Duncan v. Hampton County School Dist.# 2, 2995.

• Citation: 517 S.E.2d 449,335 S.C. 535
• Decision Date: 10 May 1999
• Docket Number: No. 2995.,2995.
• Court: Court of Appeals of South Carolina
• Parties: Eva Mae DUNCAN, Guardian of Vicki Duncan, Respondent, v. HAMPTON COUNTY SCHOOL DISTRICT # 2, Appellant.

335 S.C. 535

517 S.E.2d 449

Eva Mae DUNCAN, Guardian of Vicki Duncan, Respondent, v. HAMPTON COUNTY SCHOOL DISTRICT # 2, Appellant.

No. 2995.

Court of Appeals of South Carolina.

Heard March 9, 1999.

Decided May 10, 1999.

Rehearing Denied June 26, 1999.

Bruce E. Davis and Robert A. Kerr, Jr., both of Davis, Craver, Hagood & Kerr, of Charleston, for appellant.

Lee S. Bowers and Mary Kay Siren, both of Bowers & Siren, of Estill; Gary D. Brown, of Ridgeland; and James B. Richardson, Jr., of Svalina, Richardson & Larson, of Columbia, for respondent.

HOWELL, Chief Justice:

Hampton County School District # 2 (the District) appeals a jury verdict awarding Vicki Duncan damages she incurred when she was sexually assaulted while under the District's supervision. We affirm. Duncan filed a complaint against the District alleging grossly negligent supervision. The District denied the allegations and claimed immunity under the South Carolina Tort Claims Act (SCTCA).¹ At the close of the plaintiff's case and of all the evidence, the District moved for a directed verdict, arguing the plaintiff produced no evidence that the District was grossly negligent, that the assault was unforeseeable, and that the District was entitled to discretionary immunity. The trial court denied the motions. The jury returned a verdict for Duncan awarding her $1,000,000 actual damages. The trial court reduced the damages award to $250,000 pursuant to the SCTCA, but otherwise denied the District's motions for a judgment notwithstanding the verdict (JNOV), new trial absolute, and new trial nisi remittur.

I.

The District contends the trial court erred in denying its motions for directed verdict and JNOV. It asserts it exercised at least slight care and thus was not grossly negligent. We disagree and find sufficient evidence in the record to support the jury's finding of gross negligence.

"In deciding motions for directed verdict and those for judgment notwithstanding the verdict, the evidence and all reasonable inferences must be viewed in the light most favorable to the nonmoving party. If more than one inference can be drawn from the evidence, the case must be submitted to the jury." Howard v. State Farm Mut. Auto. Ins. Co., 316 S.C. 445, 451, 450 S.E.2d 582, 585-86 (1994) (citation omitted).

A.

The facts, viewed in the light most favorable to Duncan, are as follows.

Duncan, sixteen years old, attended high school in the District. Her IQ of 38 qualified her for the District's Trainable Mentally Handicapped (TMH) program.² Sharlene Mastic taught Duncan in the TMH class. Mastic had planned a trip to Beaufort, South Carolina, for her class to participate in the Special Olympics. Mastic's responsibilities required her to travel ahead of the class to prepare for the events. She received permission from Anderson Taylor, her principal, to do so. Approximately 40 students and 8 teachers would travel by bus with Barbara Mitchell, Mastic's aide, who would be in charge of supervising the seven students from Mastic's class.

Because Mastic doubted Mitchell's ability to competently supervise the students by herself,³ Mastic separately spoke with Taylor and Jean Stokes, the assistant principal, about employing a substitute teacher to provide additional supervision.⁴ Because other adults would be present, Taylor determined a substitute was unnecessary. The students returned from the Beaufort trip and, under Mitchell's supervision, waited in front of the District building for a bus to take them home. Mitchell left the children to go to the bathroom. Duncan, Grant, Valerie Johnson, and Belle Fields, all members of the TMH class, then left the group. They went around the side of the District building and into a stairwell. Johnson and Fields acted as lookouts while Grant attempted sexual intercourse with Duncan.⁵

At some point during these activities, Mildred Gadsen, a fourth grade teacher, walked into the District building and saw Duncan bent over with her pants and underwear pulled down while Grant stood immediately behind Duncan. When Gadsen walked in, Grant ran away and Duncan said, "he made me do it." When Gadsen first saw Duncan and Grant, Duncan was not struggling or complaining in any way and did not seem upset. When Gadsen took Duncan to Mitchell, Duncan cried hysterically.

