Clyburn v. Sumter County School Dist. No. 17, 24170

Decision Date20 September 1994
Docket NumberNo. 24170,24170
CourtSouth Carolina Supreme Court
Parties, 96 Ed. Law Rep. 810 Fernaudra CLYBURN, Petitioner, v. SUMTER COUNTY SCHOOL DISTRICT # 17, Respondent. . Heard

W. Jeffrey Young, of Young, Young & Reiter, Sumter, for petitioner.

Bruce E. Davis, Camden, for respondent.

TOAL, Justice:

We granted certiorari to review the opinion of the Court of Appeals in Clyburn v. Sumter County School District, --- S.C. ----, 429 S.E.2d 862 (Ct.App.1993). We affirm.

FACTS

Fernaudra Clyburn (Clyburn) and Sylvia Witherspoon (Sylvia) were high school student passengers on a Sumter County School District (School District) bus. On Thursday, October 25, 1990, an altercation between Clyburn's niece and Sylvia ensued after Sylvia exited the bus. The bus driver refused to allow Clyburn to get off the bus at that stop, but permitted her to exit at her regular stop. Clyburn returned to the area where her niece and Sylvia had been arguing and encountered, among others, Johnnie Mae Witherspoon (Assailant), the non-student adult sister of Sylvia. A fight then ensued between Clyburn and Assailant.

The next morning, Assailant and her mother boarded the bus. When the driver noticed the two on the bus, she immediately told them to leave. Ignoring the driver's orders, they proceeded to where Clyburn was seated and threatened her. The driver followed and again ordered them to exit the bus. As the mother and Assailant left the bus, the driver heard Assailant threaten Clyburn, "Bitch, we will meet again."

Upon arrival at school, the driver told Lamar Atkins (Atkins), the District's Director of Transportation Services, about the incident and that Assailant had told Clyburn they would meet again. Atkins also was told of the Thursday afternoon incident.

Atkins called Clyburn and Sylvia into his office, admonished them for their behavior, and tried to telephone their parents to inform them of their children's unacceptable behavior and potential consequences of that behavior. Clyburn's mother was at work and her employer refused to let her take a non-emergency call. Sylvia's mother's number was disconnected. Atkins told Clyburn and Sylvia he needed to speak with their parents quickly to resolve the matter without having to pursue criminal charges. Clyburn stated that Atkins assured her after the Friday incident he would take care of the matter.

On Friday afternoon, Atkins called the assistant principal at Bates Middle School, Clyburn's niece's school, and asked the assistant principal to direct the child to stay away from the high school students' bus stop and away from the situation. Atkins did not attempt further contact with the students' parents that weekend. Additionally, neither of the students' parents contacted Atkins over the weekend. After the incident, the bus driver kept a look out for Assailant on her bus route and stated if Assailant was at a stop, she would continue to the next stop.

The following Monday, Assailant did not appear on the bus route. On Tuesday morning, however, Assailant boarded the bus, escaping the driver's immediate recognition. When the driver saw Assailant walking down the aisle, the driver tried to follow Assailant to remove her from the bus. Assailant, however, began swinging a knife at Clyburn. The other students on the bus trampled the driver as they fled the violence. Clyburn grabbed a foot-long crescent wrench from her bag and swung it at Assailant. Assailant cut Clyburn on the forehead, hand, and wrist before running off the bus. Clyburn ran after Assailant, but was restrained and taken to the hospital.

Thereafter, Clyburn filed this negligence action against the School District for injuries sustained in the attack. The School District answered and filed a motion for summary judgment. The trial judge granted the motion finding the facts viewed in the light most favorable to Clyburn showed school officials exercised, at the very least, slight care and, therefore, the School District could not be held liable. Clyburn appealed and the Court of Appeals affirmed, concluding the only reasonable inference that could be drawn was that, at the very least, the School District exercised slight care. Clyburn v. Sumter County School District, --- S.C. ----, 429 S.E.2d 862 (Ct.App.1993). We affirm the result reached by the Court of Appeals for the reasons set forth herein.

LAW/ANALYSIS

A governmental entity is not liable for loss resulting from "responsibility or duty including but not limited to supervision, protection, control, confinement or custody of any student ... except when the responsibility or duty is exercised in a grossly negligent manner." S.C.Code Ann. § 15-78-60(25) (Supp.1993). Gross negligence is the intentional, conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do. Richardson v. Hambright, 296 S.C. 504, 374 S.E.2d 296 (1988). Negligence is the failure to exercise due care, while gross negligence is the failure to exercise slight care. See Hart v. Doe, 261 S.C. 116, 198 S.E.2d 526 (1973); Hollins v. Richland County School Dist., --- S.C. ----, 427 S.E.2d 654 (1993).

Gross negligence ordinarily is a mixed question of law and fact. See Rogers v. Atlantic Coast Line R.R. Co., 222 S.C. 66, 71 S.E.2d 585 (1952). When the evidence supports but one reasonable inference, however, the question becomes a matter of law for the court. See Foster v. South...

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