Dorrell v. South Carolina Dept. of Transp.

Decision Date27 September 2004
Docket NumberNo. 25875.,25875.
Citation361 S.C. 312,605 S.E.2d 12
PartiesElizabeth Darlene DORRELL, Appellant, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, APAC-Carolina, Inc., and APAC-Georgia, Inc., Defendants, Of whom APAC-Carolina, Inc. is Respondent.
CourtSouth Carolina Supreme Court

Frank J. Bryan, of Floyd Law Firm, P.C., of Surfside Beach; and J. Matthew Dove, of Dove Law Firm, of Murrells Inlet, for appellant.

Robert L. Widener, of McNair Law Firm, of Columbia; William W. Doar, Jr., of McNair Law Firm, of Georgetown; and Peter Murnaghan, of Murnaghan & Ferguson, of Tampa, FL, for respondent.

Chief Justice TOAL:

Elizabeth Darlene Dorrell (Dorrell) appeals after the circuit court granted summary judgment to respondent APAC-Carolina, Inc. (APAC). This case was certified from the court of appeals pursuant to Rule 204(b), SCACR. We reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

Dorrell was injured in a one-car accident on April 16, 1996. Apparently a gust of wind caused Dorrell's car to veer to the right and drop off the road onto the dirt shoulder, which was eleven to twelve inches below the road surface. Due to the drop, Dorrell lost control of her car, the car rolled several times, and she was thrown from her car into a ditch twenty-five to thirty feet away. Dorrell suffered permanent injuries and incurred significant medical bills.

The road had been recently repaved pursuant to a contract between the paving company, APAC, and the South Carolina Department of Transportation (SCDOT). On April 22, 1996, six days after the accident, SCDOT issued an inspection report, accepting APAC's work and returning the highway to SCDOT's control. In its report, SCDOT stated that it had "accepted the highway back for State maintenance as of November 17, 1995." Dorrell sued APAC and SCDOT1 on a negligence theory. As to APAC, Dorrell alleged that APAC was negligent for the following: (1) failing to perform the contract according to its specifications; (2) creating a dangerous condition by raising the roadway to a level of eleven to twelve inches above the shoulder; (3) failing to correct the dangerous condition; (4) failing to warn motorists about the dangerous condition; (5) failing to exercise the degree of care that a reasonable and prudent road contractor would have exercised under the circumstances; (6) failing to inspect the road and detect the dangerous condition. As to SCDOT, Dorrell alleged that SCDOT was negligent for the following: (1) failing to warn motorists of the dangerous condition; (2) failing to correct the dangerous condition; and (3) failing to inspect the road upon completion of the resurfacing and detect the dangerous condition which actually and proximately caused Dorrell's injuries.

Dorrell eventually settled with SCDOT, leaving APAC as the sole defendant. APAC denied liability and subsequently filed a motion for summary judgment. In support of its motion, APAC argued that the contract did not authorize APAC to rebuild, repair, or maintain the shoulder area. Instead, the contract required only that the shoulder area, and particularly areas with surrounding vegetation, be left in a "neat and presentable condition." But because vegetation did not exist in the area where the accident occurred, APAC argued that it complied with the contract's mandate. In addition, APAC described the eleven to twelve inch resulting drop-off as a "patent and obvious defect," which SCDOT should have noticed upon inspecting the completed work. Finally, APAC argued that once SCDOT accepted the resurfacing work, APAC was no longer in control of the roadway and therefore no longer liable for injuries caused by the drop-off.

In response to APAC's motion for summary judgment, Dorrell filed the affidavit of her expert, Peter S. Parsonson, Ph.D, P.E. (Parsonson), who holds a doctorate in engineering and is a licensed professional engineer. In his affidavit, Parsonson directly contravened APAC's interpretation of the contract terms and opined that APAC was responsible for the roadway condition at the time of the accident. Further, Parsonson described the eleven to twelve inch drop as an "intolerable and gross defect," which constituted a "well-known, clear, immediate, and compelling danger to the motoring public." In his opinion, by claiming that it was responsible only for one edge of the pavement to the other, APAC defined the scope of its responsibility under the contract too narrowly. Given the conflicting evidence concerning the scope of APAC's responsibility under the contract, the trial judge denied APAC's motion for summary judgment.

