Thomasko v. Poole, 561 S.E.2d 597 (S.C. 2002). · Go Syfert
Thomasko v. Poole, 561 S.E.2d 597 (S.C. 2002). Cases Citing This Book View Copy Cite
126 citation events (126 in the last 25 years) across 4 distinct courts.
Strongest positive: Scott v. Fortner (scctapp, 2014-03-05)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 45 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Scott v. Fortner (3×) also: Cited as authority (quoted), Cited as authority (rule)
S.C. Ct. App. · 2014 · quote attribution · 2 verbatim quotes · confidence high
under comparative negligence, the plaintiff's contributory negligence does not bar recovery unless that negligence exceeds defendant's negligence.
examined Cited as authority (verbatim quote) ESTATE OF HALEY EX REL. HALEY v. Brown (4×) also: Cited as authority (quoted)
S.C. Ct. App. · 2006 · quote attribution · 4 verbatim quotes · confidence high
because the term is relative and dependant on the facts of a particular case, comparing the negligence of two parties is ordinarily a question of fact for the jury.
discussed Cited as authority (rule) Michael Kalos v. Cedar Fair Southwest, Inc.
4th Cir. · 2026 · confidence medium
Under South Carolina law, “[a] plaintiff, to establish a cause of action for negligence, must prove the following four elements: (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.” See Thomasko v. Poole, 561 S.E.2d 597, 599 (S.C. 2002).
examined Cited as authority (rule) Montgomery Holdings, LLC v. Christopher J. Merlo (3×)
S.C. Ct. App. · 2026 · confidence medium
We disagree. "[T]o establish a cause of action for negligence, [one] must prove the following four elements: (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." Thomasko v. Poole, 349 S.C. 7, 11, 561 S.E.2d 597, 599 (2002).
discussed Cited as authority (rule) Rene Wells v. David Shealy
S.C. Ct. App. · 2026 · confidence medium
Negligence To prevail on a negligence claim, a plaintiff must establish: (1) the defendant owed a duty of care to the plaintiff; (2) "breach of that duty by a negligent act or omission"; (3) the breach resulted in damages to the plaintiff; and (4) the plaintiff's damages "proximately resulted from the breach of duty." Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002).
discussed Cited as authority (rule) Loretta Diaz v. Waffle House, Inc.; WH Capital, LLC
D.S.C. · 2026 · confidence medium
Although in this case Plaintiff alleges a foreign substance was on the floor when she fell, she also alleges that the floor itself was unsafe. [Doc. 1-1 at 8 ¶ 37(n) (alleging that Defendants had a duty “[t]o ensure [their] restroom floors maintain[ed] a reasonable coefficient of friction”).] To establish a cause of action for negligence in South Carolina,6 a plaintiff “must prove the following four elements: (1) a duty of care owed by defendant to plaintiff; 6 “When sitting in diversity, a federal court must apply the law of the forum state as it is interpreted by the state’s highe…
discussed Cited as authority (rule) Johnson v. United States
D.S.C. · 2025 · confidence medium
Corp. v. Meyer, 510 U.S. 471, 478 (1994) (“Indeed, we have consistently held that § 1346(b)’s reference to the ‘law of the place’ means law of the State—the source of substantive liability under the FTCA.”); Carlson v. Green, 446 U.S. 14, 23 (1980) (“[A]n action under FTCA exists only if the State in which the alleged misconduct occurred would permit a cause of action for that misconduct to go forward.”); Brouwer v. Sisters of Charity Providence Hosps., 763 S.E.2d 200, 203 (S.C. 2014) (“A plaintiff in a medical malpractice case must establish by expert testimony both the sta…
discussed Cited as authority (rule) Fountain v. Fountain
D.S.C. · 2025 · confidence medium
To establish a cause of action for negligence in South Carolina,2 a plaintiff “must prove the following four elements: (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 2 “When sitting in diversity, a federal court must apply the law of the forum state as it is interpreted by the state’s highest court.” Moore v. Equitrans, L.P., 27 F.4th 211, 220 (4th Cir. 2022) (internal quotation marks omitted). plaintiff; and (4) damages proximately resulted from the breach of the duty.” Thomasko v. Poole, 561…
examined Cited as authority (rule) Bill R. Sharpe v. Rocky Rutherford (5×) also: Cited "see", Cited "see, e.g."
S.C. Ct. App. · 2024 · confidence medium
Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002) (citing Bloom v. Ravoira, 339 S.C. 417 , 529 S.E.2d 710 (2000)).
discussed Cited as authority (rule) Khautisen v. BHG Holdings LLC
D.S.C. · 2024 · confidence medium
