Arthurs ex rel. Munn v. Aiken County

• Decision Date: 23 July 2001
• Docket Number: No. 25331.,25331.
• Citation: 551 S.E.2d 579,346 S.C. 97
• Court: South Carolina Supreme Court
• Parties: Steven ARTHURS, as Personal Representative of the ESTATE OF Deborah MUNN, Petitioner, v. AIKEN COUNTY, South Carolina Sheriff's Department, Respondent.

346 S.C. 97

551 S.E.2d 579

Steven ARTHURS, as Personal Representative of the ESTATE OF Deborah MUNN, Petitioner, v. AIKEN COUNTY, South Carolina Sheriff's Department, Respondent.

No. 25331.

Supreme Court of South Carolina.

Heard May 24, 2001.

Decided July 23, 2001.

Robert T. Williams and Jonathan R. Hendrix, of Williams, Hendrix, Steigner & Brink, of Lexington, for petitioner.

Vinton D. Lide, of Lexington, for respondent.

PLEICONES, Justice:

Petitioner sued respondent, the Aiken County Sheriffs Department (Department), for negligence leading to the murder of petitioner's sister (Deborah) by her estranged husband (Husband). The circuit court granted Department's directed verdict motion, and the Court of Appeals affirmed. Arthurs v. Aiken County, South Carolina Sheriff's Dep't, 338 S.C. 253, 525 S.E.2d 542 (Ct.App.1999). We granted certiorari to consider issues of duty and the continued viability of the "public duty rule" in light of the South Carolina Tort Claims Act (TCA),¹ and now affirm the decision of the Court of Appeals as modified.

FACTS

Deborah and Husband were living in separate trailers in a family enclave in rural Aiken County. Around 9 a.m. on September 30, 1994, Deborah called 911 and complained that Husband had tried to run her off the road that morning as she returned home from work. Their daughter testified that she observed Husband speaking to officers of the Department around 5 p.m. that same day as she and Deborah left the trailer for school band practice. No other evidence was offered regarding this conversation.

Around 6 p.m., Deborah was talking on her home phone to her sister, who was in her trailer about 500 feet away. The sister heard knocking on Deborah's trailer door, and told Deborah to hang up and call 911. Deborah did so, as did her sister. Investigator Coleman and Deputy Cain responded. While it is not clear who was knocking on the door, Deborah and her 17-year-old nephew reported to the officers that Husband had approached the nephew and a neighbor (Rob) as they began to work on Deborah's water lines. Husband asked if they "were the gang that's supposed to jump on him." He tried to get nephew to hit him, threw a beer in the nephew's face, and gestured threateningly towards the gun in his back pocket. He was reported to have been "raising hell" in Deborah's front yard.

Husband was not present when the officers arrived. Deputy Cain continued to talk to Deborah and her nephew while Investigator Coleman left to try to locate Husband. In his report, Deputy Cain characterized the nephew as the victim and Deborah as the complainant, and he did not document it as a "serious" complaint. When Deborah expressed her fear of Husband, Deputy Cain advised her to go to a safe house. When she declined to leave, he told her she should stay inside behind locked doors and call 911 if Husband returned.

Sometime later that evening, nephew went to join his brother at Kneece's Body Shop to work on a race car. The shop was about 300 yards from nephew's trailer, which was less than 100 yards from Deborah's trailer. Husband was at the shop when nephew arrived, and again tried to start a fight. Nephew turned to walk home, and Husband said, "Go get your Mama and Daddy and I'll send both of them to hell." Husband and his truck were at the Body Shop when nephew left. Department responded to nephew's family's 911 call, but their search for Husband was unsuccessful. His truck remained parked at the shop.

Around 9:30 or 10 p.m. that night, family members heard screaming from Deborah's trailer followed by shots. Husband had forced the neighbor, Rob, to knock on Deborah's door by holding a gun to his back. When Deborah answered the door, Husband forced his way in and killed her by shooting her in the head.

ISSUES

We granted certiorari to consider three issues:

(1) Whether the "public duty rule" survived the adoption of the TCA?;

(2) Whether the Court of Appeals misread the facts?; and

(3) Whether Department owed Deborah a duty of care?

We hold the public duty rule continues to play its role in our governmental tort liability jurisprudence. Further, we find no factual error in the Court of Appeals' decision although we characterize the evidence and its inferences somewhat differently. Finally, we hold petitioner has not shown a duty running from Department to Deborah. Accordingly, we affirm the Court of Appeals' decision as modified.

