THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Maurice Dawkins, Appellant, 

v. 

James A. Sell, Respondent. 

Appellate Case No. 2017-002520 

Appeal From Hampton County 

Roger M. Young, Sr., Circuit Court Judge 

Opinion No. 5857 

Submitted June 1, 2020 – Filed September 1, 2021 

AFFIRMED 

Richard Alexander Murdaugh and William Franklin 

Barnes, III, both of Peters Murdaugh Parker Eltzroth & 

Detrick, PA, of Hampton, for Appellant. 

Kelly Dennis Dean and Ernest Mitchell Griffith, both of 

Griffith Freeman & Liipfert, LLC, of Beaufort, for 

Respondent. 

WILLIAMS, J.: In this negligence action against James A. Sell, Maurice 

Dawkins appeals the trial court's denial of his motions for a directed verdict, a 

judgment notwithstanding the verdict (JNOV), and a new trial. Dawkins argues 

the trial court erred in denying his motions for a directed verdict and JNOV on (1) 

Sell's affirmative defense of Dennis Owens's intervening and superseding 

negligence and (2) Sell's negligence. Dawkins also asserts the trial court erred in 

denying his motion for a new trial because (1) the jury instruction on intervening 
and superseding negligence was unwarranted, (2) Sell improperly published 

Dawkins's interrogatory answer, and (3) Sell exceeded the empty-chair defense. 

We affirm. 

FACTS/PROCEDURAL HISTORY 

This matter arises out of an automobile accident that occurred on I-95 in the 

morning hours of August 21, 2010. Sell, who was sixty-one years old at the time, 

was helping his son move from Ohio to Georgia, and he was driving a moving 

truck (Moving Truck) with his grandson. Sell began driving the truck around 

11:30 A.M. on August 20, and he stopped a few times to rest and help repair his 

son's vehicle. Between 3:30 and 4:00 A.M. on August 21, while it was raining, Sell 

lost control of the Moving Truck when the front right tire veered off the lane of 

travel into the emergency lane. Sell attempted to return the Moving Truck to the 

lane of travel, but the truck overturned and came to rest blocking both lanes of 

travel, resulting in the emergency lane being the only navigable path around the 

Moving Truck. 

Multiple individuals, including Dawkins, stopped to render aid. While these 

individuals were helping Sell and his grandson exit the vehicle and ensuring they 

were uninjured, between ten to twenty other vehicles and one to three tractor-trailer 

trucks passed the Moving Truck via the emergency lane. Approximately five to 

ten minutes after the Moving Truck overturned, a tractor-trailer truck (Semi) 

owned by Pierce National, Inc. and operated by Owens collided with the Moving 

Truck, causing it to strike and injure Sell, Dawkins, and the other drivers rendering 

aid. 

Dawkins filed a complaint against Sell, Owens, and Pierce National and amended 

it twice. Dawkins asserted, among other claims, that Sell and Owens were both 

negligent in their operation of their respective vehicles and their negligence caused 

him harm. Sell filed answers to Dawkins's complaints and asserted, among other 

defenses, that Owens's negligence intervened and superseded any negligence on his 

part. Additionally, Sell asserted a cross-claim against Pierce National and Owens 

contending he had been injured by their negligence. Prior to trial, Pierce National 

and Owens settled with Dawkins and Sell. 

The trial occurred from October 9 through 12, 2017. Prior to trial, Dawkins moved 

in limine to exclude evidence generally related to the prior inclusion of Pierce 

National and Owens in the trial and their settlement. The trial court excluded some 

evidence that was agreed upon by the parties but denied the motion to exclude the 
 

remaining evidence. After Dawkins rested, Sell published portions of Owens's 

deposition relating to his conduct prior to the accident and called John W. 

Pinckney, an expert in motor carrier safety and compliance, to testify regarding 

Owens's conduct. At the close of evidence, both parties moved for a directed 

verdict on Sell's intervening and superseding negligence defense, and the court 

denied both motions. Dawkins also moved for a directed verdict on the issue of 

Sell's negligence, which the court also denied. The trial court instructed the jury 

on the defense of intervening and superseding negligence and other particular 

statutes that Dawkins claimed Sell violated. After deliberating, the jury issued a 

general verdict for Sell. Dawkins moved for JNOV or a new trial in the 

alternative, both of which the trial court denied. This appeal followed. 

