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ELECTRONICALLY FILED - 2019 Jan 16 2:22 PM - HORRY - COMMON PLEAS - CASE#2019CP2600238

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS


) FOR THE 15TH JUDICIAL CIRCUIT
COUNTY OF HORRY ) CASE NO.:
LATISHA TAYLOR, as Personal )
Representative of the Estate of )
Timothy Taylor, Deceased, )
)
Plaintiff, )
)
v. ) SUMMONS
) (Jury Trial Demanded)
MICHAEL LEE WHISENHUNT and )
BURROUGHS AND CHAPIN CO., INC. )
)
Defendants. )
____________________________________)

TO: THE DEFENDANT MICHAEL LEE WHISENHUNT

YOU ARE HEREBY SUMMONED and required to answer the Complaint in this

action, a copy of which is herewith served upon you, and to serve a copy of your answer to the

Complaint on the Plaintiffs’ attorney, William Stuart Duncan, at his office, 1001 Front Street,

P.O. Box 736, Georgetown, South Carolina 29442-0736, within thirty (30) days after the service

hereof, exclusive of the day of such service, and if you fail to answer the Complaint within the

time aforesaid, the Plaintiffs in this action will apply to the Court for the relief demanded in the

Complaint.

LAW OFFICE OF WILLIAM STUART DUNCAN, PA

s/William Stuart Duncan


Raymond C. Fischer, SC Bar # 2023
William Stuart Duncan, SC Bar # 1154
1001 Front Street (P. O. Box 736)
Georgetown, SC 29442-0736
Telephone: (843) 546-1212
Facsimile: (843) 545-0177
wsdlaw1@aol.com
rfischer@lawyer.com
Attorneys for Plaintiff
January 14, 2019
Georgetown, South Carolina.
ELECTRONICALLY FILED - 2019 Jan 16 2:22 PM - HORRY - COMMON PLEAS - CASE#2019CP2600238
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) FOR THE 15TH JUDICIAL CIRCUIT
COUNTY OF HORRY ) CASE NO.:
LATISHA TAYLOR, as Personal )
Representative of the Estate of )
Timothy Taylor, Deceased, )
)
Plaintiff, )
)
v. ) SUMMONS
) (Jury Trial Demanded)
MICHAEL LEE WHISENHUNT and )
BURROUGHS AND CHAPIN CO., INC. )
)
Defendants. )
____________________________________)

TO: THE DEFENDANT BURROUGHS AND CHAPIN COMPANY, INC.

YOU ARE HEREBY SUMMONED and required to answer the Complaint in this

action, a copy of which is herewith served upon you, and to serve a copy of your answer to the

Complaint on the Plaintiffs’ attorney, William Stuart Duncan, at his office, 1001 Front Street,

P.O. Box 736, Georgetown, South Carolina 29442-0736, within thirty (30) days after the service

hereof, exclusive of the day of such service, and if you fail to answer the Complaint within the

time aforesaid, the Plaintiffs in this action will apply to the Court for the relief demanded in the

Complaint.

LAW OFFICE OF WILLIAM STUART DUNCAN, PA

s/William Stuart Duncan


Raymond C. Fischer, SC Bar # 2023
William Stuart Duncan, SC Bar # 1154
1001 Front Street (P. O. Box 736)
Georgetown, SC 29442-0736
Telephone: (843) 546-1212
Facsimile: (843) 545-0177
wsdlaw1@aol.com
rfischer@lawyer.com
Attorneys for Plaintiff
January 14, 2019
Georgetown, South Carolina.
ELECTRONICALLY FILED - 2019 Jan 16 2:22 PM - HORRY - COMMON PLEAS - CASE#2019CP2600238
STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS
) 15THJUDICIAL CIRCUIT
COUNTY OF HORRY ) File No.

Latisha Taylor, As Personal )


Representative of the Estate of )
Timothy Taylor, Deceased, )
)
Plaintiff, )
Vs. ) COMPLAINT
Michael Lee Whisenhunt & ) (Wrongful Death, Survival Action)
Burroughs and Chapin Co., Inc., )
)
Defendants. )
______________________________) JURY TRIAL DEMANDED

NOW COMES the Plaintiff to complain of the acts, omissions and derelicts of the

Defendants, jointly and severally, as follows:

ONE: The Plaintiff is a citizen and resident of Horry County, South Carolina and has been

duly appointed by the Probate Court of said jurisdiction as Personal Representative of the Estate of

Timothy Taylor, Deceased in Probate case number 2018ES2602450.

