Myers v. Dollar General Corporation

Filing 73

ORDER denying 53 Motion for Judgment NOV. Signed by Magistrate Judge Mary Gordon Baker on 6/1/2017.(arog, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Paulette A. Myers,

v.
Dollar General Corporation,

) C.A. No.: 2:15-cv-02869-MGB
)
Plaintiff, )
)
)
ORDER
)
)
)
Defendant. )

Plaintiff filed the instant action in the Georgetown County Court of Common Pleas on May
14, 2015; Defendant subsequently removed the case to this court. (See generally Dkt. No. 1.) After
the parties consented to having the case referred to a Magistrate Judge, the Honorable Richard M.
Gergel issued an Order on May 26, 2016 referring the case to the undersigned. (Dkt. No. 18.)
Jury selection was held on August 23, 2016, and the matter was tried before a jury on August
29, 2016 and August 30, 2016. (Dkt. No. 33; Dkt. No. 41; Dkt. No. 45.) On August 29, 2016, the
jury returned a verdict in favor of the Plaintiff on Plaintiff’s claims for negligence and slander; the
jury returned a verdict in favor of Defendant on Plaintiff’s claim for false imprisonment. (Dkt. No.
43.)1 On August 30, 2016, the jury awarded Plaintiff $250,000 in punitive damages on her claim for
slander but found that Plaintiff was not entitled to punitive damages on her claim for negligence.
(Dkt. No. 48.) Judgment was entered on August 31, 2016. (Dkt. No. 51.)
On September 28, 2016, Defendant filed the instant Motion for Judgment Notwithstanding
the Verdict (“JNOV”). (Dkt. No. 53; see also Dkt. No. 54.) On November 15, 2016, Plaintiff filed
a Response in Opposition to Defendant’s motion. (See Dkt. No. 63.) For the reasons set forth herein,
Defendant’s motion (Dkt. No. 53) is denied.
1

The jury awarded Plaintiff actual damages of $25,000 on her negligence claim and $75,000 on her slander
claim. (Dkt. No. 43.)
1

STANDARD OF REVIEW
Pursuant to Rule 50 of the Federal Rules of Civil Procedure, a district court may grant JNOV
if “the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find
for the [non-moving] party.” FED. R. CIV. P. 50(a); see also FED. R. CIV. P. 50(b). In evaluating a
motion for JNOV, the court gives the non-movant “‘the benefit of every legitimate inference in his
favor’” and denies the motion if “‘there was evidence upon which a jury could reasonably return a
verdict’” for the non-movant. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)
(quoting Abasiekong v. City of Shelby et al., 744 F.2d 1055, 1059 (4th Cir. 1984)). In ruling on a
motion for JNOV, the court does not “retry factual findings or credibility determinations reached
by the jury.” Id. (citing Duke v. Uniroyal, Inc., 928 F.2d 1413, 1419 (4th Cir. 1991)). The court
“assume[s] that testimony in favor of the non-moving party is credible, ‘unless totally incredible on
its face,’ and ignore[s] the substantive weight of any evidence supporting the moving party.” Id.
(citing Duke, 928 F.2d at 1419).
A motion for a new trial, pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, “is
governed by a different standard.” Id. The Fourth Circuit “ha[s] recognized that,” pursuant to Rule
59(a),
[T]he district court must “set aside the verdict and grant a new trial[] if . . . (1) the
verdict is against the clear weight of the evidence, or (2) is based upon evidence
which is false, or (3) will result in a miscarriage of justice, even though there may
be substantial evidence which would prevent the direction of a verdict.”
Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir. 2014) (quoting Knussman v.
Maryland, 272 F.3d 625, 639 (4th Cir. 2001)).
DISCUSSION
In its post-trial motions, Defendant states that it “moves the Court, pursuant to Rules 50(b),
59, and 60 of the Federal Rules of Civil Procedure and other applicable law, for an order requiring
2

[P]laintiff to elect one measure of recovery for the wrong alleged, granting Defendant judgment as
a matter of law or altering or amending the judgment entered in this case . . . , and for a new trial.
. . .” (Dkt. No. 53 at 1 of 9.)2 Defendant first contends that Plaintiff “should be required to elect the
jury verdict upon which judgment should be entered against [the] Defendant, and the judgment
should be altered and amended to clarify that only the verdict elected by Plaintiff constitutes a
judgment against Defendant.” (Dkt. No. 54 at 1.) Next, Defendant seeks relief pursuant to Rule
50(b), asserting it is entitled to judgment as a matter of law as to Plaintiff’s claim for slander
“because the only reasonable inference from the evidence presented at trial is that the subject
statement was privileged and that privilege was not abused.” (Dkt. No. 54 at 5.) Defendant also
seeks relief pursuant to Rule 59, asserting it is entitled to a new trial for the following reasons:
A. Defendant is entitled to a new trial because the jury’s verdict was inconsistent[;]
B. The Court erred in submitting punitive damages to the jury because Plaintiff failed
to present any clear and convincing evidence of actual malice[; and]
C. Defendant is entitled to a new trial because no evidence was presented at trial that
Defendant’s conduct was reckless, wanton or willful, [and] the verdict shocks the
conscience and was the result of caprice, passion and prejudice.

2

Defendant stated that it filed its motion “pursuant to Rules 50(b), 59, and 60 of the Federal Rules of Civil
Procedure and other applicable law.” (Dkt. No. 53 at 1 of 9.) It is not clear that Rule 60 is applicable to the instant
motion. Rule 60(b) provides as follows:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just
terms, the court may relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b). In any event, from a review of Defendant’s Memorandum in Support of Defendant’s PostTrial Motions, it does not appear that Defendant is relying upon Rule 60. (See generally Dkt. No. 54.)
3

(Dkt. No. 54 at 8-15.) Finally, Defendant contends that it is “entitled to a new trial nisi remittitur
because the verdict is excessive and unduly liberal.” (Dkt. No. 54 at 16.)
Before addressing Defendant’s arguments, the undersigned will briefly review the Plaintiff’s
allegations in this case. Plaintiff alleged that on or about November 8, 2014, she was a business
invitee at the Dollar General store located in McClellanville, South Carolina, when Defendant’s
employees asserted that she was shoplifting. (Compl. ¶¶ 3-4.) She alleged that as a result of the
actions of Defendant’s employees, she “was detained and served with a Uniform Traffic Ticket for
suspected shoplifting.” (Compl. ¶ 5.) Plaintiff further alleged that she “was not charged with
shoplifting but detained and held,” and that she “asked to use the bathroom, but was denied such that
she urinated on herself.” (Compl. ¶ 6.) She asserted that Defendant “was negligent, reckless, willful
and wanton, through its officers, agents and/or employees, in one or more of the following”
manners:
a. in calling the police and asserting that Plaintiff was shoplifting;
b. in calling the police and asserting that Plaintiff had stolen something;
c. in calling the police and causing the Plaintiff to be detained when there was no
probable cause or evidence;
d. in banning Plaintiff from the Dollar General;
e. in failing to use reasonable precautions and in insisting that Plaintiff be detained;
[and]
f. in not taping the Plaintiff with a recorder.
(Compl. ¶ 7.) Plaintiff’s claims for negligence, false imprisonment, and slander were submitted to
the jury. As noted above, the jury found in favor of Plaintiff on her claims for negligence and
slander; the jury found in favor of the Defendant on Plaintiff’s claim for false imprisonment. (Dkt.
No. 43.)
4

