar past conduct; (8) likelihood the award will deter the defendant or others from like conduct; (9) whether the award is reasonably related to the harm likely to result from such conduct; and (10) defendant’s wealth or ability to pay.  See Gamble v. Stevenson, 305 S.C. 104, 111-12, 406 S.E.2d 350, 354 (1991); see also Welch v. Epstein, 342 S.C. 279, 306, 536 S.E.2d 408, 422 (Ct. App. 2000) (“Under Gamble, the trial court is not required to make findings of fact for each factor to uphold a punitive damage award.”).  While the trial court did not make specific findings as to each factor and was not required to do so, we note that no post-trial motion was ever made asking the court to address these matters.

In South Carolina, post-trial relief in the form of motions for judgment notwithstanding the verdict, new trial, or new trial nisi are available to defendants claiming a verdict excessive. See S.C.R.C.P. Rules 50 and 59. Moreover, although there is no precise formula for measuring a punitive damage award, if the trial judge “is convinced that the amount awarded is overliberal, he has the authority and corresponding duty to reduce the verdict by order nisi.Hicks v. Herring, 246 S.C. 429, 436, 144 S.E.2d 151, 154 (1965). (Emphasis supplied).

Gamble, 305 S.C. at 111, 406 S.E.2d at 354.  Here there is nothing in the record demonstrating that the judge was given an opportunity to address these matters pursuant to the filing of any post-trial motions.

In State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 424-25 (2003), the United States Supreme Court, in discussing punitive damages, stated:

[W]e have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award.  We decline again to impose a bright-line ratio which a punitive damages award cannot exceed.  Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.

Campbell further explained: “While these ratios are not binding, they are instructive. They demonstrate what should be obvious: Single-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution . . . .”  Id. at 425.

Under our jurisprudence, the trial court is vested with considerable discretion in assessing the amount of a punitive damage award.  Accordingly, the appellate court’s review of the amount of punitive damages is limited to correction of legal errors. See Austin, 358 S.C. at 314, 594 S.E.2d at 875.  Thus, this court must affirm the trial court’s punitive damages award if any evidence reasonably supports the trial court’s factual findings.  Id.

Applying this analysis to the present case, we find no due process error in the award of punitive damages awarded to Lee.  The trial court awarded Lee punitive damages approximately 0.75 times his actual damages.  While Regal contends the punitive damage award was based on improper considerations by the trial court, Regal fails to analyze the issue of actual damages as compared to punitive damages.  Although there is no mathematical test under the due process analysis, we note the award does not exceed a single-digit ratio between Lee’s punitive and actual damages, consistent with Campbell.  Under Welch, Gamble, and Campbell , the punitive damage award to Lee was not excessive or grossly disproportionate.  Accordingly, we find the punitive damage award to Lee comports with due process; thus, the trial court did not err in awarding Lee $50,000 in punitive damages. 

CONCLUSION

Based on the foregoing, we hold there is sufficient evidence of record to support the trial court’s conclusion that Regal was liable for the assault committed by Bell under the doctrine of respondeat superior.  We further hold the amount of punitive damages awarded to Lee was not excessive or disproportionate.  Accordingly, the decision of the trial court is

AFFIRMED.

HUFF and PIEPER, JJ., and GOOLSBY, A.J., concur.


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

[2] Regal is the owner and operator of Diamonds.

[3] Specifically, the trial court concluded Lee suffered damages as follows: (1) medical expenses: $16,000; (2) pain and suffering: $50,000; and (3) punitive damages: $50,000.

[4] Indeed, Bell pled guilty to simple assault prior to trial. 

[5] While pled and argued, the final order does not address the defense of comparative fault because negligence was not at issue.  Rather, the primary cause of action was the intentional tort of simple assault.  Thus, the doctrine of comparative fault does not apply to an intentional tort. 

[6] As noted by our supreme court, “[e]ven after an order is filed, counsel has an obligation to review the order and file a Rule 59(e), SCRCP, motion to alter or amend if the order fails to set forth the findings and the reasons for those findings as required by Section 17-27-80 of the South Carolina Code and Rule 52(a), SCRCP.”  Pruitt v. State, 310 S.C. 254, 256, 423 S.E.2d 127, 128 (1992).  Although Regal maintains a Rule 59(e) motion was filed, the record does not include any evidence supporting this assertion.  See Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 339, 611 S.E.2d 485, 487-88 (2005) (“The appellant has the burden of providing a sufficient record.”).