ISSUES ON APPEAL 

I. Did the trial court err in denying Dawkins's motions for a directed verdict 

and JNOV on the issue of Sell's affirmative defense of Owens's intervening 

and superseding negligence? 

II. Did the trial court err in denying Dawkins's motions for a directed verdict 

and JNOV on the issue of Sell's negligence? 

III. Did the trial court err in denying Dawkins's motion for a new trial because 

the jury charge on intervening and superseding negligence was unwarranted? 

IV. Did the trial court err in denying Dawkins's motion for a new trial because 

Sell improperly published Dawkins's interrogatory answers identifying a 

trucking expert previously retained by Dawkins? 

V. Did the trial court err in denying Dawkins's motion for a new trial because 

Sell exceeded the bounds of the empty-chair defense? 

STANDARD OF REVIEW 

A negligence action is an action at law. Hartman v. Jensen's, Inc., 277 S.C. 501, 

502, 289 S.E.2d 648, 648 (1982). On appeal from an action at law tried by a jury, 

appellate courts correct errors of law and do not disturb the jury's factual findings 

unless the record reveals no evidence reasonably supporting those findings. 

Wright v. Craft, 372 S.C. 1, 18, 640 S.E.2d 486, 495 (Ct. App. 2006). 
When ruling on directed verdict or JNOV motions, "the [trial] court must view the 

evidence and all reasonable inferences drawn from the evidence in the light most 

favorable to the nonmoving party" and must deny the motions "[i]f the evidence at 

trial yields more than one reasonable inference or its inference is in doubt." Kunst 

v. Loree, 424 S.C. 24, 37–38, 817 S.E.2d 295, 301–02 (Ct. App. 2018). We apply 

the same standard on appeal. Wright, 372 S.C. at 18, 640 S.E.2d at 495. Neither 

the trial court nor this court has the authority to make credibility determinations or 

resolve conflicting evidence. Kunst, 424 S.C. at 38, 817 S.E.2d at 302. The trial 

court's ruling on a directed verdict or JNOV motion will be reversed only if the 

ruling is governed by an error of law or no evidence supports the ruling. Austin v. 

Stokes-Craven Holding Corp., 387 S.C. 22, 42, 691 S.E.2d 135, 145 (2010). 

"[T]he appellate court reviews a denial of a new trial motion for an abuse of 

discretion." Kunst, 424 S.C. at 38, 817 S.E.2d at 302 (quoting Duncan v. Hampton 

Cnty. Sch. Dist. No. 2, 335 S.C. 535, 547, 517 S.E.2d 449, 455 (Ct. App. 1999)). 

"An abuse of discretion occurs when the trial court's order is controlled by an error 

of law or when there is no evidentiary support for the trial court's factual 

conclusions." Stokes-Craven Holding Corp. v. Robinson, 416 S.C. 517, 536, 787 

S.E.2d 485, 495 (2016). "In determining whether the [trial] court erred in denying 

a motion for a new trial, the appellate court must consider the testimony and 

reasonable inferences to be drawn therefrom in the light most favorable to the 

nonmoving party." Kunst, 424 S.C. at 38, 817 S.E.2d at 302. 

LAW/ANALYSIS 

I. Dawkins's Motions for a Directed Verdict and JNOV 

A. Intervening and Superseding Negligence 

Dawkins argues the trial court erred in denying his motions for a directed verdict 

and JNOV on Sell's intervening and superseding negligence defense. We disagree. 

A plaintiff must prove three elements on a negligence claim: "(1) a duty of care 

owed by [the] defendant to [the] plaintiff; (2) breach of that duty by a negligent act 

or omission; and (3) damage proximately resulting from the breach of duty." J.T. 

Baggerly v. CSX Transp., Inc., 370 S.C. 362, 368–69, 635 S.E.2d 97, 101 (2006). 

Proximate cause is ordinarily a question of fact for the jury and "requires proof of: 

(1) causation-in-fact, and (2) legal cause." Id. at 369, 635 S.E.2d at 101; see Gause 

v. Smithers, 403 S.C. 140, 150, 742 S.E.2d 644, 649 (2013) ("Only in rare or 

exceptional cases may the issue of proximate cause be decided as a matter of law." 
(quoting Bailey v. Segars, 346 S.C. 359, 367, 550 S.E.2d 910, 914 (Ct. App. 

