Creech v. South Carolina Wildlife and Marine Resources Dept.

• Citation: 491 S.E.2d 571,328 S.C. 24
• Decision Date: 18 March 1997
• Docket Number: No. 24677,24677
• Court: United States State Supreme Court of South Carolina
• Parties: Alice CREECH, Respondent, v. SOUTH CAROLINA WILDLIFE AND MARINE RESOURCES DEPARTMENT and Charleston County, Appellants. . Heard

Page 571

491 S.E.2d 571

328 S.C. 24

Alice CREECH, Respondent, v. SOUTH CAROLINA WILDLIFE AND MARINE RESOURCES DEPARTMENT and Charleston County, Appellants.

No. 24677.

Supreme Court of South Carolina.

Heard March 18, 1997.

Decided Aug. 11, 1997.

Re-issued Aug. 25, 1997.

Rehearing Denied Sept. 19, 1997.

Matthew H. Henrikson, of Barnwell, Whaley, Patterson and Helms, LLC, Charleston, for Appellants.

Daniel W. Williams, of Bedingfield & Williams, Barnwell, for Respondent.

TOAL, Justice:

Appellants South Carolina Wildlife and Marine Resources Department ("Wildlife Department") and Charleston County ("County") appeal the verdict in favor of Respondent Alice Creech, arguing, inter alia, that the trial court erred in failing to direct a verdict for Wildlife Department and County. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Respondent Alice Creech fell off a public dock at Steamboat Landing in Charleston County. The dock had railing on only one side, and Creech fell from the other side. She fell approximately ten feet and suffered numerous injuries.

Creech sued Wildlife Department and County under the South Carolina Tort Claims Act, S.C.Code Ann. §§ 15-78-10 to -190 (Supp.1996). She alleged that the defendants were negligent in failing to provide rails on both sides of the dock. Wildlife Department and County defended primarily on the bases that: (1) County was entitled to discretionary immunity; (2) because the condition at issue was open and obvious, County had not breached any duty to Creech, who was a public invitee; (3) Creech's injuries resulted from her own negligence rather than from any negligence of the defendants; and (4) the dock was designed as a boating dock rather than as a fishing pier, so erecting a second rail would have been inappropriate.

The jury returned a verdict in favor of Creech, finding her 49% negligent, County 16% negligent, and Wildlife Department 35%

negligent. County and Wildlife Department now appeal.

LAW/ANALYSIS

A. COUNTY'S APPEAL--DIRECTED VERDICT ISSUE

County argues the trial court erred in failing to grant it a directed verdict. We disagree.

1. Discretionary Immunity

County first argues that its placement of a single rail on the dock at Steamboat Landing was a discretionary decision and that, therefore, County was immune from suit under S.C.Code Ann. § 15-78-60(5) (Supp.1996). It argues that it was entitled to a directed verdict based on section 15-78-60(5). We disagree.

Section 15-78-60(5) provides that a governmental entity "is not liable for a loss resulting from ... the exercise of discretion or judgment by the governmental entity or employee or the performance or failure to perform any act or service which is in the discretion or judgment of the governmental entity or employee." This discretionary act immunity constitutes an affirmative defense that the governmental entity has the burden of proving. Strange v. South Carolina Dep't of Hwys. & Pub. Transp., 314 S.C. 427, 445 S.E.2d 439 (1994)(citing Niver v. South Carolina Dep't of Highways & Pub. Transp., 302 S.C. 461, 395 S.E.2d 728 (Ct.App.1990)). Specifically, the governmental entity must show that when faced with alternatives, it weighed competing considerations and made a conscious choice, and that it used accepted professional standards to make that choice. Foster v. South Carolina Dep't of Hwys. & Pub. Transp., 306 S.C. 519, 413 S.E.2d 31 (1992).

As noted above, County argues made a conscious choice to erect only one rail and that, therefore, it was entitled to a directed verdict. The standard of review as regards the refusal to grant a directed verdict is well established:

In ruling on motions for directed verdict and JNOV, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the party opposing the motions and to deny the motions where either the evidence yields more than one inference or its inference is in doubt. The trial court can only be reversed by this Court when there is not evidence to support the ruling below.