TWO: Defendant Michael Lee Whisenhunt is a resident of Horry County, South Carolina

and at all times relevant hereto was engaged in conduct arising out of, within the scope of and

occurring during the course of his employment as an agent, servant and/or employee of Defendant

Burroughs and Chapin Co., Inc.

THREE: Defendant Burroughs & Chapin Co., Inc. is a South Carolina corporation which

engages in an on-going course of business in Horry County, South Carolina. At all times relevant

hereto said Defendant engaged the labors, activities and/or services of Defendant Michael Lee

Whisenhunt as an agent, servant and/or employee, responsible and liable for the acts and derelicts

of Defendant Whisenhunt in accordance with the legal principles and doctrine of respondeat

superior.

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FOUR: During the predawn hours of September 25, 2018, at or before 06:24 a.m.,1 Decedent

Timothy Taylor was traveling to his place of employment by peacefully and lawfully operating a

motor vehicle, traveling in a westerly direction along a roadway known as Mr. Joe White Avenue

(10th Avenue Extension North) in the vicinity of Mancini Drive in the City of Myrtle Beach, South

Carolina.

FIVE: At the same time and place, Defendant Whisenhunt, acting for and on behalf of

Defendant Burroughs and Chapin Co., Inc. as an agent, servant and/or employee of the latter, was

unlawfully operating, driving or moving an improperly illuminated piece of heavy construction

equipment with a dark steel shovel-like bucket spanning the width of the front of the vehicle that

was owned and/or otherwise under the supervision and control of Defendant Burroughs and Chapin

Co., all while traveling in an easterly direction along said Mr. Joe White Avenue (10th Aveue

Extension North) in the vicinity of Mancini Drive in the City of Myrtle Beach, South Carolina,

doing so despite the fact that, as a matter of law, improperly illuminated heavy construction

equipment of the kind and type he was operating cannot lawfully be driven, moved used or

otherwise occupy a public roadway in during predawn hours in the State of South Carolina.2

SIX: At all times relevant hereto, the heavy construction equipment operated by Defendant

Whisenhunt for and on behalf of Defendant Burroughs and Chapin Co., Inc. was not equipped with

head lamps located at a height between a minimum of twenty-four inches and a maximum of fifty-

four inches from the level ground as otherwise required by law and, therefore, could not be lawfully

driven, operated or moved along a public roadway of the State of South Carolina.3

1
Sunrise that day occurred at 07:05 a.m.
2
See, inter alia, Code of Laws of South Carolina, Secs. 56-5-4450, 56-5-4470, 56-5-4480, and 56-5-4500

3
Id.

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SEVEN: At all times relevant hereto, the presence, operation and/or movement of the

improperly illuminated heavy construction equipment described hereinabove that was on a public

road identified as Mr. Joe White Avenue (10th Avenue Extension North) during predawn hours was

in direct violation of applicable provisions of South Carolina law and therefore, negligent, negligent

per se, willful, wanton, reckless and grossly negligent in the following particulars:

(a) By failing to equip the heavy construction equipment in question with proper

illumination;

(b) By failing to prohibit, restrict, prevent or control the use, operation or movement of

improperly illuminated heavy construction equipment on the public roads of the State of South

Carolina during predawn hours as otherwise required by law;

(c) By moving, operating or allowing the movement or operation of heavy construction

equipment on a public roadway during dark predawn hours without proper illumination as otherwise

required by law;

(d) By moving, operating or allowing the movement or operation of a large, heavy

construction equipment upon which a dark steel shovel or bucket was mounted in front that covered

the entire front of the vehicle at a height where the presence of headlights or headlamps are

otherwise required by law, thereby obscuring or rendering invisible or near invisible the heavy

construction equipment being so moved or operated;

(e) By moving or operating said heavy construction equipment in a manner that violated the

laws of the State of South Carolina regarding the use, movement or operation of same on the public

roadways;

(f) By moving or operating said heavy construction equipment with a large metallic shovel

or bucket spanning the front of the vehicle in a manner that impaired or obscured the vision of its

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operator as it moved or was otherwise operated along the public roadway;

(g) It failing to properly transport the aforedescribed heavy construction equipment by use

of a flatbed tractor trailer during predawn hours or otherwise limiting its movement to daylight hours

in which it could be safely used, moved or operated on the public roads of this State;