2001))). "Causation-in-fact is proved by establishing the injury would not have 

occurred 'but for' the defendant's negligence, and legal cause is proved by 

establishing foreseeability." Baggerly, 370 S.C. at 369, 365 S.E.2d at 101. 

Foreseeability "is determined by looking to the natural and probable consequences 

of the defendant's conduct." Gause, 403 S.C. at 150, 742 S.E.2d at 649. 

"Evidence of an independent negligent act of a third party is directed to the 

question of proximate cause." Matthews v. Porter, 239 S.C. 620, 628, 124 S.E.2d 

321, 325 (1962). "For an intervening force to be a superseding cause that relieves 

an actor from liability, the intervening cause must be a cause that could not have 

been reasonably foreseen or anticipated." Stephens v. CSX Transp., Inc., 415 S.C. 

182, 205, 781 S.E.2d 534, 546 (2015) (quoting Small v. Pioneer Mach., Inc., 329 

S.C. 448, 467, 494 S.E.2d 835, 844 (Ct. App. 1997)). If the original tortfeasor's 

"negligence appears merely to have brought about a condition of affairs, or a 

situation in which another and entirely independent and efficient agency intervenes 

to cause the injury, the latter is to be deemed the direct or proximate cause, and the 

former only the indirect or remote cause." Gibson v. Gross, 280 S.C. 194, 197, 

311 S.E.2d 736, 739 (Ct. App. 1983) (quoting Locklear v. Se. Stages, Inc., 193 

S.C. 309, 318, 8 S.E.2d 321, 325 (1940)). The defense of intervening third-party 

negligence ordinarily presents a question of fact for the jury and only rarely 

becomes a question of law for the court to determine. See Small v. Pioneer Mach., 

Inc., 316 S.C. 479, 489, 450 S.E.2d 609, 615 (Ct. App. 1994); id. at 491, 450 

S.E.2d at 616 (holding it was error for the trial court to direct a verdict in favor of 

defendants on the ground of intervening third-party negligence because the record 

contained some evidence the third-party's negligence was foreseeable). 

i. Admission in Pleading 

First, Dawkins argues the trial court erred because Sell admitted in his cross-claim 

that Owens's actions were foreseeable. We disagree. 

"It is well settled that parties are judicially bound by their pleadings unless 

withdrawn, altered or stricken by amendment or otherwise." Charleston Cnty. Sch. 

Dist. v. Laidlaw Transit, Inc., 348 S.C. 420, 425, 559 S.E.2d 362, 364 (Ct. App. 

2001) (quoting Postal v. Mann, 308 S.C. 385, 387, 418 S.E.2d 322, 323 (Ct. App. 

1992)). "Any allegations, statements, or admissions contained in a pleading are 

conclusive against the pleader, and a party cannot subsequently take a contrary or 

inconsistent position." Id. 
In Sell's cross-claims against Pierce National and Owens, he asserted they were 

negligent in multiple ways and he suffered damages "as a direct and proximate 

result of" their conduct. In answering Dawkins's complaints, Sell asserted as an 

affirmative defense that Owens's negligence intervened and superseded any 

negligence on his part. Dawkins argues that Sell cannot claim Owens's actions 

were foreseeable in his cross-claim while also claiming Owens's actions were 

unforeseeable in his defense against Dawkins's claim. 

Dawkins mischaracterizes Sell's pleadings. Sell does not assert in his cross-claim 

that Owens's actions were foreseeable; rather, he asserts his injuries were the 

foreseeable result of Owens's alleged negligent actions. See Baggerly, 370 S.C. at 

368–69, 635 S.E.2d at 101 (stating the third element of a negligence action is the 

breach of the duty proximately causing the plaintiff's damages). In the same 

pleading, Sell asserts Owens's negligent actions were an unforeseeable result of 

Sell's alleged negligent conduct and therefore an intervening and superseding cause 

of Dawkins's injuries. See Stephens, 415 S.C. at 205, 781 S.E.2d at 546 (stating 

the intervening negligence of a third party supersedes the negligence of the 

defendant when the third party's negligence could not have been reasonably 

foreseen). Sell's claim that his injuries were the foreseeable result of Owens's 

negligence is not equivalent to asserting that Owens's negligence was the 

foreseeable result of Sell's alleged negligence. Therefore, we find the trial court 

did not err in denying Dawkins's motions for a directed verdict and JNOV on this 

ground. 

ii. Reasonable Inference from Evidence 

Dawkins also asserts the trial court erred because the only reasonable inference 

drawn from the evidence is that Owens's negligence and collision with the Moving 

Truck was a foreseeable result of Sell's negligence. Dawkins relies on our supreme 

court's opinion in Matthews v. Porter, which he asserts contains nearly identical 

facts to the case at issue. We disagree. 