That evening, Duncan's guardian, Eva Mae Duncan (Eva Mae), took Duncan to the hospital for an examination and reported the incident to the sheriff's department. The sheriff's report indicated that Grant took Duncan by the hand, told Duncan to take off her clothes, had sex with Duncan despite her verbal resistance, and then ran when Duncan threatened to tell. The hospital's evaluation rape kit did not indicate a rape, although the officer that filled out the incident report testified that this is not dispositive of whether a rape occurred.

After the incident, Eva Mae prohibited Duncan from returning to school because the District refused to transfer either Duncan or Grant to a different classroom. The school officials told Eva Mae that they could not remedy the situation and that Eva Mae must send Duncan back to class. Eva Mae did not comply with this request. Some time later, the truancy officer for Hampton County signed a warrant for the arrest of Duncan's mother, Mary Duncan (Mary), who did not have custody of Duncan and had no idea Duncan was not attending her classes. Mary was incarcerated, tried and found guilty by a local magistrate, and ordered to send Duncan to school. As a result, Eva Mae sent Duncan back to school. However, upon returning to class, Duncan became withdrawn and indicated a desire not to go to school, behavior she did not display prior to the incident. As of the date of trial, Duncan and Grant still attended the same class.

There is evidence that Duncan incurred substantial emotional harm as a result of the incident at bar. Mitchell testified that Duncan was crying hysterically when she returned to the front of the District building with Gadsen. Chaslyn Vanderburgh, Duncan's bus driver, explained that Duncan was still crying hysterically when she got on the bus. Moreover, Eva Mae stated that Duncan was crying when she arrived at home. Eva Mae indicated that, after the incident, Duncan would sleep for "hours and hours" more than usual and appeared to be sadder than before. Each time Duncan talked about the details of the incident she became very anxious and upset and cried often.

Lori Ann Rogers, who was qualified as an expert in counseling sexually abused children, interviewed Duncan. During the interview, Duncan cried and exhibited very anxious and emotional behavior. Rogers commented that Duncan felt unsafe and insecure about attending school. Rogers claimed that Duncan's future sense of safety would be jeopardized and that her psychological problems had been heightened due to Grant's continued presence in the classroom. Rogers recommended individual and family counseling for Duncan and suggested placing Duncan in a classroom different from Grant for her emotional well-being.

Patricia Malphrus, who was also qualified as an expert in counseling sexually abused children, counseled Duncan. In the counseling sessions, Duncan's anxiety escalated when asked to speak of the details of the incident. In Malphrus's opinion, Duncan had been traumatized by the incident and suffered from an "adjustment disorder with a mixed disturbance of anxiety and [chronic] depression." Malphrus also concluded that Duncan would suffer future trauma as a result of the incident and that putting Grant and Duncan in the same classroom would set back Duncan's recovery. Though Malphrus admitted that Duncan had made progress in dealing with the incident, Malphrus testified that Duncan needed more counseling.

B.

Preliminarily, we note that the District also argues it cannot be held liable in this case because it is entitled under the SCTCA to immunity for its discretionary acts. See S.C.Code Ann. § 15-78-60(5) (Supp.1998). The analysis of this issue and the gross negligence issue both hinge on whether the record contains any evidence of gross negligence. Consequently, we discuss the two issues together.

Under the SCTCA,

[t]he State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained herein.

S.C.Code Ann. § 15-78-40 (Supp.1998). In S.C.Code Ann. § 15-78-60 (Supp.1998), the SCTCA provides certain exemptions from or limitations on the government's liability for its torts. The burden of proving any of these exceptions to the general rule of governmental liability as a private individual "is upon the governmental entity asserting it as an affirmative defense." Strange v. South Carolina Dep't of Highways & Pub. Transp., 314 S.C. 427, 430, 445 S.E.2d 439, 440 (1994). The exceptions pertinent to this case provide as follows:

The governmental entity is not liable for a loss resulting from:

...

(5) 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; [or]

...

(25) [the performance of a] responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any student, patient, prisoner, inmate, or client of any governmental entity, except when the responsibility or duty is exercised in a grossly negligent manner;

S.C.Code Ann. §§ 15-78-60(5) & (25) (Supp.1998) (emphasis added).

However, this Court has previously held that subsection five must be read in conjunction with subsection twentyfive. See Jackson v. South Carolina Dep't of Corrections, 301 S.C. 125, 128, 390 S.E.2d 467, 469 (Ct.App.1989),

aff'd,

302 S.C. 519, 397 S.E.2d 377 (199...