Hendricks v. Clemson University, 3137.

CourtCourt of Appeals of South Carolina
Citation339 S.C. 552,529 S.E.2d 293
Docket NumberNo. 3137.,3137.
PartiesR.J. HENDRICKS, II, Appellant, v. CLEMSON UNIVERSITY, Respondent.
Decision Date20 March 2000

339 S.C. 552
529 S.E.2d 293

R.J. HENDRICKS, II, Appellant,
v.
CLEMSON UNIVERSITY, Respondent

No. 3137.

Court of Appeals of South Carolina.

Heard October 7, 1999.

Decided March 20, 2000.

Rehearing Denied May 27, 2000.


339 S.C. 555
Scott M. Anderson, of Robertson & Anderson, of Greenville, for appellant

Jack Griffeth and Amy Richmond, both of Love, Thornton, Arnold & Thomason, of Greenville, for respondent.

CURETON, Judge:

R.J. Hendricks, II sued Clemson University for negligence, breach of fiduciary duty, and breach of contract alleging improper academic advisement by Clemson's athletic/academic advisor rendered him ineligible to play baseball under National Collegiate Athletics Association (NCAA) regulations. The trial court granted Clemson summary judgment on all causes of action. Hendricks appeals. We affirm in part, reverse in part and remand.

FACTS

Hendricks attended St. Leo College in Florida on a baseball scholarship for the first three years of his college education. St. Leo is a small college with a NCAA Division II baseball program. Hendricks's scholarship at St. Leo covered seventyfive percent of his costs for tuition, room, and board. While at St. Leo, Hendricks majored in business administration with a specialization in hotel/restaurant management.

After playing baseball at St. Leo for three years, Hendricks decided to transfer to a larger school. He contacted Clemson assistant coach Tim Corbin. Corbin was a former assistant coach with Presbyterian College and, as such, had recruited

339 S.C. 556
Hendricks out of high school. Clemson requested permission from St. Leo to contact Hendricks for transfer and a one-time transfer exception. St. Leo granted the requests. St. Leo indicated that Hendricks would fulfill the satisfactory progress requirement for continued participation in baseball at St. Leo

Upon transfer to Clemson, Hendricks received a $250 "book scholarship." Hendricks paid his own tuition, room, board, and other expenses.

Over the summer, Hendricks communicated with Barbara Kennedy-Dixon, an academic advisor in Clemson's Student-Athlete Enrichment Program, about enrolling in classes. It is undisputed Hendricks never intended to graduate from Clemson, but planned to return to St. Leo and graduate in December of 1996. Hendricks hoped to use some of the hours he earned at Clemson toward his degree from St. Leo. Hendricks believed Kennedy-Dixon was advising him to take classes that would ensure his NCAA baseball eligibility and also would be transferable to St. Leo.

Because Clemson did not offer Hendricks's major, Kennedy-Dixon advised Hendricks to declare himself a speech and communications major with a cluster minor in administration. Kennedy-Dixon originally registered Hendricks in fifteen credit hours for the fall semester. A week and a half into the fall semester, Kennedy-Dixon realized she had not evaluated whether Hendricks was in compliance with the NCAA's fifty percent rule, which requires a student athlete to complete at least fifty percent of the course requirements for his degree to be eligible to compete during his fourth year of collegiate enrollment. She then advised him to drop one class and add two speech classes, increasing his course credits from fifteen to eighteen hours. According to Kennedy-Dixon, she asked her graduate student to consult with one of her colleagues about the situation, but she did not recall any feedback from the consultation.

Hendricks passed all eighteen hours. However, shortly before the spring semester began, Kennedy-Dixon realized she had miscalculated the classes he needed to be eligible to play baseball. A student pursuing a speech and communications studies major with a cluster minor in administration may have thirty-two elective hours, with eleven hours from lower

339 S.C. 557
level foreign language classes, which are prerequisites for the required upper level foreign language class. Hendricks had taken no foreign language classes. Kennedy-Dixon failed to subtract the eleven hours of foreign language from the thirty-two available elective hours. Hendricks only had twenty-one hours of electives available rather than thirty-two. Six of the eighteen hours Hendricks took during the fall semester were excess electives. To be eligible to play baseball, Hendricks should have enrolled in twenty course hours toward his major during the fall semester

During the time she was advising Hendricks, Kennedy-Dixon was experiencing a personal crisis. She gave birth to a premature baby during the summer of 1995. The baby was in a neonatal intensive care unit in a hospital in Greenville until October 1995. She commuted to Greenville from Clemson daily to bond with the baby.

