        THE STATE OF SOUTH CAROLINA
             In The Supreme Court

Crystal L. Wickersham; Crystal L. Wickersham, as
personal representative of the Estate of John Harley
Wickersham Jr., Plaintiffs,

v.

Ford Motor Company, Defendant.

Appellate Case No. 2018-001124



               CERTIFIED QUESTION



ON CERTIFICATION FROM THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT


                  Opinion No. 27904
      Heard January 29, 2019 – Filed July 24, 2019


       CERTIFIED QUESTION ANSWERED


Kathleen Chewning Barnes, Barnes Law Firm, LLC;
Ronnie Lanier Crosby, Peters, Murdaugh, Parker, Eltzroth
& Detrick, P.A., both of Hampton, for Plaintiffs.

Adam H. Charnes and Thurston H. Webb, Kilpatrick
Townsend & Stockton LLP, of Winston-Salem, NC;
Joseph Kenneth Carter Jr. and Carmelo Barone
Sammataro, Turner Padget Graham & Laney P.A., of
Columbia, for Defendant.
            Steve A. Matthews, Haynsworth Sinkler Boyd, P.A., of
            Columbia; Victor E. Schwartz, Cary Silverman, and Phil
            Goldberg, Shook Hardy & Bacon LLP, of Washington,
            D.C., all for amicus curiae the Alliance of Automobile
            Manufacturers, Inc.

            Gray Thomas Culbreath and Jessica Ann Waller, Gallivan
            White & Boyd, P.A., of Columbia, for amicus curiae the
            Product Liability Advisory Counsel, Inc.

            Frank L. Eppes, Eppes & Plumblee, P.A., of Greenville,
            for amicus curiae the South Carolina Association for
            Justice.


JUSTICE FEW: Responding to two questions certified to us by the United States
Court of Appeals for the Fourth Circuit, we hold traditional principles of proximate
cause govern whether a personal representative has a valid claim for wrongful death
from suicide, and whether—in a crashworthiness case—a person's own actions that
enhance his injuries, as opposed to those that cause the accident itself, should be
compared to the tortious conduct of a defendant in determining liability.

      I.    Facts and Procedural History

John Harley Wickersham Jr. was seriously injured in an automobile accident. After
months of severe pain from the injuries he received in the accident, he committed
suicide. See Wickersham v. Ford Motor Co., 194 F. Supp. 3d 434, 435-37 (D.S.C.
2016) (a complete explanation of the facts of this case). His widow filed lawsuits
for wrongful death, survival, and loss of consortium against Ford Motor Company
in state circuit court. She alleged that defects in the airbag system in Mr.
Wickersham's Ford Escape enhanced his injuries, increasing the severity of his pain,
which in turn proximately caused his suicide. She included causes of action for
negligence, strict liability, and breach of warranty.

Ford removed the cases to the United States District Court for the District of South
Carolina. Ford then filed a motion for summary judgment in the wrongful death suit,
arguing Mrs. Wickersham has no wrongful death claim under South Carolina law
because Mr. Wickersham's suicide was an intervening act that could not be
proximately caused by a defective airbag. The district court denied Ford's motion.
194 F. Supp. 3d at 448. The court ruled Mrs. Wickersham could prevail on the
wrongful death claim if she proved the enhanced injuries Mr. Wickersham sustained
in the accident as a result of the defective airbag caused severe pain that led to an
"uncontrollable impulse" to commit suicide. Ford renewed the motion during and
after trial, but the district court denied both motions.

During trial, the parties disputed the cause of Mr. Wickersham's enhanced injuries.
Mrs. Wickersham alleged the defective airbag caused them, while Ford argued Mr.
Wickersham caused his enhanced injuries by being out of position.

The jury returned a verdict for Mrs. Wickersham on all claims. The jury found the
airbag was defective and proximately caused Mr. Wickersham's enhanced injuries
and suicide. However, the jury also found Mr. Wickersham's actions in being out of
position enhanced his injuries, and found his share of the fault was thirty percent.
The district court entered judgment for Mrs. Wickersham, but denied Ford's request
to reduce the damages based on Mr. Wickersham's fault. Ford filed motions to alter
or amend the judgment, for judgment as a matter of law, and for a new trial, all of
which the district court denied.

Ford appealed, and the Fourth Circuit certified the following questions to this Court.

             1. Does South Carolina recognize an "uncontrollable
             impulse" exception to the general rule that suicide breaks
             the causal chain for wrongful death claims? If so, what is
             the plaintiff required to prove is foreseeable to satisfy
             causation under this exception—any injury, the
             uncontrollable impulse, or the suicide?

