Cole v. SOUTH CAROLINA ELECTRIC

• Decision Date: 09 June 2003
• Docket Number: No. 3650.,3650.
• Citation: 584 S.E.2d 405,355 S.C. 183
• Court: South Carolina Court of Appeals
• Parties: Gloria COLE and George DeWalt, Jr., in their capacities as Personal Representatives of the Estate of George Ernest Cole, deceased, Appellants, v. SOUTH CAROLINA ELECTRIC AND GAS, INC., Respondent.

355 S.C. 183

584 S.E.2d 405

Gloria COLE and George DeWalt, Jr., in their capacities as Personal Representatives of the Estate of George Ernest Cole, deceased, Appellants, v. SOUTH CAROLINA ELECTRIC AND GAS, INC., Respondent.

No. 3650.

Court of Appeals of South Carolina.

Heard October 9, 2002.

Decided June 9, 2003.

Rehearing Denied August 21, 2003.

F. Xavier Starkes and William T. Toal, both of Columbia, for Appellants.

Robert A. McKenzie and Gary H. Johnson, II, both of Columbia, for Respondent.

CONNOR, J:

Gloria Cole and George DeWalt, Jr., (Cole) brought suit in their capacities as Personal Representatives of the Estate of George Ernest Cole, deceased, against South Carolina Electric and Gas (SCE & G) for causes of action arising out of the drowning of George Cole at a Lake Murray recreation site owned by SCE & G. Cole filed this appeal challenging the trial court's pretrial order finding the parking fee charged by SCE & G was not a charge as defined under the Recreational Use Statute (RUS).¹ Cole also challenges various rulings made during the trial of the case. We affirm in part, reverse in part and remand.

FACTS/PROCEDURAL HISTORY

George Cole and three other individuals visited a recreational beach area located at Lake Murray on land owned by SCE & G. At the entrance to the area, automobiles wishing to park are required to pay three dollars. The driver of the car in which George was a passenger paid the fee. The recreational site is fenced-in and is patrolled by a security guard. There are no lifeguards on duty at the lakefront nor is safety equipment present at the site. The swimming area is roped off with buoy lines. Warning signs on the property indicate there are no lifeguards on duty and that individuals swim at their own risk. After paying for parking, a similar written notice is handed to the patrons.

George entered the water, swam to the buoy line, and drowned while attempting to return to shore. Other swimmers and paramedics, who were called to the scene, attempted to revive him but were unsuccessful.

The complaint alleged causes of action for negligence, nuisance, and unreasonably dangerous activity. SCE & G answered and asserted as defenses, among other things, the RUS, assumption of risk, accident, and comparative negligence. Following amendments to the pleadings, SCE & G moved for summary judgment.

The trial court granted SCE & G's motion for summary judgment on Cole's causes of action for nuisance and unreasonably dangerous activity and denied summary judgment on the negligence cause of action. In a subsequent order, the court clarified its initial ruling. The court found the parking fee was not a "charge" as contemplated under the RUS. Thus, the court granted partial summary judgment for SCE & G on the negligence cause of action. This ruling required Cole to demonstrate gross negligence in order to find SCE & G liable.

At trial, Cole's expert witness testified George would not have died had a lifeguard been present at the site. The expert also testified the buoy line was located too far from shore and at an improper depth. Cole elicited testimony concerning whether SCE & G was subject to Department of Health and Environmental Control (DHEC) Regulation 61-50, requiring a lifeguard to be present at a public swimming area. Cole contended the regulation was applicable to the case and a violation of the regulation could be used as evidence of gross negligence.

The jury found in favor of SCE & G. Cole moved for judgment notwithstanding the verdict and, in the alternative, for a new trial. The trial court denied the motions and this appeal follows.

LAW/ANALYSIS

I. Recreational Use Statute

Cole first contends the trial court erred in granting partial summary judgment to SCE & G based on the RUS. The trial court ruled that SCE & G could still be found liable for gross negligence under section 27-3-60(a). However, given the court found as a matter of law that the parking fee was not a "charge," it ruled Cole was barred from pursuing judgment against SCE & G for simple negligence under section 27-3-60(b). Cole argues the three dollar parking fee was a "charge" as contemplated in section 27-3-60(b), and, therefore, SCE & G was not entitled to protection from liability for negligence under the RUS.

Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Roof v. Swanson, 344 S.C. 315, 543 S.E.2d 278 (Ct.App.2001). "In ruling on a motion for summary judgment, the evidence and the inferences which can be drawn therefrom should be viewed in the light most favorable to the non-moving party." Baird v. Charleston County, 333 S.C. 519, 529, 511 S.E.2d 69, 74 (1999). "Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law." Lanham v. Blue Cross & Blue Shield of South Carolina, Inc., 349 S.C. 356, 362, 563 S.E.2d 331, 333 (2002).

The following facts are undisputed. Every vehicle entering SCE & G's recreation site is required to pay a per-vehicle parking fee.² The fee is not assessed on each person in an automobile. Rather, the fee covers every person riding in the vehicle. The driver of George Cole's party paid the parking fee upon entering the site. Access to the site is free to individuals who walk, swim, or ride a bike to the site. Drivethrough traffic is prohibited and vehicles leaving the site are assessed an additional, identical fee upon re-entry. The RUS "encourage[s] owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." S.C.Code Ann. § 27-3-10 (1991). "Landowners owe `no duty of care to keep the premises safe' for recreational users and need not `give any warning of a dangerous condition, use, structure or activity' on the property." Brooks v. Northwood Little League, Inc., 327 S.C. 400, 403, 489 S.E.2d 647, 648 (Ct.App.1997) (quoting S.C.Code Ann. § 27-3-30 (1991)).

Furthermore, an owner who permits a person to use property for recreational purposes without charge does not: "(a) Extend any assurance that the premises are safe for any purpose[;][or] (b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed." S.C.Code Ann. § 27-3-40 (1991). A "charge" is defined as "the admission price or fee asked in return for invitation or permission to enter or go upon the land." S.C.Code Ann. § 27-3-20(d) (1991). The only caveats, found in section 27-3-60, provide:

Nothing in this chapter limits in any way any liability which otherwise exists:

(a) For grossly negligent, willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.

(b) For injury suffered in any case where the owner of land charges persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the State or a subdivision thereof, any consideration received by the owner for such lease shall not be deemed a charge within the meaning of this section.

S.C.Code Ann. § 27-3-60 (1991) (emphasis added).

South Carolina has not had the opportunity to determine whether a parking fee is a charge under section 27-3-60(b). The Supreme Court of Georgia considered this issue in relation to Georgia's Recreational Property Act in Stone Mountain Mem'l Ass'n v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969). The Georgia court found that a two dollar parking fee at Stone Mountain Park was not a "charge"³ or admission fee removing the Memorial Association from the protection of Georgia's Recreational Property Act. Id. at 522-23. In affirming the trial court's grant of summary judgment to the defendant, the court found persuasive the following uncontroverted facts: (1) "[p]ersons on foot are not charged any fee, nor is a fee charged for a number of people in any one vehicle"; and (2) "[t]he fee is strictly a parking fee for the automobile to enter." Id. at 523.

The Georgia Court of Appeals has also examined this issue. In Majeske v. Jekyll Island State Park Auth., 209 Ga.App. 118, 433 S.E.2d 304 (1993), the court held that a per-vehicle fee, not based on the number of occupants, and not charged to individuals entering by means other than motorized vehicle, was not a "charge" sufficient to remove the Authority from the protection of Georgia's Recreational Property Act. The court also determined that a re-entry fee did not transform what was strictly a parking fee into a "charge" for admission. Id. at 305-06; cf. Hogue v. Stone Mountain Mem'l Ass'n, 183 Ga.App. 378, 358 S.E.2d 852 (1987) (holding an initial four dollar fee allowing re-entry during the course of the patron's stay permitted the use of a vehicle in the park and did not constitute a charge for the recreational use of the park).

Similarly, in Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309 (1984), a park charged patrons fees for the right to park campers and pitch tents, and for the use of camper dumping facilities. However, those generally entering the park paid nothing. The Nebraska statute defined "charge" as "the amount of money asked in return for an invitation to enter or go upon the land." Id. at 313. The court, in holding the fee paid by the plaintiff's grandmother was not a charge for entry upon the land, determined "that in order to constitute a charge, any moneys paid must be paid for the right to enter the facility." Id.

We find these decisions to be highly persuasive and agree that a parking fee assessed only to those entering by motor vehicle, and on a per-vehicle basis, does not constitute a "charge" under section 27-3-60(b). The undisputed evidence demonstrates only that the fee is purely for the privilege of using a motorized vehicle at the site and is not related to the admission of individuals to the...