UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY STEINKE, individually and as
personal representative of the estate
of Zachary Steinke; MIKE STEINKE,
individually and as personal
representative of the estate of
Zachary Steinke,
Plaintiffs-Appellees,

v.

BILLY PLAYER,
Defendant-Appellant,

and
                                        No. 97-1625

BEACH BUNGEE, INCORPORATED;
CAROLINA LAND HOLDING
COMPANY OF LITTLE RIVER,
INCORPORATED; CHARLES VEREEN;
HAROLD MORRIS; MARSHALL BEAM;
RECREATIONAL STRUCTURES,
INCORPORATED; INGERSOLL-RAND
COMPANY; MASTER MECHANIC
MANUFACTURING COMPANY; JAY
PLAYER; ROBERT PLAYER,
Defendants.
MARY STEINKE, individually and as
personal representative of the estate
of Zachary Steinke; MIKE STEINKE,
individually and as personal
representative of the estate of
Zachary Steinke,
Plaintiffs-Appellees,

v.

CHARLES VEREEN,
Defendant-Appellant,

and
                                                               No. 97-1730

BEACH BUNGEE, INCORPORATED;
CAROLINA LAND HOLDING
COMPANY OF LITTLE RIVER,
INCORPORATED; HAROLD MORRIS;
BILLY PLAYER; MARSHALL BEAM;
RECREATIONAL STRUCTURES,
INCORPORATED; MASTER MECHANIC
MANUFACTURING COMPANY; JAY
PLAYER; ROBERT PLAYER, INGERSOLL-
RAND COMPANY,
Defendants.

Appeals from the United States District Court
for the District of South Carolina, at Florence.
William B. Traxler Jr., District Judge.
(CA-93-2679-4-21)

Argued: January 28, 1998

Decided: May 11, 1998

Before WILKINSON, Chief Judge, and ERVIN and
HAMILTON, Circuit Judges.

_________________________________________________________________

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Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in
which Chief Judge Wilkinson and Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Casey Brittain, HEARN, BRITTAIN & MAR-
TIN, Myrtle Beach, South Carolina, for Appellant. John Daniel Kas-
sel, SUGGS & KELLY, Columbia, South Carolina, for Appellees.
ON BRIEF: Scott B. Umstead, HEARN, BRITTAIN & MARTIN,
Myrtle Beach, South Carolina, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

This case arises out of a wrongful death action by Mike and Mary
Steinke for the death of their 17-year-old son, Zachary, which resulted
from the defendants' negligent operation of a bungee jumping site.
After the defendants appealed the jury's original $12 million actual
damages verdict rendered against them, we remanded the issue of
remittitur to the district court for reconsideration in light of Gasperini
v. Center for Humanities, Inc., 518 U.S. 415 (1996). Defendant Billy
Player now appeals the district court's order remitting the verdict to
$6 million, contending that the amount should be further remitted or,
in the alternative, that a new trial should be granted. Because there is
no evidence that the district court abused its discretion in failing to
grant a new trial absolute or in including damages for the parents'
having witnessed their son's death, we affirm.

I.

We described the events giving rise to this wrongful death action
in great detail in the previous appeal, and only a brief summary is

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necessary here. On August 10, 1993, Zachary Steinke, the 17-year-old
son of Mike and Mary Steinke, was killed at an attraction called
Beach Bungee near Myrtle Beach, South Carolina when a cable in the
jury-rigged attraction snapped, sending the steel cage in which Zack
was riding plummeting 160 feet to the ground below.

Zack's parents did not see the cage actually fall, but were aware of
the accident immediately after it happened. They entered the mangled
cage and unsuccessfully attempted CPR on their son. The evidence
further showed that Zack was an exemplary young man, who excelled
in school and sports, and who was devoted to his parents. There is
ample evidence that both his parents have been emotionally devas-
tated by his death.

