Miller v. City of Camden

• Citation: 494 S.E.2d 813,329 S.C. 310
• Decision Date: 07 December 1995
• Docket Number: No. 24732,24732
• Court: United States State Supreme Court of South Carolina
• Parties: Ethel MILLER, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner. Henry MILLER, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner. Henry MILLER, as Personal Representative of the Estate of Fletcher Levar Miller, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner. Henry MILLER, as Personal Representative of the Estate of Felicia Tyrette Miller, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner. Jerry HENRY, individually and as Personal Representative of the Estate of Jason Lamont Henry, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner. Mattie Ellerby JACKSON, as Personal Representative of the Estate of John Ellerby, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner. . Heard

Page 813

494 S.E.2d 813

329 S.C. 310

Ethel MILLER, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner.

Henry MILLER, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner.

Henry MILLER, as Personal Representative of the Estate of Fletcher Levar Miller, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner.

Henry MILLER, as Personal Representative of the Estate of Felicia Tyrette Miller, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner.

Jerry HENRY, individually and as Personal Representative of

the Estate of Jason Lamont Henry, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner.

Mattie Ellerby JACKSON, as Personal Representative of the Estate of John Ellerby, Respondent, v. CITY OF CAMDEN and The Kendall Company, Defendants, Of whom The Kendall Company is Petitioner.

No. 24732.

Supreme Court of South Carolina.

Heard Dec. 7, 1995.

Decided Dec. 23, 1997.

Robert J. Sheheen, of Savage, Royall & Sheheen, Camden, for petitioner.

Desa A. Ballard and Allard A. Allston, III, both of Ness, Motley, Loadholt, Richardson & Poole, P.A., Charleston and Barnwell; and Thomas D. Broadwater, Columbia, for respondents.

MOORE, Justice:

Respondents commenced these wrongful death and personal injury actions against petitioner Kendall Company (Kendall) and City of Camden (City) to recover for damages allegedly sustained when the Kendall Lake dam broke. The trial judge granted Kendall summary judgment on the ground Kendall owed respondents no duty of care. The Court of Appeals reversed, finding Kendall owed a duty of care as a matter of law by virtue of its control of the dam and its voluntary undertaking to monitor the lake for the safety of others. Miller v. City of Camden, 317 S.C. 28, 451 S.E.2d 401 (1994). We conclude it is for the jury to determine if Kendall owed respondents a duty of care as a volunteer and, accordingly, affirm as modified.

FACTS

Kendall Lake is a forty-one acre reservoir built by Kendall to aid production at its adjacent textile plant. In 1961, Kendall conveyed the lake, the dam, and the adjoining woods to City. ¹ City uses water from the lake to supplement its water supply. By agreement, Kendall retained the right to draw water from the lake for production purposes, providing it does not lower the surface level of the lake more than one foot below spillway level. In return, City agreed to maintain the level of the lake at approximate spillway level, absent some repair or weather emergency.

Kendall judges water level to be too high for production if the plant boiler room begins to flood. Water level is controlled by two sluice gates which are kept locked. Kendall has had no keys to the sluice gates since at least 1984. When the boiler room floods, Kendall contacts City to open the sluice gates on the dam to lower the level of the lake.

In 1979, the Army Corps of Engineers inspected the dam and found it unsafe. Kendall received a copy of the report requiring that certain repairs be made. Kendall contacted On October 10, 1990, heavy rainfall caused the lake to overtop the dam causing its breach. Respondents subsequently commenced these actions for injuries sustained in the flood.

the South Carolina Land Resources Commission (Land Resources) to advise that it was not the owner of the dam. Both Kendall and City employees subsequently attended a meeting requested by Land Resources to discuss the inspection report. At this meeting, an emergency plan was formulated for notification of the appropriate officials in the event of an imminent dam failure. Along with City employees, Kendall employees were listed on Land Resource's emergency notification forms as personnel assigned to monitor the dam.

DISCUSSION

The Court of Appeals held Kendall owed respondents a duty of care because Kendall controlled the dam by virtue of its contract with City. Kendall asserts this was error. We agree.

One who controls the use of property has a duty of care not to harm others by its use. Dunbar v. Charleston & W.C. Ry. Co., 211 S.C. 209, 44 S.E.2d 314 (1947); Peden v. Furman University, 155 S.C. 1, 151 S.E. 907 (1930). Conversely, one who has no control owes no duty. Clark v. Greenville County, 313 S.C. 205, 437 S.E.2d 117 (1993). Here, Kendall's contractual right of control was limited to maintaining a certain normal water level for production purposes. The contract between Kendall and City specifically reserved to City complete control of the dam and water level in the event of a weather emergency. Kendall had no physical control of the sluice gates and no contractual right to control them in this situation. Accordingly, we conclude Kendall owed no duty of care to respondents based on its contractual right of control.