Two months before trial, APAC filed a second summary judgment motion, reiterating the arguments in its initial motion and including two additional pieces of evidence: the deposition testimony of expert Parsonson and SCDOT's responses to APAC's requests for admission. Based on this new evidence, the trial judge — who was not the same judge who heard APAC's initial motion — granted summary judgment to APAC, finding that (1) rebuilding, repairing, or maintaining the highway shoulders was not within the scope of APAC's responsibility under the contract; (2) APAC's work had been completed and accepted as of November 17, 1995; and therefore (3) SCDOT was solely responsible for the roadway and shoulders at the time of the accident. Additionally, the trial judge found that "APAC did not breach any duty to the plaintiffs which proximately caused the accident."

Dorrell appeals the granting of summary judgment, asking this Court to consider the following issues:

I. Did the contract between SCDOT and APAC limit APAC's liability for negligent injury to third parties?
II. Was the defense of completion and acceptance a valid legal basis for granting summary judgment?
III. Was it an abuse of discretion for the trial judge to hear APAC's renewed motion for summary judgment and use SCDOT's admissions against APAC?
LAW/ANALYSIS

In reviewing a grant of summary judgment, this Court must find summary judgment proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Osborne v. Adams, 346 S.C. 4, 550 S.E.2d 319 (2001). In reviewing the record, the evidence must be considered in the light most favorable to the non-moving party. Id. (citing Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997)).

I. APAC'S LIABILITY TO THIRD PARTIES

Dorrell argues that the APAC-SCDOT contract does not limit APAC's liability for negligent injury to third parties. We agree.

A tortfeasor may be liable for injury to a third party arising out of the tortfeasor's contractual relationship with another, despite the absence of privity between the tortfeasor and the third party. Barker v. Sauls, 289 S.C. 121, 122, 345 S.E.2d 244, 244 (1986) (citing Terlinde v. J.F. Neely, Sr., 275 S.C. 395, 399, 271 S.E.2d 768, 770 (1980)). The tortfeasor's liability exists independently of the contract and rests upon the tortfeasor's duty to exercise due care. Id. (citing Edward's of Byrnes Downs v. Charleston Sheet Metal Co., 253 S.C. 537, 542, 172 S.E.2d 120, 122 (1970)). This common law duty of due care includes the duty to avoid damage or injury to foreseeable plaintiffs. See Terlinde, 275 S.C. at 399,

271 S.E.2d at 770 (stating that the "key inquiry" in determining whether to impose liability is "foreseeability, not privity").

In a negligence action, a plaintiff must show that the (1) defendant owed a duty of care to the plaintiff, (2) defendant breached the duty by a negligent act or omission, (3) defendant's breach was the actual and proximate cause of the plaintiff's injury, and (4) plaintiff suffered an injury or damages. Steinke v. South Carolina Dep't of Labor, Licensing and Reg., 336 S.C. 373, 387, 520 S.E.2d 142, 149 (1999) (citations omitted). The Court must determine, as a matter of law, whether the defendant owed a duty of care to the plaintiff. Id.

In the present case, we hold that APAC owed a duty of care to the plaintiff, Dorrell, based on (1) the contractual relationship between APAC and SCDOT and (2) a common law duty of care.

APAC's broad duty to the traveling public is established in at least two separate provisions of the contract. First, the section of the contract titled "Required Contract Provisions Federal-Aid Construction Contracts" under the heading "Safety: Accident Prevention" states, in part, the following:

The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines ... to be reasonably necessary to protect the life and health of employees on the job and the safety of the public....

Second, the Red Book,2 which is part of the contract, includes the following mandate:

107.09 Public Convenience and Safety. The Contractor shall at all times conduct work in such a manner as to provide for and insure the safety and convenience of the traveling public....

We also note that under the contract, the work was to "be done in accordance with the Specifications and in a good and workmanlike manner." Therefore, based on the plain language of the contract, APAC had a duty to provide for the safety of the traveling public and to perform the work in a "workmanlike manner." This duty arises out of APAC's contractual relationship with SCDOT, and the absence of privity between APAC and motorists such as Dorrell does not eliminate this duty.

In addition to its duties under the contract, APAC owed a common law duty to exercise due care, which existed independently of the contract with SCDOT. See Kennedy v. Columbia Lumber and Mfg. Co., 299 S.C. 335, 346, 384 S.E.2d 730, 737 (1989)

(finding a homebuilder owes a legal duty "to refrain from constructing housing that he knows or should know will pose serious risks of physical harm to foreseeable parties"); Smith v. Fitton and Pittman, Inc., 264 S.C. 129,...

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