A. Public Duty Rule and the TCA

In order to establish liability in a negligence action, the plaintiff must show (1) a duty of care owed by the defendant to the plaintiff; (2) breach of that duty; and (3) damages resulting from the breach. Tanner v. Florence County Treasurer, 336 S.C. 552, 521 S.E.2d 153 (1999). An affirmative legal duty to act may be created by statute, contract relationship, status, property interest, or some other special circumstance. Steinke v. South Carolina Dep't of Labor, Licensing & Regulation, 336 S.C. 373, 520 S.E.2d 142 (1999); Jensen v. Anderson County Dep't of Social Services, 304 S.C. 195, 403 S.E.2d 615 (1991). When, and only when, the plaintiff relies upon a statute as creating the duty does a doctrine known as the "public duty rule" come into play.²

The enactment of the TCA effectively expanded the scope of actionable governmental duties beyond those predicated upon a statutory duty, as is clear from the language of the Act:

(i) Section 15-78-40 (Supp.2000) provides:

The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages contained herein.

(ii) Section 15-78-50 (Supp.2000) provides:

(a) Any person who may suffer a loss proximately caused by a tort of the State, an agency, a political subdivision, or a governmental entity, and its employee acting within the scope of his official duty may file a claim as hereinafter provided.

(b) In no case is a governmental entity liable for a tort of an employee where that employee, if a private person, would not be liable under the laws of this state.

(iii) See also § 15-78-20(a)(Supp.2000) "... Liability for acts or omissions under this chapter is based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty."

Today, a plaintiff alleging negligence on the part of a governmental actor or entity may rely either upon a duty created by statute or one founded on the common law. As explained below, petitioner relies on both grounds in an effort to establish a duty owed by Department to Deborah.

"The `public duty' rule presumes statutes which create or define the duties of a public office have the essential purpose of providing for the structure and operation of government or for securing the general welfare and safety of the public. Such statutes create no duty of care towards individual members of the general public." Summers v. Harrison Constr., 298 S.C. 451, 455-56, 381 S.E.2d 493, 496 (Ct.App. 1989). The public duty rule is a negative defense which denies an essential element of the plaintiffs cause of action: the existence of a duty of care to the individual plaintiff. Rayfield v. South Carolina Dep't of Corrections, 297 S.C. 95, 105-06, 374 S.E.2d 910, 916 (Ct.App.1988), cert. denied 298 S.C. 204, 379 S.E.2d 133 (1989). It is not a matter of immunity, which is an affirmative defense that must be pleaded and which may be waived. Steinke, supra.

Further, it is a rule of statutory construction, that is, a means of determining whether the legislative body that enacted the statute or ordinance intended to create a private cause of action for its breach. Jensen, supra.

The public duty rule insulates public officials, employees, and governmental entities from liability for the negligent performance of their official duties by negating the existence of a duty towards the plaintiff. Whether the adoption of the TCA affects the public duty rule has been mentioned, but not directly decided, in a number of cases. See, e.g., Steinke, supra, 336 S.C. at 388 n.3,

520 S.E.2d at 149 n.3 (since both parties have assumed public duty rule survives end of sovereign immunity and enactment of TCA, court did not decide import, if any); see also Brady Dev. Co., Inc. v. Town of Hilton Head, 312 S.C. at 76 n.2, 439 S.E.2d at 268 n.2 (1993); Jensen, supra.

The issue is, however, squarely raised in this case. The TCA does not create causes of action, but removes the common law bar of sovereign immunity in certain circumstances. Summers v. Harrison Constr., supra.

Since the public duty rule is not grounded in immunity but rather in duty, Steinke, supra; Rayfield, supra, we hold it has not been affected by enactment of the TCA.

The TCA and "public duty rule" are not incompatible and we retain the rule. When the negligence plaintiffs cause of action against a governmental entity is founded upon a statutory duty, then whether that duty will support the claim should be analyzed under the rule. On the other hand, where the duty relied upon is based upon the common law, e.g. the duty to warn in Rogers v. South Carolina Dep't of Parole & Community Corrections, 320 S.C. 253, 464 S.E.2d 330 (1995), then the existence of that duty is analyzed as it would be were the defendant a private entity. Id.

In addition, many "duties" appear to be limited or eliminated by what are termed "Exceptions to waiver of immunity" in S.C.Code Ann. § 15-78-60 (Supp.2000). Thus, even if negligence (including breach of a duty) is shown, the governmental entity may not be liable because of the immunities reinstituted by the TCA. Only if a duty is found, and the other negligence elements shown, will it ever be necessary to reach the TCA immunities issue.

B. Statutory Duties

Petitioner claims Department breached statutory duties owed to Deborah under...