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

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Courtney Danielle Saxon, Appellant,

v.

South Carolina Department of Transportation and Thomas Cooler, Defendants,

of whom South Carolina Department of Transportation is Respondent.

Appeal From Jasper County
�Perry M. Buckner, Circuit Court Judge

Unpublished Opinion No. 2004-UP-435
Submitted June 8, 2004 � Filed July 23, 2004

AFFIRMED

Darrell T. Johnson, Jr. and Mills Lane Morrison, Jr., both of Hardeeville, for Appellant.

I. McDuffie Stone, III, of Bluffton, for Respondent.

PER CURIAM:� This case arises from an automobile collision.� As a result of the accident, Saxon filed suit against the South Carolina Department of Transportation (DOT) for failure to maintain necessary sight lines at a stop sign. [1] � The circuit court granted a directed verdict in favor of the DOT on the basis of proximate cause and lack of notice.� We affirm. [2]

FACTS

Saxon was driving along Darby Plantation Road when she came to a stop sign and attempted a left turn onto Route 39.� She stopped at the stop sign, drove her car forward to gain a better view of Route 39, and then looked in both directions before turning.�� When Saxon pulled out, Thomas Cooler�s vehicle struck the rear driver�s side door of Saxon�s vehicle.� Cooler was driving at or below the speed limit of 45 miles per hour, and he did nothing to contribute to the accident.

Saxon filed suit against the DOT for negligence, alleging it failed to maintain the vegetation along Route 39 and thereby failed to maintain the proper sight line and sight distance for cars entering from Darby Plantation Road.� At trial, Saxon stated that she did not see another car before turning and that prior to turning she had inched her car past the stop sign to see past overgrown trees and bushes.� Cooler testified that he was able to see the stop sign on Darby Plantation Road, but he did not see Saxon�s car until the accident.

Mr. Lohr, an engineer and Saxon�s expert witness, testified the DOT provided inadequate sight distance along Route 39.� However, during cross-examination, he admitted the 468 feet sight distance actually provided should have been sufficient for Saxon to detect a vehicle traveling up to 47.7 miles per hour.� Because Cooler�s car was traveling less than 47.7 miles per hour, Lohr opined the intersection�s sight distance was safe.� Dr. King, an expert witness for the DOT, also testified the intersection had more than adequate sight distance.� Additionally, a highway patrolman, who investigated the accident, testified he did not observe any visual obstructions the day of the accident.� The trooper also stated:� he traveled the road frequently; it was his duty to report any problems such as obstructions; and he never saw any problems.��

After the close of testimony, the trial court granted the DOT�s motion for a directed verdict because there was no evidence:� (1) the accident was proximately caused by any breach of duty by the DOT; and (2) the DOT had notice of the dangerous condition.� Pursuant to Rule 59, SCRCP, Saxon moved for judgment notwithstanding the verdict (JNOV) and for a new trial.� The court denied these motions. �Saxon appeals.

STANDARD OF REVIEW

In ruling on a motion for directed verdict, 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 motion and to deny the motion where either the evidence yields more than one inference or its inference is in doubt.� Creech v. South Carolina Wildlife & Marine Res. Dep�t, 328 S.C. 24, 29, 491 S.E.2d 571, 573 (1997).� In deciding whether to grant or deny a directed verdict motion, the trial court is concerned only with the existence or nonexistence of evidence.� Long v. Norris & Assocs., 342 S.C. 561, 568, 538 S.E.2d 5, 9 (Ct. App. 2000).� This court can only reverse the trial court when there is no evidence to support the ruling below.� Creech, 328 S.C. at 29, 491 S.E.2d at 573.

DISCUSSION

I.

Saxon argues the trial court erred in granting a directed verdict on the issue of proximate cause.� She contends the evidence is conflicting and supports the conclusion that the accident was proximately caused by the DOT�s negligence.� Because this issue required a credibility determination, she asserts it should have been submitted to the jury. [3] � We disagree.

