Hurst v. Sandy

• Decision Date: 09 October 1997
• Docket Number: No. 2753,2753
• Citation: 494 S.E.2d 847,329 S.C. 471
• Court: South Carolina Court of Appeals
• Parties: R. Charles HURST, Jr. and Terri K. Hurst, Appellants, v. Floyd E. SANDY, Individually and as President of Sandy Construction Company, Inc., Respondent. . Heard

Page 847

494 S.E.2d 847

329 S.C. 471

R. Charles HURST, Jr. and Terri K. Hurst, Appellants, v. Floyd E. SANDY, Individually and as President of Sandy Construction Company, Inc., Respondent.

No. 2753.

Court of Appeals of South Carolina.

Heard Oct. 9, 1997.

Decided Nov. 17, 1997.

Rehearing Denied Dec. 19, 1997.

J. Edward Bell, III, of Bell & Moore; and Linwood S. Evans, Jr., Sumter, for appellants.

M.M. Weinberg, Jr., and M.M. Weinberg, III, both of Weinberg, Brown & McMillan, Sumter, for respondent.

CURETON, Judge:

In this lawsuit, arising from an alleged defective design of a residence, the Hursts appeal the grant of summary judgment to Floyd E. Sandy, Respondent. ¹ We affirm in part, reverse in part and remand.

Facts

Viewed in the light most favorable to the Hursts, the evidence is as follows. In April or May 1989, Mr. Hurst discussed with William Sandy, a draftsman and Vice-President of SCC, the design and building of a residence in Sumter. After Mr. Hurst described the house he wanted built, William told him he could draw the design plans. The Hursts hired William and orally agreed to pay him $1,000 for this service.

William Sandy did not prepare the design plans alone. Instead, he consulted Floyd Sandy, his father and president of SCC, about the design of the house. In the course of consulting with William, Floyd Sandy inspected the building site, reviewed the plans for building code compliance and adequate footings for the foundation, and called the County Planning Commission on acceptable setbacks and other zoning matters.

After William Sandy completed the plans, the lending company informed the Hursts that it would not finance the construction of a house of this size without "engineering or architectural approval." Accordingly, the Hursts told William Sandy that, as a condition of the loan, the plans must be reviewed by an engineer or architect and stamped with a seal.

Floyd Sandy, a licensed civil engineer, possessed a seal bearing the words "California, Registered Professional Engineer, Floyd E. Sandy." His seal was placed on the plans, though he testified that he did not personally stamp the plans. It was fairly established by the pleadings and depositions that William stamped the plans and then submitted them to the financing company. Although the plans contained a California seal, the financing company accepted the stamp and granted the loan.

After the plans were approved, the Hursts entered into a written contract with SCC to construct their house. By March 1991, SCC had substantially completed construction of the house and the Hursts moved in. After taking possession of the house, the Hursts discovered numerous construction defects in the dwelling. SCC and the Hursts agreed to arbitrate the construction issues pursuant to the arbitration clause in the contract.

As required by the arbitration award, SCC made numerous repairs to the house. Despite the repairs, the Hursts noticed new cracks in the structure, sinking floors, and other problems associated with the poor structural design. The Hursts retained a consulting engineer to examine these defects. The expert's report noted that if defects reoccurred after repairs, the defects could "indicate inadequate strength in the structural members and/or footings." Because the problems persisted, the Hursts employed an engineering firm to inspect the foundation and structure of the house. This second report concluded that the weight of the dwelling far exceeded the capacity of the foundation as designed and constructed.

The Hursts thereafter filed suit against Floyd Sandy, SCC, and William Sandy alleging several causes of actions for defective design. Floyd Sandy filed a motion for summary judgment on all claims arguing the construction contract was made with SCC, the design contract was made with William Sandy and thus, there was no cause of action against him, personally. The trial judge agreed and granted the motion.

Law/Analysis

Summary judgment is appropriate only when "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP. "In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party." Koester v. Carolina Rental Center, Inc., 313 S.C. 490, 443 S.E.2d 392 (1994).

I. Negligence

As to their negligence claim, the Hursts present two arguments on appeal: (1) that

the trial court erred in granting [329 S.C. 477] summary judgment because the evidence was sufficient to show violation of a statute, which constitutes negligence per se, and that Floyd Sandy's violation of this statute was the proximate cause of their injury, and (2) that the trial court erred in granting summary judgment because the evidence sufficiently raised disputed issues of fact regarding Floyd Sandy's violation of a common law duty to exercise reasonable care in undertaking to perform services owed by another.