Having reviewed the factual allegations in this case, the undersigned now turns to
Defendant’s post-trial arguments.
I. Election of Remedy
Defendant contends that Plaintiff “should be required to elect the jury verdict upon which
judgment should be entered against the Defendant, and the judgment should be altered and amended
to clarify that only the verdict elected by Plaintiff constitutes a judgment against Defendant.” (Dkt.
No. 54 at 1.) As Defendant notes, the jury awarded Plaintiff actual damages of $25,000 on her
negligence claim and $75,000 on her slander claim. (Dkt. No. 43.) Defendant asserts the “only
evidence presented to the jury at trial that could potentially support a finding of negligence or
slander on the part of Defendant or its store manager was the manager’s act of calling the police to
report a suspected shoplifter.” (Dkt. No. 54 at 2.) While Defendant denies that any wrong was
committed, Defendant states that “if there was a wrong committed . . . , that one act of calling the
police was the only wrong and there could be no double recovery for that single wrong.” (Dkt. No.
54 at 2.)
Defendant cites Jones by Robinson v. Winn-Dixie Greenville, Inc., 318 S.C. 171, 456 S.E.2d
429 (Ct. App. 1995), in support of its argument. (See Dkt. No. 54 at 2-4.) In Jones by Robinson, the
jury awarded the plaintiff damages on his claims for false imprisonment as well as assault and
battery. Jones by Robinson, 318 S.C. at 173, 456 S.E.2d at 430-31. Watson, an employee of WinnDixie, suspected Jones of shoplifting shoe inserts, even though Watson “admitted he lost sight of
Jones several times and at no time did he see Jones conceal the shoe inserts.” Id. at 173-74, 456
S.E.2d at 431. Watson confronted Jones about the shoe inserts, and Jones was escorted out of the
store after he explained to Watson that he put the inserts on another aisle. Id. at 174, 456 S.E.2d at
431. The South Carolina Court of Appeals noted the following evidence:
Jones testified that once they were outside the store, Watson began cursing
5

and threatening him. Watson admitted telling Jones he was “going to kick his [a __
__]” if he came back in the store again. Watson then grabbed Jones by the arm and
led him back inside the store and into the store’s public restroom. Watson closed the
bathroom door, then told Jones to take down his pants, which Jones did. Watson was
standing in front of the door. Jones testified he complied with Watson’s request
because he was scared and nervous and did not know what to do. Finding no
evidence of any stolen merchandise, Watson allowed Jones to pull his pants back up
and walked him out of the bathroom.
As Jones exited the bathroom, he was confronted by policemen, whom
Watson had called after initially confronting Jones. Jones’ mother was also present
by this time. Watson then admitted to the police officers he found no store
merchandise on Jones’ person.
Id. at 174, 456 S.E.2d at 431.
The jury in Jones by Robinson returned verdicts of (a) $25,000 actual damages and $50,000
punitive damages on the claim for false imprisonment and (b) $25,000 actual damages and $50,000
punitive damages on the claim for assault and battery, but the trial court “reformed the verdict to one
award of $75,000 finding Jones was entitled to only one recovery.” Id. at 174, 456 S.E.2d at 431.
The South Carolina Court of Appeals found the trial judge erred by reforming the jury’s verdict
because an election of remedies was unnecessary. Id. at 175, 456 S.E.2d at 431. The court stated,
inter alia,
The doctrine of election of remedies involves a choice between different
forms of redress afforded by law for the same injury, or different forms of
proceeding on the same cause of action. Stated another way, election of remedies is
the act of choosing between different remedies allowed by law on the same state of
facts. Boardman v. Lovett Enterprises, Inc., 283 S.C. 425, 323 S.E.2d 784
(Ct.App.1984), rev’d on other grounds, 287 S.C. 303, 338 S.E.2d 323 (1985). Its
purpose is to prevent double redress for a single wrong. Save Charleston Foundation
v. Murray, 286 S.C. 170, 333 S.E.2d 60 (Ct.App.1985). Where a party has asserted
only one primary wrong, he is entitled to only one recovery. Boardman, 283 S.C.
425, 323 S.E.2d 784 (Ct.App.1984). However, the principle has no application where
two separate causes of action, each based on different facts, exists. Harmon v.
Jenkins, 282 S.C. 189, 318 S.E.2d 371 (Ct.App.1984).
Jones’ action for false imprisonment is not based upon the same elements as
6

his action for assault and battery. False imprisonment is the deprivation of one’s
liberty without justification. Caldwell v. K-Mart Corp., 306 S.C. 27, 410 S.E.2d 21
(Ct.App.1991). In order to recover under a theory of false imprisonment, the
complainant must establish (1) the defendant restrained him; (2) the restraint was
intentional; and (3) the restraint was unlawful. Andrews v. Piedmont Air Lines, 297
S.C. 367, 377 S.E.2d 127 (Ct.App.1989). The tort of false imprisonment does not
require an actual injurious touching. False imprisonment may be committed by
words alone, or by acts alone or by both, and by merely operating on the will of the
individual, or by personal violence, or by both. Gathers v. Harris Teeter
Supermarket, Inc., 282 S.C. 220, 317 S.E.2d 748 (Ct.App.1984). On the other hand,
an assault occurs when a person has been placed in reasonable fear of bodily harm
by the conduct of the defendant, and a battery is the actual infliction of any unlawful,
unauthorized violence on the person of another, irrespective of its degree. Id.
We agree with Jones there is evidence he was the victim of both false
imprisonment and assault and battery and these distinctive injuries occurred at
different times and were the result of separate and distinct actions on Watson’s part.
Watson assaulted Jones when he threatened him outside the store. The battery
occurred when Watson thereafter grabbed Jones’ arm and escorted him back into the
store. Even if Watson had taken no further action against Jones, Jones could have
recovered damages for assault and battery. Watson, however, did take further
injurious action against Jones when he escorted Jones into the bathroom, stood with
his back to the door and compelled Jones to pull down his pants before allowing him
to leave. We therefore find no merit in Winn-Dixie’s argument that Jones is entitled
to only a single recovery for a single wrong.
Jones by Robinson, 318 S.C. at 175-76, 456 S.E.2d at 431-32.
Defendant contends the Jones by Robinson case is distinguishable from the case sub judice,
stating,
The Jones by Robinson case is clearly distinct from the instant case in which
one alleged wrong resulted in injury to Plaintiff, and under both the negligence and
slander causes of action the alleged injury of Plaintiff is the same. In the present
case, the only damage Plaintiff has allegedly suffered was the result of the single act
of the store manager calling the police and reporting suspected shoplifting. This is
in contrast from the Jones by Robinson case where the Plaintiff suffered unique
damages resulting from an assault and battery and separate and distinct damages
arising from a separate action of the Defendant in detaining her at a later time and
place.

