Jackson v. Swordfish Investments, L.L.C.
| Decision Date | 05 October 2005 |
| Docket Number | No. 26037.,26037. |
| Citation | 620 S.E.2d 54 |
| Court | South Carolina Supreme Court |
| Parties | Octavia JACKSON, Appellant, v. SWORDFISH INVESTMENTS, L.L.C., Respondent. |
Page 54
v.
SWORDFISH INVESTMENTS, L.L.C., Respondent.
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Carl L. Solomon, of Gergel, Nickles & Solomon, P.A. and Tony Dessausure, of The Dessausure Law Firm, both of Columbia, for Appellant.
J.R. Murphy and Adam J. Neil, both of Murphy & Grantland, P.A., of Columbia, for Respondent.
Justice BURNETT.
This is a negligence action against a commercial landlord arising out of a shooting which occurred inside the leased premises. The trial court granted the landlord's motion for summary judgment. We certified the case from the Court of Appeals pursuant to Rule 204(b), SCACR. We affirm.
Ronald O. Swinson, Jr. and his wife each own a fifty-percent share of Swordfish Investments, LLC ("Swordfish"), a limited liability company which Swinson set up to own real estate. Swinson is employed by C.B. Richard Ellis, a commercial real estate and brokerage firm.1 C.B. Richard Ellis is the leasing agent for properties owned by Swordfish.
Swordfish owns the Columbia East Shopping Center in Columbia. Uptop Management, Inc. ("Uptop"), a South Carolina corporation, leased a portion of the shopping center for use as a nightclub. The lease dated December 21, 2000, was signed by Swinson on behalf of Swordfish and by Pearl Ingram on behalf of Uptop. Swinson testified he believed Uptop subsequently entered into a management agreement with Dance, Inc. ("Dance") over its portion of the shopping center during the term of Uptop's lease. When operated by Dance, Uptop's nightclub was known by various names, including Club Voodoos.
During the operation of the various nightclub establishments in Uptop's leased portion of the shopping center, numerous crimes, including narcotics violations, assaults, and various instances of disorderly conduct, were committed on the premises. Ingram requested security be provided by either Swordfish or C.B. Richard Ellis on Swordfish's behalf. Swordfish agreed to provide security in the common areas, first by employing off-duty deputies and later employing a private security company.
Larry Capall, director of property management for C.B. Richard Ellis, testified Swordfish switched from the off-duty officers to the private security company because the club owners complained about the cost to employ the off-duty deputies. Although Swordfish arranged for the security in the common areas, it charged the tenants for the cost of maintaining the security. Swordfish considered security "additional rents" under the lease to be paid by the tenant. Prior to November 3, 2001, Swordfish, because of the failure of payment by Uptop, discontinued the security in the common areas.
On November 3, 2001, Octavia M. Jackson (Appellant) and several friends entered Club Voodoos. While Appellant was in the club, two altercations occurred. One involved a male patron who was escorted from the club. Soon thereafter Appellant and her party decided to leave and began exiting the club. At that time, the male patron re-entered the club with a gun and began shooting in the air and indiscriminately into the crowd. Appellant was shot multiple times.
Appellant argues Swordfish had a duty to protect her from the criminal activity in the club by providing adequate security on or in the vicinity of the property where Appellant was shot. The trial court granted Swordfish's motion for summary judgment.
Did the trial court err in granting Swordfish's motion for summary judgment?
Summary judgment is appropriate when it is clear that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
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Café Assocs., Ltd. v. Gerngross, 305 S.C. 6, 406 S.E.2d 162 (1991). Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Middleborough Horizontal Property Regime Council of Co-Owners v. Montedison, 320 S.C. 470, 465 S.E.2d 765 (Ct.App.1995). Further, summary judgment should not be granted even when there is no dispute as to the evidentiary facts, if there is a dispute as to the conclusion to be drawn therefrom. MacFarlane v. Manly, 274 S.C. 392, 264 S.E.2d 838 (1980). An appellate court reviews the granting of summary judgment under the same standard applied by the trial court. George v. Fabri, 345 S.C. 440, 548 S.E.2d 868 (2001).
In a negligence action, a plaintiff must show the (1) defendant owed a duty of care to the plaintiff (2) defendant breached the duty by a negligent act or omission (3) defendant's breach was the actual and proximate cause of the plaintiff's injury and (4) the plaintiff suffered injury or damages. Dorrell v. South Carolina Dept. of Transp., 361 S.C. 312, 318, 605 S.E.2d 12, 15 (2004). Whether the law recognizes a particular duty is an issue of law to be determined by the court. Ellis v. Niles, 324 S.C. 223, 479 S.E.2d 47 (1996).
Appellant argues the trial court erred in concluding Swordfish had no duty to protect her from the criminal acts of her assailant inside the leased premises. We disagree.
In Cramer v. Balcor Property Management, Inc., 312 S.C. 440, 441 S.E.2d 317 (1994), we concluded, on a certified question from the federal district court, that residential landlords do not owe a general duty to protect tenants from criminal activity of third parties. We agreed with the federal district court opinion in Cooke v. Allstate Management Corp., 741 F.Supp. 1205 (D.S.C.1990), which found the residential landlord/tenant relationship to be fundamentally different from the relationships for which South Carolina law will impose a duty to protect against criminal activity.
In the present case, Appellant argues that as the sub-lessee's invitee, Swordfish had a common law duty to protect her from the criminal acts of a third party. Appellant's status as an invitee does not, under the facts of this case, create a duty on the part of Swordfish to protect her from the criminal acts of...
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