Cruce v. Berkeley Cnty. Sch. Dist., Appellate Case No. 2018-000791

CourtCourt of Appeals of South Carolina
Citation865 S.E.2d 391,435 S.C. 7
Docket NumberOpinion No. 5854,Appellate Case No. 2018-000791
Parties Jeffrey Lance CRUCE, Respondent, v. BERKELEY COUNTY SCHOOL DISTRICT, Appellant.
Decision Date01 September 2021

435 S.C. 7
865 S.E.2d 391

Jeffrey Lance CRUCE, Respondent,

Appellate Case No. 2018-000791
Opinion No. 5854

Court of Appeals of South Carolina.

Heard February 2, 2021
Filed September 1, 2021
Rehearing Denied December 2, 2021

E. Brandon Gaskins, of Moore & Van Allen, PLLC, and Joshua Steven Whitley, of Smyth Whitley, LLC, both of Charleston; Andrew F. Lindemann, of Lindemann & Davis, P.A., and Richard J. Morgan, of Burr & Forman LLP, both of Columbia, all for Appellant.

Lucy Clark Sanders and Nancy Bloodgood, both of Bloodgood & Sanders, LLC, of Mount Pleasant, for Respondent.


435 S.C. 11

Berkeley County School District (the District) appeals the circuit court's denial of its motions for a directed verdict and a judgment notwithstanding the verdict (JNOV) on Jeffrey Lance Cruce's defamation cause of action. The District contends it had absolute sovereign immunity because Cruce qualified as either a public official or a limited public figure. It also maintains Cruce failed to prove each element of defamation. We reverse.


Cruce was a high school teacher in South Carolina for twenty-eight years, an athletic director in Berkeley County at various high schools1 for a total of twenty-one years, and head football coach at high schools for about twenty years. He began serving as head football coach, athletic director, and teacher at Berkeley High School (the School) in 2011. In

435 S.C. 12

December 2015, the District removed him as athletic director and football coach. The District reassigned him to a middle school as a guidance counselor starting in January of 2016. Cruce left the District and retired at the completion of the school year.

During his tenure as head football coach at the School, Cruce had one winning season and several losing seasons, including a three-wins-and-seven-losses record during his final football season. That season, Cruce used an analytics-based strategy in coaching the team.2

As athletic director, Cruce was certified to maintain student athlete eligibility files (eligibility files) in Berkeley County, and the eligibility files were generally audited three times a year. A few months before he was removed as athletic director, the high school league conducted an audit and determined everything was proper.

On January 7, 2016, Chris Stevens, Berkeley High School's head athletic trainer, sent an email to the School's athletic coaches—paid and volunteer—as well as others involved in the athletic department and some administrators at the School, totaling approximately forty-five recipients. The subject of the email was "Student Athlete Eligibility and Medical Files." The email stated:

865 S.E.2d 394
Today, January 7th 2016, myself, [C]oach Ward, and Mr. Gallus went into the athletic director[’]s office to check on the status of the student files left by our previous athletic director. After spending some time looking through files it has come to my attention that there could be some documents that could be misplaced and others that are out of order. From a liability stand point with competing sports and athletes it is necessary that all of the files be present to safeguard the athletes as well as to maintain the proper care for those athletes if something were to happen.

I will be in the [athletic director's] office during the next few day[s] to make sure the correct files are in place for competing athletes and those weightlifting after school to make sure EVERY child has the correct paperwork on file.
435 S.C. 13
I would ask if you have athletes competing and/or conditioning at the present time, this includes weightlifting, that you send me a copy of that roster ASAP so that I can check your student-athletes off the "no-fly" list. ALL students MUST have the following files in order to participate in scholastic sports:

- Risk Acknowledgment and Consent to Participate form

- Pre-participation Physical Examination form (signed by a doctor)

- Proper understanding of HIPAA and FERPA rights

- Emergency Insurance Information and Consent to Treat form

- ANY special accommodations such as asthma, allergies etc. must have a written Doctor's note filed and must have necessary treatment (Inhaler, Epi-pen) present at all times.

- Copies of Birth Certificate and Social Security Cards.

I will update everyone again next week once everything has been checked off. Thank you in advance for your cooperation.

In 2016, Cruce filed an action against the District for wrongful termination and defamation. As to the defamation cause of action, Cruce alleged the District's agents, while acting within the scope of their authority, made false and defamatory statements about his "fitness for his profession to employees, students, volunteers, potential employers, and members of the community" "with conscious indifference to and complete disregard of the truth of their statements and the effect that the false statements would have on [him] and his career." Cruce asserted the statements were plain in meaning and constituted defamation per se because they stated he was unfit for his profession. He further contended the statements were made with common law malice. The District answered, raising several defenses including that the South Carolina Tort Claims Act barred the claims in whole or in part. The District asserted because Cruce could not show actual malice, his claims were barred because he was "a public official, [a] limited purpose public official, and/or any complained-of speech was on a matter of public concern."

At trial, Cruce testified Stevens was not certified to handle student athlete eligibility files and did not know what documents

435 S.C. 14

had to be included in the files. Cruce indicated only athletic directors are certified to maintain the athlete eligibility files. Cruce stated only head coaches were allowed to review eligibility files and most of the forty-five email recipients were not head coaches and thus those recipients did not need to know information about eligibility files. Stevens testified his job was to take care of athletic injuries and illnesses; he indicated he was not an athletic director. He agreed he was not certified to maintain eligibility files. He provided that some of the recipients of the email were former coaches.

Cruce disputed the statement in the email that the files could be a liability because his files were usually audited three times a year and the last audit that occurred was only a few months before the email was written and was "clean." Cruce further testified the information contained in the email about what documents should be in the eligibility files was incorrect. Cruce provided, "You have to be certified to -- there are certain files -- as an athletic director, there's three things you've got to have on file. You've got to have a current physical; you've got to have a birth

865 S.E.2d 395

certificate; and you've got to have their grades on file." Cruce testified several forms the email specified as missing from the files were not missing for a variety of reasons: the risk acknowledgement and consent to participate form was attached to the physical itself; HIPPA and FERPA forms were not required to be in the file; information about special accommodations for a student were written by the doctor on the physical form; and a social security card was not required to be in the file.

The principal was asked if the email was "talking about a former employee" and "talking about problems that have been found in his office," and he responded affirmatively to both questions.

Cruce and his principal's testimony at trial differed as to the focus of his coaching strategy for 2015. Cruce maintained it was a "less-hitting philosophy." He asserted that while not punting was part of the philosophy, it "has no bearing on what the philosophy is." When asked if "that philosophy involved use of statistics, number of plays that were run, yards that were gained," he responded, "It was driven by offensive productivity, yes, sir."

The principal testified:

435 S.C. 15
[Cruce] said, I'm going to be using analytics, because I -- there's one gentleman in Little Rock who does the no punting and does all this stuff, so I'm going to use analytics this year.

And that's where he talked about earlier about telling me about the no-kick rule.

When he said, no punting, it also meant no kicking extra points, no punting under any situation, 4th and 20 doesn't matter, and no kickoffs. So all of our kickoffs were -- basically were either muffs or short little kicks instead of deep kicks.

And that's where that whole conversation kind of went down with our analytics, him explaining all of that. And that's why analytics was number one.

The District maintained Cruce sought out media attention due to his use of a no-punt philosophy. The District provided almost two hundred articles that mentioned the football team for the years Cruce was the coach and...

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