Hollins v. Richland County School Dist. One
| Decision Date | 10 March 1992 |
| Docket Number | No. 23807,23807 |
| Citation | 310 S.C. 486,427 S.E.2d 654 |
| Court | South Carolina Supreme Court |
| Parties | , 81 Ed. Law Rep. 612 Martha HOLLINS, as Personal Representative of the Estate of Geisla Hollins, Appellant, v. RICHLAND COUNTY SCHOOL DISTRICT ONE, Respondent. . Heard |
John Kassel, of Suggs & Kelley, Columbia, for appellant.
Kenneth L. Childs, David E. Dubberly and Andrea E. White, all of Childs & Duff, P.A., Columbia, for respondent.
This action involves the South Carolina Tort Claims Act (Act), S.C.Code Ann. § 15-78-10 et seq. (Cum.Supp.1991). Martha Hollins (Hollins) appeals an Order granting Richland County School District Number One (School District) a directed verdict based upon Hollins' failure to establish gross negligence, as required by the Act.
We reverse and remand for trial.
On May 25, 1987, Hollins' eleven year old daughter, Geisla, was struck and killed by an automobile while attempting to cross Highway 277 in Columbia. The facts giving rise to the incident are:
Geisla was a fifth grade student at Burton Elementary School, located on the west side of Highway 277 along Farrow Road. She lived with Hollins in the Bethel Bishop Apartments on the opposite side of Highway 277. Geisla rode the bus to and from school except on Tuesdays and Thursdays, on which days she attended an after-school drama class. Following the class, there being no bus service, she received, with Hollins' permission, a ride home from her teacher, Mrs. Winchell.
For disciplinary reasons, Geisla's bus privileges were suspended for five school days, beginning May 21. A note given to Geisla by the school principal advising of the suspension, was never given to Hollins.
Unbeknownst to Hollins, Geisla's Tuesday afternoon drama class was moved to Monday, May 25. Geisla, for reasons unknown , did not attend the class. She walked home and was fatally struck by an automobile while attempting to cross Highway 277.
Hollins instituted these wrongful death and survival actions under the Tort Claims Act, alleging School District's gross negligence in failing to properly notify her of the bus suspension. At the close of Hollins' evidence, trial court granted School District a directed verdict.
Should the issue of gross negligence have been submitted to the jury?
In ruling on a motion for directed verdict, it is the duty of the court to view the evidence and all inferences which may reasonably be drawn therefrom in the light most favorable to the non-moving party. Horton v. Greyhound Corp., 241 S.C. 430, 128 S.E.2d 776 (1962).
Here, trial court concluded that the issue of gross negligence should not be submitted to the jury for the reason that School District's failure to ensure notice to Hollins of the bus suspension was irrelevant. He based this conclusion upon his finding that, irrespective of notice to Hollins, Geisla would not have ridden the bus on the day of her death but, rather, would have ridden home with the teacher, Mrs. Winchell. This conclusion is not supported by the record.
The evidence is, at best, inconclusive as to whether Geisla knew of the rescheduled drama class on the Monday in question. The only testimony on this issue is that of Mrs. Winchell, the drama teacher:
Q. You arrived, you conducted the class and she wasn't there?
A. Yes.
Q. And when you--did anybody tell you why she wasn't there?
A. They said that she had something to do or something like that.
Q. I think the question is did anybody tell you why she wasn't there? Yes or no.
A. They said she had to leave early.
Although it was argued by counsel that Geisla may have gone to the class, and then left, there is no evidence supporting this inference.
Moreover, Hollins testified that she had no knowledge of the rescheduled drama class, believing "it was just a regular day at school."
This being the only evidence of record, School District was not entitled to a directed verdict on the ground that Geisla would not have ridden the bus that day. Clearly, the evidence is susceptible of the inference that either Geisla did not know of the class or, for an unknown reason, was unable to attend. Whether Geisla would have ridden the bus was a matter for the jury. Accordingly, School District's manner of notification of the bus suspension was relevant and should have been addressed by the trial court. 1
A governmental entity is not liable for loss resulting from "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) (Cum.Supp.1991). (Emphasis supplied).
This Court has defined gross negligence in a number of ways. InAnderson v. Ballenger, 166 S.C. 44, 55, 164 S.E. 313, 317 (1932), we held that it was "the failure to exercise slight care." In subsequent cases, it has been defined as "the intentional, conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do." Richardson v. Hambright, 296 S.C. 504, 506, 374 S.E.2d 296, 298 (1988) (Emphasis supplied). We have also stated that "[g]ross negligence is a relative term, and means the absence of care that is necessary under the circumstances." Hicks v. McCandlish, 221 S.C. 410, 415, 70 S.E.2d 629 (1952) (Emphasis supplied).
We hold, under these factual circumstances, 2 that whether School District exercised "slight care" in sending a note home with eleven year old Geisla was a question for the jury. 3 Under proper instructions, it was for the jury to determine whether School District's failure to ensure that Hollins received actual notice of Geisla's bus suspension constituted gross negligence.
The judgment below is
REVERSED AND REMANDED.
In my opinion, the theory upon which the majority reverses was expressly waived below, and cannot now be asserted. See Gatewood v. Moses, 39 S.C.L. (5 Rich.) 244 (1852).
In her original pleadings, Hollins alleged that the School District had been grossly negligent in failing to ensure that she received notice that Geisla had been suspended from riding the bus. As facts developed during trial, however, it became apparent that notice to Hollins would have been immaterial had Geisla relied on her drama teacher for a ride home on the day of the accident. As I read the record, during argument against the School District's motion for directed verdict Hollins conceded that Geisla had attended drama class. As a result, Hollins abandoned her original theory in order to argue that the School District had been grossly negligent because it had failed to inform the drama teacher of the dangerous highway nearby. According to Hollins's trial counsel:
There's evidence in the record that at least maybe...
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