Lydia v. Horton

• Decision Date: 30 October 2000
• Docket Number: No. 3256.,3256.
• Citation: 540 S.E.2d 102,343 S.C. 376
• Parties: Mitchell LYDIA, Appellant, v. Steve C. HORTON, Respondent. Lisa Mullinax Lydia, Appellant, v. Steve C. Horton, Respondent.
• Court: South Carolina Court of Appeals

343 S.C. 376
540 S.E.2d 102

Mitchell LYDIA, Appellant,
v.
Steve C. HORTON, Respondent.
Lisa Mullinax Lydia, Appellant,
v.
Steve C. Horton, Respondent

No. 3256.

Court of Appeals of South Carolina.

Heard October 10, 2000.

Decided October 30, 2000.

Rehearing Denied January 29, 2001.

343 S.C. 379

Andrew C. Barr, of Fulton & Barr, of Greenville, for Appellant

Samuel W. Outten and John Patrick Riordan, both of Leatherwood, Walker, Todd & Mann, of Greenville, for Respondent.

ANDERSON, Judge:

Mitchell Lydia brought a first party action against Steve C. Horton for negligent entrustment of his vehicle. The trial judge granted Horton's Motion for Judgment on the Pleadings. We reverse and remand.

FACTS/PROCEDURAL BACKGROUND

The complaint alleges the following facts: (1) on April 27, 1995, Horton owned, controlled, or had custody of a 1973 Volkswagen automobile; (2) Horton entrusted his vehicle to the operation and control of Lydia; (3) at all times, Lydia was incompetent to operate the motor vehicle by reason of his impairment by intoxication; (4) Horton knew or, by reason of plaintiff's obvious intoxicated condition, should have known that the plaintiff was incompetent to operate the motor vehicle; (5) Lydia was operating the motor vehicle on Secondary Highway 13 near Gaffney when he lost control of the vehicle and skidded off the road, flipped the vehicle, and struck a tree; and (6) the collision caused serious injuries and damages to Lydia, including rendering him a quadriplegic.

Horton moved, pursuant to Rule 12(c), SCRCP, for judgment on the pleadings, averring the only legal inference to be drawn from the allegations in the complaint is that Lydia's negligence was greater as a matter of law than any negligence on the part of Horton. The Circuit Court granted Horton's motion. The court concluded:

I find that [Lydia's] Complaint, although stating the required elements for negligent entrustment, discloses that [Lydia's] negligence was greater than [Horton's], and that

343 S.C. 380

[Lydia's] admitted negligence bars him from any recovery under comparative negligence. I find that persuasive caselaw [sic] from other jurisdictions and the public policy of South Carolina support barring [Lydia's] recovery.

Lydia appeals the trial court's determination that he was not entitled to any relief.

ISSUES

I. Does South Carolina recognize a first party cause of action for negligent entrustment?

II. Did the Circuit Court err in finding Lydia's negligence in operating a vehicle while impaired was greater as a matter of law than Horton's negligence in entrusting the vehicle to an intoxicated individual?

STANDARD OF REVIEW

Any party may move for a judgment on the pleadings under Rule 12(c), SCRCP. The motion will be sustained only where the pleadings are so defective that, taking all the facts alleged in the pleadings as admitted, no cause of action or defense is stated. Rosenthal v. Unarco Indus., Inc., 278 S.C. 420, 297 S.E.2d 638 (1982); Diminich v. 2001 Enters., Inc., 292 S.C. 141, 355 S.E.2d 275 (Ct.App.1987). A judgment on the pleadings against the plaintiff is not proper if there is an issue of fact raised by the complaint which, if resolved in favor of the plaintiff, would entitle him to judgment. Russell v. City of Columbia, 305 S.C. 86, 406 S.E.2d 338 (1991); Douglass ex rel. Louthian v. Boyce, 336 S.C. 318, 519 S.E.2d 802 (Ct.App.1999). A complaint is sufficient if it states any cause of action or it appears that the plaintiff is entitled to any relief whatsoever. Baldwin v. Sanders, 266 S.C. 394, 223 S.E.2d 602 (1976).

A judgment on the pleadings is in the nature of a demurrer. Russell, supra; Brown v. United Ins. Co., 268 S.C. 254, 233 S.E.2d 298 (1977). All properly pleaded factual allegations are deemed admitted for purposes of considering the motion for judgment on the pleadings. Baker Hosp. v. Firemans Fund Ins. Co., 314 S.C. 98, 441 S.E.2d 822 (1994); Crowe v. Domestic Loans, Inc., 242 S.C. 310, 130 S.E.2d 845

343 S.C. 381

(1963). When a fact is well pleaded, any inferences of law or conclusions of fact that may properly arise therefrom are to be regarded as embraced in the averment. Crowe, supra; Douglass ex rel. Louthian, supra.

