Bing v. South Carolina Department of Corrections

• Decision Date: 12 May 2021
• Docket Number: 2021-UP-160,Appellate Case 2018-001686
• Parties: Levi Bing, Appellant, v. South Carolina Department of Corrections, Respondent.
• Court: South Carolina Court of Appeals

Levi Bing, Appellant, v. South Carolina Department of Corrections, Respondent.

No. 2021-UP-160

Appellate Case No. 2018-001686

Court of Appeals of South Carolina

May 12, 2021

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Submitted March 1, 2021

Appeal From Lee County George M. McFaddin, Jr., Circuit Court Judge

Marion Clyde Fairey, Jr., of The Fairey Law Firm, LLC, of Hampton and Clyde C. Dean, Jr., of Deal Law Firm, PLLC, of Orangeburg, both for Appellant.

G Murrell Smith, Jr., of Smith Robinson Holler DuBose Morgan LLC, of Sumter, for Respondent.

PER CURIAM

Levi Bing appeals the circuit court's grant of summary judgment in favor of the South Carolina Department of Corrections (the Department) in Bing's action for negligence and gross negligence. Bing argues the circuit court erred in (1) finding the Department did not owe a duty to protect him from an attack by Willis Dorsey, his cell mate; (2) finding the Department was not grossly negligent in failing to honor his request for a cell transfer and in allowing Dorsey to possess and use an electric hot pot in their cell; and (3) discounting testimony from Bing's expert in prison administration as conclusory. We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. The circuit court properly found there was no duty for the Department to protect Bing from Dorsey. See Faile v. S.C Dep't of Juvenile Justice, 350 S.C. 315, 334, 566 S.E.2d 536, 546 (2002) (holding that "[u]nder South Carolina law, there is no general duty to control the conduct of another or to warn a third person or potential victim of danger"); id. (recognizing five exceptions to the general rule: (1) "where the defendant has a special relationship to the victim"; (2) "where the defendant has a special relationship to the injurer"; (3) "where the defendant voluntarily undertakes a duty"; (4) "where the defendant negligently or intentionally creates the risk"; and (5) "where a statute imposes a duty on the defendant"); id. at 339, 566 S.E.2d at 548 (finding the Department of Juvenile Justice (DJJ) had an independent duty to prevent a known dangerous juvenile in its custody from harming others but noting its "reluctan[ce] to impose the duty to control unless there is an established authority relationship and a substantial risk of serious harm" (emphasis added)). Bing testified that before the attack, he and Dorsey shared a cell for approximately one month without incident, and he never felt threatened by Dorsey. Further, unlike in Faile, in which the DJJ had several indicators of the juvenile's potential for future violence, Bing did not present evidence that the Department had any prior indication of Dorsey's violence, and the Department's prison administration expert testified that nothing in the record indicated Dorsey posed a threat to Bing.

2. The circuit court properly found the Department was not grossly negligent. See Town of Summerville v. City of N Charleston, 378 S.C. 107, 109, 662 S.E.2d 40, 41 (2008) ("When reviewing a grant of summary judgment, an appellate court applies the same standard used by the [circuit] court."); id. at 109-10, 662 S.E.2d at 41 ("A grant of summary judgment is 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."); Koester v. Carolina Rental Ctr., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994) ("In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the non-moving party."). The evidence supports only one inference-that the Department exercised at least slight care in ensuring Bing's safety, and therefore, was not grossly negligent. Thus, the Department was entitled to governmental immunity under the South Carolina Tort Claims Act. See S.C. Code Ann. § 15-78-60(25) (2005) ("[A] governmental entity is not liable for a loss resulting from . . . responsibility or duty including but not limited to supervision, protection, control, confinement, or...