In Matthews, our supreme court affirmed the denial of Porter's motions for a 

directed verdict, JNOV, and a new trial on the issue of intervening and superseding 

negligence. 239 S.C. at 631–32, 124 S.E.2d at 327. In that case, Porter and a third 

individual were involved in an automobile collision that blocked the lane of traffic, 

making the roadway impassable. Id. at 623, 629, 124 S.E.2d at 322, 326. 

Matthews stopped to render assistance, and while she was providing aid, a fourth 

individual—McKnight—sideswiped another car and pinned her between his car 

and Porter's car. Id. at 623, 124 S.E.2d at 322. Porter moved for a directed verdict 
on the ground that McKnight was an intervening and superseding negligent cause, 

but the trial court denied the motion, and the jury ultimately issued a verdict in 

Matthew's favor. Id. at 624, 124 S.E.2d at 323. Our supreme court, reviewing the 

evidence in the light most favorable to Matthews, affirmed the denial of Porter's 

motions because there was sufficient evidence to raise a question of fact as to 

whether McKnight's negligence was an intervening and superseding cause of 

Matthews's injuries. Id. at 625, 628–32, 124 S.E.2d at 323, 325–27. Because the 

evidence was susceptible to more than one inference, the court held it could not 

find as a matter of law that McKnight's negligence superseded Porter's negligence 

and affirmed the trial court's denial of Porter's motions. Id. at 632, 124 S.E.2d at 

327. 

However, in Gibson v. Gross, this court held the evidence supported a directed 

verdict in favor of the defendant on the issue of intervening and superseding 

negligence. 280 S.C. at 197–98, 311 S.E.2d at 739. In that case, Gross was 

involved in accident that left his vehicle resting on the traveled portion of the road, 

and Gibson stopped to lend assistance. Id. at 195, 311 S.E.2d at 737. Gross took 

no action to warn other drivers of his disabled vehicle, and while Gibson was 

assisting, another individual, Edwards, struck Gibson with his vehicle. Id. at 195, 

311 S.E.2d at 737–38. Gross asserted he was not negligent and even if he was, 

Edwards was negligent and was an intervening and superseding cause of Gibson's 

injuries. Id. at 196, 311 S.E.2d at 738. The trial court granted a nonsuit in favor of 

Gross because no evidence indicated Gross's alleged negligence proximately 

causes Gibson's injuries and any potential negligence "'was only an indirect or 

remote cause' of Gibson's injury." Id. at 195, 311 S.E.2d at 738. This court noted 

the first tortfeasor's negligence is an "indirect or remote cause" when it merely 

creates "a condition of affairs" in which the second tortfeasor's negligence 

intervenes and causes the injury. Id. at 197–98, 311 S.E.2d at 739 (quoting 

Locklear, 193 S.C. at 318, 8 S.E.2d at 325). The court held Gross could not have 

foreseen that Edwards would have negligently collided with Gibson and affirmed 

the trial court. Id. Upon a petition for rehearing, the court interpreted and 

distinguished Matthews. Id. at 198–99, 311 S.E.2d at 739. The court stated the 

cases superficially mirrored each other but noted key differences, such as the fact 

that in Matthews, the vehicles "completely blocked a lane of the highway" but only 

one lane of a four-lane highway was blocked in Gross. Id. at 198, 311 S.E.2d at 

739. The court also observed that McKnight testified Porter's failure to warn and 

blocking of the highway caused McKnight to hit Matthews and that Matthews 

presented "witnesses whose testimony established an unbroken chain of causation 

from the negligent act of [Porter] to [her] injuries." Id. The court noted there was 
 

 

 

no evidence in its case that Edwards struck Gibson because the highway was 

blocked or that Gross failed to warn him. Id. 