(h) In Defendant Burroughs & Chapin Co. Inc.’s failure to limit, instruct or train Defendant

Michael Lee Whisenhunt to avoid use, movement or operation of heavy construction equipment

during predawn hours;

(i) In Defendant Burroughs and Chapin Co., Inc.’s failure to properly supervise its agent,

servant and/or employee Michael Lee Whisenhunt;

(j) In using, moving or operating heavy construction equipment unlawfully and/or on a

public roadway during predawn hours;

(k) In failing to yield the right-of-way to on-coming traffic;

(l) In failing to keep the heavy construction equipment under proper control;

(m) In failing to exercise the last clear chance to avoid colliding with the vehicle lawfully

operated by Decedent Timothy Taylor despite having ample opportunity to do so;

(n) In operating heavy construction equipment at a speed that was unsafe for the conditions

then and there prevailing;

(o) In failing to use the degree of care and caution that reasonably prudent persons would use

under like circumstances;

Each of which, singly and/or in combination with one another, was a direct and proximate cause

of the serve actual and consequential damage, harm and loss, including, but not limited, to physical

injury, conscious pain and suffering, fear and dread associated with the recognition of impending

death, and ultimate death of Timothy Taylor as well as financial losses in the form of medical

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expenses, funeral and related expenses, lost income and employment benefits, with all the expenses

and financial losses attendant thereto.

FOR A FIRST CAUSE OF ACTION—Survival action

EIGHT: The Plaintiff here restates, reiterates and realleges each and every matter of fact set

forth above as if restated, reiterated and realleged herein verbatim.

NINE: Had he survived the tragic events giving rise to this litigation, Decedent Timothy

Taylor could have maintained an action against the Defendants, jointly and severally, based upon

the negligent, willful,, wanton, careless, reckless, grossly negligent and unlawful acts of the

Defendants complained of and set out in full and detail in the preceding and subsequent paragraphs

of this Complaint, all of which are restated, repeated, reiterated and realleged herein verbatim.

TEN: As the duly appointed Personal Representative of the Estate of Timothy Taylor, the

Plaintiff is fully authorized, empowered and has the legal right and standing to prosecute all claims

set out herein on behalf of Timothy Taylor pursuant to Code of Laws of South Carolina, Sec. 15-5-

90.

ELEVEN: That as a direct and proximate result of the collision between the heavy

construction equipment operated by Defendant Whisenhunt as the agent, servant and/or employee

of Defendant Burroughs and Chapin Co., Inc., and the joint and several negligence, willful, wanton,

reckless, careless, grossly negligent conduct and the unlawfully negligent per se actions of said

Defendants complained of hereinabove and hereinbelow, Timothy Taylor endured significant

conscious pain, suffering, anxiety and dread associated with the recognition of the critical nature of

his injuries and the apparent immediacy and imminence of his impending death, lost the continued

enjoyment of his life to its otherwise expected natural duration, incurred substantial medical and

final expenses in connection with the treatment of the injuries he suffered and the ultimate disposal

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of his earthly remains, he and his Estate and heirs were deprived of the benefit of the income and

earnings he would otherwise have generated and received during his lifetime, including wages,

benefits and retirement income and suffered other legally cognizable direct and consequential

injuries, damages, harm and losses.

TWELVE: Based on the foregoing the Plaintiff is informed and believes that she is entitled

to a trial by a jury, a judgment against the Defendants, jointly and severally, for actual damages in

an amount to be established at trial and to an award of such punitive damages as deemed just by a

jury.

FOR A SECOND CAUSE OF ACTION – Wrongful death

THIRTEEN: The Plaintiff here restates, reiterates and realleges each and every matter of

fact set forth above as if fully restated, reiterated and realleged herein verbatim.