Clemson requested a waiver of the fifty-percent rule from the NCAA for Hendricks. Kennedy-Dixon provided a written statement detailing her mistake and her belief that Hendricks would have successfully completed the classes necessary for eligibility if he had enrolled in them. The NCAA, however, denied the waiver request. Although he remained at Clemson for the spring semester, Hendricks could not play baseball. He received credit for all of the academic classes he completed at Clemson. However, some of the hours he earned at Clemson did not count toward his graduation from St. Leo.

Clemson won the NCAA regional title during the spring of 1996 and went to the College World Series. Jackson Scott Leggett, Clemson's head coach, stated he did not have a limit on the non-traveling team roster. The traveling team, however, was limited to twenty-five players. Based on Hendricks's performance in fall practice, Leggett believed it would have been very difficult for Hendricks to make the traveling team.

Hendricks returned to St. Leo for the fall 1996 semester. Because of his transfer to Clemson, he lost his scholarship and had to pay full tuition. After graduating from St. Leo in December 1996, Hendricks enrolled in classes at the college in order to be able to play baseball during the spring semester. He received approximately $2000 in financial assistance that semester.

339 S.C. 558
At the time of the summary judgment hearing, Hendricks had graduated from college, worked in his father's laundry business and lived with his parents.

Hendricks sued Clemson for negligence, breach of fiduciary duty, and breach of contract. His alleged damages included his tuition, room, board and living expenses at Clemson; tuition, room, board and living expenses for the fall 1996 and spring 1997 semesters at St. Leo; lost wages from September 1996 to September 1997; emotional suffering and lost enjoyment of life; lost 1996 College World Series experience; lost opportunity for playing NCAA Division I baseball; and lost professional baseball opportunities.

The trial court granted Clemson's motion for summary judgment. In so doing, the court held Clemson had not breached any contractual duty owed to Hendricks because all aspects of Hendricks's scholarship obligations were fulfilled. The court also ruled Hendricks had not advanced any tort theory that would permit recovery under the South Carolina Tort Claims Act because Clemson's course of action did not constitute gross negligence. The court found Hendricks alleged a form of "educational malpractice" based on simple negligence under the proposition that Clemson assumed some fiduciary duty. It rejected this action holding the legislature disallowed this type of claim by limiting liability of public educational institutions to acts of gross negligence. As a separate ground for granting summary judgment, the trial court concluded Hendricks had not suffered any measurable or ascertainable damages. It found Hendricks could not claim any damages for tuition or other college expenses because his scholarship terms were honored. It ruled Hendricks's other claims for damages were too speculative.

LAW/ANALYSIS

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Cafe Assocs., Ltd. v. Gerngross, 305 S.C. 6, 406 S.E.2d 162 (1991). In ruling on a motion for summary judgment, the evidence and the inferences should be viewed in the light most favorable to the nonmoving party. Id.

339 S.C. 559
I. Negligence Claim Under the South Carolina Tort Claims Act

Hendricks argues the trial court erred in deciding the issue of gross negligence on summary judgment. In its order, the circuit court held, as a matter of law, that "Clemson's conduct does not rise to the level of gross negligence." Hendricks asserts the issue of whether Clemson's actions were grossly negligent is for the jury to determine. We agree.

The South Carolina Tort Claims Act shields state educational institutions such as Clemson from liability resulting from:

the responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any student ... except when the responsibility or duty is exercised in a grossly negligent manner[.]

S.C.Code Ann. § 15-78-60(25) (Supp.1998).

Gross negligence is the intentional, conscious failure to do something which one ought to do or the doing of something one ought not to do. Hollins v. Richland County Sch. Dist. One, 310 S.C. 486, 427 S.E.2d 654 (1993). It is the failure to exercise slight care. Clyburn v. Sumter County Sch. Dist. # 17, 317 S.C. 50, 451 S.E.2d 885 (1994). Where a person is so indifferent to the consequences of his conduct as not to give slight care to what he is doing, he is guilty of gross negligence. Jackson v. South Carolina Dep't of Corrections, 301 S.C. 125, 390 S.E.2d 467 (Ct.App.1989), aff'd, 302 S.C. 519, 397 S.E.2d 377 (1990). Gross negligence is a mixed question of law and fact and should be presented to the jury unless the evidence supports only one reasonable inference. Clyburn, 317 S.C. 50, 451 S.E.2d 885.

In this case, the trial court held Clemson's course of action did not evidence a failure to...

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