Overcash v. South Carolina Elec. & Gas Co.
| Decision Date | 21 July 2003 |
| Docket Number | No. 3667.,3667. |
| Court | South Carolina Court of Appeals |
| Parties | Karl Albert OVERCASH, III, Appellant, v. SOUTH CAROLINA ELECTRIC & GAS COMPANY, Respondent. |
F. Patrick Hubbard and Fred Walters, both of Columbia, for Appellant.
John M. Mahon, Jr., Robert A. McKenzie, and Gary H. Johnson, all of Columbia, for Respondent.
Karl Albert Overcash, III, brought this private action for public nuisance against South Carolina Electric & Gas Company ("SCE & G"), seeking damages for personal injuries he sustained when the boat he was operating collided with a wooden dock constructed across a portion of Lake Murray. Overcash alleges the dock constituted a public nuisance and his "special" personal injuries give rise to a private cause of action. The circuit court disagreed and granted SCE & G's motion to dismiss Overcash's claim for failure to allege facts sufficient to constitute a cause of action pursuant to Rule 12(b)(6), South Carolina Rules of Civil Procedure. We reverse and remand.
The pertinent facts alleged in Overcash's Complaint may be fairly summarized as follows. SCE & G was the owner and project manager of the hydroelectric facility commonly know as Lake Murray. Lake Murray is a navigable body of water within the applicable statutory definition.1
In 1964, Sarah and Crawford Clarkson purchased property on Lake Murray. They constructed a 250-foot long-wooden dock from their property to a small island located over 100 yards away. SCE & G allowed the dock to be built, deeded the island to the Clarksons reserving the sole right to enforce covenants to prevent a nuisance or dangerous condition, and granted a post-construction permit for the dock.
As part of its obligations to the Federal Energy Regulatory Commission ("FERC"), SCE & G conducted periodic, routine inspections of the Lake Murray shoreline for the purpose of identifying structures built in violation of FERC requirements. SCE & G had actual or constructive knowledge the Clarksons' dock existed and constituted an unlawful obstruction of the navigable waterway.
On the night of July 17, 1999, Overcash was traveling home by boat from his job at Lake Murray Marina. His boat collided with the dock and he was thrown forward and sustained severe personal injuries.
Overcash brought this action seeking damages against SCE & G for the injuries he sustained, alleging, among other things, statutory and common law public nuisance. SCE & G moved to dismiss Overcash's public nuisance cause of action pursuant to Rule 12(b)(6), South Carolina Rules of Civil Procedure, arguing: 1) a private cause of action for public nuisance does not exist pursuant to South Carolina Code Annotated section 49-1-10 (1987); and 2) personal injuries are not "special injuries" and thus cannot be the basis for a private action for public nuisance. The circuit court agreed, and Overcash appeals.
A motion to dismiss a claim pursuant to Rule 12(b)(6), SCRCP, must be based solely on the allegations set forth on the face of the complaint. The motion will not be sustained if the facts alleged and the inferences reasonably deducible therefrom would entitle the plaintiff to relief on any theory of the case. Washington v. Lexington County Jail, 337 S.C. 400, 404, 523 S.E.2d 204, 206 (Ct.App.1999); McCormick v. England, 328 S.C. 627, 632-33, 494 S.E.2d 431, 433 (Ct.App.1997). "[A] judgment on the pleadings is considered to be a drastic procedure by our courts." Russell v. City of Columbia, 305 S.C. 86, 89, 406 S.E.2d 338, 339 (1991). Therefore, pleadings in a case should be construed liberally and the trial court and this Court must presume all well pled facts to be true so that substantial justice is done between the parties. See Justice v. Pantry, 330 S.C. 37, 42, 496 S.E.2d 871, 874 (Ct.App.1998)
.
Overcash argues the circuit court erred by holding section 49-1-10 does not provide a private, statutory cause of action for public nuisance. We agree, as we believe our decision is controlled by our supreme court's holding in Drews v. E.P. Burton & Co., 76 S.C. 362, 57 S.E. 176 (1907).
In Drews, the plaintiff alleged injuries resulting from the defendant's obstruction of a navigable stream. At the close of the plaintiff's case, the defendant moved for nonsuit, arguing the plaintiff failed to produce evidence of negligence. The circuit court denied the motion but charged the jury that it must find negligence to award damages to the plaintiff. The jury subsequently returned a verdict for the plaintiff and awarded damages.