We find the trial court did not err in denying Dawkins's motions for a directed 

verdict or JNOV. Similar to the discussion in Gibson, we note that the vehicles in 

Matthews blocked the highway and made it impassable. See Matthews, 239 S.C. at 

628, 124 S.E.2d at 325; Gibson, 280 S.C. at 198, 311 S.E.2d at 739. In this case, 

however, multiple witnesses, including Dawkins and Owens, testified the interstate 

was not impassable after the Moving Truck overturned because the emergency lane 

was unblocked and usable. Witnesses, including Dawkins, also testified other 

vehicles used the emergency lane to safely avoid the Moving Truck prior to 

Owens's collision. Conversely, Owens testified in his deposition that he was 

watching the painted lines—not scanning the road for obstacles—and traveling 

around sixty-five miles per hour, which was three miles per hour under the 

maximum possible speed for the Semi due to a speed cap placed on its engine, 

while driving at night in rain. Owens also he said he struck the Moving Truck 

traveling around sixty-five miles per hour. Owens never testified that he was 

unable to avoid the Moving Truck or attributed his collision with the Moving 

Truck to some fault of Sell. Instead, he testified he collided with the Moving 

Truck after unsuccessfully applying his brakes. Pinckney—Sell's expert witness— 

opined Owens breached his duty of prudent driving by not scanning the road and 

overdriving his headlights.1

 Additionally, Pinckney further opined that Owens was 

a fatigued driver because evidence showed that on the afternoon preceding the 

collision, Owens picked up a shipment at the same time his driving log showed he 

was resting in his bunk, which was a violation of Federal Motor Carrier Safety 

Regulations. When viewed in the light most favorable to Sell, we find the 

evidence presented a reasonable inference that Owens's negligence was not 

foreseeable as a matter of law and Sell's negligence merely created a "condition of 

affairs" in which Owens's subsequent negligence caused Dawkins's injuries. See 

Gibson, 280 S.C. at 197, 311 S.E.2d at 739 ("When the negligence appears merely 

to have brought about a condition of affairs, or a situation in which another and 

entirely independent and efficient agency intervenes to cause the injury, the latter 

is to be deemed the direct or proximate cause, and the former only the indirect or 

remote cause." (quoting Locklear, 193 S.C. at 318, 8 S.E.2d at 325)). Accordingly, 

we hold the trial court did not err in denying Dawkins's motions for a directed 

1

 Overdriving one's headlights means driving at a rate of speed that makes it 

impossible to stop the vehicle within the range of sight provided by the headlights. 

See Gautreaux v. Orgeron, 84 So. 2d 632, 633 (La. Ct. App. 1955). 
verdict or JNOV on Sell's intervening and superseding negligence defense, and we 

affirm the trial court on this issue. 

B. Sell's Negligence 

Dawkins argues the trial court erred in denying his motions for a directed verdict 

and JNOV on the issue of Sell's negligence. Dawkins asserts the trial court should 

have held as a matter of law that Sell was negligent because the evidence only 

supported the inference that Sell failed to maintain proper control of the Moving 

Truck. We disagree. 

Dawkins asserts the case of Fettler v. Gentner is factually similar to this case and 

controls this issue. 396 S.C. 461, 722 S.E.2d 26, (Ct. App. 2012). In that case, the 

Fettlers stopped at a yield sign due to an oncoming car, and Gentner rear-ended 

them. Id. at 461, 465, 722 S.E.2d at 28. The Fettlers moved for a directed verdict 

on the issue of Gentner's negligence, which the trial court denied. Id. at 465–66. 

722 S.E.2d at 28–29. On appeal, this court noted Gentner admitted he took his 

eyes off the road and failed to keep a lookout after the Fettlers reached the yield 

sign. Id. at 467, 722 S.E.2d at 30. Because the evidence was not susceptible to 

more than one reasonable inference on the issue of Gentner's negligence, this court 

reversed the denial of Fettler's directed verdict. Id. at 468–69, 722 S.E.2d at 30. 