In a negligence action, a plaintiff must show:� (1) the defendant owes a duty of care to the plaintiff; (2) the defendant breached the duty by a negligent act or omission; (3) the defendant�s breach was the actual and proximate cause of the plaintiff�s injury; and (4) the plaintiff suffered an injury or damages.� Andrade v. Johnson, 356 S.C. 238, 245, 588 S.E.2d 588, 592 (2003).� �Proximate cause requires proof of both causation in fact and legal cause, which is proved by establishing foreseeability.�� Bray v. Marathon Corp., 356 S.C. 111, 116-17, 588 S.E.2d 93, 95 (2003).� �Causation in fact is proved by establishing the plaintiff�s injury would not have occurred �but for� the defendant�s negligence. . . .� Legal cause turns on the issue of foreseeability.� An injury is foreseeable if it is the natural and probable consequence of a breach of duty.�� Schmidt v. Courtney, 357 S.C. 310, 326, 592 S.E.2d 326, 335 (Ct. App. 2003).� �Foreseeability is not determined from hindsight, but rather from the defendant�s perspective at the time of the alleged breach.� Parks v. Characters Night Club, 345 S.C. 484, 491, 548 S.E.2d 605, 609 (Ct. App. 2001).� �Furthermore, legal cause is ordinarily a question of fact for the jury.� Only when the evidence is susceptible to only one inference does it become a matter of law for the court.�� Oliver v. South Carolina Dep�t of Highways & Pub. Transp., 309 S.C. 313, 317, 422 S.E.2d 128, 131 (1992).�

In this case, the trial court granted a directed verdict on the ground Saxon failed to present any evidence the accident was proximately caused by a breach of duty by the DOT.� Specifically, the court found:� (1) neither Saxon nor Cooler testified that inadequate sight distance caused the accident; and (2) Saxon�s expert, Lohr, testified that inadequate sight distance was not the cause of the accident.

Viewing the evidence in the light most favorable to Saxon, we find Saxon failed to present any evidence that the DOT�s failure to maintain the vegetation proximately caused the accident.� Saxon�s own expert witness testified the sight lines were insufficient because of overgrown bushes and trees only if a car was driving on Route 39 in excess of 47.7 miles per hour. ���However, it was stipulated that the speed limit was 45 miles per hour and that Cooler was driving at or below the speed limit.� Cooler also acknowledged that the bushes did not obstruct his view.

Saxon argues, notwithstanding the testimony of her own expert witness, the lay testimony was sufficient to submit the issue of proximate cause to the jury.� Saxon refers to her direct testimony in which she stated that she had to inch up before pulling out to turn left �[b]ecause the trees and bushes are overgrown and it�s kinda hard to see all the way down Malphrus Road to your left.� �She also points out that she and Cooler both testified that even though they were looking, they did not see the other vehicle until after the accident.� In light of this testimony, Saxon urges this court to reverse based on Poston v. Southeastern Constr. Co., 208 S.C. 35, 36 S.E.2d 858 (1946), and Roscoe v. Grubb, 237 S.C. 590, 118 S.E.2d 337 (1961).���

In Poston, a worker�s compensation case, the claimant testified that an accident at work caused his eyes to become inflamed and, in turn, severely affected his vision.� Due to the accident, he was unable to perform the same types of carpentry jobs he did before the accident.� The treating physician testified the claimant came to him with red, inflamed, and irritated eyes. In contrast to the claimant�s testimony, he stated, as �a medical fact,� the claimant�s farsightedness could not have been caused by any event but must have existed all of the claimant�s life.� The claimant was awarded benefits for the work-related injury.� In considering the employer�s appeal, our supreme court found that had the case been tried before a jury, the trial judge would have submitted the issue to the jury because there was a conflict between the claimant�s testimony and the medical testimony.� Poston, 208 S.C. at 38, 36 S.E.2d at 860.� The court stated, �a medical opinion which conflicts with the physical facts will not be permitted to control the determination of a factual controversy.�� Id. (citations omitted).� The court affirmed the award of benefits, finding sufficient lay testimony that the claimant�s reduced vision was caused by the accident.� The court pointed to the evidence that prior to the accident, the claimant had been able to work as a carpenter without the aid of glasses.� The court held that when expert testimony is disregarded, the decision must be based on other competent evidence.� Id. at 39.