Strange, 314 S.C. at 429-30, 445 S.E.2d at 440 (citations omitted).

In arguing that it was entitled to a directed verdict because of its discretionary immunity defense, County relies solely on the testimony of James Rogers as well as certain exhibits to show it weighed the alternatives and made a conscious decision not to erect an additional rail on the dock. Rogers, the director of public works for Charleston County, testified concerning several memoranda and letters relating to a decision regarding safety rails at Steamboat Landing. Among other evidence, there is: (1) a letter to the public works construction superintendent noting a problem with the lack of safety rails at the dock at Steamboat Landing; (2) a memo from Rogers authorizing the construction superintendent to contact the Wildlife Department concerning the guardrail problem so that County and Wildlife Department could discuss the issue and make recommendations for improvement; (3) a letter from Rogers to Representative Holt, the Chairman of the Wildlife and Environmental Committee, stating "Charleston County has recommended that handrails be placed in reference piers and boat ramps," including Steamboat Landing. Rogers concluded that after study of the issue, a decision "obviously" was made to erect only one handrail at Steamboat Landing. Importantly, however, Rogers repeatedly testified that he "had no independent recollection of any discussion in 1987 concerning boat rails being placed on the pier at Steamboat Landing." Rogers admitted he was piecing together what probably happened based on his review of the memoranda and correspondence. The cost estimates for erecting rails at Steamboat Landing assume rails on both sides.

This evidence does not show a conscious choice by County to erect only one guardrail

at Steamboat Landing. We do not [328 S.C. 30] think one could infer, based on the evidence, that the issue of how many safety rails to erect was examined and an informed decision was made to erect only one rail at Steamboat Landing; any discretionary decision that was made concerned whether to erect rails at all, not whether to erect one rail or two. James Rogers's statement that a decision "obviously" was made to erect only one guardrail based on the fact that only one rail was erected is mere conjecture about what might have happened, not real evidence of an exercise of discretion. The trial judge did not err in refusing to grant a directed verdict based on S.C.Code Ann. § 15-78-60.

2. "Open and Obvious" Hazard to Public Invitee

County next argues that the trial judge should have granted it a directed verdict based on the fact the lack of a guard rail was an open and obvious condition against which Creech, a public invitee, should have been able to protect herself. We disagree.

Neither party disputes Creech's status as a public invitee. In Callander v. Charleston Doughnut Corp., 305 S.C. 123, 406 S.E.2d 361 (1991), this Court adopted the Restatement approach to premises liability as relates to an invitee. Restatement (Second) of Torts § 343A (1965), which is the principal section at issue here, provides:

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Comment e to section 343A elaborates on the rule stated in the section itself. It states:

In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.

Based on this language, County argues that the absence of a rail on one side of a dock is an obvious condition that an invitee should notice and that Creech made an informed decision about whether to stay on the dock even though it had a rail on only one side.

Creech argues, however, that even assuming the danger was open and obvious, County should have "anticipate[d] the harm despite such knowledge or obviousness." We agree, finding that County actually did anticipate the kind of harm that occurred.

Callander, 305 S.C. 123, 406 S.E.2d 361, and Meadows v. Heritage Village Church, 305 S.C. 375, 409 S.E.2d 349 (1991), are the seminal South Carolina cases interpreting section 343A. In Meadows, the plaintiff brought a negligence action against Heritage Village Church ("PTL") because of injuries she sustained when she slipped on some wet grass while walking to her hotel. The jury awarded the plaintiff $25,000. On appeal, PTL argued that the plaintiff "failed to meet her burden of proof of negligence because PTL only owed [plaintiff] a duty to warn of hidden, latent dangers and that the wet grass was an open and obvious danger." Id. at 376-77, 409 S.E.2d at 350.

This Court found that wet grass was an open and obvious danger and that absent a showing by plaintiff that PTL should have anticipated the harm the plaintiff suffered, the trial court should have granted PTL's motion for JNOV. Because the plaintiff had other options--for example, she could have moved her car closer to the hotel rather than walk across the wet grass or she could have taken...