DISCUSSION Defendants’ Summary Judgment Motion Defendants argue they are entitled to summary judgment because BHG owed no duty of care to Decedent, a non-patient third party. [Doc. 74-1.] In response, Plaintiff contends that BHG owed Decedent a duty of care under several theories: a duty to prevent harm by warning Neal of the risks of driving after ingesting methadone with benzodiazepines; a duty to act with due care in dispensing methadone to Neal based on Defendants’ special relationship with Neal; a duty to prevent harm because Defendants created the risk of harm; a duty to act with due…
discussed Cited as authority (rule) Nautilus Insurance Company v. Murdaugh
D.S.C. · 2024 · confidence medium
“A plaintiff, to establish a cause of action for negligence, must prove the following four elements: (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.” Thomasko v. Poole, 561 S.E.2d 597, 599 (S.C. 2002).
discussed Cited as authority (rule) Jamison v. Colonial Group, Inc
D.S.C. · 2024 · confidence medium
To establish a cause of action for negligence in South Carolina, a plaintiff “must prove the following four elements: (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.” Thomasko v. Poole, 561 S.E.2d 597, 599 (S.C. 2002).
discussed Cited as authority (rule) Johnston v. Anderson Regional Landfill LLC
D.S.C. · 2024 · confidence medium
The Amended Complaints further allege that Plaintiffs, as a group, have suffered “extremely unpleasant temporary symptoms such as headaches, nausea, coughing, choking, irritation to membranes, and mental distress,” and that Defendants’ actions have “interfere[ed] with the use and enjoyment of [Plaintiffs’] residence and properties” and have caused “reduction of value of their properties and the loss of fair rental value of their properties.” [Johnston Doc. 22 ¶ 22(b), (d), (g); Cooley Doc. 22 ¶ 23(b), (d), (g).] To establish a cause of action for negligence, “a plaintiff mu…
discussed Cited as authority (rule) Cooley v. Anderson Regional Landfill LLC
D.S.C. · 2024 · confidence medium
The Amended Complaints further allege that Plaintiffs, as a group, have suffered “extremely unpleasant temporary symptoms such as headaches, nausea, coughing, choking, irritation to membranes, and mental distress,” and that Defendants’ actions have “interfere[ed] with the use and enjoyment of [Plaintiffs’] residence and properties” and have caused “reduction of value of their properties and the loss of fair rental value of their properties.” [Johnston Doc. 22 ¶ 22(b), (d), (g); Cooley Doc. 22 ¶ 23(b), (d), (g).] To establish a cause of action for negligence, “a plaintiff mu…
discussed Cited as authority (rule) Kalos v. Cedar Fair Southwest, Inc.
D.S.C. · 2024 · confidence medium
“A plaintiff, to establish a cause of action for negligence, must prove the following four elements: (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.” Thomasko v. Poole, 561 S.E.2d 597, 599 (S.C. 2002).
discussed Cited as authority (rule) Brown, Jr. v. CMH Manufacturing, Inc.
D.S.C. · 2022 · confidence medium
Turning to Brown’s fraudulent misrepresentation clam, “[a] plaintiff, to establish a cause of action for [a tort], must prove the following four elements: (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.” Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002).
cited Cited as authority (rule) Allen v. Blackbaud Inc
D.S.C. · 2021 · confidence medium
Savannah Bank, N.A. v. Stalliard, 734 S.E.2d 161 , 163–64 (S.C. 2012) (citing Thomasko v. Poole, 561 S.E.2d 597, 599 (S.C. 2002); Kleckley v. Nw.
cited Cited as authority (rule) Lopez v. Pennsylvania Tool Sales & Service Inc
D.S.C. · 2019 · confidence medium
In South Carolina, a motorist has a common law “duty to keep a reasonable lookout to avoid hazards on the highway.” Thomasko v. Poole, 561 S.E.2d 597, 599 (2002).
discussed Cited as authority (rule) Connelly v. Winsor Custom Homes
S.C. Ct. App. · 2019 · confidence medium
As to the trial court's refusal to grant Winsor a directed verdict on comparative negligence: Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002) ("In a comparative negligence case, the trial court should grant the motion [for directed verdict] if the sole reasonable inference from the evidence is the non-moving party's negligence exceeded fifty percent." (citing Bloom v. Ravoira, 339 S.C. 417, 422 , 529 S.E.2d 710, 713 (2000))); id. ("Because the term is relative and [dependent] on the facts of a particular case, comparing the negligence of two parties is ordinarily a question of f…
discussed Cited as authority (rule) Marshall v. Dodds