FOURTEEN: That at the time and place of the occurrence which resulted in the tragic loss

of life of Timothy Taylor, the Defendants, jointly, severally and by virtue of the employment

relationship between them pursuant to the legal doctrine of respondeat superior, were negligent,

careless, reckless, willful, wanton and grossly negligent and committed acts of negligence per se in

the following particulars:

(a) In operating or allowing, facilitating or enabling the operation of a dangerous

instrumentality (to wit: heavy construction equipment) on a roadway in the absence of proper

illumination during predawn hours;

(b) In operating or allowing, facilitating or enabling the operation of a dangerous

instrumentality as set out hereinabove without maintaining proper control to avoid colliding with

other vehicles, including the one in which Timothy Taylor was lawfully operating;

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(c) In failing or to keep a proper lookout to avoid colliding with other motor vehicles and/or

allowing the operation of a dangerous instrumentality in said manner and/or allowing, facilitating

or enabling an agent, servant or employee to do same;

(d) In failing to obey traffic laws then and then in place to protect others like Timothy Taylor

injury, harm and/or loss of life or allowing, facilitating or enabling an agent, servant or employee

to do so;

(e) In operating the heavy construction equipment at an unsafe rate of speed and/or allowing,

facilitating or enabling an agent, servant or employee to do so;

(f) In failing to exit or otherwise move toward the shoulder of the roadway on which said

heavy construction equipment was otherwise being unlawfully used, moved or operated and/or

allowing, facilitating or enabling an agent, servant and/or employee operator of said motor vehicle

to engage in such tortuous misconduct;

(f) In failing to obey the laws of the State of South Carolina and/or allowing, facilitating or

enabling an agent, servant or employee to engage in said misconduct;

(g) In failing to obey lawful restrictions on the movement, use or operation of heavy

construction equipment upon the public roads of South Carolina during predawn hours and/or

allowing, facilitating or enabling an agent, servant and/or employee to do so;

(h) In allowing, encouraging, enabling or facilitating the operation of a dangerous

instrumentality by an individual who was either unschooled and untrained in legal restrictions on

the use of such equipment on the public roads in predawn hours and/or who was incompetent to

safely transport or move same under the conditions then and there prevailing;

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(i) In failing to take easily accomplished safeguards to ensure that persons with access to the

use, operation or movement of heavy construction equipment owned and controlled by the

Defendant corporation could not do so during predawn hours, thereby creating a readily foreseeable

and avoidable risk of harm to the public, Timothy Taylor included.

(j) In failing to use the degree of care and caution that persons of ordinary care and prudence would

use in like or similar circumstances;

All or any one of which was negligent, willful, wanton, careless, reckless and grossly

negligent, constituted negligence per se and, further was the direct and proximate cause of the

injury, damage, harm, conscious pain and suffering and death of Timothy Taylor as set out more

fully hereinabove and below and for which the Defendants are, jointly and severally, fully

responsible and legally liable.

FIFTEEN: The negligent, willful, wanton, careless, reckless, grossly negligent and otherwise

unlawful acts, derelicts, commissions and/or omissions of the Defendants as set out in detail both

above and hereinafter in this Complaint, jointly and severally, were the direct and proximate cause

of legally cognizable injury, direct and consequential damage, harm and loss suffered by Timothy

Taylor (as represented herein by the Personal Representative of his Estate) as otherwise detailed

herein and based thereupon the Plaintiff is informed and believes that she is entitled to trial by a

jury and a judgment against the Defendants, jointly and severally, for actual and consequential

damages in an amount to be established at trial and further for such punitive damages as determined

to be just by a jury.

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FOR A THIRD CAUSE OF ACTION – Wrongful death – loss of society and
companionship

SIXTEEN: The Plaintiff here restates, reiterates and realleges each and every matter of fact

set forth above and hereinafter as if fully restated, reiterated and realleged herein verbatim.

SEVENTEEN: But for the wrongful, negligent, willful, wanton, careless, reckless, grossly

negligent and unlawful acts, derelicts and/or commissions and/or omissions of the Defendants,

jointly and severally, as set out in detail in the preceding paragraphs of this complaint as well as

herein below (all of which is restated, reiterated, realleged here as if set out verbatim), heirs,

dependents and loved ones of Timothy Taylor would not have been unjustly deprived of his society,

companionship and accompanying tender feelings of love and affection, nor would they have been

similarly deprived the continuing enjoyment of the Timothy Taylor’s society and companionship.

EIGHTEEN: Similarly, but for the wrongful, negligent, willful, wanton, careless, reckless,

grossly negligent and unlawful acts of the Defendants, jointly and severally, as set out in detail in

the preceding paragraphs of this Complaint and herein below (all of which is restated, reiterated and

realleged here as if set out verbatim), the Estate of Timothy Taylor would not have suffered

pecuniary loss as a consequence of his the Decedent’s untimely death, endured severe mental shock

and suffering, wounded feelings, grief, and sorrow.