The defendant appealed, arguing the plaintiff failed to prove negligence and thus could not sustain a cause of action for obstruction of a navigable stream.
Our supreme court ruled the plaintiff was not required to demonstrate negligence to state a cause of action. Rather, the complaint appropriately alleged two causes of action—one for negligence and one for public nuisance. Consequently, the court ruled that notwithstanding the circuit court's erroneous jury charge "in so far as it related to the cause of action based upon nuisance, [the error] was ... favorable to the ... [defendant]," and thus did not prejudice the defendant.
More specific to our analysis here, the court stated, "[w]hen a person sustains a special injury ... arising from the obstruction of a navigable stream, he is entitled to recover damages, on the ground that such obstruction constitutes a nuisance ... [pursuant to section 1335 of the Civil Code of 1902], as well as at common law." 76 S.C. at 366, 57 S.E. at 178.2
Section 1335 provided in pertinent part, "if any person shall obstruct [a navigable water course], ... such person shall be deemed guilty of nuisance, and such obstruction may be abated as other public nuisances are by the laws of this State." Similarly, section 49-1-10 provides, "[i]f any person shall obstruct any [navigable water course], ... such person shall be guilty of a nuisance and such obstruction may be abated as other public nuisances are by law." It is clear from a reading of section 1335 and section 49-1-10 that the two statutes are, in substance, identical to one another. Thus, given our supreme court's interpretation of section 1335 in Drews, we hold the legislature intended to create a private, statutory cause of action for public nuisance when it subsequently enacted section 49-1-10. See Whitner v. State, 328 S.C. 1, 6, 492 S.E.2d 777, 779 (1997)
(); see also Daniels v. City of Goose Creek, 314 S.C. 494, 501, 431 S.E.2d 256, 260 (Ct.App.1993) ().
Overcash argues personal injury constitutes direct and special injury, and the trial court erred in holding that a plaintiff who suffers personal injury from colliding with a public nuisance blocking a public right of way does not have a right to recover damages for that injury, either at common law or pursuant to statute. We agree.
The argument is deceptively simplistic in its phrasing. However, neither this Court nor our supreme court have had occasion to rule on the precise question of whether personal injury, standing alone, constitutes the type of "special" or "particular" injury necessary to maintain a private action for public nuisance in South Carolina. Likewise, no reported decision expressly determines whether, as found by the circuit court, some property right must be injured in conjunction with a personal injury so that a personal injury may serve as a harm sufficient to allow a private action for public nuisance. Finally, no reported decision specifically determines whether the danger of colliding with an obstruction erected in a public waterway is a different type of harm from that presented to the general public.
To properly address these inquiries we find it necessary to explore the historic development and application of nuisance law in this state, both generally and particularly as it concerns a private right of action for public nuisance. In doing so, we venture, with some amount of consternation, into what Dean William Prosser fittingly referred to as the "impenetrable jungle ... which surrounds the word `nuisance.'" W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser & Keeton on Torts § 86 at 616 (5th ed., West 1984).
In part, the mystery surrounding the common law of nuisance arises because, although the word "nuisance" literally means nothing more than harm, injury, inconvenience, or annoyance, the term has at times meant "all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach in a pie." Id. (footnote omitted).
Modern American public nuisance law is traceable to the medieval English criminal writ of "purpresture." See 4 William Blackstone, Commentaries on the Laws of England 167 ("Where there is a house erected, or an enclosure made, upon any part of the king's demesnes, or of an highway, or common street, or public water, or such like public things, it is properly called a purpresture."). At the time of its emergence, purpresture was not a tort but rather a criminal remedy for infringement on the rights of the Crown (or general public), and was enforceable solely by indictment brought pursuant to the police powers of the sovereign. Keeton, Prosser & Keeton on Torts, § 86 at 617.3
The concept of a mutual sovereign and public right to seek redress beyond criminal sanctions for interference with the rights of the general public...
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Overcash v. South Carolina Elec., 25990.
...Justice BURNETT: We granted a writ of certiorari to review the Court of Appeals' decision in Overcash v. South Carolina Electric & Gas Co., 356 S.C. 165, 588 S.E.2d 116 (2003). We FACTUAL/PROCEDURAL HISTORY Respondent Karl Albert Overcash, III (Overcash) brought this action seeking damages ......