Frazier v. Badger

• Decision Date: 27 September 2004
• Docket Number: No. 25876.,25876.
• Citation: 361 S.C. 94,603 S.E.2d 587
• Court: South Carolina Supreme Court
• Parties: E'Van FRAZIER, Respondent, v. Athaniel BADGER, Jr., Petitioner.

361 S.C. 94

603 S.E.2d 587

E'Van FRAZIER, Respondent, v. Athaniel BADGER, Jr., Petitioner.

No. 25876.

Supreme Court of South Carolina.

Heard January 6, 2004.

Decided September 27, 2004.

Andrea E. White, of Duff, Turner, White and Boykin, LLC, and Andrew F. Lindemann, of Davidson, Morrison and Lindemann, P.A., both of Columbia, for Petitioner.

Lawrence Keitt, of Keitt and Associates, of Orangeburg, for Respondent. Chief Justice TOAL:

This review stems from an action by E'Van Frazier ("Frazier") against Athaniel Badger, Jr. ("Badger") for the tort of outrage. The jury awarded Frazier $400,000 in actual damages and $400,000 in punitive damages. The trial judge reduced the award to $200,000 in actual damages and $200,000 in punitive damages. The Court of Appeals affirmed in an unpublished opinion. Frazier v. Badger, Op. No.2002-UP-513 (Ct.App., filed August 20, 2002). We granted certiorari and affirm the Court of Appeals.

FACTUAL/PROCEDURAL BACKGROUND

During the 1995-96 school year, Frazier was employed to supervise the in-school suspension lab at Clark Middle School. At that time, Badger was the assistant principal of Clark Middle School and was Frazier's direct supervisor. Around the beginning of the school year, Badger began visiting Frazier's classroom and making explicit, sexual advances towards her. When Frazier refused Badger's propositions, he told her that eventually he was going to "break her." As the school year progressed, Badger's visits became more frequent, and his advances became physical. Frazier testified that Badger would grab her legs and breasts and that she had to "fight him off" of her on several occasions. As part of Badger's duties as assistant principal, he received requests for building repairs. Frazier repeatedly asked Badger to send someone to repair the heating and air conditioning in her classroom. Despite Badger's promises, the heating and air conditioning were never repaired.

At the end of the school year, Badger told Frazier that if she came back to work in the fall, he would move her class into a portion of the basement known as the "dungeon."

As a result of Badger's behavior, Frazier suffered emotionally and physically. She became severely depressed. Her weight plummeted below 100 pounds, and she began having anxiety attacks and losing her hair. Her physician referred her to a psychiatrist who proscribed her medication for depression and insomnia. Frazier also testified that her fiance left her because of her emotional condition.

On August 1, 1996, Frazier wrote Priscilla Robinson ("Robinson"), Principal of Clark Middle School, about Badger's conduct, which led to a meeting between Robinson, Badger, and Frazier. After the meeting, Robinson wrote Frazier a letter acknowledging that Badger had admitted to and apologized for making inappropriate comments. She also wrote in her letter that it appeared that Badger had submitted work orders for the heating and air conditioning.

Frazier wrote Robinson another letter because she was dissatisfied with the investigation. As a result, District Superintendent, Dr. Walter Tobin assigned three people to investigate the matter further. The investigators found that (1) Badger made inappropriate comments to Frazier; (2) Badger sent Frazier's requests to the maintenance department, requesting that the heating and air conditioning be repaired, but the units were not repaired in a timely manner; and (3) Robinson, not Badger, decided to move Frazier into the "dungeon."

At the beginning of the next school year, Frazier's class was relocated to the basement, and she was told that her old classroom would be used for a computer lab.¹ Robinson also told Frazier that until her downstairs classroom was ready for use, her classroom would be located on the cafeteria stage. This temporary location made Frazier's job increasingly difficult. Though the stage curtains were drawn, Frazier had a hard time keeping the students in class. It was only after Frazier filed a complaint with the Department of Human Affairs that Frazier was given a regular classroom.

At trial, Badger testified that he was Frazier's basketball coach fifteen years ago, and that their relationship was "playful." He admitted to making inappropriate remarks and inviting her to dinner, but he denied making sexually explicit comments or grabbing her. He also testified that he did not recall refusing to process any work orders to repair the heating and air conditioning in Frazier's classroom. Finally, he denied that he ever threatened to relocate Frazier's classroom to the basement.

