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Wells v. Halyard6/12/2000
to this discussion, the trial court stated:
So, Madame Forelady, if I should intimate in any way where I believe the truth to lie as between the Plaintiff and the Defendant, then you disregard it, for it's unintentional on my part. That's your providence and yours alone, and I wouldn't intentionally invade your providence .
The trial court, therefore, avoided any potential prejudice. Considering the charge as a whole, we find no reversible error.
III.
Wells argues the trial court erred in failing to charge the standard of care applicable to her. Our review of the record, however, reveals no evidence that Wells ever asked the trial court to give this particular charge. Although Wells objected to the failure to give such a charge after the trial court concluded its charge to the jury, she points to nothing showing she ever asked for it prior to the jury charge.
Furthermore, the record does not contain any proposed jury charges regarding a plaintiff's standard of care. In her reply brief, Wells claims her "Request to Charge Number 32," which the trial court refused to give and to which she objected, encompasses this issue. This charge is a comparative negligence charge taken from Davenport v. Cotton Hope Plantation Horizontal Property Regime, 325 S.C. 507, 482 S.E.2d 569 (Ct. App. 1997), aff'd as modified, 333 S.C. 71, 508 S.E.2d 565 (1998). The charge deals with assumption of the risk rather than a plaintiff's standard of care.
Since Wells failed to request this particular charge prior to the charges being given and since she failed to include the proposed charge in the record, this issue is not preserved. See Greenville Mem'l Auditorium v. Martin, 301 S.C. 242, 391 S.E.2d 546 (1990) (the appellate court will not review the failure to give a requested jury charge where the request to charge does not appear on the record); Kline Iron & Steel Co. v. Superior Trucking Co., 261 S.C. 542, 201 S.E.2d 388 (1973) (the appellate court cannot review trial court's refusal to give requested charge where appellant fails to include requested charge in the record); Wren v. Kirkland Distrib. Co., 250 S.C. 178, 156 S.E.2d 865 (1967) (the appellate court will not review trial court's failure to give requested charge where the contents of the charge do not appear in the record).
IV.
Wells finally argues the trial court erred in charging the jury because the jury charges, as a whole, "were so slanted that any reasonable person would be swayed towards the defense." Wells specifically asserts that the cumulative effect of the errors in the jury charges justifies a new trial in this case. We disagree.
We initially address whether this issue is preserved. Wells made a motion for a new trial asserting several errors regarding the jury charges: (1) the trial court failed to charge particular instructions requested; (2) the trial court failed to charge Wells's standard of care; (3) the trial court overemphasized the standard that the occurrence of an injury is not enough to find medical malpractice; (4) the trial court repeated the "infallible standard" charge; and (5) the trial court erred in charging "anyone can file a lawsuit." Wells objected to each of these errors separately during the charge and recharge, and she objected to the errors as a whole during the motion for a new trial. We, therefore, conclude this issue is preserved for our review.
Wells cites State v. Freeman, 319 S.C. 110, 459 S.E.2d 867 (Ct. App. 1995), for the proposition that while each error raised alone may be insufficient to warrant a new trial, the cumulative effect of those errors is enough to require a new trial. We can find n
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