7

(Dkt. No. 54 at 3.) Defendant further states,
[U]nlike the assault and battery claim and the false imprisonment claim in the Jones
by Robinson case, here Myers did not suffer an actionable injury based on her
slander claim alone that was separate and distinct from an injury resulting from her
negligence claim alone. To allow cumulative verdicts in this case would result in
double recovery for a single alleged wrong, which is in conflict with the basic
purpose of the election of remedies doctrine.
(Dkt. No. 54 at 4.) Plaintiff argues election of remedies is not warranted because “there is evidence
of both slander and negligence.” (Dkt. No. 63 at 13.) Plaintiff asserts the “slander was calling the
Plaintiff a thief to the police and in front of Kareem Singleton and others,” while the “negligence
was calling the police for an incident that happened two days prior to this incident and
misidentifying the Plaintiff.” (Dkt. No. 63 at 13.)
The undersigned concludes election of remedies is not warranted in the case sub judice. As
in Jones by Robinson, Plaintiff’s causes of action are based upon different elements.3 Jones by
Robinson, 318 S.C. at 175, 456 S.E.2d at 432. Moreover, “[t]he tort of defamation allows a plaintiff
to recover for injury to his or her reputation as the result of the defendant’s communications to
others of a false message about the plaintiff.” Swinton Creek Nursery v. Edisto Farm Credit, ACA,
334 S.C. 469, 484, 514 S.E.2d 126, 133 (1999) (citation omitted). Damages for the claim of
negligence can include loss of enjoyment of life and medical expenses. See, e.g., Boan v. Blackwell,
343 S.C. 498, 541 S.E.2d 242 (2001) (noting that loss of enjoyment of life is a compensable element
of damages in negligence claim); Oliver v. Blakeney, 244 S.C. 565, 572, 137 S.E.2d 772, 776 (1964)
(stating, in the context of a negligence claim, “The elements of damage which the jury could

3

The elements of a claim for slander are set forth infra at page 10. The elements of a claim for negligence
are as follows:
(1) a duty of care owed by defendant to plaintiff; (2) breach of that duty by a negligent act or
omission; (3) resulting in damages to the plaintiff; and (4) damages proximately resulted from the
breach of duty.
Fettler v. Gentner, 396 S.C. 461, 466-67, 722 S.E.2d 26, 29 (Ct. App. 2012) (quotation marks and citation omitted).
8

properly consider in determining the amount which plaintiff was entitled to recover included her loss
of earning power, pain and suffering, and medical expenses, including any future damages resulting
from permanent injuries.”). Damages to reputation are not part of damages on a claim for
negligence, and the jury was instructed as to the different types of damages for each claim.4 (See Tr.
at 164-65, 172.) In sum, election of remedies is not warranted because Plaintiff presented evidence
of both slander and negligence; the elements of those two causes of action are distinct; and the
damages are also distinct. Defendant’s request to require Plaintiff to elect a remedy is denied.
II. Privilege
In seeking relief pursuant to Rule 50(b),5 Defendant asserts that it is entitled to judgment as
a matter of law as to Plaintiff’s claim for slander “because the only reasonable inference from the
evidence presented at trial is that the subject statement was privileged and that privilege was not
abused.” (Dkt. No. 54 at 5.) Defendant states, “The only evidence presented at trial was that
Defendant’s store manager communicated to the proper authorities her honest suspicions that
Plaintiff had shoplifted or was in the process of shoplifting. Therefore, there was no evidence
presented that Defendant’s store manager acted outside the scope of her privilege.” (Dkt. No. 54 at
6.)

4

The jury was also instructed as follows: “You must apply the instructions I give you concerning the claim
for negligence only to that claim. . . . Similarly, you must apply the instructions I give you concerning slander only
to that claim.” (Tr. at 162.)
5

Plaintiff states that she “believes and asserts that the only arguments which Defendant can make under
[Rule] 50(b) would be arguments made prior to the jury getting the case.” (Dkt. No. 63 at 3.) Plaintiff states,
In this case, Defendant’s FRCP motion had three grounds: (1) there is no evidence of extreme
outrageous conduct that is utterly intolerable (Tr. p 136 lines 22-25; p. 137 lines 1-5); (2) the
slander cause of action has a qualified privilege for statements made regarding the prosecution of
whether a crime had been committed (Tr. p. 137, lines 1-25); (3) the false imprisonment cause of
action should be dismissed because there has been no probable cause (Tr. p. 138, lines 1-25); (4)
the Plaintiff has not carried [her] burden of proof in proving the elements of negligence (Tr. p. 139
lines 8-12).
(Dkt. No. 63 at 3.) From a review of Defendant’s motion, it appears the only issue raised pursuant to Rule 50(b) is
the privilege issue, which Defendant did raise prior to the jury obtaining the case. (See generally Dkt. No. 54.)
9

Plaintiff, on the other hand, argues that “[b]ecause Defendant’s employee accused Plaintiff
of a crime, the publication of that accusation loses its character as privileged and is actionable if
there is such a disregard of the rights of the person injured to amount to malice.” (Dkt. No. 63 at 15.)
The undersigned agrees with Plaintiff. “The tort of defamation allows a plaintiff to recover
for injury to his or her reputation as the result of the defendant’s communications to others of a false
message about the plaintiff.” Erickson v. Jones Street Publishers, LLC, 368 S.C. 444, 464, 629
S.E.2d 653, 664 (2006) (citing Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 508, 506
S.E.2d 497, 501 (1998)). “Slander is a spoken defamation while libel is a written defamation or one
accomplished by actions or conduct.” Id. at 465, 629 S.E.2d at 664 (citing Holtzscheiter, 332 S.C.
at 508, 506 S.E.2d at 501). The Supreme Court of South Carolina further explained in Erickson,
In order to prove defamation, the plaintiff must show (1) a false and defamatory
statement was made; (2) the unprivileged publication was made to a third party; (3)
the publisher was at fault; and (4) either actionability of the statement irrespective
of special harm or the existence of special harm caused by the publication.
Id. at 465, 629 S.E.2d at 664 (citations omitted).
As explained in Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 514
S.E.2d 126 (1999), “[i]n a defamation action, the defendant may assert the affirmative defense of
conditional or qualified privilege.” Swinton Creek, 334 S.C. at 484, 514 S.E.2d at 134. Pursuant to
this defense, “one who publishes a defamatory matter concerning another is not liable for the
publication if (1) the matter is published upon an occasion that makes it conditionally privileged,
and (2) the privilege is not abused.” Id. at 484, 514 S.E.2d at 134 (citing Restatement (Second) of
Torts, § 593 (1977); Bell v. Bank of Abbeville, 208 S.C. 490, 38 S.E.2d 641 (1946)). In Fountain v.
First Reliance Bank, 398 S.C. 434, 730 S.E.2d 305 (2012), the Supreme Court of South Carolina
explained as follows:
“‘The essential elements of a conditionally privileged communication may be
10