S.C. Ct. App. · 2016 · confidence medium
See Grier v. AMISUB of S.C., Inc., 397 S.C. 532, 537 , 725 S.E.2d 693, 696 (2012) (“A plaintiff, to establish a cause of action for negligence, must prove the following four elements: (1) a duty of care owed by defendant to [the] 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.” (emphasis omitted) (quoting Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002))).
examined Cited as authority (rule) Roddey v. Wal-Mart Stores East, LP (5×) also: Cited "see"
S.C. · 2016 · confidence medium
This Court is "reticent to endorse directed verdicts in cases involving comparative negligence." Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002).
discussed Cited as authority (rule) Humphrey v. Day & Zimmerman International, Inc.
D.S.C. · 2014 · confidence medium
Thomasko v. Poole, 349 S.C. 7 , 561 S.E.2d 597, 599 (2002). 5 In determining whether a particular act is negligent, the standard is what a person of ordinary reason and prudence would do under those circumstances at that time and place.
discussed Cited as authority (rule) Babb v. Mundy
S.C. Ct. App. · 2013 · confidence medium
We affirm pursuant to Rule 220(b), SCACR, and the following authorities: (1) As to negligence: Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002) ("A plaintiff, to establish a cause of action for negligence, must prove the following four elements: (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."). (2) As to civil conspiracy: Vaught v. Waites, 300 S.C. 201, 208 , 387 S.E.2d 91, 95 (Ct. App. 1989) ("Civil conspiracy …
cited Cited as authority (rule) Savannah Bank, N.A. v. Stalliard
S.C. · 2012 · confidence medium
Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002); Kleckley v. Nw.
discussed Cited as authority (rule) Washington v. Stewart
S.C. Ct. App. · 2012 · confidence medium
Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002). "'[D]uty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk." Huggins v. Citibank, N.A., 355 S.C. 329, 333 , 585 S.E.2d 275, 277 (2003).
discussed Cited as authority (rule) Grier v. Amisub of South Carolina, Inc.
S.C. · 2012 · confidence medium
Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002) (“A plaintiff, to establish a cause of action for negligence, must prove the following four elements: (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.” (emphasis added)); Doe ex rel.
examined Cited as authority (rule) Fettler v. Gentner (5×) also: Cited "see"
S.C. Ct. App. · 2012 · confidence medium
“A plaintiff, to establish a cause of action for negligence, must prove the following four elements: (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 *467 plaintiff; and (4) damages proximately resulted from the breach of duty.” Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002) (citing Bloom v. Ravoira, 339 S.C. 417, 422 , 529 S.E.2d 710, 712 (2000)). “[P]arties have a duty to keep a reasonable lookout to avoid hazards on the highway.” Id. at 12, 561 S.E.2d at 599 .
discussed Cited as authority (rule) Thompson v. CDL Partners LLC
4th Cir. · 2010 · confidence medium
Under South Carolina law, a plaintiff must prove four elements to recover under a negligence theory: “(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; (4) damages proximately resulted from the breach of duty.” Thomasko v. Poole, 349 S.C. 7 , 561 S.E.2d 597, 599 (2002).
cited Cited as authority (rule) Blue v. Harrelson
S.C. Ct. App. · 2004 · confidence medium
Thomasko v. Poole , 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002).
cited Cited as authority (rule) Hamilton v. R & L Transfer, Inc.
S.C. Ct. App. · 2004 · confidence medium
Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002).
discussed Cited as authority (rule) Washington v. Miller
S.C. Ct. App. · 2004 · signal: cf. · confidence medium
Cf. Thomasko v. Poole , 349 S.C. 7, 12 , 561 S.E.2d 597, 599 (2002) (stating that “[i]n a comparative negligence case, the trial court should grant the [directed verdict] motion if the sole reasonable inference from the evidence is the non-moving party’s negligence exceeded fifty percent.”).
cited Cited as authority (rule) Jeter v. South Carolina Department of Transportation
S.C. Ct. App. · 2004 · confidence medium
Thomasko v. Poole, 349 S.C. 7, 12 , 561 S.E.2d 597, 599 (2002). 12 .
examined Cited as authority (rule) Vatrick v. SC Federal Credit Union (3×) also: Cited "see"
S.C. Ct. App. · 2004 · confidence medium
Thomasko v. Poole , 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002).
discussed Cited as authority (rule) Henson Ex Rel. Hunt v. International Paper Co. (2×)