NINETEEN: The negligent, willful, wanton, reckless, careless, grossly negligent and

otherwise unlawful acts, derelicts and/or omissions of the Defendants as set out above in this

Complaint and hereinafter, jointly and severally, were direct and proximate cause of legally

cognizable injury, direct and consequential damage, harm and loss suffered by Timothy Taylor and,

accordingly, said Plaintiff is entitled to trial by a jury along with a judgment against the Defendants,

jointly and severally, for actual damages in an amount to be established at trial and for such punitive

damages as deemed just by a jury.

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FOR A FOURTH CAUSE OF ACTION – Negligence

TWENTY: The Plaintiff here restates, reiterates and realleges each and every matter of fact

set out hereinabove and hereinafter as if fully restated, reiterated and realleged herein verbatim.

TWENTY ONE: The Plaintiff here repeats, restates, reiterates and realleges each and every

particular act, derelict, commission and omission set out in detail in the preceding paragraphs of this

Complaint as if repeated herein verbatim.

TWENTY TWO: The negligent, willful, wanton, careless, reckless, grossly negligent and/or

unlawful acts of the Defendants, jointly and severally, were the direct and proximate cause of legally

cognizable injury, direct and consequential damage, harm and loss by the Estate of Timothy Taylor

and his Estate as otherwise detailed hereinabove and below, by and through the Personal

Representative thereof, is entitled to trial by a jury and a judgment against said Defendants, jointly

and severally, for actual and consequential damages in an amount to be established at trial and for

such punitive damages as deemed just by a jury.

FOR A FIFTH CAUSE OF ACTION – Breach of legal duty

TWENTY THREE: The Plaintiff here restates, reiterates and realleges each and every

matter of fact set out hereinabove as if fully restated, reiterated and realleged herein verbatim.

TWENTY FOUR: At the time and on the date of the tragic events giving rise to this

litigation an official, legally enforceable restriction upon the use of heavy construction equipment

of the type used, operated or being moved by and/or on behalf of the Defendants as set out

hereinabove had been adopted and put in place for enforcement by Legislature of the State of South

Carolina forbidding use, movement or operation of same on the public roads of this State in the

absence of proper equipment, headlights and/or illumination.4

4
See footnotes 1, 2 and 3 supra.

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TWENTY FIVE: The purpose of the restriction on the use of said roadway as set out

hereinabove was, in very important part, to protect otherwise innocent persons and motorists the

Timothy Taylor from injury, damage, harm, loss, conscious pain and suffering and/or death in a

collision between smaller motor vehicles which could and would otherwise reasonably be expected

to be using or traveling upon said roadway and large, heavy construction equipment of the type

operated by, used and/or moved by, for and/or on behalf of the Defendants herein.

TWENTY SIX: But for the Defendants’ unlawful use and presence on said roadway in

violation of law, the collision which tragically took the life of Timothy Taylor would not have

occurred and said unlawful use and presence on said roadway and was the direct and proximate

cause of the legally cognizable injury, direct and consequential damage, harm, loss, (including, but

not limited to, medical expenses, funeral costs, lost income and monetary benefits of employment)

conscious pain and suffering, regret, fear and/or dread associated with the recognition of impending

death and untimely death of said Timothy Taylor, the pecuniary loss directly and proximately

resulting therefrom, as well as the severe grief, sorrow, wounded feelings, loss of the extremely

valuable and tender relationship and companionship of the Decedent by his loved ones.

TWENTY SEVEN: The Defendants’ violation of the traffic regulations and laws of the

State of South Carolina was negligent per se, careless, reckless, willful, wanton and grossly

negligent and, accordingly, the Plaintiff is entitled to jury trial, a judgment against the Defendants,

jointly and severally, for actual and consequential damages in an amount to be established at trial

and for such punitive damages as deemed just by a jury.

FOR A SIXTH CAUSE OF ACTION – Negligent hiring and/or supervision

TWENTY EIGHT: The Plaintiff here restates, reiterates and realleges each and every matter

of fact set out hereinabove and herein below as if fully stated, reiterated and realleged herein

verbatim.

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TWENTY NINE: At all times relevant hereto Defendant Michael Lee Whisenhunt was an

agent, servant and/or employee of Defendant Burroughs and Chapin Co., Inc. and Defendant

Burroughs and Chapin Co., Inc. was fully and lawfully responsible and legally liable for all acts,

derelicts, omissions and commissions of Defendant Michael Lee Whisenhunt arising out of, during

the course of, and in furtherance of said agency, service and employment.