enumerated as good faith, an interest to be upheld, a statement limited in its scope
to this purpose, a proper occasion, and publication in a proper manner and to proper
parties only.’” Manley v. Manley, 291 S.C. 325, 331, 353 S.E.2d 312, 315 (Ct. App.
1987) (quoting Conwell v. Spur Oil Co. of W.S.C., 240 S.C. 170, 178, 125 S.E.2d
270, 274-75 (1962)).
Fountain, 398 S.C. at 444, 730 S.E.2d at 310. “Where the occasion gives rise to a qualified privilege,
there is a prima facie presumption to rebut the inference of malice, and the burden is on the plaintiff
to show actual malice or that the scope of the privilege has been exceeded.” Swinton Creek, 334 S.C.
at 484-85, 514 S.E.2d at 134 (citing Fulton v. Atl. Coast Line R. Co., 220 S.C. 287, 67 S.E.2d 425
(1951); 53 C.J.S. Libel and Slander § 79 (1987)); see also Murray v. Holnam, Inc., 344 S.C. 129,
142, 542 S.E.2d 743, 750 (Ct. App. 2001) (“A qualified privilege does not prevent liability for
defamation where the statement is made with actual malice. Common law actual malice means the
defendant acted with ill will toward the plaintiff or acted recklessly or wantonly, meaning with
conscious indifference toward the plaintiff’s rights.” (citations omitted)).
In the case sub judice, the Defendant asserted the defense of a qualified privilege, stating,
[F]or the slander cause of action, there’s a qualified privilege, Your Honor, as the
Court knows by the statements made and the prosecution of the inquiry regarding
crime which has been committed, the purpose of detecting and bringing criminal -and if it -- when that privilege applies, which is what we have here, a statement to
the police, then the plaintiff must show malice. And we would submit that there’s
been no testimony of ill will, malice or anything along those lines from Miss Tyler.
She simply called the police and reported it was suspicious. And as such, because
there’s been no evidence of malice or ill will, we request a directed verdict as to that
cause of action.
(Tr. at 137-38.) Plaintiff argued the matter was for the jury to determine, stating:
[T]he law of torts . . . says it is normally a jury determination as to whether a
qualified privilege is going to be proven or not. In this particular case you’ve got the
defendant’s agent waiting two days to call the police. You’ve also got a video that
doesn’t show anything about who that person might have been. And we think that
those two things would defeat the privilege. That’s, again, for the jury to decide.
(Tr. at 138.) The undersigned concluded there was “enough evidence for the qualified privilege issue
11

to go to the jury.” (Tr. at 140.)
As noted above, in evaluating a motion for JNOV, the court gives the non-movant “‘the
benefit of every legitimate inference in his favor’” and denies the motion if “‘there was evidence
upon which a jury could reasonably return a verdict’” for the non-movant. Cline v. Wal-Mart Stores,
Inc., 144 F.3d 294, 301 (4th Cir. 1998) (quoting Abasiekong v. City of Shelby et al., 744 F.2d 1055,
1059 (4th Cir. 1984)). Plaintiff presented evidence upon which a jury could find that the Defendant
acted with common law actual malice;6 accordingly, Defendant’s request for judgment as a matter
of law as to the slander cause of action is denied.
Wesley Funsch, a deputy with the Charleston County Sheriff’s Office, testified that he was
dispatched to the Dollar General store in McClellanville in November of 20157 after Ms. Tyler
called consolidated dispatch; he stated that when he arrived at the store, Ms. Tyler “pointed to Miss
Myers and Mr. [Kareem] Singleton, and stated that those were the people she was talking about.”
(Tr. at 22, 25-26.) Deputy Funsch indicated that Ms. Tyler had called dispatch and stated that
Plaintiff and Mr. Kareem Singleton were shoplifting. (Tr. at 26-27.) Funsch further testified as
follows:
Q. And was [Ms. Tyler’s accusation] based on a videotape that Miss Tyler had
viewed several days earlier?
A. Um, partially. And then the other part was she thought it was suspicious that they
both entered the store together, got two separate carts and then parted ways. And she
felt that Miss Myers was trying to distract her, while Mr. Singleton was in the back
of the store.
At that time she made the phone call to our consolidated dispatch and asked
for a deputy. And she believed--she told me she believed that Miss Myers overheard
that, and told Singleton--Mr. Singleton, and that at that time they both left the store
6

The undersigned further notes that Plaintiff testified Ms. Tyler accused her of stealing in front of her
nephew, Kareem Singleton. (See Tr. at 118.)
7

Although Deputy Funsch initially indicated the incident occurred in November of 2015, (Tr. at 25), this
incident occurred in November of 2014.
12

without having anything in their carts.
(Tr. at 27.) Deputy Funsch stated that when he arrived at the store, he detained Plaintiff and Mr.
Kareem Singleton; he took them to the sidewalk in front of the store. (Tr. at 27-28.) Funsch stated
that he stayed with Plaintiff and Kareem Singleton on the sidewalk while his partner reviewed the
surveillance footage. (Tr. at 27-28.) Funsch also testified as follows:
Deputy Schroepfer exited the store and advised that Miss Tyler did not suspect them
of shoplifting on today’s date. He continued to advise me that on surveillance
footage on November 6, 2014, that shows two subjects that appeared, in his
estimation, to be Mr. Singleton and Miss Myers in the store together. And the
footage shows who he thought was Miss Myers opening a package in the store with
her mouth, but then walked out of the camera frame before they could see anyone
putting anything on anyone’s person.
(Tr. at 29.) Funsch stated that he issued Plaintiff and Mr. Singleton “field information cards” that
indicated “suspected shoplifting.” (Tr. at 29-30.)
Theresa Tyler, general manager of the Dollar General in McClellanville, testified that prior
to the incident in November of 2014, she had seen Plaintiff in the store several times, and Plaintiff
had always previously paid for her items. (Tr. at 38.) Ms. Tyler testified that on November 6, 2014,
she watched some of the videotape for the aisle where she found an empty package. (Tr. at 39-40,
59.) She testified that she thought the person on the tape was the Plaintiff, though she “did not know
her name . . . then,” only her face. (Tr. at 41, 61.) She called the police two days later, when Plaintiff
and Kareem Singleton came into the store. (Tr. at 59-63.) Ms. Tyler testified that when the police
came to the store, she told them that Plaintiff had stolen something. (Tr. at 50.) Ms. Tyler testified
that she suspected Plaintiff of shoplifting both on November 6 and November 8 of 2014. (Tr. at 68.)
Ms. Tyler testified that although she stated in her deposition that she “knew” it was Plaintiff
on the tape, and that she “believed” Plaintiff “stole stuff from the store,” Ms. Tyler was “wrong at
that time,” and the tape does not show Plaintiff stealing anything. (Tr. at 41-46.) She testified that
13