S.C. Ct. App. · 2004 · confidence medium
Co., 354 S.C. 92, 96 , 579 S.E.2d 616, 618 (2003) ("When considering a directed verdict ... motion, the trial court is required to view the evidence and the inferences that can be drawn from that evidence in the light most favorable to the nonmoving party."); Sabb v. South Carolina State Univ., 350 S.C. 416 , 427, 567 S.E.2d 231, 236 (2002) (In ruling on directed verdict ... motions, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the party opposing the motions.); Thomasko v. Poole, 349 S.C. 7, 11 , 561 S…
cited Cited as authority (rule) Trivelas v. South Carolina Dept. of Transportation
S.C. Ct. App. · 2004 · confidence medium
Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002); Bloom v. Ravoira, 339 S.C. 417, 422 , 529 S.E.2d 710, 712-13 (2000).
cited Cited as authority (rule) Regions Bank v. Schmauch
S.C. Ct. App. · 2003 · confidence medium
Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002); Kleckley v. Northwestern Nat’l Cas.
cited Cited as authority (rule) Murray v. Bank of America, N.A.
S.C. Ct. App. · 2003 · confidence medium
Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002).
cited Cited "see" O'Leary v. TrustedID, Inc.
D.S.C. · 2021 · signal: see · confidence high
See Thomasko v. Poole, 561 S.E.2d 597, 599 (S.C. 2002).
discussed Cited "see" Blackwell v. Woodard (2×)
S.C. Ct. App. · 2021 · signal: see · confidence high
See Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002) ("A plaintiff, to establish a cause of action for negligence, must prove the following four elements: (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."); Shaw v. Psychemedics Corp., 426 S.C. 194, 197-98, 198 , 826 S.E.2d 281, 282 (2019) ("If there is no duty, then the defendant in a negligence action is entitled to judgment as a matter of law." (quoting Madison ex rel…
discussed Cited "see" Kerr v. Branch Banking & Trust Co. (2×)
S.C. · 2014 · signal: see · confidence high
See Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002) (stating that duty is one element of a negligence claim); cf. Turner, 392 S.C. at 122-23 , 708 S.E.2d at 769 (explaining that, to state a claim for negligent misrepresentation or fraudulent inducement, a party must establish, inter alia, that he had a right to rely on a statement made by the opposing party). .
discussed Cited "see" Tax Capital v. McCaffrey's (2×)
S.C. Ct. App. · 2012 · signal: see · confidence high
See Thomasko v. Poole, 349 S.C. 7, 10 , 561 S.E.2d 597, 598 (2002) ("An appellate court cannot address an issue unless first raised by appellant and ruled on by the trial judge."); Gurganious v. City of Beaufort, 317 S.C. 481, 488 , 454 S.E.2d 912, 916 (Ct. App. 1995) (holding a party "cannot present and try his case on one theory and then change his theory on appeal").
discussed Cited "see" Roddey v. Wal-Mart Stores East, LP (2×)
S.C. Ct. App. · 2012 · signal: see · confidence high
See Thomasko v. Poole, 349 S.C. 7, 11 , 561 S.E.2d 597, 599 (2002) (explaining that in reviewing a motion for directed verdict, the evidence is viewed in the light most favorable to the non-moving party).
discussed Cited "see" Clark Ex Rel. Estate of Clark v. South Carolina Department of Public Safety (2×)
S.C. Ct. App. · 2002 · signal: see · confidence high
See Thomasko v. Poole, 349 S.C. 7 , 561 S.E.2d 597 (2002). 32 .
discussed Cited "see, e.g." Moore v. Weinberg (2×)
S.C. Ct. App. · 2007 · signal: see also · confidence low
Steinke v. S.C. *221 Dep’t of Labor, Licensing & Regulation, 336 S.C. 373 , 387, 520 S.E.2d 142 , 149 (1999); see also Thomasko v. Poole, 349 S.C. 7 , 561 S.E.2d 597 (2002).
examined Cited "see, e.g." Hurd v. Williamsburg County (8×)
S.C. Ct. App. · 2003 · signal: see also · confidence low
Trivelas v. South Carolina Dep’t of Transp., 348 S.C. 125 , 558 S.E.2d 271 (Ct.App.2001); see also Thomasko v. Poole, 349 S.C. 7 , 561 S.E.2d 597 (2002) (under comparative negligence, plaintiffs contributory negligence does not bar recovery unless that negligence exceeds defendant’s).
Retrieving the full opinion text from the archive…
Dr. Martha THOMASKO, Petitioner,
v.
Daniel E. POOLE, Jr., Respondent
25425.
Supreme Court of South Carolina.
Mar 11, 2002.
561 S.E.2d 597
2002 S.C. LEXIS 38
Robert L. Widener, of McNair Law Firm, of Columbia; and Robert A. Muckenfuss, of McGuire Woods, of Charlotte, NC, for petitioner., David S. Cobb, of Turner, Padget, Graham & Laney, of Charleston, for respondent.
Moore, Waller, Toal, Westbrook.
Cited by 48 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 74%
Citer courts: Court of Appeals of South Caro… (3)