The jury found that Badger's sexual advances towards Frazier, combined with his retaliatory conduct, met the elements for the tort of outrage. The Court of Appeals affirmed the trial court's ruling in an unpublished opinion. Frazier v. Badger, Op. No.2002-UP-513 (Ct.App., filed August 20, 2002). Badger now presents the following issues for review on certiorari:

I. Did the Court of Appeals err in affirming the trial court's refusal to charge the jury on the law of tort immunity for government employees?

II. Did the Court of Appeals err in affirming the trial court's denial of the motion for mistrial?

III. Did the Court of Appeals err in affirming the trial court's ruling that Frazier was not barred from bringing an outrage action in lieu of an action for sexual harassment?

IV. Did the Court of Appeals err in affirming the trial court's refusal to submit special interrogatories to the jury?

V. Did the Court of Appeals err in affirming the punitive damages award?

LAW/ANALYSIS

I. GOVERNMENTAL IMMUNITY

Badger argues that he is immune from tort actions stemming from conduct within the scope of his official duties pursuant to South Carolina Code Ann. section 15-78-70 (Supp.2003),² and therefore the trial court abused its discretion when it refused to charge the jury on the law concerning immunity. We disagree.

South Carolina Code Ann. section 15-78-70 specifically provides that government employees may be liable in tort actions:

(a) This chapter constitutes the exclusive remedy for any tort committed by an employee of a governmental entity. An employee of a governmental entity who commits a tort while acting within the scope of his official duty is not liable therefor except as expressly provided for in subsection (b).

(b) Nothing in this chapter may be construed to give an employee of a governmental entity immunity from suit and liability if it is proved that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.

...

(Emphasis added).

Immunity under the statute is an affirmative defense that must be proved by the defendant at trial. Tanner v. Florence City-County Bldg. Comm'n, 333 S.C. 549, 552, 511 S.E.2d 369, 371 (Ct.App.1999).

The trial judge is required to charge only the current and correct law of South Carolina. Cohens v. Atkins, 333 S.C. 345, 509 S.E.2d 286 (Ct.App.1998). The law to be charged to the jury is determined by the evidence at trial. State v. Hill, 315 S.C. 260, 262, 433 S.E.2d 848, 849 (1993). In reviewing jury charges for error, appellate courts must consider the charge as a whole in light of the evidence and issues presented at trial. Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 497, 514 S.E.2d 570, 574 (1999). This Court has held that the term "scope of employment" as used in an insurance policy is broader than the term "scope of official duties" as used in the Tort Claims Act. South Carolina State Budget and Control Bd. v. Prince, 304 S.C. 241, 245, 403 S.E.2d 643, 646 (1991). If "scope of employment" is a broader term than "scope of official duties" — the term used in the governmental immunity statute — it follows that acts not within the "scope of employment" are not within the "scope of official duties."

We recognize that whether an act is within the "scope of employment" may be determined by implication from the circumstances of a particular case. Hamilton v. Miller, 301 S.C. 45, 48, 389 S.E.2d 652, 653 (1990); Wade v. Berkeley County, 330 S.C. 311, 319, 498 S.E.2d 684, 688 (Ct.App.1998). In Prince, we held that the course of someone's employment requires some "act in furtherance of the employer's business." 304 S.C. at 246, 403 S.E.2d at 647.

Our jurisprudence includes three cases that consider whether sexual advances were within the "scope of an employee's employment." Because the cases did not relate to governmental immunity, the court of appeals declined to apply them. Nonetheless, we find that "scope of employment" is a term of art, and therefore we look to the cases involving insurance policies for guidance.

In the first case, this Court held that a police officer's sexual assaults of women during traffic stops were not within the scope of his official duties, and therefore the acts were not covered under the state's general tort liability policy. Doe v. South Carolina State Budget and Control Bd., 337 S.C. 294, 523 S.E.2d 457 (1999). In the second case, the court of appeals held that a professor was not acting within the scope of his employment when he sexually harassed a student. Therefore, the professor's conduct was not covered under the university's liability insurance policy. Padgett v. South Carolina Ins. Reserve Fund, 340 S.C. 250, 253, 531 S.E.2d 305, 307 (Ct.App.2000). In the third case, the court of appeals held that a sheriff's sexual advances toward three of his female officers was not within the scope of the sheriff's official duties. Loadholt v. S.C. State Budget and Control Bd., 339 S.C. 165, 528 S.E.2d 670 (Ct.App.2000). According to these cases, sexual harassment by a government employee is not within the employee's "scope of employment." Therefore, in the present case, we hold that Badger's sexual advances toward Frazier were outside the scope of his official duties or employment.

The more difficult...