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Cothran v. Brown

Date: 05-13-2002

Case Number: 3495

Judge: Hearn, C.J.

Court: In The Court of Appeals of South Carolina

Plaintiff's Attorney: "_new">William B. Woods,
"_new">Donna Seegars Givens and
"_new">Darra James Vallini, all of Woods & Givens, of Lexington; and
"_new">Samuel R. Clawson and
"_new">Timothy A. Domin, both of Clawson & Staubes, of Charleston.

Defendant's Attorney: "_new">edney W. Howe, III, of Charleston;
"_new">John C. Land, of Land, Parker & Reeves, of Manning; and
"_new">Daniel H. Shine, of Dillon.

Description:

Ferrell Cothran brought this action asserting wrongful death and survival claims against Alvin Brown as personal representative of the estate of Douglas H. McFaddin. The trial court granted Cothran partial summary judgment on the issue of liability. A panel of this court reversed. We granted Cothran's Petition for Rehearing En Banc to consider whether Brown should be judicially estopped from asserting comparative negligence. We affirm.

Facts

While looking for his dogs, McFaddin parked his westbound truck on the eastbound shoulder near a curve of a road with the headlights on. According to Brown, as he approached the curve he saw headlights in his lane of travel, so he veered to the right to avoid a head-on collision. Brown struck McFaddin and his truck, resulting in McFaddin's death. Brown failed several field sobriety tests and registered a .17 on a breathalyzer test. He was indicted for felony driving under the influence (DUI) and pled guilty to reckless homicide.

As the personal representative of her husband's estate, McFaddin's wife brought this action asserting wrongful death and survival claims. (1) Brown answered, admitting that his vehicle ran off the paved portion of the highway and struck McFaddin but asserting that comparative negligence applied because McFaddin's actions caused Brown to believe the truck was approaching in his lane. Cothran moved for summary judgment as to liability, asserting there was no genuine issue of material fact regarding Brown's liability.

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Click the case caption above for the
full text of the Court's opinion.

Outcome:

With the exclusion of Brown's second affidavit and portions of McCray's affidavit, Brown's first affidavit leaves no issue of material fact as to liability. Accordingly, we also affirm the grant of summary judgment on this ground.

Affirmed.

Plaintiff's Experts:

Unavailable

Defendant's Experts:

Unavailable

Comments:

C.L.

About This Case

What was the outcome of Cothran v. Brown?

The outcome was: With the exclusion of Brown's second affidavit and portions of McCray's affidavit, Brown's first affidavit leaves no issue of material fact as to liability. Accordingly, we also affirm the grant of summary judgment on this ground. Affirmed.

Which court heard Cothran v. Brown?

This case was heard in In The Court of Appeals of South Carolina, SC. The presiding judge was Hearn, C.J..

Who were the attorneys in Cothran v. Brown?

Plaintiff's attorney: William B. Woods, Donna Seegars Givens and Darra James Vallini, all of Woods & Givens, of Lexington; and Samuel R. Clawson and Timothy A. Domin, both of Clawson & Staubes, of Charleston.. Defendant's attorney: edney W. Howe, III, of Charleston; John C. Land, of Land, Parker & Reeves, of Manning; and Daniel H. Shine, of Dillon..

When was Cothran v. Brown decided?

This case was decided on May 13, 2002.