Lead Opinion

[*9] BURNETT, Justice:

Dr. Martha Thomasko (“Thomasko”) sued Daniel Poole, Jr., (“Poole”) for negligence as a result of an vehicle accident. The trial court denied plaintiff Thomasko’s motion for a directed verdict on the issue of her comparative negligence. The Court of Appeals affirmed the trial court in an unpublished opinion, and Thomasko appealed to this Court. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Defendant Poole testified that on March 25, 1995, he exited a store parking lot in his vehicle and attempted to cross three lanes of traffic to make a u-turn on Highway 17 in Myrtle Beach. Poole testified to looking in the direction of on-coming traffic before exiting the parking lot. Poole noticed two vehicles approximately 150-200 feet away. Poole entered the far right lane and began to transverse the other lanes at 8-10 miles per hour.

Poole’s Suburban collided with Thomasko’s vehicle as he entered the far left lane. Poole’s vehicle sustained damage to its driver’s side rear panel while Thomasko’s received damage to its front, passenger side wheel well. Thomasko did not see Poole’s vehicle until the moment before impact. Poole did not realize he collided with another vehicle until after seeing Thomasko’s vehicle in his rear view mirror.

Thomasko testified to experiencing an uneasy feeling in the right side of her chest after the accident. The day after the accident she began experiencing pain throughout her body.

On April 12, several weeks after the accident, Thomasko fell in a store parking lot. She later visited a doctor because of a pain in the right side of her chest. Thomasko testified her doctor suspected her right breast implant ruptured.

Thomasko filed a negligence lawsuit against Poole seeking damages for personal injuries sustained during the accident.[1] At the close of the evidence, Thomasko moved for a directed verdict on Poole’s defense of comparative negligence. The trial court denied the motion ruling the jury could reasonably[*10] find Thomasko negligent in failing to take all precautions to avoid the accident.[2]

The jury deliberated for approximately an hour and a half before sending a note to the judge asking: “If we find fault by the defendant and neglect by the defendant but do not feel that injuries were sustained by the accident, who do we rule for?” The trial judge instructed the jury that if Thomasko failed to prove damages caused by the accident, then she failed to prove her case. The jury continued deliberations for three more minutes and returned with a general verdict for Poole.

Thomasko argues on appeal that the trial judge’s denial of her motion for directed verdict on the issue of comparative negligence was error requiring a new trial.

I. Did Thomasko preserve the issue of whether the trial judge erred in denying her motion for a directed verdict?

II. Did the trial court err in denying Thomasko’s motion for a directed verdict on the issue of comparative negligence?

III. the denial of the motion for directed verdict was error, did the ruling constitute prejudice sufficient to require a new trial?

Law/Analysis

I

As a threshold issue, Poole argues Thomasko failed to object to the trial judge’s jury instruction and thus failed to preserve the directed verdict ruling for appellate review. We disagree.