THIRTY: That at the time of his retention as an agent, servant and/or employee of

Defendant Burroughs and Chapin Co., Inc., Defendant Michael Lee Whisenhunt was so

insufficiently schooled or knowledgeable regarding the lawful operation of heavy construction

equipment upon the public roads of this State during predawn hours to unequivocally indicate to

Human Resources personal of ordinary prudence, care and caution that said same Michael Lee

Whisenhunt should not be entrusted with the operation of an instrumentality as dangerous to the

general public as the improperly illuminated heavy construction equipment of the type and kind he

was using, operating or moving during predawn hours at the time and place of the collision giving

rise to the injuries, damages, harm and losses complained of herein.

THIRTY TWO: That despite the presence of a readily available public laws and regulations

restricting the use of improperly illuminated heavy construction equipment upon the public roads

of this State during predawn hours as set out hereinabove, Defendant Burroughs and Chapin Co. Inc.

failed and or refused to refer to, consult and or be guided in its decision to hire, employ and other

otherwise avail itself of the services of Defendant Michael Lee Whisenhunt and/or restrict his access

to improperly illuminated and equipped heavy construction equipment during predawn hours but,

instead, thereafter allowed, permitted, consented to, facilitated and/or otherwise enabled said same

Michael Lee Whisenhunt to operate, use or move an extremely dangerous instrumentality on the

public roadways on the State of South Carolina.

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THIRTY THREE: That the legally cognizable injury, damage, harm, loss, conscious pain

and suffering and death of the Timothy Taylor giving rise to this litigation occurred and arose during

the course of the employment, agency and/or service of Defendant Michael Lee Whisenhunt by, for

and on behalf of Defendant Burroughs and Chapin Co., Inc; same would not have occurred but for

that employment, agency and/or service. and, further was a direct and proximate result of the

negligent hiring, employment and supervision of Defendant Michael Lee Whisenhunt by Defendant

Burroughs and Chapin Co., Inc. as well as the latter’s failure to limit, restrict, supervise or otherwise

prevent Defendant Whisenhunt from using, operating or moving ill-equipped and improperly

illuminated heavy construction equipment upon the public roads of this State during predawn hours.

THIRTY FOUR: Based on the foregoing the Plaintiff is informed and believes that he is

entitled to a jury trial in this matter and a judgment against Defendant Burroughs and Chapin Co.,

Inc. for actual and consequential damages of the types and kinds otherwise set out hereinabove in

an amount to be established at trial along with such punitive damages as deemed just by a jury, all

arising out of the negligent hiring, retention and/or supervision of its agent, servant and employee

and/or practices, procedures, errors, omissions and/or derelicts of said Defendant in controlling or

limiting use of heavy construction equipment upon the public roads of this State during predawn

hours in a manner consistent with the requirement of law.

FOR A SEVENTH CAUSE OF ACTION – Negligent management

THIRTY FIVE: The Plaintiff here restates, reiterates and realleges each and every matter

of fact set forth above and hereinafter as if fully restated, reiterated and realleged herein verbatim.

THIRTY SIX: At all times relevant hereto Defendant Burroughs and Chapin Co., Inc.

directed, supervised and otherwise was in control of all decisions regarding the equipping, use,

operation, control or movement the heavy construction equipment it owned, leased or otherwise

possessed, including that used, operated or being moved by Defendant Michael Lee Whisenhunt at

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the time and place set out hereinabove, including but not limited to, the adoption and

implementation of reasonable and necessary rules, regulations and restrictions on the otherwise

proper and lawful use and/or operation of such a dangerous instrumentality as that involved in the

tragic collision that took the life of Timothy Taylor.

THIRTY SEVEN: That at all times relevant hereto Defendant Burroughs and Chapin Co.,

Inc. had a legal duty to establish and enforce reasonable and necessary work and safety rules to be

strictly obeyed by its agents, servants and/or employees to protect both those individuals and

members of the general public with whom they might otherwise in contact, including work rules,

regulations and/or restrictions regarding the use and/or operation of dangerous instrumentalities like

the heavy construction equipment involved in the tragic collision that took the life of Timothy

Taylor.

THIRTY EIGHT: That among the work and safety rules Defendant Burroughs and Chapin

Co., Inc. has a legal duty to establish and enforce were those strictly requiring obedience to the laws,

regulations and restrictions imposed on the use of motor vehicles and heavy construction equipment

on the public roadways by the State of South Carolina.

