Summers v. Harrison Const., 1346
| Decision Date | 18 April 1989 |
| Docket Number | No. 1346,1346 |
| Court | South Carolina Court of Appeals |
| Parties | Tommie SUMMERS and Helen Summers, Respondents, v. HARRISON CONSTRUCTION, Alwin Harrison, and the Lexington County Department of Planning and Development, Defendants. of whom the Lexington County Department of Planning and Development is the Appellant. Appeal of LEXINGTON COUNTY DEPARTMENT OF PLANNING AND DEVELOPMENT. . Heard |
Susan P. McWilliams, of Nexsen, Pruet, Jacobs & Pollard, Columbia, for appellant.
Frederick I. Hall, III, of Lexington, for respondents.
This case concerns the renovation of a residence. Tommie and Helen Summers entered into a contract with Alwin Harrison and Harrison Construction dated December 10, 1985, for the renovation of their home. Harrison began work in either June or July of 1986. He applied for and received a building permit in the name of Tommie Summers from the Lexington County Department of Planning and Development. The renovation work was poorly performed and never completed although Harrison was paid over $16,000 by the Summers.
The Summers sued Harrison and the Department of Planning. The jury returned a verdict in their favor. The issues on appeal concern only the Department. The Summers sued the Department under the South Carolina Tort Claims Act alleging the Department was grossly negligent in issuing a building permit to Harrison because the permit was obtained in violation of the rules and regulations of the South Carolina Residential Home Builders Commission. The Department raised numerous defenses basically arguing the Summers had no cause of action against it for the issuance of the permit. The Department appeals the denial of its motions for directed verdict, judgment notwithstanding the verdict, and for a new trial. We reverse.
In ruling on motions for directed verdict and judgment notwithstanding the verdict the trial court is required to view the evidence and the inferences which can reasonably be drawn from it in the light most favorable to the party opposing the motion. The motion should be denied if more than one inference can be drawn from the evidence. Felder v. K-Mart Corp., 297 S.C. 446, 377 S.E.2d 332 (1989). On appeal of an action at law tried by a jury the jurisdiction of this court extends only to correction of errors of law and a factual finding by the jury will not be disturbed if there is any evidence to support it. Id.; Glover v. North Carolina Mutual Life Ins. Co., 295 S.C. 251, 368 S.E.2d 68 (Ct.App.1988).
Viewing the evidence in the light most favorable to the Summers, they hired Harrison based upon a referral from another person. Harrison gave them a proposal for the renovations and a contract was executed. The Summers testified Harrison told them he was a qualified, licensed, bonded contractor although they knew nothing about his reputation and did no investigation of his background. Concerning the building permit, Tommie Summers testified as follows:
Harrison obtained the building permit in the name of Tommie Summers from the Department. Harrison was not a licensed residential home builder and the permit was issued to him as the agent of Summers. The representatives of the Department testified they did not talk with the Summers or obtain any additional evidence of agency other than Harrison's signature on the application for the permit. There is evidence Harrison left the job unfinished after obtaining over $16,000 from the Summers. An expert witness testified there were defects in the work and he gave an estimate of the cost to correct the defects and finish the job.
The Summers cite Section 15-78-60(12) of the South Carolina Code as a basis for their suit against the Department. This section is part of the South Carolina Tort Claims Act. It provides as follows:
The governmental entity is not liable for a loss resulting from:
(12) licensing powers or functions, including, but not limited to, the issuance, denial, suspension, renewal, or revocation of or failure or refusal to issue, deny, suspend, renew, or revoke any permit, license, certificate, approval, registration, order, or similar authority except when the power or function is exercised in a grossly negligent manner.
The South Carolina Tort Claims Act does not create causes of action. Rather, it removes the common law bar of sovereign immunity in certain circumstances, but only to the extent mandated by the Act. The legislature has indicated that liability under the Act is based upon "the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty." Section 15-78-20(a). Further, the provisions relating to limitations on and exemptions to liability are to be liberally construed in favor of limiting the liability of the state. Section 15-78-20(f).
The elements of a tort action for negligence are (1) a duty of care owed to the plaintiff by the defendant; (2) a breach of that duty of care by negligent act or omission; and (3) damage to the plaintiff proximately resulting from the breach. Andrews v. Piedmont Air Lines, 297 S.C. 367, 377 S.E.2d 127 (Ct.App.1989). If any of these elements is absent a negligence claim is not stated. Id.
Our analysis must begin with the question of whether the Department owed the Summers a duty of care. The common law does not generally impose a duty on a person to act. "An affirmative legal duty exists only if created by statute, contract, relationship, status, property interest, or some other special circumstance." Rayfield v. S.C. Dept. of Corrections, 297 S.C. 95, ----, 374 S.E.2d 910, 913 (Ct.App.1988). In this case, the duty purportedly arises from statute. Chapter 59 of Title 40 of the South Carolina Code deals with...
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