An appellate court cannot address an issue unless first raised by appellant and ruled on by the trial judge. Staubes v. City of Folly Beach, 339 S.C. 406, 529 S.E.2d 543 (2000). Thomasko moved for a directed verdict on the issue of com[*11] parative negligence. The trial judge denied the motion. Tho-masko objected, on the record, to the denial. She was not required to object again to the subsequent jury instruction regarding comparative negligence. The issue is preserved for our review.

II

Thomasko argues the trial judge committed reversible error by denying her motion for directed verdict. We

The law of comparative negligence controls this case. See Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991). Under comparative negligence, the plaintiffs con-tributory negligence does not bar recovery unless that negligence exceeds defendant’s. Id.; see Hubbard & Felix, The South Carolina Law of Torts 174 (2d ed.1997).

A trial judge, when ruling on a motion for directed verdict, must view the evidence in the light most favorable to the non-moving party. Wintersteen v. Food Lion, Inc., 344 S.C. 32, 542 S.E.2d 728 (2001). In a comparative negligence case, the trial court should grant the motion if the sole reasonable inference from the evidence is the non-moving party’s negligence exceeded fifty percent. Bloom v. Ravoira, 339 S.C. 417, 529 S.E.2d 710 (2000). Because the term is relative and dependant on the facts of a particular case, comparing the negligence of two parties is ordinarily a ques-tion of fact for the jury. Creech v. South Carolina Wildlife and Marine Res. Dep’t, 328 S.C. 24, 32, 491 S.E.2d 571, 575 (1997); Mahaffey v. Ahl, 264 S.C. 241, 214 S.E.2d 119 (1975). For these reasons, this Court is reticent to endorse directed verdicts in cases involving comparative negligence.

A plaintiff, to establish a cause of action for negli-gence, must prove the following four elements: (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. Bloom v. Ravoira, supra. “An essential element in a cause of action for negligence is the existence of a legal duty of care owed by the defendant to the plaintiff.”[*12] Bishop v. S.C. Dep’t of Mental Health, 331 S.C. 79, 86, 502 S.E.2d 78, 81 (1998).

Both Poole and Thomasko have duties. Thomasko has a duty to adjust her speed to conditions and hazards. S.C.Code Ann. § 56-5-1520 (Supp.2000). Poole has a duty to yield to the favored driver, Thomasko, before switching lanes. S.C.Code Ann. § 56-5-1900 (Supp.2000).

Both parties have a duty to keep a reasonable lookout to avoid hazards on the highway. See 60A C.J.S. Motor Vehicles §§ 247, 343 (1969)(Having the right of way does not excuse an individual from the common law duty to keep a reasonable lookout to avoid hazards); Cf. Brown v. Howell, 284 S.C. 605, 327 S.E.2d 659 (1985)(Motorists must use ordinary care in keeping a proper lookout for vehicles approaching an intersection). The relation between contributory negligence and the common law duty to keep a reasonable lookout is not a novel issue. See e.g., Williams v. Kinney, 267 S.C. 163, 226 S.E.2d 555 (1976); Wilson v. Marshall, 260 S.C. 271, 195 S.E.2d 610 (1973).

This Court in Williams v. Kinney, supra, reversed a trial court’s directed verdict on the issue of contributory negligence. In the case, the defendant stopped at a traffic light in the left lane. Plaintiff, following Defendant’s vehicle, drove to the right lane. Defendant attempted to make a right hand turn from the left lane in violation of South Carolina law and collided with Plaintiff.

Plaintiff argued Defendant negligently failed to observe his turn signal. Defendant admitted she did not see Plaintiffs signal, but countered no reasonable person would expect a driver to turn right from the left lane. This Court held, “[w]hether the failure of [Plaintiff], who was following [Defendant], to observe the flashing turn signals was a causative factor was for the jury ... [t]he jury could have concluded that this collision occurred due to the failure of the [Plaintiff] to observe the turning signals.” Id., 267 S.C. at 166-67, 226 S.E.2d at 556.

In Wilson v. Marshall, supra, this Court again reversed the trial court’s granting Plaintiffs motion for directed verdict. The uncontradicted evidence showed Defendant failed to stop at an intersection as required by law. Instead, Defendant[*13] proceeded into the intersection and was struck by Plaintiff. Despite an unobstructed view, Plaintiff testified he did not see Defendant until moments before impact. The Court held that although the evidence left little doubt Defendant was the primary cause of the collision the jury could have reasonably inferred that Plaintiff failed “to exercise due care in keeping a proper lookout and driving at an appropriately reduced speed under the circumstances.” Id. 260 S.C. at 276, 195 S.E.2d at 612.