after her deposition, she “went back and watched the video further,” “really watched it.” (Tr. at 44.)
Plaintiff testified that she attended Ms. Tyler’s deposition and that before the deposition began, Ms.
Tyler told Plaintiff, “I know it’s you. I know you stole. I know it’s you.” (Tr. at 125.) Ms. Tyler
testified at trial that she “never saw [Plaintiff] with [her] own eyes steal anything from Dollar
General,” and “the only tape that we have” does not show Plaintiff stealing anything from Dollar
General. (Tr. at 45-46.) She also stated that she did not see Mr. Singleton take anything. (Tr. at 47.)
Ms. Tyler testified that part of her job is to “make sure that everything that’s in the store is
paid for,” and “if [she] can reduce the loss in the store,” she “can get paid more money.” (Tr. at 51.)
She testified that in 2014, she got paid approximately $4,000 “more for trying to reduce the loss in
the store.” (Tr. at 52.)
The video from November 6, 2014 was entered into evidence and played for the jury. As to
the surveillance video, Plaintiff testified as follows:
Q. This is not on November the 8th, this is on November the 6th. Now, was your hair
like the hair of the lady on this particular –
A. No.
Q. Are you the same age as she is?
A. No.
Q. I hate to ask you this; are you the same weight she is?
A. No.
Q. Are you as young looking as she is?
A. No.
(Tr. at 114.)
The undersigned concludes, as she did at trial, that there was sufficient evidence such that
14

the jury could conclude the Defendant acted “recklessly or wantonly, meaning with conscious
indifference toward the plaintiff’s rights.” Murray, 344 S.C. at 142, 542 S.E.2d at 750. The jury saw
the videotape, and, giving Plaintiff the benefit of every legitimate inference in her favor, the jury
could have concluded that Defendant acted recklessly, or with conscious indifference towards the
Plaintiff’s rights, in reporting her for shoplifting. The record contains the video, which is not of high
quality, as well as the following evidence: that the hairstyle of the woman in the video did not match
Plaintiff’s; that the woman in the video is not the same age as the Plaintiff; and that the woman in
the video is not the same weight as the Plaintiff. The jury could have reasonably concluded that,
aside from skin color, the Plaintiff and the woman in the video shared very few physical attributes
in common. Defendant’s motion for JNOV as to Plaintiff’s claim for slander due to a qualified
privilege is therefore denied.
III. Consistency of Verdict
In seeking a new trial pursuant to Rule 59, Defendant first asserts it is “entitled to a new trial
because the jury’s verdict was inconsistent.” (Dkt. No. 54 at 8.) Defendant contends that “in order
for the jury to find for the Defendant on the false imprisonment claim, it had to find that Defendant’s
store manager had reasonable cause to believe that Plaintiff had committed the crime of shoplifting.”
(Dkt. No. 54 at 8.) However, in order to award Plaintiff actual damages and subsequently punitive
damages on the claim for slander, Defendant asserts the “jury had to find that Defendant’s store
manager acted with ill will toward Plaintiff or with conscious indifference towards Plaintiff’s
rights.” (Dkt. No. 54 at 9.) Defendant states,
Based on the elements charged to the jury of the two causes of action above,
the jury verdict as to those causes of action is inconsistent. It is inconceivable that
the jury could have found that Defendant’s store manager had reasonable cause to
believe that Plaintiff committed the crime of shoplifting but at the same time had ill
will toward Plaintiff or conscious indifference towards Plaintiff’s rights. In other
words, on one cause of action, the jury found that Defendant’s store manager’s act
15

of calling the police to report a suspected shoplifter was reasonable but, with the
other cause of action, found that the act was performed with ill will or malice
towards Plaintiff. It is logically inconsistent for a jury to find that the store manager
called the police out of both a reasonable belief as to suspected shoplifting and out
of ill will and malice toward the Plaintiff. The jury’s inconsistent verdicts are
indicative of jury confusion or misunderstanding as to the elements of the respective
causes of action.
(Dkt. No. 54 at 9.)
Defendant is not entitled to a new trial based on its argument that the verdicts are
inconsistent. The undersigned finds no inconsistency. As noted in Law v. South Carolina
Department of Corrections, 368 S.C. 424, 629 S.E.2d 642 (2006),
The essence of the tort of false imprisonment consists of depriving a person of his
liberty without lawful justification. To prevail on a claim for false imprisonment, the
plaintiff must establish: (1) the defendant restrained the plaintiff, (2) the restraint was
intentional, and (3) the restraint was unlawful.
Law, 368 S.C. at 440, 629 S.E.2d at 651 (citations omitted). Although the jury did find for Defendant
on the claim for false imprisonment, there was testimony at trial that it was not the Defendant that
restrained the Plaintiff, but the police. Deputy Funsch testified that when he and Deputy Schroepfer
arrived at the Dollar General, Ms. Tyler pointed out Plaintiff and Mr. Kareem Singleton, and “stated
that those were the people she was talking about.” (Tr. at 26.) Deputy Funsch testified that he
detained Plaintiff and Mr. Singleton on the sidewalk in front of the store. (Tr. at 27-28.) According
to Deputy Funsch, when he arrived at the store, Plaintiff and Mr. Singleton had just entered their
parked vehicle; Funsch “told them to put [the vehicle] in park and had them step out the vehicle.”
(Tr. at 33.) Deputy Funsch’s testimony is consistent with Ms. Tyler’s testimony; Ms. Tyler testified
that she when called the police on November 8, she had not said anything to Plaintiff prior to
Plaintiff leaving the store, other than “hello, how’s she doing, like [Tyler] do[es] everybody that
comes in the store.” (Tr. at 62-64.) Ms. Tyler further testified as follows:

16

Q. So the police arrive in the parking lot, and tell me what happens next.
A. I’m still on the phone with dispatch, and then I hear the police officer saying, “Is
that them?” And I turned around and look, and I pointed out the truck that they was
in, I said, “That’s them right there.” And I was asked to go inside, that they would
handle the rest.
(Tr. at 64.)
On this evidence, the jury could have readily concluded that Defendant did not restrain
Plaintiff. Accordingly, to the extent Defendant argues that “in order for the jury to find for
Defendant on the false imprisonment claim, it had to find that Defendant’s store manager had
reasonable cause to believe that Plaintiff had committed the crime of shoplifting,” the undersigned
disagrees. (See Dkt. No. 54 at 8.) The verdicts on the claims for false imprisonment and slander are
not inconsistent, as jury heard evidence that Ms. Tyler called the police, but that Deputy Funsch
actually restrained the Plaintiff. In light of the foregoing, Defendant’s request for a new trial on the
basis of inconsistent verdicts is denied.
IV. Actual Malice
Defendant asserts it is entitled to a new trial pursuant to Rule 59 because the Court “erred
in submitting punitive damages to the jury because Plaintiff failed to present any clear and
convincing evidence of actual malice.” (Dkt. No. 54 at 10.) Defendant asserts the Court erroneously
failed to charge the jury “that it had to find evidence of actual malice in order to award punitive
damages to Plaintiff on her slander claim,” and “[a]s such, the jury was never charged with the
proper elements and standard that must be met in order to award punitive damages in a defamation
case in South Carolina.” (Dkt. No. 54 at 11.) Defendant argues the jury should have been charged
that, in order to award punitive damages on the claim for slander, the Plaintiff had to prove, “by
clear and convincing evidence, that the statement was made with actual malice, meaning the
Defendant either realized the statement was false or had serious reservations about its truth.” (Dkt.
17

No. 54 at 11.)
The jury was charged as follows:
In the earlier segment of the trial the burden of proof was by a preponderance
of the evidence, or the greater weight of the evidence. That is not the same burden
of proof the plaintiff has in this portion of the trial. The plaintiff has a higher burden
of proof here. In order to recover punitive damages, plaintiff has the burden of
proving entitlement to punitive damages by clear and convincing evidence that the
defendant’s actions were willful, wanton, malicious or in reckless disregard of the
plaintiff’s rights.
A conscious failure to exercise due care constitutes willfulness. Punitive
damages are allowed even when the defendant does not realize that he is invading
the plaintiff’s rights, so long as the act is committed in such a manner that a person
of ordinary prudence would conclude it was done in reckless disregard of the rights
of another.
The plaintiff can not recover punitive damages based on negligent conduct.
Negligence is the doing of some act which a person of ordinary prudence would not
have done under similar circumstances, or failure to do what a person of ordinary
prudence would have done under similar circumstances. Mere negligence will not
support an award of punitive damages.
(Tr. at 226-27.)
Defendant is not entitled to a new trial. As the Supreme Court of South Carolina noted in
Erickson v. Jones Street Publishers, LLC, 368 S.C. 444, 629 S.E.2d 653 (2006), “in order to recover
punitive damages from a media defendant, a private-figure plaintiff must prove by clear and
convincing evidence that the defendant acted with constitutional actual malice, i.e., the defendant
published the statement with knowledge it was false or with reckless disregard of whether it was
false or not.” Erickson, 368 S.C. at 466-67, 629 S.E.2d at 665 (citing Gertz v. Robert Welch, Inc.,
418 U.S. 323, 346-50 (1974); Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 512, 506
S.E.2d 497, 503 (1998)). Defendant cites the following passage from Gertz in support of its
argument that the court’s jury instructions were erroneous: “[W]e hold that the States may not permit
recovery of presumed or punitive damages, at least when liability is not based on a showing of

18

knowledge of falsity or reckless disregard for the truth.” Gertz, 418 U.S. at 349.
Gertz, however, involved a media defendant. See generally Gertz, 418 U.S. 323. In Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), a plurality of the Supreme Court
stated,
In Gertz . . . , we held that the First Amendment restricted the damages that a private
individual could obtain from a publisher for a libel that involved a matter of public
concern. More specifically, we held that in these circumstances the First Amendment
prohibited awards of presumed and punitive damages for false and defamatory
statements unless the plaintiff shows “actual malice,” that is, knowledge of falsity
or reckless disregard for the truth. The question presented in this case is whether this
rule of Gertz applies when the false and defamatory statements do not involve
matters of public concern.
Dun & Bradstreet, 472 U.S. at 751 (opinion of Powell, J.).8 Dun & Bradstreet involved a privatefigure plaintiff and a speech of purely private concern. Id. at 751-52. The plurality concluded that,
“in a case with such a configuration of speech and plaintiff, the showing of actual malice needed to
recover punitive damages under either New York Times or Gertz was unnecessary. . . . ”
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 774 (1986) (citing Dunn & Bradstreet, 472
U.S. 749; New York Times v. Sullivan, 376 U.S. 254 (1964); Gertz, 418 U.S. 323). The plurality in
Dun & Bradstreet stated, inter alia, “In light of the reduced constitutional value of speech involving
no matters of public concern, we hold that the state interest [in preserving private reputation]
adequately supports awards of presumed and punitive damages—even absent a showing of ‘actual
malice.’” Dun & Bradstreet, 472 U.S. at 761. In the case sub judice, the speech at issue did not
involve a matter of public concern, pertained to a private-figure plaintiff, and was made by a nonmedia defendant. Accordingly, Defendant’s request for a new trial is denied.

8

Both Justice Burger and Justice White concurred in the judgment. See Dun & Bradstreet, 472 U.S. at 76364 (Burger, J., concurring); id. at 765-74 (White, J., concurring).
19

V. Punitive Damages
Defendant further seeks a new trial pursuant to Rule 59 by contending the “verdict shocks
the conscience and was the result of caprice, passion and prejudice” because “no evidence was
presented at trial that Defendant’s conduct was reckless, wanton[,] or willful.” (Dkt. No. 54 at 11.)
Defendant asserts that a post-trial review of the factors required by Gamble v. Stevenson, 305 S.C.
104, 406 S.E.2d 350 (1991), “clearly indicate[s] that punitive damages were not appropriate in this
case.” (Dkt. No. 54 at 13.)
“A new trial absolute should be granted only if the verdict is so grossly excessive that it
shocks the conscience of the court and clearly indicates the amount of the verdict was the result of
caprice, passion, prejudice, partiality, corruption, or other improper motive.” Knoke v. S.C. Dep’t
of Parks, Recreation & Tourism, 324 S.C. 136, 141, 478 S.E.2d 256, 258 (1996) (citations omitted).
In Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991), the Supreme Court of South Carolina
instructed as follows:
Hereafter, to ensure that a punitive damage award is proper, the trial court shall
conduct a post-trial review and may consider the following: (1) defendant’s degree
of culpability; (2) duration of the conduct; (3) defendant’s awareness or
concealment; (4) the existence of similar past conduct; (5) likelihood the award will
deter the defendant or others from like conduct; (6) whether the award is reasonably
related to the harm likely to result from such conduct; (7) defendant’s ability to pay;
and finally, (8) as noted in Haslip, “other factors” deemed appropriate.
Gamble, 305 S.C. at 111-12, 406 S.E.2d at 354 (citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S.
1 (1991)); see also Mitchell, Jr. v. Fortis Ins. Co., 385 S.C. 570, 587, 686 S.E.2d 176, 185 (2009)
(“We now hold that Gamble remains relevant to the post-judgment due process analysis, but only
insofar as it adds substance to the Gore guideposts.” (citing BMW of N. Am., Inc. v. Gore, 517 U.S.
559 (1996))). In Gore, the Supreme Court provided the following “guideposts” for determining the
reasonableness of a punitive damages award: (1) the degree of reprehensibility, (2) the ratio of the
20