THIRTY NINE: That at all times relevant to this litigation, Defendant Burroughs and

Chapin Co., Inc. failed and or refused to establish, oversee, supervise and/or enforce obedience to

reasonable and necessary work and safety rules regarding the conduct of its agents, servants and/or

employees, and, in particular, those requiring strict obedience to the laws, regulations and

restrictions imposed on the use of motor vehicles and heavy construction equipment on the public

roadways by the State of South Carolina.

FORTY: But for the failure and/or refusal of Defendant Burroughs and Chapin Co., Inc. to

adopt, instruct, and properly supervise its agents, servants and or employees of the strict necessity

to obey reasonable and necessary safety rules, regulations and restrictions, including those

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established and imposed on the use of motor vehicles and heavy construction equipment on the

public roadways by the State of South Carolina, Defendant Michael Lee Whisenhunt would not

have been unlawfully operating a dangerous instrumentality onMr. Joe White Avenue (10th Avenue

Extension North) in Myrtle Beach, SC without proper illumination, in an unsafe and unlawful

manner and the collision that took the life of Timothy Taylor. would not have occurred.

FORTY ONE: That the willful, wanton, careless, reckless, grossly negligent and negligent

training, supervision and control of its agent, servant and/or employee Michael Lee Whisenhunt by

Defendant Burroughs and Chapin Co., Inc., as well as its failure to properly restrict and limit use

of the dangerous instrumentality it owned, leased or otherwise controlled, directly and proximately

caused and/or contributed to the untimely and tragic death of Timothy Taylor along with all the

legally cognizable damages, injuries and losses associated therewith and, accordingly, Defendant

Burroughs and Chapin Co., Inc. is thereby legally responsible and liable for all the said legally

cognizable injuries, direct and consequential damages, harm and loss suffered by the Plaintiff Estate

in this case as set out move fully hereinabove.

FORTY TWO: Based on the foregoing the Plaintiff is informed and believes that she is

entitled to a jury trial as well as a judgment against Defendant Burroughs and Chapin Co., Inc. for

actual and consequential damages in an amount to be established at trial and for such punitive

damages as deemed just by a jury, all arising out of its failure to supervise its agent, servant and

employee and/or the dangerous instrumentality it owned, leased or otherwise possessed or the use

of which it controlled in an otherwise lawful manner that would have prevented or avoided or

otherwise served as a bulwark or defense against the untimely death of Timothy Taylor as a direct

and proximate result of the dangerous, unlawful and irresponsible operation of a dangerous

instrumentality it owned, leased, possessed or the use of which it controlled.

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ELECTRONICALLY FILED - 2019 Jan 16 2:22 PM - HORRY - COMMON PLEAS - CASE#2019CP2600238
FOR AN EIGHTH CAUSE OF ACTION – Negligent entrustment

FORTY THREE: The Plaintiff here restates, reiterates and realleges each and every matter

of fact set forth above and hereinafter as if fully restated, reiterated and realleged herein verbatim.

FORTY FOUR: At all times relevant hereto Defendant Burroughs and Chapin Co., Inc..

owned, leased, possessed and/or exercised exclusive control over heavy construction equipment for

use during its on-going business operations, including its operation on the public roads of the State

of South Carolina in strict compliance with the laws, rules and regulations imposed by said State of

South Carolina on the safe and lawful operation of same.

FORTY FIVE: That at all times relevant hereto Defendant Burroughs and Chapin, Co., Inc.

knew, or with the exercise of reasonable diligence should have known, that the large and heavy

construction equipment that was in use during the events giving rise to this litigation could be

classified and become a dangerous instrumentality capable of causing severe injury, damage, harm,

or loss, including the loss of life, if not properly and lawfully operated in strict accordance with the

law by an individual suitably trained and properly supervised to ensure responsible, safe and lawful

operation of same.

FORTY SIX: That at the time of the tragic events giving rise to this litigation, Defendant

Michael Lee Whisenhunt was insufficiently supervised and his access to the heavy construction

equipment in question was not restricted to daylight hours as required by law, but, instead he was

negligently entrusted him with the operation of a dangerous instrumentality of the type and kind

involved in the collision during predawn hours on the public roads of the State of South Carolina

in violation of law, all of which resulted in this instance in the tragic and premature death of

Timothy Taylor.