Similarly, in Roscoe, the court disregarded the testimony of a physician that the decedent died as a result of an automobile accident that occurred almost one year prior to the death.� Roscoe, 237 S.C. at 592-93, 118 S.E.2d at 338.� The court noted that �where physical injury is coincident with or immediately follows an accident and is naturally and directly connected with it lay testimony may be sufficient to carry to the triers of the facts the issue of whether or not the accident proximately caused it, despite expert medical testimony that it did not.�� Id. at 596, 118 S.E.2d at 340.� Together, these cases properly situate the expert witness�s testimony as non-binding and intended to aid the fact finder.� Hines v. Pac. Mills, 214 S.C. 125, 132, 51 S.E.2d 383, 385 (1949).

In the instant case, expert witnesses for both Saxon and the DOT testified that given the speed of Cooler�s vehicle there was sufficient sight distance, and thus, the vegetation did not in fact cause the accident.� In contrast to the pointedly different testimony in Poston, neither Saxon nor Cooler testified the accident was caused by an inability to properly see because of an overgrowth of vegetation.� Cooler testified he could see the stop sign, but he never saw Saxon�s vehicle.� Saxon testified that difficulty in seeing down Route 39 caused her to inch past the stop sign prior to turning, and she did not see any cars prior to turning onto Route 39.� She, however, did not testify she was unable to see Cooler�s vehicle because of the overgrowth.� Instead, she testified the overgrowth forced her to take another action, which involved moving her car forward.� Saxon was also vague in her testimony regarding how far down the road she could see.� Although she testified that she could not see �all the way down� the road, this testimony did not quantify the sufficiency of her sight distance.� Even construing Saxon�s testimony in the light most favorable to her, as we are required to do, we find there is no testimony or inferences to be drawn as to causation in fact.� Accordingly, the trial court properly directed a verdict in favor of the DOT.

II.

Saxon asserts the trial court erred in granting the DOT�s motion for a directed verdict on the issue of notice.� She contends the issue should have been submitted to the jury because the DOT conceded there was evidence of a breach of duty, which necessarily encompasses notice, and moreover, the DOT failed to affirmatively show a lack of notice.

�The South Carolina Tort Claims Act provides that the State, its agencies, political subdivisions, and other governmental entities are �liable for their torts in the same manner and to the same extent as a private individual under like circumstances,� subject to certain limitations and exemptions with the Act.�� Jinks v. Richland County, 355 S.C. 341, 344, 585 S.E.2d 281, 283 (2003) (quoting S.C. Code Ann. � 15-78-40 (Supp. 2002)).���� Section 15-78-60 of the South Carolina Code provides several exceptions to the waiver of sovereign immunity.� �These exceptions act as limitations on the liability of a governmental entity.� Id. at 344, 585 S.E.2d at 283.� Among these exceptions is one providing that a government entity is not liable for a loss resulting from �natural conditions of unimproved property of the governmental entity, unless the defect or condition causing a loss is not corrected by the particular governmental entity responsible for the property within a reasonable time after actual or constructive notice of the defect or condition.�� S.C. Code Ann. � 15-78-60 (10) (Supp. 2003).�

Therefore, the DOT cannot be liable for Saxon�s injuries unless the defect or condition that caused her injuries was not corrected �within a reasonable time after actual or constructive notice of the defect or condition.�� See Richardson v. City of Columbia, 340 S.C. 515, 522, 532 S.E.2d 10, 14 (Ct. App. 2000) (finding City of Columbia not liable for child�s injuries sustained at baseball field �unless the defect or condition that caused his injuries was �not corrected by the particular governmental entity responsible for maintenance, security, or supervision within a reasonable time after actual notice of the defect or condition�� (quoting S.C. Code Ann. � 15-78-60(16) (Supp. 1999))).� The exceptions outlined within the Act must be liberally construed in favor of limiting liability.� S.C. Code Ann. � 15-78-20 (f) (Supp. 2003).� The burden of establishing an exception to the waiver of immunity under the Tort Claims Act is upon the DOT.� Faile v. South Carolina Dep�t of Juvenile Justice, 350 S.C. 315, 324, 566 S.E.2d 536, 540 (2002).�

The DOT sought to meet this burden by the testimony of the highway patrolman.� The trooper testified that he traveled the road frequently, it was his duty to report any problems, and he never saw any problems.� Furthermore, a search of records showed no history of prior accidents at this intersection.� Based upon the stipulation that there was no record of prior accidents at this intersection and the testimony of the trooper, the DOT established it did not have actual notice of a dangerous condition. See Richardson, 340 S.C. at 525, 532 S.E.2d at 15 (holding City of Columbia did not have actual notice of any condition or defect prior to child�s accident at baseball field where there were no prior complaints that the area was dangerous and no prior injuries).�

Saxon, however, argues the DOT did have constructive notice of overgrowth and reduced sight lines.� Specifically, Saxon asserts the DOT was charged with constructive notice given it failed to anticipate and discover the obstruction by making frequent and careful inspections.

�Constructive notice is a legal inference which substitutes for actual notice.� It is notice imputed to a person whose knowledge of facts is sufficient to put him on inquiry; if these facts were pursued with due diligence, they would lead to other undisclosed facts.� Strother v. Lexington County Recreation Comm�n, 332 S.C. 54, 63 n.6, 504 S.E.2d 117, 122 n.6 (1998).� Constructive notice requires knowledge of facts sufficient to have led the DOT to the danger.� The trooper, however, testified that he was at the scene immediately after the accident and saw no problem with vegetation overgrowth.� Despite this testimony, Saxon relies on Campbell v. South Carolina State Highway Dep�t, 244 S.C. 186, 135 S.E.2d 838 (1964), overruled on other grounds by McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985) (abolishing the doctrine of sovereign immunity); Inabinett v. South Carolina State Highway Dep�t, 196 S.C. 117, 12 S.E.2d 848 (1941); and Ford v. South Carolina Dep�t. of Transp., 328 S.C. 481, 492 S.E.2d 811 (Ct. App. 1997), for the proposition that the duty owed by the DOT to maintain safe roads would require this court to find constructive notice and liability in this case.���

The DOT does in fact have a duty to maintain safe roads and to discover and remedy potential hazards; however, under the specific facts of this case, all testimony points to the existence of adequate sight lines.� The DOT cannot be charged with constructive notice that a dangerous condition existed when there is no testimony that any dangerous condition actually existed.� Furthermore, each of the above-cited cases is distinguishable from the instant case.� Unlike this case, there was evidence in each of the cases regarding the dangerous condition prior to the incident that was the subject of the lawsuit.� See Campbell, 244 S.C. at 190-91, 135 S.E.2d at 840 (affirming denial of highway department�s post-trial motions in case involving motorcycle accident on negligently maintained mountain road where highway department had on occasion repaired the road and was aware that the drainage system was insufficient to take care of excess water); Inabinett, 196 S.C. at 123-24, 12 S.E.2d at 850 (affirming denial of highway department�s post-trial motions in case for personal injuries sustained when a tree alongside a public highway fell onto plaintiff�s vehicle where plaintiff offered testimony that highway department was on constructive notice of the dangerous condition given the decay of the tree was visible and the highway department had examined the surrounding road shortly before the accident but had not discovered the condition of the tree); Ford, 328 S.C. at 487-89, 492 S.E.2d at 814-15 (reversing grant of summary judgment in favor of highway department in case arising from death of motorcyclist who collided with a fallen tree on the road where department worked in the area intermittently in the weeks immediately preceding the accident and an area neighbor informed the department prior to the accident that trees were falling onto the road and were dangerous).

Because there was no actual notice of a dangerous condition, and it is impossible to charge the DOT with constructive notice of a dangerous condition when there is no testimony of a dangerous condition, we find the trial court properly directed a verdict in favor of the DOT.� Thus, even assuming the DOT�s improper maintenance of the vegetation proximately caused Saxon�s injuries, the DOT was immune from liability under the Tort Claims Act given it did not have actual or constructive notice of the defect or condition.

CONCLUSION

For the reasons stated above, the decision of the circuit court is

AFFIRMED.

HEARN, CJ., STILWELL, J., and CURETON, AJ., concur.