We find Fettler is distinguishable from the instant case. In Fettler, Gentner 

admitted he took his eyes off his lane of travel and Fettler's vehicle. Id. Although 

Sell stated he was responsible for overturning the Moving Truck, this is not the 

same as (1) admitting he breached his duty of care or (2) Gentner's admission that 

he took his eyes off his lane of travel and Fettler's vehicle while continuing to 

approach it. Additionally, when considered in the light most favorable to Sell, the 

record contains evidence creating an inference that Sell was not negligent. Sell 

testified he drove "considerably slower than [he did] in a car" because it was 

raining and the steering wheel "seemed to be a little bit loose, which made the 

truck tend to sway a little bit." Sell also stated that when the Moving Truck's tire 

veered into the emergency lane, he tried to steer the tire back onto the road and 

"steered a little bit more" when the tire "did[ not] seem to respond as quickly as 

[he] thought" it should. He asserted that he had traveled a lot for his work and was 

familiar with knowing when to stop and that although he was somewhat tired and it 

had been a long day, he did not believe it was unsafe for him to be driving at that 

time. He further testified that in addition to stopping for two hours earlier in the 

day due to his son having vehicle trouble, he stopped twice to rest for twenty to 

thirty minutes—one of which was around twenty to thirty minutes before the 
 

accident. Sell did not make any concession similar to Gentner's admission that he 

removed his eyes from the road. Therefore, we find this evidence, when viewed in 

the light most favorable to Sell, creates an inference that he was not negligent. See 

Wright, 372 S.C. at 18, 640 S.E.2d at 496 ("On appeal from an order denying a 

directed verdict [or JNOV], an appellate court views the evidence and all 

reasonable inferences in a light most favorable to the non-moving party."). 

Accordingly, the trial court did not err in denying Dawkins's motions for a directed 

verdict and JNOV, and we affirm.2 

2

 Dawkins also argues only one reasonable inference could be drawn regarding 

Sell's negligence due to his failure to comply with a statutory requirement of 

placing warning devices to warn oncoming drivers of the overturned Moving 

Truck. See S.C. Code Ann. § 56-5-5090 (2018) (requiring the driver of certain 

vehicles to utilize warning devices, such as lighted flares or electric lanterns, if the 

vehicle is disabled upon the traveled portion of a highway or the shoulder). 

However, this argument is unpreserved. At the close of evidence, Dawkins only 

argued he should be given a directed verdict "on the issue that [Sell] breached a 

duty in overturning the truck, blocking both southbound lanes in the rain at night," 

and he did not argue that the court should direct a verdict on the issue of 

negligence because Sell failed to set out warning devices. See I'On, L.L.C. v. Town 

of Mount Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) ("[The] 

preservation requirement . . . is meant to enable the lower court to rule properly 

after it has considered all relevant facts, law, and arguments." (emphasis added)); 

Scoggins v. McClellion, 321 S.C. 264, 267, 468 S.E.2d 12, 14 (Ct. App. 1996) (per 

curiam) (holding an appellate court will not consider an issue on appeal from the 

denial of a directed verdict if the issue was not raised in a directed verdict motion 

at trial). Dawkins did not raise the statute to support his motion for a directed 

verdict until his posttrial motion for JNOV. See Duncan v. Hampton Cnty. Sch. 

Dist. No. 2, 335 S.C. 535, 545, 517 S.E.2d 449, 454 (Ct. App. 1999) ("A motion 

for [JNOV] under Rule 50(b)[, SCRCP,] is a renewal of the directed verdict motion 

and is limited to the grounds asserted in the directed verdict motion." (second 

alteration in original) (quoting Glover v. N.C. Mut. Life Ins. Co., 295 S.C. 251, 

256, 368 S.E.2d 68, 72 (Ct. App. 1988))); S.C. Dep't of Transp. v. First Carolina 

Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d 903, 907 (2007)) ("[A]n issue may 

not be raised for the first time in a [posttrial] motion."). Accordingly, this ground 

is not preserved for our review, and we affirm the trial court. 
II. Dawkins's Motion for a New Trial 

Dawkins asserts the trial court erred in denying his motion for a new trial. We 

disagree. 

A. Jury Instruction 

Dawkins contends the trial court erred in denying his motion for a new trial 

because the court instructed the jury on intervening and superseding negligence, 

which he asserts was unwarranted. Because we affirm above the trial court's denial 

of Dawkins's directed verdict and JNOV motions on this ground, we similarly 

affirm the trial court's denial of his motion for a new trial. See Stephens, 415 S.C. 

at 204–05, 781 S.E.2d at 546 (finding the trial court did not err in charging the jury 

on intervening and superseding negligence because evidence that a third party was 

unforeseeably negligent supported the charge). 