punitive damages award to the actual harm inflicted on the plaintiff, and (3) the comparison of the
punitive damages award and the civil or criminal penalties that could be imposed for comparable
misconduct. Gore, 517 U.S. at 575-85.
In the case sub judice, Plaintiff testified that she has been a minister in her church for ten
years. (Tr. at 106.) She testified that she went to church every day; when asked what she normally
did at church, she testified as follows:
I go to church, I am the CED director. That’s the Christian ed director. So what I do
is set the atmosphere and the spiritual growth and the learning system for the church.
Then I teach Sunday school. I minister to the congregation. And the biggest thing is,
is going out and teaching the folks. And like I said, I am the Christian ed director, so
I'm responsible for the spiritual growth of the church.
(Tr. at 107.) She would “travel with the kids” and was “responsible for driving the bus to take the
kids where they need[ed] to be.” (Tr. at 107.) She “drove the bus for the seniors,” and for the seniors
that are home bound, she would “go get the lunches, and . . . take th[em] back to the folks that can’t
come out.” (Tr. at 108.)
Plaintiff testified that on November 8, after she exited the Dollar General and had gotten into
the vehicle with her nephew Kareem Singleton, the police “came up and bang[ed] on the back of the
car” and told them to stop. (Tr. at 115-18.) Plaintiff further testified that Ms. Tyler then “came over
and she said, ‘I have y’all on video for shoplifting from last week.’” (Tr. at 118.) Deputy Funsch
testified that he detained Plaintiff and Mr. Kareem Singleton on the sidewalk in front of the store
while his partner reviewed surveillance footage. (Tr. at 27-28.) Plaintiff testified that while she was
outside with the police, she saw “all the people” from her church coming up. (Tr. at 118-19.) She
further testified that while she was being held outside, she asked the officer to use the restroom, but
that request was denied, and she urinated on herself. (Tr. at 119.)
Plaintiff testified that, as a minister, her character is “everything” because “you work with

21

children, you work with adults, grownups, and your character ha[s] to be right.” (Tr. at 106.) She
further testified as follows:
Q. And what has your reputation been as far as you understand in the South Santee
community?
A. Well, they -- and I always say they look forward for me helping. You know. It’s
always they can count on me, even if there’s a function going on and I don’t know
it was going on, they know that -- they know I’m responsible, they know they can
count on me, I will drive the kids, I will drive the seniors. And I mean, I played a lot
of roles in the church as far as the missionary, the CED director, the Sunday school
teacher, the associate minister, you know, I help the pastor, I mean, I just -- it’s my
life. It’s what I do. And I’m very passionate about it.
(Tr. at 109.) However, Plaintiff presented evidence that once the members of her church found out
what happened at the Dollar General, “the older folks” started treating her differently. (Tr. at 12526.) When asked if her reputation in the community had been damaged, Plaintiff stated,
Damaged. I’m telling you, I left church because there’s some old ministers and other
people in the church that when you start being disrespected, looked down on, you
know, like you[’re] nobody anymore, you’re nothing. So I just -- even though my
pastor just sat me down on the front seat, my mind, mentally, I couldn’t take it.
(Tr. at 128-29.)
According to Plaintiff, the experience at Dollar General affected her greatly. She testified
that she was so upset that she was not able to go back to her church for three months. (Tr. at 126.)
She stated,
And -- but when I go places, I am still freaked out about having a pocketbook. If the
buzzer go[es] off somewhere, I throw my two hands up. I don’t have no -- don’t have
any control over it. You know, I said you can check my pocketbook. You know, I
went to the clinic, they gave me some medicine, and it was really taking me beyond
beyond. And my mom helped me, a lot of people helped me. I just stopped going,
really going to stores and places. My niece started going for me. My aunt right there,
she became my life, she started going -- they had her . . . start carry[ing] me to the
doctor so I wouldn’t drive by myself.

22

(Tr. at 126-27.) She testified that she still feels humiliated, embarrassed, and upset about what
happened; she further stated,
I still have problems sleeping. I get migraines headache. Never had headaches. But
now I get them, you know, I get headaches now and they just come. I don’t know
when they [are] going to come, but it’s like they [are] going to break something. But
like I said, I’ve been going to the clinic. . . . And they gave me some depression
medicine and stuff like that.
(Tr. at 130.)9 She stated that although she is back working in the church, she is not “fully back . . .
like [she] was.” (Tr. at 130.) She testified that although she sometimes substitutes for a Sunday
school class, she does not regularly teach Sunday school anymore. (Tr. at 131.) She does not drive
seniors to the senior center any longer, nor does she drive children in the church. (Tr. at 131.)
Defendant’s request for a new trial on the basis that the verdict shocks the conscience is
denied. As set forth in detail above, Plaintiff presented evidence upon which a jury could find that
the Defendant acted with common law actual malice. Plaintiff gave detailed testimony about her
reputation--which she testified was “everything” for a minister--has been damaged in her small,
close-knit community, and she gave detailed testimony about how the events at Dollar General
affected her ability to work as a minister.
Turning to the Gore factors, as to the reprehensibility of Defendant’s conduct, a court
“should consider” the following:
whether: (i) the harm caused was physical as opposed to economic; (ii) the tortious
conduct evinced an indifference to or a reckless disregard for the health or safety of
others; (iii) the target of the conduct had financial vulnerability; (iv) the conduct
involved repeated actions or was an isolated incident; and (v) the harm was the result
of intentional malice, trickery, or deceit, rather than mere accident.

