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

Joyce Smith and Brenda L. Warren Brown, as Personal Representatives of the Estate of Christopher Bernard Smith,        Appellants,

v.

The South Carolina Department of Transportation, an Agency of the State of South Carolina, and William P. Cannington,        Defendants,

of whom William P. Cannington is        Respondent.

Appeal From Aiken County
Robert A. Smoak, Jr., Special Circuit Court Judge

Unpublished Opinion No. 2004-UP-190
Submitted March 8, 2004- Filed March 22, 2004���

AFFIRMED

James H. Moss, of Beaufort, for Appellants.

Robin A. Braithwaite, of Aiken, for Respondent.

PER CURIAM: Joyce Smith and Brenda L. Warren Brown, as personal representatives of the Estate of Christopher Bernard Smith (�the Estate�), commenced this wrongful death action against the South Carolina Department of Transportation (�SCDOT�) and William P. Cannington.� In this appeal, the Estate argues the trial court erred in granting summary judgment to Cannington and in finding insufficient evidence existed for the submission of a conscious pain and suffering claim against Cannington.� We affirm. [1]

FACTS

This case arose out of an automobile accident, which occurred on November 10, 1997.� Christopher Bernard Smith (�the Decedent�) drove a tractor-trailer from Jasper County, South Carolina to Augusta, Georgia where he picked up a load of fertilizer.� As he was returning to Ridgeland, South Carolina along Highway 278 in Aiken County, he encountered a detour, which routed him off Highway 278 and onto a series of secondary roads.���

SCDOT created the detour due to construction on the closed portion of Highway 278.� The detour eventually led travelers to DeSoto Road, which intersects back into Highway 278 at a T-type intersection.� Travelers on DeSoto Road encountered a steep downgrade for a short distance prior to the intersection with Highway 278.� For unknown reasons, the Decedent failed to stop when he reached the intersection, and as he turned the tractor-trailer to the right and onto the highway, it overturned resulting in his death.�

Following the accident, the Estate commenced wrongful death and conscious pain and suffering actions against SCDOT and William P. Cannington.� The Estate alleged SCDOT was negligent in several particulars related to the detour.� For example, the Estate averred SCDOT was negligent in its failure to erect proper signs warning travelers of the T-type intersection at DeSoto Road and Highway 278.��

As to Cannington, the owner of the tractor-trailer the Decedent was operating at the time of the accident, the Estate alleged inter alia that he was negligent in failing to provide a vehicle in suitable mechanical condition, and that this failure caused or contributed to the Decedent�s death.�

On April 26, 2001, SCDOT moved for summary judgment on the Estate�s cause of action for conscious pain and suffering.� On May 22, 2002, the trial court issued an order granting SCDOT�s motion, stating that no issue of material fact existed which would establish that the Decedent was conscious prior to his death.� Following the grant of summary judgment, the Estate and SCDOT reached a settlement, and thus, SCDOT is no longer a party to this action.�

Cannington moved for complete summary judgment on April 4, 2002, arguing no evidence rising beyond mere speculation was presented that the vehicle was in an unsafe condition.� On June 18, 2002, the trial court granted Cannington�s motion.� The Estate filed motions to alter or amend; those motions were denied by order dated August 16, 2002.�

LAW/ANALYSIS

The Estate argues the trial court erred in granting summary judgment to Cannington.� We disagree.

�In reviewing the grant of a summary judgment motion, this Court applies the same standard which governs the trial court under Rule 56(c), SCRCP.�� Fisher v. Stevens, 355 S.C. 290, 294, 584 S.E.2d 149, 151 (Ct. App. 2003) (citing Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991)). Accordingly, summary judgment is appropriate when ��there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.��� Id. (quoting Rule 56(c), SCRCP).� �In determining whether any triable issue of fact exists, as will preclude summary judgment, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party.�� McNair v. Rainsford, 330 S.C. 332, 341, 499 S.E.2d 488, 493 (Ct. App. 1998).

Thus, an issue must be submitted to a jury when material evidence exists tending to establish the point in the minds of reasonable jurors.� Hurd v. Williamsburg County, 353 S.C. 596, 609, 579 S.E.2d 136, 142-143 (Ct. App. 2003).� However, this does not mean an issue must be presented to a jury if the presentation rests on �speculative, theoretical and hypothetical� views.� Id.� This is part and parcel of the firmly established rule that �verdicts may not be permitted to rest upon surmise, conjecture or speculation.�� Small v. Pioneer Machinery, Inc., 329 S.C. 448, 461, 494 S.E.2d 835, 841 (Ct. App. 1997); see also Hanahan v. Simpson, 326 S.C. 140, 149, 485 S.E.2d 903, 908 (1997). [2]

The Estate points to eleven specific factors the trial court failed to consider when granting Cannington�s summary judgment motion.� However, only three of the eleven are even arguably relevant in making the determination of whether something was wrong with Cannington�s vehicle.� The Estate mentions the presence of skid marks showing the Decedent�s attempt to make the turn, the speed at which the Decedent was attempting to make the turn, and the fact that the brakes on the right side of the trailer �should have loaded if, in fact, they were working.�� The Estate also points out that the trial court failed to mention that the vehicle had brake problems.�

Although it is true the trial court did not specifically state that the vehicle had previous brake problems, the court does acknowledge that the vehicle passed the required safety inspection within one year of the accident.� The trial court also noted that preventive maintenance had been performed on the vehicle�s braking system in the weeks prior to the accident.� In addition, Lonnie Grant, the mechanic who performed the maintenance on the vehicle, testified he drove the truck the week he worked on it and that it �[drove] good.�� It is also important to note, as the trial court did, that the only person who inspected the actual vehicle, Officer Richard Todd Sawyer of the South Carolina State Transport Police, testified that his visual inspection of the vehicle produced no evidence from which it might be inferred that the brakes were not working properly.�

The Estate points to the deposition testimony of two accident reconstruction experts, Joe Wade Kent and Ronald Kirk, to support its contention that something was wrong with the vehicle�s brakes.� However, neither of these experts states with any reasonable degree of certainty that the brakes were inoperable or contributed to causing the accident.� In fact, Kent testified that �one of the possibilities and fairly likely probabilit[ies] is that during the time the driver was trying to make this right turn he was not on the brakes, that he was just trying to make the turn.�� His point was not that the brakes were never applied, but that no physical evidence of braking existed.� When specifically asked whether he could say with a reasonable degree of �engineering certainty� that the brakes had anything to do with the accident, Kent replied as follows: �I don�t think I could really state it anymore explicitly than I already have.� There are [three] possible causes, and it could be any one or any combination to [sic] any percentage of those [three].��

Similarly, Kirk testified that he could not state �to a reasonable degree of engineering certainty that there was anything wrong with the truck brakes.�� When asked whether he had formed any opinions within a reasonable degree of certainty as to the cause of the accident, Kirk stated: �What led to [the accident], I don�t know.� Whether it was a braking deficiency, whether its inattention, some combination, whether he didn�t see the stop sign soon enough, I just don�t know.� Or whether some third vehicle may have been somehow responsible.� I just don�t know all that.��

Thus, because no evidence existed which rose beyond conjecture or speculation that the brakes on the vehicle were defective, we find the trial court did not err in granting Cannington summary judgment. [3] ������

Accordingly, the trial court�s grant of summary judgment in favor of Cannington is

AFFIRMED.

HEARN, C.J., ANDERSON and BEATTY, JJ., concur.