The Court of Appeals also found Kendall owed respondents a duty as a matter of law because it voluntarily undertook to monitor the lake for the benefit of others.

The common law ordinarily imposes no duty on a person to act. If an act is voluntarily undertaken, however, the actor assumes the duty to use due care. Russell v. City of Columbia, 305 S.C. 86, 406 S.E.2d 338 (1991). While the law imposes this duty on a volunteer, the question whether such a duty arises in a given case may depend on the existence of particular facts. Carson v. Adgar, 326 S.C. 212, 486 S.E.2d 3 (1997). Where there are factual issues regarding whether the defendant was in fact a volunteer, the existence of a duty becomes a mixed question of law and fact to be resolved by the fact-finder. Id.; accord Jefferson County School Dist. v. Justus, 725 P.2d 767 (Colo.1986); Culver-Union Township Ambulance Service v. Steindler, 611 N.E.2d 698 (Ind.App.1993) (expressly adopted and incorporated by reference 629 N.E.2d 1231 (Ind.Sup.Ct.1994)); R.A. Peck, Inc. v. Liberty Fed. Sav. Bank, 108 N.M. 84, 766 P.2d 928 (Ct.App.1988); Chiplock v. Niagara Mohawk Power Corp., 134 A.D.2d 96, 523 N.Y.S.2d 232 (1988); Mozingo v. Pitt County Mem. Hosp., 101 N.C.App. 578, 400 S.E.2d 747 (1991) aff'd on other grounds 331 N.C. 182, 415 S.E.2d 341 (1992).

In this case, there is a factual issue regarding Kendall's status as a volunteer. The facts indicate a Kendall employee was listed on the Land Resources emergency notification form and Kendall had an employee present at the meeting during which an emergency plan was formulated. Summary judgment should be denied if more than one inference can be drawn from the evidence. Koester v. Carolina Rental Center, Inc., 313 S.C. 490, 443 S.E.2d 392 (1994). We find more than one inference can be drawn from this evidence. Whether these facts establish that Kendall volunteered to monitor the lake level for the benefit of third parties ² or was simply facilitating its own arrangement with City is an issue that should be resolved by the jury. See S.C. Ins. Co. v. James C.

Greene & Co., 290 S.C. 171, 348 S.E.2d 617 (Ct.App.1986) (a cause of action for negligence requires a duty owed by the defendant to the plaintiff ).

Accordingly, we reverse the award of summary judgment and remand for the case to be submitted to the jury for it to determine whether Kendall volunteered to monitor the lake level for the benefit of third parties. The decision of the Court of Appeals is

AFFIRMED AS MODIFIED.

FINNEY, C.J., and WALLER, J., concur.

TOAL, J., dissenting and concurring in separate opinion.

BURNETT, J., dissenting in separate opinion.

TOAL, Justice:

In this case, we have wide divergence of opinions from the trial court, the Court of Appeals and this court on the issue of whether and under what circumstances the law imposes liability on a volunteer toward a third party. The Court of Appeals, relying on Restatement (Second) of Torts § 324A, held that a duty is imposed on anyone (volunteer or not) who undertakes to render services for the protection of others to avoid risk of harm of any third persons. The majority rejects the expanded liability of the Restatement, but holds that a volunteer can be liable to third parties and that here there is a jury question as to whether Kendall volunteered to monitor for the benefit of third parties. Thus, the majority affirms, with modification, the Court of Appeals' reversal of the trial court's grant of summary judgment for Kendall.

My brother in dissent would hold as a matter of law that Kendall is a volunteer and thus liable. I would hold as a matter of law that Kendall was not a volunteer and thus not liable at all. I agree with the majority that one who volunteers to assume responsibility for the protection of third parties may be liable to third parties for negligent conduct in the performance of the volunteer services. Where I depart from the majority is in its holding that there is a jury question as to Kendall's volunteer status. I wholeheartedly concur with the majority's rejection of Restatement (Second) of Torts § 324A, which expands liability to third parties for one who undertakes to render a service. I respectfully dissent from the portion of the majority opinion that concludes there was evidence that Kendall volunteered to assume responsibility for monitoring threats to the Kendall Lake Dam. With the greatest respect for my brothers in the majority, I believe the trial court's grant of summary judgment to Kendall should be affirmed. I would reverse the Court of Appeals.

The majority opinion contains an excellent outline of the facts and legal claims presented. It quite appropriately concludes that Kendall has absolutely no liability for injury and death claims arising out of the ownership, maintenance and operation of Kendall Lake and Dam. The City is the owner and operator of this property. Kendall has not even had a key to this property since the early 1980's. Kendall's liability...