9

Additionally, Willie Mae Singleton testified that for a period of time after being accused of shoplifting,
Plaintiff was unable to serve as a minister “because she couldn’t function,” and Plaintiff could not “minister to
anybody when her reputation [was] . . . [in] dispute like that.” (Tr. at 72.) Ms. Singleton also testified that Plaintiff
was embarrassed, nervous, “crying all the time,” “couldn’t sleep,” and “couldn’t function going to stores.” (Tr. at
72.)
23

Mitchell, Jr. v. Fortis Ins. Co., 385 S.C. 570, 587, 686 S.E.2d 176, 185 (2009) (citing State Farm
Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003)). Here, Plaintiff presented evidence that
she suffered and continues to suffer physical harm from the incident. Plaintiff also presented the
following testimony of Ms. Tyler:
Q. And on the video you’d agree with me, would you not, that you can not see
[Plaintiff’s] face, isn’t that correct?
A. I agree with you, yes, sir.
Q. And the video doesn’t have any time on it either, does it?
A. Not on this one, no, sir.
Q. And you can’t really tell what’s in the person’s hand who’s on the video, can you?
A. Just a big white package, but that’s it, yes, sir.
(Tr. at 50-51.) Ms. Tyler testified at trial that she “never saw [Plaintiff] with [her] own eyes steal
anything from Dollar General,” and “the only tape that we have” does not show Plaintiff stealing
anything from Dollar General. (Tr. at 45-46.)
Additionally, Plaintiff testified that she attended Ms. Tyler’s deposition and that before the
deposition began, Ms. Tyler told Plaintiff, “I know it’s you. I know you stole. I know it’s you.” (Tr.
at 125.) At trial, however, Ms. Tyler admitted for the first time that it was not Plaintiff in the video.
(Tr. at 68.) Furthermore, the record contains evidence that even though the video is of poor quality,
certain features are discernible and do not match Plaintiff’s features. (See Tr. at 114.) Given this
evidence, and Ms. Tyler’s financial incentive to curb shoplifting at the store, the undersigned
concludes the jury could have found Defendant’s conduct sufficiently reprehensible to warrant its
award of punitive damages.
The second consideration is “the disparity between the actual or potential harm suffered by

24

the plaintiff and the amount of the punitive damages award.” Mitchell, Jr., 385 S.C. at 587-88, 686
S.E.2d at 185. In the case sub judice, the jury awarded Plaintiff $75,000 in actual damages on her
slander claim and $250,000 in punitive damages as to that claim. (Dkt. No. 43; Dkt. No. 48.) The
undersigned concludes the ratio of actual damages to punitive damages in this case is reasonable.
The ratio is in the single digits10 and is not excessive. Cf. Campbell, 538 U.S. at 425 (“Single-digit
multipliers are more likely to comport with due process, while still achieving the State’s goals of
deterrence and retribution, than awards with ratios in range of 500 to 1, or, in this case, of 145 to 1.”
(citations omitted)).
Finally, the last guidepost is the comparison of the punitive damages award and the civil or
criminal penalties that could be imposed for comparable misconduct. The undersigned concludes
the award of $250,000 in punitive damages is sufficiently comparable with other awards to comport
with due process. See Miller v. City of West Columbia, 322 S.C. 224, 471 S.E.2d 683 (1996) (award
of $500,000 punitive damages in defamation case); Kelley v. Wren, 415 S.C. 379, 782 S.E.2d 406
(Ct. App. 2016) (award of $250,000 in punitive damages in libel case). Cf. McAlhaney v. McElveen,
413 S.C. 299, 775 S.E.2d 411 (Ct. App. 2015) (affirming judgment where trial court reduced
punitive damages award in a defamation case from $3.25 million to $375,000).
VI. New Trial Nisi Remittitur
Defendant asserts it is “entitled to a new trial nisi remittitur because the verdict is excessive
and unduly liberal.” (Dkt. No. 54 at 16.) Defendant states that it seeks this relief if the court denies
its motion for a new trial. (Dkt. No. 54 at 16.) Defendant states,
There is simply no rational explanation for the jury’s verdict in this case of
$100,000 in actual damages and $250,000 in punitive damages. The verdict is
certainly against the clear weight of the evidence and will result in a miscarriage of

10

As to Plaintiff’s claim for slander, the punitive damages award is approximately 3.3 times the actual
damages as to that claim. The punitive damages award is 2.5 times the total actual damages in this case.
25

justice if upheld or, in the alternative, not reduced. Therefore, Defendant submits the
great weight of the evidence, giving the Plaintiff the presumption of evidence [s]he
is entitled to, provides for a maximum recovery of an amount less than $100,000 in
actual damages and $250,000 in punitive damages. Non-economic damages cannot
be totally speculative or based upon whim or caprice. There is simply nothing in the
evidence, without speculation, which would require an award of the magnitude
determined by the jury.
(Dkt. No. 54 at 16.)
“A motion for a new trial nisi remittitur asks the trial court to reduce the verdict because the
verdict is merely excessive.” James v. Horace Mann Ins. Co., 371 S.C. 187, 193, 638 S.E.2d 667,
670 (2006) (citation omitted); see also Welch v. Epstein, 342 S.C. 279, 303, 536 S.E.2d 408, 420 (Ct.
App. 2000) (“[W]hen the verdict indicates the jury was unduly liberal in determining damages, the
trial court alone has the power to reduce the verdict by the granting of a new trial nisi remittitur. A
motion for new trial nisi remittitur asks the trial court in its discretion to reduce the verdict because
it is merely excessive, although not motivated by considerations such as passion, caprice or
prejudice.” (citations omitted).). “In considering a motion for new trial nisi, the trial court must
evaluate the adequacy of the verdict in light of the evidence presented.” Becker v. Wal-Mart Stores,
Inc., 339 S.C. 629, 637, 529 S.E.2d 758, 762 (Ct. App. 2000).
The undersigned does not find the verdict to be excessive. As set forth above, Plaintiff
testified in detail about the damages she suffered as a result of this incident. She also explained why,
as a minister, the accusations against her were particularly damaging and testified that, to this day,
her responsibilities in the church have not returned to the level they were prior to this incident. She
testified that while she was being detained on the sidewalk, and many of the members of her
congregation saw her being detained there by the police, she urinated on herself. She testified that
she was humiliated, to the point of seeking medical attention, and that she continues to have
migraines as well as difficulty sleeping. Accordingly, Defendant’s request for a new trial nisi
26

remittitur is denied. Cf. Miller v. City of West Columbia, 322 S.C. 224, 231, 471 S.E.2d 683, 687
(1996) (finding no error in the trial court’s denial of a motion for a new trial where the jury awarded
$250,000 in actual damages and $500,000 in punitive damages, stating, “Broom’s defamatory
statement effectively destroyed Miller’s reputation and ended his distinguished twenty-five year law
enforcement career. Miller had been the assistant chief of police for seventeen years, and during this
time he had received the highest awards available to law enforcement officers. However, after
resigning from the West Columbia Police Department, Miller had difficulty obtaining employment.
When considering that a person’s reputation is invaluable, we conclude that Broom has failed to
establish that the verdict in this matter was grossly excessive.”).
CONCLUSION
It is therefore ORDERED, for the foregoing reasons, that Defendant’s Motion for Judgment
Notwithstanding the Verdict (Dkt. No. 53) is denied.
AND IT IS SO ORDERED.

June 1, 2017
Charleston, South Carolina

27