B. Interrogatory Response 

Dawkins argues the trial court improperly denied his motion for a new trial 

because the court erred in allowing Sell to publish an answer to an interrogatory 

identifying a trucking expert that Dawkins previously intended to use against 

Pierce National and Owens. Dawkins argues it was error to publish the answer 

because it identified a nonparty with whom Dawkins had previously settled. We 

disagree. 

Answers to interrogatories can be used in trials "to the extent permitted by the rules 

of evidence." See Rule 33(d), SCRCP. Generally, relevant evidence is admissible, 

and irrelevant evidence is inadmissible. Rule 402, SCRE. Relevant evidence is 

evidence that tends to make the existence of any fact of consequence for the case 

more or less probable. Rule 401, SCRE. Admitting evidence is within the trial 

court's sound discretion "and will not be disturbed absent an abuse of discretion 

and a showing of prejudice." Fountain v. Fred's, Inc., 429 S.C. 533, 560, 839 

S.E.2d 475, 490 (Ct. App. 2020) (quoting Oconee Roller Mills, Inc. v. Spitzer, 300 

S.C. 358, 360, 387 S.E.2d 718, 719 (Ct. App. 1990)). 

We find the trial court did not abuse its discretion in admitting the answer. In his 

response to Pierce National's and Owens's interrogatories, Dawkins indicated he 

was prepared to call an expert named David L. Dorrity to testify regarding Owens's 

operation of the Semi and compliance with federal laws. This fact, indicating 

Dawkins believed Owens was negligent, made the fact that Owens was negligent 
 

more probable. See Rule 401. Owens's negligence was a "fact of consequence" 

because it was a necessary element of Sell's affirmative defense of intervening and 

superseding negligence. Id. Because Owens's negligence remained relevant, the 

trial court did not abuse its discretion in admitting the interrogatory answer. See 

Robinson, 416 S.C. at 536, 787 S.E.2d at 495 ("An abuse of discretion occurs when 

the trial court's order is controlled by an error of law . . . ."). Moreover, any error 

in admitting the answer did not prejudice Dawkins because whether Dawkins was 

prepared to allege Owens violated federal motor laws was cumulative to the 

evidence offered by Sell's expert Pinckney that Owens did violate such laws. See 

Campbell v. Jordan, 382 S.C. 445, 453, 675 S.E.2d 801, 805 (Ct. App. 2009) 

("When improperly admitted evidence is merely cumulative, no prejudice exists, 

and therefore, the admission is not reversible error."). Accordingly, the trial court 

properly denied Dawkins's motion for a new trial on this ground, and we affirm.3 

C. Empty-Chair Defense 

Dawkins argues the trial court erred in denying his motion for a new trial after 

allowing Sell to exceed the bounds of the empty-chair defense. Dawkins asserts 

the trial court "enabled Sell to fashion and extract a benefit from the fact that 

Pierce National and Owens were not defendants." Dawkins avers Sell exceeded 

the bounds of the empty-chair defense by presenting evidence of Owens's 

negligence. Dawkins contends because Sell was entitled to a setoff for any amount 

Dawkins received from his settlement with Pierce National and Owens, the issues 

surrounding Pierce National and Owens were irrelevant. We disagree. 

The empty-chair defense is the defendant's "right to assert another potential 

tortfeasor, whether a party or not, contributed to the alleged injury or damages" 

and was codified in the Uniform Contribution Among Tortfeasors Act (the Act) at 

section 15-38-15 of the South Carolina Code (Supp. 2020). Smith v. Tiffany, 419 

S.C. 548, 557, 799 S.E.2d 479, 484 (2017) (emphasis added) (quoting 

§ 15-38-15(D)). Dawkins relies on Tiffany for the proposition that the defense "is 

3

 Dawkins also claims the trial court improperly (1) allowed Sell to cross-examine 

Dawkins as to the allegations he raised as to Owens in his complaint over his 

objection and (2) admitted portions of Owens's deposition over his objections on 

relevancy. However, Dawkins does not list these as issues in his statement of 

issues on appeal, and we decline to address them. See Rule 208(b)(1)(B), SCACR 

("The statement shall be concise and direct as to each issue . . . . Ordinarily, no 

point will be considered which is not set forth in the statement of the issues on 

appeal."). 
not boundless and the non-settling defendant cannot expand the scope of the case 

and make evidence relevant by the fact [that] another tortfeasor settled." However, 

Tiffany is distinguishable. In that case, the court interpreted the Act on appeal of a 

defendant's request to join as a party an individual—with whom plaintiff had 

already settled and released from the action—in order to allow the jury to 

apportion fault. Id. at 554–55, 799 S.E.2d at 482–83. The court held the plain 

language of the Act precluded the defendant from joining the prior codefendant. 