A jury awarded the Steinkes $12 million in actual damages on their
wrongful death claim. The defendants, owners and operators of the
bungee attraction, contended that the award was clearly excessive and
sought remittitur. On appeal we affirmed on the question of the defen-
dants' liability, but vacated the award and remanded the case to the
district court to consider the defendants' motion for remittitur under
South Carolina law, stating:

          [I]n determining on remand whether the jury's verdict was
          rendered in accordance with South Carolina law, the district
          court should look to South Carolina cases to determine the
          range of damages in cases analogous to the one at hand. See
          Imbrogno v. Chamberlin, 89 F.3d 87, 90 (2d Cir. 1996);
          Douglass v. Delta Air Lines, Inc., 897 F.2d 1336, 1339 (5th
          Cir. 1990). If the court believes that a departure from that
          range is justified, it should provide the reasoning behind its
          view. If the court determines that there are no comparable
          cases under South Carolina law, it should explain this deter-
          mination as well. Such a decision by the district court will
          reduce the risk of caprice in large jury awards and will
          assure a reviewing court that the trial court exercised its
          considered discretion under the applicable state law.

Steinke v. Beach Bungee, Inc., 105 F.3d 192, 198 (4th Cir. 1997). In
its order on remand, the district court found that the $12 million ver-
dict was not the result of passion, caprice, or prejudice on the part of

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the jury and did not therefore warrant a new trial absolute. However,
the district court concluded that $12 million in damages was unduly
liberal and reduced the amount to $6 million. The Steinkes accepted
this reduction.

Defendants Billy Player and Charles Vereen appealed again, argu-
ing that the district court failed to evaluate properly the size of the
verdict in accordance with South Carolina law and that the $6 million
award should be further remitted. Vereen failed to file a timely notice
of appeal and his motion for an extension of time was denied by the
district court. Consequently, only Player's appeal is before this court.

II.

Player maintains that the original verdict of $12 million was the
result of jury passion or caprice and that the district court therefore
erred in not granting a new trial absolute. Under South Carolina law,
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 indi-
cates the amount of the verdict was the result of caprice, passion, prej-
udice, partiality, corruption, or other improper motive." Knoke v.
South Carolina Dept. of Parks, Recreation & Tourism , 478 S.E.2d
256, 258 (S.C. 1996). There is no evidence of any such improper
motive at work here.

In reviewing the verdict, as we instructed it to do, the district court
examined South Carolina cases analogous to this one-- wrongful
death verdicts involving minor children and no pecuniary loss. Ver-
dicts ranged from $22,000 in 1952, Hopkins v. Derst Baking Co., 71
S.E.2d 407 (S.C. 1952), to $3 million in 1996, Knoke, 78 S.E.2d at
258. The district court recognized that $12 million was above this
range, but stated that this departure was justifiable based on the cir-
cumstances. Specifically, the district court looked at the evidence of
the Steinkes' grief over the loss of their son, the circumstances sur-
rounding Zack's death, and Zack's character. J.A. at 120. The district
court pronounced itself "most persuaded" by the recent Knoke case,
in which a 12-year-old boy died from asphyxiation in a cabin fire at
a state park, and noted that in upholding the Knoke jury's $3 million
dollar verdict, the South Carolina Supreme Court stressed that the
intangible damages suffered by a parent who loses a child to a tragic

                    5
accident, "cannot be determined by any fixed measure." J.A. at 117
(quoting Knoke, 478 S.E.2d at 258-59). Twelve million dollars is
clearly an enormous sum of money, and significantly greater than the
$3 million Knoke award, but given the facts of this case, it is not so
grossly excessive as to "shock the conscience of the court" and
require a new trial absolute. Cf. Knoke, 478 F.2d at 258.

Finally, Player failed to point to any trial event or evidence that
might have caused the jury to act out of passion or prejudice.
Although he argued that the accident-scene evidence was impermiss-
ibly used to increase the amount of damages, nowhere did he contend
that it was so prejudicial that it should have been excluded or that it
caused the jury to make its award out of passion or prejudice. There-
fore, while the verdict is indeed higher than any found to date in a
South Carolina state court, it is not so "monstrous" or "plainly unjust"
as to require a new trial absolute. See Lucht v. Youngblood, 221
S.E.2d 854, 859-60 (S.C. 1976) (using such phrases to give standard
for new trial).

III.