             2. Does comparative negligence in causing enhanced
             injuries apply in a crashworthiness case when the plaintiff
             alleges claims of strict liability and breach of warranty and
             is seeking damages related only to the plaintiff's enhanced
             injuries?

      II.    Recovery for Wrongful Death from Suicide

In its order of certification, the Fourth Circuit acknowledged this Court might restate
the certified questions. In answering the first question, we find it necessary to do so.

South Carolina does not recognize a general rule that suicide is an intervening act
which breaks the chain of causation and categorically precludes recovery in
wrongful death actions. Rather, our courts have applied traditional principles of
proximate cause to individual factual situations when considering whether a personal
representative has a valid claim for wrongful death from suicide.

In Scott v. Greenville Pharmacy, 212 S.C. 485, 48 S.E.2d 324 (1948), we stated,

             In every case of this character the inquiry is: Was the
             injury a natural and probable consequence of the wrongful
             act, and ought it to have been foreseen in the light of the
             attendant circumstances? In this case the deceased took
             his own life by hanging. Can it be reasonably said that his
             tragic end was a natural and probable consequence of the
             sale to him of the barbiturate capsules, and should it have
             been foreseen in the normal course of events?

212 S.C. at 493-94, 48 S.E.2d at 328. In Scott, the plaintiff brought a wrongful death
action against a pharmacy, claiming her husband committed suicide after becoming
addicted to barbiturate capsules the pharmacy sold him in violation of state law. 212
S.C. at 487-88, 48 S.E.2d at 325. The circuit court dismissed the case. 212 S.C. at
487, 48 S.E.2d at 325. On appeal, we found "it would be going entirely too far . . .
to hold that the unlawful sale of the barbiturate capsules brought about a condition
of suicidal mania as the natural and probable consequence of the sale, or that this
result should have been reasonably foreseen by the respondent." 212 S.C. at 495, 48
S.E.2d at 328.

Likewise, in Horne v. Beason, 285 S.C. 518, 331 S.E.2d 342 (1985), this Court
affirmed the dismissal of a wrongful death action brought by the estate of Horne, a
seventeen-year-old who hung himself with a cloth bathrobe belt tied to overhead
bars in his jail cell shortly after being arrested. 285 S.C. at 521-22, 331 S.E.2d at
344-45. We explained, "Foreseeability is often a jury issue but not here." 285 S.C.
at 522, 331 S.E.2d at 345. We applied standard proximate cause principles and
found the defendants could not be expected to foresee that Horne would hang
himself. 285 S.C. at 521-22, 331 S.E.2d at 344-45. We specifically addressed the
unique facts of the case, stating "the presence of overhead bars is of no real
significance" and there are "few things more unlike a dangerous instrumentality than
a bathrobe belt." 285 S.C. at 521-22, 331 S.E.2d at 345. We concluded, "Under the
circumstances, none of the defendants should have been expected to foresee that
Horne would likely commit suicide." 285 S.C. at 522, 331 S.E.2d at 345.1

As Scott and Horne illustrate, South Carolina courts apply traditional proximate
cause principles in analyzing whether a particular plaintiff can recover for wrongful
death from suicide. "Each case must be decided largely on the special facts
belonging to it." Scott, 212 S.C. at 494, 48 S.E.2d at 328. See Alex B.
Long, Abolishing the Suicide Rule, 113 NW. U. L. Rev. 767 (2019) (discussing the
"trend among court decisions away from singling out suicide cases for special
treatment and toward an analytical framework that more closely follows traditional
tort law principles"). Thus, we restate the first question as asking us to explain how
our standard proximate cause analysis applies to an alleged wrongful death from
suicide.

Proximate cause requires proof of cause-in-fact and legal cause. Baggerly v. CSX
Transp., Inc., 370 S.C. 362, 369, 635 S.E.2d 97, 101 (2006). In causation, as in other
contexts, "proximate" is the opposite of "remote." See Stone v. Bethea, 251 S.C.
157, 162, 161 S.E.2d 171, 173 (1968) ("When the [conduct] appears merely to have
brought about a condition of affairs, or a situation in which another and entirely
independent and efficient agency intervenes to cause the injury, the latter is to be
deemed the direct or proximate cause, and the former only the indirect or remote
cause."). The cause-in-fact and legal cause elements are designed to enable courts
and juries to differentiate between proximate and remote causes in a reliable manner.