On review of the motion, the court may not consider matters outside the pleadings. Firemen's Ins. Co. v. Cincinnati Ins. Co., 302 S.C. 234, 394 S.E.2d 855 (Ct.App.1990). Our courts have held that pleadings in a case should be construed liberally so that substantial justice is done between the parties. Russell v. City of Columbia, 305 S.C. 86, 406 S.E.2d 338 (1991); Manning v. Dial, 271 S.C. 79, 245 S.E.2d 120 (1978). A judgment on the pleadings is considered to be a drastic procedure. Russell, supra; United States Casualty Co. v. Hiers, 233 S.C. 333, 104 S.E.2d 561 (1958).

LAW/ANALYSIS

I. Negligent Entrustment in South Carolina

South Carolina has recognized a cause of action for negligent entrustment when a third party is injured by a vehicle entrusted by its owner to an intoxicated individual. See McAllister v. Graham 287 S.C. 455, 339 S.E.2d 154 (Ct.App.1986). The elements of negligent entrustment are:

(1) Knowledge of or knowledge imputable to the owner that the driver was either addicted to intoxicants or had the habit of drinking, (2) that (sic) the owner knew or had imputable knowledge that the driver was likely to drive while intoxicated, and (3) under these circumstances, the entrustment of a vehicle by the owner to such a driver.

Jackson v. Price, 288 S.C. 377, 382, 342 S.E.2d 628, 631 (Ct.App.1986).

In American Mut. Fire Ins. Co. v. Passmore, 275 S.C. 618, 274 S.E.2d 416 (1981), our Supreme Court stated:

The theory of negligent entrustment provides: "the owner or one in control of the vehicle and responsible for its use who is negligent in entrusting it to another can be held liable for such negligent entrustment." 19 A.L.R.3d 1175, 1192, cited in Bahm v. Dormanen, 168 Mont. 408, 543 P.2d 379, 381 (1975).

343 S.C. 382

American Mut. Fire Ins. Co., 275 S.C. at 621, 274 S.E.2d at 418.

South Carolina has acknowledged that giving control of property, such as an air rifle, can be negligent. While not specifically labeling this "negligent entrustment," the same rationale is utilized in finding liability. In Howell v. Hairston, 261 S.C. 292, 199 S.E.2d 766 (1973), the Court held:

Whether one is negligent or prudent depends in large measure on all of the surrounding circumstances, and failure to use due care, amounting to negligence, may be proved by direct as well as by circumstantial evidence. In order to hold the parents ... liable, evidence must be submitted tending to prove that a prudent parent would not have entrusted [his/her child] with an air rifle under the same or similar circumstances. A parent might be justified in entrusting an air rifle to a particular child while residing in a thinly populated rural area; the same parent might not be justified in entrusting an air rifle to the same child in a thickly populated area where children are accustomed to play.

From the evidence to which reference has been made above, an inference can reasonably be drawn that the [parents] failed to act as reasonably prudent parents under the circumstances.

Howell, 261 S.C. at 298-99, 199 S.E.2d at 769 (emphasis added).

This Court, in Dennis by Evans v. Timmons, 313 S.C. 338, 437 S.E.2d 138 (Ct.App.1993), found a screwdriver was "not an instrument of dangerous propensities and potentialities." Id. at 341, 437 S.E.2d at 140. The Court observed: "Furthermore, unlike the air rifle in Howell, the [parents] did not entrust the screwdriver, negligently or otherwise, to a person who, on account of his youth and want of experience, was incapable of evaluating the dangers incident to its use." Id. at 341, 437 S.E.2d at 140-41 (emphasis added). These cases are illustrative of the Court applying the underlying theory of negligent entrustment in a situation other than an intoxicated driver.

343 S.C. 383

II. Restatement (Second) of Torts §§ 308 and 390

The Restatement (Second) of Torts § 308 (1965), reads:

It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

According to comment b to Restatement (Second) of Torts § 390 (1965), the "rule stated in [§ 390] is a special application of the rule stated in § 308." Section 390 provides:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Cases such as Howell v. Hairston, 261 S.C. 292, 199 S.E.2d 766 (1973), and Dennis by Evans v. Timmons, 313 S.C. 338, 437 S.E.2d 138 (Ct.App.1993), are grounded upon the same premise: an item may be used by someone who is, "on account of his youth and want of experience, ... incapable of evaluating the dangers incident to its use." Dennis by Evans, 313 S.C. at 341, 437 S.E.2d at 140-41. South Carolina has never predicated its decisions on the Restatement (Second) of Torts § 390. However, we have consistently recognized the common law tort of negligent entrustment. See Nettles v. Your Ice Co., 191 S.C. 429, 4 S.E.2d 797 (1939).

Other jurisdictions have relied upon § 390 of the Restatement (Second) of Torts as the basis for their negligent entrustment cause of action. See Keller v. Kiedinger, 389 So.2d 129 (Ala.1980)(adopting § 390 of the Restatement allowing for a first party cause of action by bailee against bailor for negligent entrustment, but permitting contributory...