Id. at 555–59, 799 S.E.2d at 483–85. 

Because Tiffany did not discuss the empty-chair defense in the context of an 

intervening and superseding negligence defense or provide the parameters of the 

defense, it does not support Dawkins's argument. The evidence Sell offered of 

Pierce National's and Owens's negligence was relevant because it related to Sell's 

assertion of the affirmative defense of intervening and superseding negligence, for 

which Sell had the burden of proof, not because they settled. See Small, 316 S.C. 

at 481, 450 S.E.2d at 611 (noting intervening and superseding negligence is an 

affirmative defense); Cole v. S.C. Elec. & Gas, Inc., 355 S.C. 183, 195, 584 S.E.2d 

405, 412 (Ct. App. 2003) ("It is well established that a party pleading an 

affirmative defense has the burden of proving it."), aff'd as modified on other 

grounds, 362 S.C. 445, 608 S.E.2d 859 (2005). The fact that Sell may be entitled 

to a setoff of any judgment the jury enters against him does not preclude him from 

offering evidence to show the jury why it should not enter a judgment against him 

at all. See § 15-38-15(D) ("A defendant shall retain the right to assert that another 

potential tortfeasor, whether or not a party, contributed to the alleged injury or 

damages and/or may be liable for any or all of the damages alleged by any other 

party."). Therefore, we find Sell did not "fashion and extract a benefit from the 

fact that Pierce National and Owens" had settled and did not exceed the emptychair defense. See Riley v. Ford Motor Co., 414 S.C. 185, 197–98, 777 S.E.2d 

824, 831 (2015) (finding the defendant improperly extracted a benefit from the 

settlement between the plaintiff and a prior codefendant when the court 

reapportioned the allocation of settlement proceeds between the settling parties in a 

manner that decreased the defendant's liability). 

Dawkins also asserts that after allowing Sell to present evidence that Dawkins had 

sued Pierce National and Owens, the court should have allowed him to reveal to 

the jury that he had settled with Pierce National and Owens as well as the amount 

of the settlement. Dawkins asserts that by allowing the jury to learn he originally 

sued Pierce National and Owens without instructing the jury (1) of his settlement 

with both parties, (2) of the amount of the settlement, and (3) that Sell would 

receive credit for that amount, the court "undoubtedly left the jury with the belief 
 

that Dawkins had been fully compensated by Pierce National and Owens." This 

argument is unpersuasive because mere knowledge of a suit between Dawkins and 

the former defendants would not "undoubtedly" lead the jury to assume Dawkins 

had been fully compensated. Moreover, Dawkins cites no supporting authority for 

this proposition, and this request goes beyond the parameters set forth in Lucht v. 

Youngblood for the proper procedure when the jury learns the plaintiff previously 

sued another in the same or a related action. 266 S.C. 127, 221 S.E.2d 854 (1976). 

In that case, our supreme court stated that when there is a concern that admissible 

evidence could indirectly inform the jury that another defendant has been released 

from the action due to a settlement, the court should admit the evidence and 

"simultaneously charge the jury that a plaintiff may choose which defendant he 

wishes to sue and that if any actions against a former defendant are relevant, they 

would be a matter for the court and not for the jury." Id. at 135, 221 S.E.2d at 858. 

Dawkins did not request the trial court issue such an instruction, and his request to 

disclose the amount of the settlement extends beyond the guidance provided by 

Lucht, which specifically stated that evidence of the amount should not be 

presented to the jury. See id. at 134, 221 S.E.2d at 858. In light of the above 

reasoning, the trial court did not err in denying Dawkins's motion for a new trial on 

this ground. Thus, we affirm the trial court on this issue. 

CONCLUSION 

Based on the foregoing, the trial court is 

AFFIRMED.4 

KONDUROS and HILL, JJ., concur. 

4

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