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ELECTRONICALLY FILED - 2019 Jan 16 2:22 PM - HORRY - COMMON PLEAS - CASE#2019CP2600238
FORTY SEVEN: That entrustment of the large and heavy construction equipment and

dangerous instrumentality to the operation, use or movement on the public roadways of this State

by Michael Lee Whisenhunt by Defendant Burroughs and Chapin Co., Inc. was in direct violation

of South Carolina law and therefore constituted negligence per se, and was otherwise negligent,

willful, wanton, reckless, careless and grossly negligent and the direct and proximate cause of

legally cognizable injury, actual and consequential damage, harm and loss by the Plaintiff as set

forth in detail in the foregoing paragraphs of this Complaint and all of which are reiterated and

repeated herein by this reference as if fully restated herein verbatim.

FORTY EIGHT: The actions of the Defendants, jointly and severally, complained of herein

where the direct and proximate cause of direct and consequential and otherwise legally cognizable

injury, damage, harm and loss, including, but not limited to, conscious pain and suffering, fear,

dread and regret over the recognition of his impending death, the loss of life and its continued

enjoyment, the loss of the companionship and affection of loved ones, financial losses in the form

of medical and funeral expenses, lost income and benefits of employment, retirement income and

the like and, therefore the Plaintiff is informed and believes that she is entitled to a trial by a jury

and a resulting a judgment against Defendants for actual and consequential damages in an amount

to be established at trial and for such punitive damages as deemed just by a jury.

FOR AN NINTH CAUSE OF ACTION – Vicarious liability

FORTY NINE: The Plaintiff here restates, reiterates and realleges each and every matter

of fact set forth hereinabove as if fully restated, reiterated and realleged herein verbatim.

FIFTY: At all times relevant hereto Defendant Burroughs and Chapin Co., Inc. was the

owner, lessee or otherwise had the legal right to possess and control the use of the heavy

construction equipment involved in the collision that gives rise to this litigation that took the life of

Timothy Taylor.

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ELECTRONICALLY FILED - 2019 Jan 16 2:22 PM - HORRY - COMMON PLEAS - CASE#2019CP2600238
FIFTY ONE: At all times relevant hereto Defendant Michael Lee Whisenhunt was the agent,

servant and/or employee of Defendant Burroughs and Chapin Co., Inc. and the acts, derelicts,

omissions and commissions by him complained of herein arose out of and occurred during the

course of his employment, agency or service by Defendant Burroughs and Chapin Co., Inc.

FIFTY TWO: That the Plaintiff is informed and believes that the act, derelicts, omissions

and commissions of Defendant Michael Lee Whisenhunt are directly imputable to the employment,

agency or service of Defendant Whisenhunt by Defendant Burroughs and Chapin Co., Inc. and the

latter is legally liable for same pursuant to the legal doctrine of respondeat superior.

FIFTY TWO: That the injuries, damages, harm and loss suffered as a result of the collision

giving rise to this litigation as set out hereinabove were proximately caused by the joint and several

negligence, negligence per se, willful, wanton, reckless, careless and grossly negligent acts of the

Defendants and based thereupon the Plaintiff is informed and believes that she is entitled to a

judgment against Defendant Burroughs and Chapin Co., Inc. for actual damages in an amount to be

established at trial and for such punitive damages as deemed just by a jury because of said

Defendant is vicariously liable for all acts, derelicts, omissions and commissions of its agent, servant

and employee Michael Lee Whisenhunt complained of in this matter.

WHEREFORE, Plaintiff prays:

(1) For a trial by a jury;

(2) For judgment against the Defendants, jointly and severally, for actual damages in an

amount to be established at trial;

(3) For such punitive damages as deemed just by a jury;

(4) For the costs of this action; and

(5) For such other and further relief as the Court deems just and proper.

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ELECTRONICALLY FILED - 2019 Jan 16 2:22 PM - HORRY - COMMON PLEAS - CASE#2019CP2600238
Georgetown, SC
January 16, 2019

LAW OFFICES OF WILLIAM STUART DUNCAN, PA

s/Raymond C. Fischer
William Stuart Duncan, SC Bar #11549
Raymond C. Fischer, C Bar # 2023
1001 Front Street
PO Box 736
Georgetown, SC 29442
843-546-1212
843-545-0177 facsimile
wsdlaw1@aol.com
rfischer@lawyer.com

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