Dwyer v. Tom Jenkins Realty, Inc.
| Decision Date | 26 March 1986 |
| Docket Number | No. 0724,0724 |
| Citation | 289 S.C. 118,344 S.E.2d 886 |
| Court | South Carolina Court of Appeals |
| Parties | Carolyn W. DWYER, Appellant, v. TOM JENKINS REALTY, INC., Century 21 Market Place, Inc., and Consolidated Multiple Listing Service, Respondents. . Heard |
Ann L. Furr, of Furr & Delgado, Columbia, for appellant.
Steven M. Anastasion, of Callison, Tighe, Rush, Robinson & Anastasion, and Steven B. Licata, of Finkel, Georgaklis, Goldberg, Sheftman & Korn, P.A., Columbia, for respondents.
This appeal by Carolyn Dwyer involves a negligence action brought by Dwyer against the respondents Tom Jenkins Realty, Inc., and Consolidated Multiple Listing Service, Inc. (CMLS). Dwyer alleged in her second amended complaint that she contracted with Tom Jenkins Realty, a member of CMLS, to list her home for sale and that her contract with Tom Jenkins Realty gave it and all other CMLS members the right to enter her home. Her second amended complaint further alleged that the negligence of Tom Jenkins Realty and CMLS in supervising access to a lockbox, which was placed by Tom Jenkins Realty on the front door to her home and contained her house keys, caused her to suffer the loss of certain jewelry and coins while her home was listed for sale. The case was first heard by the Master in Equity for Richland County who recommended that Tom Jenkins Realty and CMLS be held jointly liable to Dwyer. The circuit judge did not adopt the master's report and instead entered judgment against Dwyer in favor of Tom Jenkins Realty and CMLS.
The circuit judge found that no contractual relationship existed between Dwyer and CMLS, that neither Tom Jenkins Realty nor CMLS, assuming Dwyer had a contract with CMLS, breached any duty with Dwyer, and that Dwyer assumed the risk of the loss she incurred when she agreed to have the lockbox installed at her home. As we interpret his order, the circuit judge also found that, in any case, Dwyer failed to carry the burden of establishing that her loss was the proximate result of the negligence of Tom Jenkins Realty and CMLS because Dwyer's loss was as reasonably attributable to an act for which Tom Jenkins Realty and CMLS were not liable as it was to an act for which they were liable. See Messier v. Adicks, 251 S.C. 268, 271, 161 S.E.2d 845, 846 (1968) ().
Dwyer questions on appeal only the findings by the circuit judge that no contract existed between her and CMLS, that Tom Jenkins Realty breached no duty with her, and that she assumed the risk. Dwyer does not question by any proper...
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