A. Duty Arising From Statute

The Hursts contend that because registration of engineers is governed by S.C.Code Ann. § 40-21-30 (1988) (current version at § 40-22-30) (effective July 1, 1991) ², there was negligence per se on the part of the respondent, as an unregistered engineer, for performing engineering services in connection with the design of their home. ³ They presented Floyd Sandy's testimony in which he admitted: (1) he is not a registered engineer in this state, (2) he consulted and advised William Sandy concerning the design plans by analyzing the plans for building code compliance, foundational requirements of footings and loadings and zoning requirements, and (3) he inspected the general bearing capacity of the soil. In addition, the Hursts presented expert testimony that the design failed to meet certain requirements of the standard building codes.

On the other hand, Floyd Sandy generally denies he was negligent. In his deposition, he identifies his activities as the practice of general contracting rather than the practice of engineering.

In considering a negligence per se action, we are guided by the case of Rayfield v. S.C. Dept. of Corrections, 297 S.C. 95, 374 S.E.2d 910 (Ct.App.1988), cert. denied, 298 S.C. 204, 379 S.E.2d 133 (1989). In Rayfield, this court set forth the two requirements to determine when a duty created by statute will support an action for negligence. We quote from the opinion:

In order to show that the defendant owes him a duty of care arising from a statute, the plaintiff must show two things: (1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect.

Id. at 103, 374 S.E.2d at 914.

In a subsequent decision, our Supreme Court further extended the analysis by stating that "the plaintiff must prove violation of the statute was causally linked, both in fact and proximately, to the injury." Whitlaw v. Kroger Co., 306 S.C. 51, 55, 410 S.E.2d 251, 253 (1991).

Chapter 22 of Title 40 of the South Carolina Code codifies the law relating to the registration of engineers and land surveyors by the South Carolina State Board of Registration for Professional Engineers and Land Surveyors. 7 S.C.Juris. Architects and Engineers § 1 (1991); S.C.Code Ann. § 40-22-10 to § 40-22-460 (1991). As stated in § 40-22-30, the practice of engineering is regulated The provisions of Chapter 22 are intended to regulate the practice of engineering by requiring persons who want to engage in this profession to be licensed and registered. Further, this chapter is directed to the engineering profession because it authorizes the Board to sanction a registrant who violates any of the provisions of the Code or regulations of the Board. S.C.Code Ann. § 40-22-390 (Supp.1996).

"[i]n order to safeguard life, health, and property and to promote the public welfare." S.C.Code Ann. § 40-22-30; 7 S.C.Juris. Architects and Engineers § 4 (1991). The statute prohibits the practice of engineering without registration and clearly defines those activities which constitute the practice of engineering. S.C.Code Ann. § 40-22-30; § 40-22-10 (1991).

Insofar as we understand the essential purpose of this statute, we believe the Hursts have failed to satisfy the first prong of the Rayfield test. The essential purpose of Chapter 22 is the regulation of the practice of a profession, rather than the imposition of civil liability to private individuals. See Dorman v. Aiken Communications, Inc. 303 S.C. 63, 398 S.E.2d 687 (1990); Whitworth v. Fast Fare Mkts. of S.C. Inc., 289 S.C. 418, 338 S.E.2d 155 (1985); 4 S.C.Juris. Action § 14 (1991) (stating that in the determination of private rights, the court has applied as a general rule that a statute which does not purport to establish a civil liability, but merely makes provision to secure the safety or welfare of the public as an entity is not subject to a construction establishing a civil liability).

Even if we were to assume that the Hursts established the elements of negligence per se, we are still faced with a question of whether such an action may be premised on a licensing statute. In their brief, the Hursts cite one authority which supports their contention that state statutes setting standards for engineers may be the foundation for a cause of action against the engineer for negligence. ⁴ However, we find no such standards have been set in this statute. ⁵

Our reading of the relevant South Carolina code sections and cases, convinces us that the essential purpose of the statute, as alleged by the Hursts, is inconsistent with the legislative intent in enacting this statute. Further, we find that a licensing statute will not ordinarily provide a basis for a negligence per se action. Therefore, we hold, as to this claim, the Hursts have not demonstrated that an...