Viewing the evidence in the light most favorable to Poole, the evidence shows he came to a stop before entering the highway and observed two vehicles 150-200 feet away. Poole, exiting the parking lot, crossed over two lanes of traffic before the collision between Poole’s and Thomasko’s vehicles. Poole’s vehicle did not speed quickly through the lanes, but traveled across the road at 8-10 miles per hour.

Although nothing obstructed Thomasko from seeing Poole’s vehicle, she did not notice the vehicle until it was upon her. Thomasko testified seeing a brown vehicle coming towards her. Poole’s vehicle was white. Poole crossed in front of Thomasko, causing her vehicle to strike the vehicle at the rear wheel. There is no evidence Thomasko attempted to stop before the crash.

Thomasko asserts the trial court misinterpreted the evidence and erroneously relied on the severity of the accident in denying her motion for a directed verdict. The severity and location of the damage to both vehicles could have bolstered Poole’s version of the accident.

The damage to both vehicles was slight, suggesting both were traveling at a low rate of speed. The damage occurred at Thomasko’s front end and near Poole’s rear tire, suggesting Thomasko ran into Poole as he proceeded across traffic at an angle. The damage to the vehicles suggests both Thomasko and Poole were negligent in failing to keep a reasonable lookout.

Several inferences could be drawn from the facts, including, finding Poole or Thomasko could have failed to keep a proper lookout. A jury could find Poole blind-sided Thomasko or Thomasko was blind to her duty to keep a reasonable lookout. This Court is required to affirm the trial court’s denial of a[*14] motion for directed verdict where multiple inferences can be drawn from the evidence. In re Matthews, 345 S.C. 638, 550 S.E.2d 311 (2001); Swinton Creek Nursery v. Edisto Farm Credit, 334 S.C. 469, 514 S.E.2d 126 (1999).

Thomasko’s failure to keep a proper lookout is a jury question. See Mahaffey v. Ahl, supra, (this Court held whether driver should have seen an individual approaching on a motorbike in time to stop or slow down to avoid an accident was a jury question); Spurlin v. Colprovia Prod. Co., 185 S.C. 449, 194 S.E. 332 (1937). As an appellate court we decide issues of law leaving determination of the facts and credibility of witnesses to the jury. This Court’s sole task is to determine if multiple inferences can be drawn from the evidence of Thomasko’s negligence to uphold the denial of her motion for directed verdict. Viewing the evidence in light most favorable to Poole, we AFFIRM.[3]

MOORE and WALLER, JJ., concur. TOAL, C.J., dissenting in a separate opinion in which Acting Justice MARC H. WESTBROOK, concurs.
1

Thomasko claimed One Hundred and Sixteen Thousand Dollars ($116,000.00) in damages for doctor visits, two new breast implants, lost wages, as well as pain and suffering.

2

The trial judge reasoned the jury could find Thomasko failed to take precautions to avoid the accident because it was not a “bad accident.”

3

Because denial of the motion for directed verdict was not in error, we do not address the third issue.

Dissent

TOAL, Chief Justice:

I respectfully dissent. I agree with the majority that Thomasko properly preserved the directed verdict motion for appellate review. However, I would hold that the trial judge erred in denying Thomasko’s motion for directed verdict and that Thomasko was prejudiced by the error.

In deciding a motion for directed verdict, the trial judge must consider the evidence in the light most favorable to the party opposing the motion. Wintersteen v. Food Lion, Inc., 344 S.C. 32, 542 S.E.2d 728 (2001). If multiple inferences can be drawn from the evidence, this Court is required to affirm the trial court’s denial of the motion. In re Matthews, 345 S.C. 638, 550 S.E.2d 311 (2001); Swinton Creek Nursery v. Edisto Farm Credit, 334 S.C. 469, 514 S.E.2d 126 (1999). Inversely, if there is no evidence to support a material element of the plaintiffs cause of action, the issue should have never gone to the jury, and this Court is required to reverse the trial[*15] court’s denial of the motion. Young v. Tide Craft, Inc., 270 S.C. 453, 242 S.E.2d 671 (1978). Here, I cannot find any evidence in the record to support the trial court’s ruling.