As to legal cause, "foreseeability is considered 'the touchstone . . . ,' and it is
determined by looking to the natural and probable consequences of the defendant's
act or omission." Baggerly, 370 S.C. at 369, 635 S.E.2d at 101 (quoting Koester v.
Carolina Rental Ctr., Inc., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994)). In most
cases, foreseeability ends up being addressed as a question of fact for the jury. Oliver
v. S.C. Dep't of Highways & Pub. Transp., 309 S.C. 313, 317, 422 S.E.2d 128, 131
(1992). In the first instance, however, legal cause is just what its name suggests—a
question of law. "[W]hen the evidence is susceptible to only one inference . . . [legal
cause] become[s] a matter of law for the court." Id. (citing Matthews v. Porter, 239

1
  Cf. Hearn v. Lancaster Cty., 566 F. App'x 231, 236 (4th Cir. 2014) (explaining that
because of qualified immunity, the personal representative of an inmate who
committed suicide in jail may recover from a governmental entity or employee only
if the representative meets the "deliberate indifference" standard "that is generally
only satisfied by government conduct that shocks the conscience" (citing Parrish v.
Cleveland, 372 F.3d 294, 302 (4th Cir. 2004))).
S.C. 620, 625, 124 S.E.2d 321, 323 (1962)); see also Gause v. Smithers, 403 S.C.
140, 150, 742 S.E.2d 644, 649 (2013) (discussing foreseeability, and stating "in rare
or exceptional cases . . . the issue of proximate cause [may] be decided as a matter
of law" (quoting Bailey v. Segars, 346 S.C. 359, 367, 550 S.E.2d 910, 914 (Ct. App.
2001))).

In cases involving wrongful death from suicide, our courts have consistently decided
legal cause as a matter of law. See Horne, 285 S.C. at 522, 331 S.E.2d at 345 (finding
as a matter of law the suicide was not foreseeable); Scott, 212 S.C. at 495, 48 S.E.2d
at 328 (same); Crolley v. Hutchins, 300 S.C. 355, 357-58, 387 S.E.2d 716, 718 (Ct.
App. 1989) (same). Therefore, whether a suicide is a foreseeable consequence of
tortious conduct is first a question of law for a court to decide. If a court determines
a particular suicide is not unforeseeable as a matter of law, legal cause—
foreseeability—becomes a question for the jury.

A plaintiff must also prove cause-in-fact. "Causation in fact is proved by
establishing the plaintiff's injury would not have occurred 'but for' the defendant's
negligence." Hurd v. Williamsburg Cty., 363 S.C. 421, 428, 611 S.E.2d 488, 492
(2005) (citing Oliver, 309 S.C. at 316, 422 S.E.2d at 130). This is a difficult burden
in claims for wrongful death from suicide. For instance, proving causation-in-fact
in this case required Mrs. Wickersham to prove the following sequence of causal
events: Ford's defective design of the airbag enhanced Mr. Wickersham's injuries,
which in turn caused him to suffer severe pain he would not otherwise have had,
which in turn caused him to experience an uncontrollable impulse to commit suicide,
which in turn caused him to take his own life involuntarily, which he would not have
done but for Ford's defective design.

We answer the Fourth Circuit's first certified question as follows:

             South Carolina does not recognize a general rule that
             suicide is an intervening act that always breaks the chain
             of causation in a wrongful death action. Rather, our courts
             apply traditional principles of proximate cause. First, the
             court must decide as a matter of law whether the suicide
             was unforeseeable. If the court determines the suicide was
             not unforeseeable as a matter of law, the jury must
             consider foreseeability. The jury must also consider
             causation-in-fact, including whether the defendant's
             tortious conduct caused a decedent to suffer from an
             involuntary and uncontrollable impulse to commit suicide.
      III.   Proximate Cause of Enhanced Injuries

In Donze v. General Motors, LLC, 420 S.C. 8, 800 S.E.2d 479 (2017), we addressed
the following question certified to us by the United States District Court for the
District of South Carolina:

             Does comparative negligence in causing an accident
             apply in a crashworthiness case when the plaintiff alleges
             claims of strict liability and breach of warranty and is
             seeking damages related only to the plaintiff's enhanced
             injuries?