Player contends that the district court improperly evaluated the size
of the verdict in accordance with South Carolina law when remitting
the $12 million verdict to $6 million. A district court's decision on
questions of remittitur is reviewed under an abuse of discretion stan-
dard. Gasperini v. Center for Humanities, 116 S. Ct. 2211, 2225
(1996); see also Johnson v. Hugo's Skateway, 974 F.2d 1408, 1414
(4th Cir. 1992) (en banc); Defender Inds. v. Northwestern Mut. Life
Ins. Co., 938 F.2d 502, 507 (4th Cir. 1991) (en banc). A district court
sitting in diversity must apply state law standards to determine
whether a verdict is excessive. Gasperini, 116 S. Ct. at 2224-25.

A.

Player contends that the district judge improperly allowed the grief
suffered by Zack's parents as a result of their witnessing his death to
be included in the $6 million verdict. According to Player, this type
of compensation could only have been awarded through an action for
negligent infliction of emotional distress. The problem with this argu-
ment, however, is that there is simply no South Carolina case law that

                    6
specifically prohibits including, as part of a wrongful death award,
damages that arise from witnessing a death.

A claim for negligent infliction of emotional distress is certainly
one avenue by which a person can seek compensation for damages
arising from witnessing an accident involving a loved one, see, e.g.,
Kinard v. Augusta Sash & Door Co., 336 S.E.2d 465, 467 (S.C. 1985)
(adopting general approach of Dillon v. Legg, 441 P.2d 912 (Cal.
1968), and setting forth elements for negligent infliction of emotional
distress cause of action in South Carolina), but there are no cases in
which a South Carolina court has stated, either explicitly or implicitly,
that such an action is the only way to get such relief. To the contrary,
as the district court noted, the South Carolina Supreme Court has spe-
cifically recognized that, when considering whether a verdict is exces-
sive, each case must be evaluated individually and within the
framework of its distinctive facts. J.A. at 121 (citing Lucht v.
Youngblood, 221 S.E.2d 854, 858 (S.C. 1976); Smoak v. Seaboard
Coast Line R. Co., 193 S.E.2d 594, 597 (S.C. 1972); Lynch v.
Alexander, 130 S.E.2d 563, 567 (S.C. 1963)).

The South Carolina Wrongful Death Statute allows recovery for a
very broad range of damages. According to the South Carolina
Supreme Court, the recoverable elements of damages include pecuni-
ary loss, mental shock and suffering, wounded feelings, grief, sorrow,
and loss of society and companionship. Lucht, 221 S.E.2d at 859 (cit-
ing Zorn v. Crawford, 165 S.E.2d 640, 645 (S.C. 1969)). Witnessing
the accident that led to a beloved child's death can certainly be said
to belong in the "mental shock and suffering" category and, as the dis-
trict court persuasively explained in its order, a parent's feelings of
grief and sorrow would almost certainly be intensified by witnessing
the death of a child, J.A. at 121-22, especially where a parent person-
ally participated in an unsuccessful resuscitation attempt. Accord-
ingly, we find that the district court did not abuse its discretion when
it considered the damage Zack's parents suffered as a result of wit-
nessing his death in setting the amount of the award in the wrongful
death verdict.

B.

Player also suggests that, by failing to remit the verdict to an
amount within the range of awards made by South Carolina courts in

                    7
similar cases, the district court failed on remand to properly follow
our instructions. We reject this argument because the district court
followed our instructions to the letter. As our previous opinion made
clear, we did not place any type of cap on the amount of damages that
the district court could find. Instead, we merely directed the district
court to "look to South Carolina cases to determine the range of dam-
ages in cases analogous to the one at hand," and cautioned that "[i]f
the court believes that a departure from that range is justified, it
should provide the reasoning behind its view." Steinke, 105 F.3d at
198 (citations omitted). The district court's order did just that: it care-
fully examined South Carolina case law to determine the range of
damages previously awarded by that state's courts in similar cases
and then provided a thoughtful and thorough analysis of the facts in
this case, including Zack's character, the violent circumstances sur-
rounding his death, and the additional grief suffered by his parents as
a result of having watched him die in such a terrible manner. The dis-
trict court then reasonably concluded that these factors called for an
award of damages significantly greater than any awards to date by
South Carolina courts in similar wrongful death cases. The district
court therefore complied with our instructions, demonstrating to the
satisfaction of this court that it did indeed appropriately "exercise[ ]
its considered discretion under applicable state law." Id.

IV.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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