The record reflects that Poole looked in the direction of oncoming traffic before exiting the Wal-Mart parking lot. He stated that he saw two cars approaching his position both approximately 150-200 feet away. He then pulled out of the parking lot and proceeded to switch lanes at a speed of 8-10 miles/hour until he reached the third lane and struck Thomasko’s vehicle.

In my opinion, the evidence favoring Poole’s defense of comparative negligence, even in the light most favorable to him, is insufficient to present a jury question. Poole claims the following facts support his position that Thomasko was comparatively negligent:

1. Poole testified that when he exited the Wal-Mart parking lot, there were only two vehicles approaching his position. Each of the two vehicles were at least 150 feet from Poole’s position.
2. Poole testified that he began to cross three lanes at a speed of 8-10 miles/hour. Upon reaching the third lane, Poole testified that he felt his vehicle impact with Thomasko’s vehicle.
3. Poole testified that he never saw Thomasko’s vehicle until after impact.
4. Thomasko testified that she did not see Poole’s vehicle until the moment before impact.

Based on these facts, the trial judge allowed the issue of plaintiffs comparative negligence to go to the jury stating that the jury could have found Thomasko was negligent in failing to avoid the accident because it was not a “bad accident.”

First, I disagree that there was any evidence presented to the jury which even suggested Thomasko was negligent. The defense failed to produce evidence of speeding, violation of traffic laws, driver impairment, vehicle impairment, or any other type evidence which could support a reasonable inference of negligence on the part of Thomasko. The fact that Thomasko does not remember seeing Poole prior to the mo[*16] ment of impact creates, at most, mere speculation as to Thomasko’s negligence.

I agree with the Respondent and the majority that Thomasko has a duty to keep a reasonable lookout and adjust her speed to conditions pursuant to S.C.Code Ann. § 56-5-1520 (Supp.2000). However, mere accusation or speculation Thomasko may have failed to keep a proper lookout, without more, cannot rise to the level of negligence as a matter of law. To hold otherwise, as the majority’s has done, will require the trial court to submit the issue of comparative negligence to the jury in every car accident case even without any evidence of negligence on the part of the plaintiff.

In addition, Thomasko wás the favored driver because she was driving within the lane that Poole was entering. S.C.Code Ann. § 56-5-1900 (Supp.2000) states that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that such movement can be made with safety.” Therefore, it was Poole’s duty to yield to all southbound traffic before switching lanes. It strains logic to impose a duty on Thomasko to avoid being blind-sided by Poole as the result of his negligence without some evidence of Thomasko’s own negligence.

Second, I do not agree that the severity of the accident alone should allow an inference of negligence. To entertain this argument would make the decision of whether to grant a directed verdict dependant on the trial judge’s judgment as to the severity of the accident. This is not a precedent I am willing to create.

Poole argues that even if the denial of the Motion for Directed Verdict was in error, Thomasko suffered no prejudice. Poole argues that the jury’s question to the bench, combined with the timing of the verdict suggests that the jury found Thomasko did not sustain damages in the accident. I disagree.

When deliberating, the jury foreman came back with the following question: “If we find fault by the defendant and neglect by the defendant but do not feel that injuries were sustained by the accident, who do we rule for?” There is no indication as to whether this was a question by the entire jury[*17] or just the foreman. In response to this question, the trial judge charged the jury that damages were an essential element in a cause of action for negligence; therefore, if the Plaintiff failed to prove damages, then she failed to prove her case. Three minutes later, the jury returned with a general verdict for Poole.

It is well established that an appellant seeking reversal of a decision by the trial court must show both error and prejudice. McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 479 S.E.2d 67 (1996). An alleged error does not prejudice the Appellant if the appellate court determines beyond a reasonable doubt that the alleged error did not contribute to the verdict. Wells v. Halyard, 341 S.C. 234, 533 S.E.2d 341(2000); Visual Graphics Leasing Corp., Inc., v. Lucia, 311 S.C. 484, 429 S.E.2d 839 (1993).

The jury returned a general verdict for Poole. Therefore, either the jury found (1) Thomasko was at least 51% at fault for the accident, or (2) Thomasko failed to prove damages. Because the verdict was a general verdict, drawing any conclusion from the jury’s question would be nothing more than speculation.

CONCLUSION

Based on the foregoing reasons, I would REVERSE and order a new trial.

WESTBROOK, A.J., concurs.