420 S.C. at 11, 800 S.E.2d at 480 (emphasis added). We answered the certified
question "no" and held "comparative negligence does not apply to permit the
negligence of another party—whether the plaintiff or another defendant—in causing
an initial collision to reduce the liability of a manufacturer for enhanced injuries in
a crashworthiness case." 420 S.C. at 20, 800 S.E.2d at 485 (emphasis added). In
reaching our decision, we adopted the reasoning of Jimenez v. Chrysler Corp., 74 F.
Supp. 2d 548 (D.S.C. 1999), rev'd in part on other grounds, 269 F.3d 439 (4th Cir.
2001), in which the district court explained "the alleged negligence causing the
collision is legally remote from, and thus not the legal cause of, the enhanced injury
caused by a defective part that was supposed to be designed to protect in case of a
collision." 420 S.C. at 18, 800 S.E.2d at 484 (quoting Jimenez, 74 F. Supp. 2d at
566). Therefore, we held, "[b]ecause a collision is presumed, and enhanced injury
is foreseeable as a result of the design defect, the triggering factor of the accident is
simply irrelevant." Id. (quoting Jimenez, 74 F. Supp. 2d at 566).

In this case, the Fourth Circuit asks a different question. We are now asked whether
comparative negligence—which is normally thought of as a defense2—applies when
the conduct to be compared relates only to the enhancement of the injuries, not to
the cause of the accident. As we did with the first question, we restate the question.
We address the question as one of proximate cause. The question is whether a
plaintiff's actions that cause only the enhancement of his injuries—not the accident
itself—may be proximate, or are they necessarily legally remote as in Donze, and
therefore irrelevant. We anticipated this question in Donze. See 420 S.C. at 20 n.4,
800 S.E.2d at 485 n.4 (noting our ruling applied only to a plaintiff's fault "in causing

2
 See Donze, 420 S.C. at 10, 800 S.E.2d at 480 (stating "the defense of comparative
negligence does not apply in crashworthiness cases").
the collision," and leaving open the possibility a plaintiff's conduct independent of
the initial collision—such as "'tying a door shut for example'"—could reduce a
plaintiff's recovery for his enhanced injuries (quoting Jimenez, 74 F. Supp. 2d at 566
n.11)); see also 420 S.C. at 24-25, 800 S.E.2d at 488 (Kittredge, J., concurring) ("I
would limit the holding to true crashworthiness cases where it is established as a
matter of law that the plaintiff's comparative fault was not a proximate cause of the
'enhanced injuries.'").

In contrast to the situation in Donze, if a plaintiff's actions that do not cause the
accident are nevertheless a contributing cause to the enhancement of his injuries, the
plaintiff's actions are not necessarily a legally remote cause. We now hold—under
a standard proximate cause analysis—even though the cause of the accident itself is
legally remote, comparative principles must apply in a crashworthiness case in
determining who caused the enhancement of the plaintiff's injuries. This is a
different question than who caused the initial collision. A plaintiff's actions that do
not cause the accident, but cause the enhancement of his injuries, must be compared
to the fault of the manufacturer in determining the manufacturer's share of liability
for the enhanced injuries.

Under Donze, any fault Mr. Wickersham may have had in causing the accident is
remote. However, Ford maintained Mr. Wickersham was out of position in his
driver's seat by leaning into the passenger seat when the airbag deployed, and Mr.
Wickersham being out of position was a proximate cause of the enhancement of his
injuries. The jury agreed, and found Mr. Wickersham was thirty percent at fault
for his injuries. These actions must be compared to Ford's fault in determining
Ford's liability for enhancement of Mr. Wickersham's injuries. We answer the
second certified question as follows:

             When there is evidence in a crashworthiness case that the
             plaintiff's own actions—although not a cause of the
             accident itself—caused his enhanced injuries, comparative
             principles must be employed to determine the defendant's
             share of liability for the plaintiff's enhanced injuries. This
             is a separate inquiry from the plaintiff's fault as a cause of
             the accident, which—under Donze—is legally remote and
             therefore not relevant. It is also a separate question from
             "fault," and it is not necessarily a defense as we normally
             consider comparative negligence to be. Rather, it is a
             question of proximate cause. As would be true in any case,
             it is the plaintiff's burden to prove the defendant
          proximately caused the damages he alleges. In a
          crashworthiness case, it is the plaintiff's burden to prove
          the defendant's tortious conduct—whether the theory of
          recovery is negligence, breach of warranty, or strict
          liability—proximately caused a specific share of the
          plaintiff's enhanced injuries.

CERTIFIED QUESTIONS ANSWERED.

BEATTY, C.J., HEARN and JAMES, JJ., and Acting Justice James E.
Lockemy, concur.
