Wells v. City of Lynchburg

Decision Date18 May 1998
Docket NumberNo. 2847.,2847.
Citation501 S.E.2d 746,331 S.C. 296
PartiesLarry and Earther WELLS, Appellants, v. The CITY OF LYNCHBURG and The County of Lee, Respondents.
CourtSouth Carolina Court of Appeals

J.G. McGee, III, of Dusenbury & Snow, Florence, for Appellants.

George C. James and John E. James, III, of Richardson, James & Player, Sumter, for Respondents. ANDERSON, Judge:

Larry and Earther Wells (Appellants) brought this tort action against the City of Lynchburg and Lee County after a fire destroyed Appellants' home and its contents. The City of Lynchburg and Lee County moved for summary judgment, arguing the suit was barred by the South Carolina Tort Claims Act and the public duty rule. The trial court granted the motion. We affirm.1

FACTUAL/PROCEDURAL BACKGROUND

On October 29, 1992, Appellants' home caught on fire. The home was located in the City of Lynchburg, in Lee County, South Carolina. The fire completely destroyed the home and its contents. Appellants filed this action in 1994 alleging, inter alia, that the City was negligent in failing to inspect and maintain the fire hydrants and/or water lines for three nearby fire hydrants, and in failing to notify the Lee County Fire Department that certain fire hydrants were inoperative. They claimed two of the hydrants did not have sufficient water pressure and a third hydrant was rusted shut. Appellants alleged Lee County was negligent in failing to promptly provide adequate firefighting personnel and equipment at its disposal to extinguish the fire. They averred Lee County owed a special duty to them to promptly provide adequate personnel and equipment to extinguish the residential fire.

In their Amended Answer, the City and Lee County contended only one fire hydrant did not operate properly, but it did not affect the County's ability to fight the fire. They maintained some of the fire trucks at the scene had their own water supply and other nearby fire hydrants were used, but the fire was extremely hot and uncontrollable, despite the firefighters' maximum efforts to extinguish the blaze. They asserted the Tort Claims Act barred Appellants' claims and, further, any duty owed to Appellants was a public duty as opposed to a private duty; therefore, no duty of care existed to Appellants specifically and individually. It is uncontradicted that the City of Lynchburg had notice of one malfunctioning hydrant (# 20) at least three weeks before the fire, but it had not been repaired. However, in his deposition testimony, Chief Larry J. Logan, Sr. stated the fire department did not need to use that hydrant and there was never a time that the department had insufficient water to fight the fire. The trial court granted summary judgment in favor of the City and Lee County, stating although certain matters of fact were in dispute, "the resolution of these factual issues are not necessary for a resolution of the motion" for summary judgment. The court concluded the action was barred by the Tort Claims Act and the public duty rule. The court found any duty of fire protection is owed to the public at large, not specific individuals.

ISSUES

(1) Did the trial court err in granting the motion for summary judgment as to the City of Lynchburg on the basis that the South Carolina Tort Claims Act barred the action?
(2) Did the trial court err in finding that the duty to maintain fire hydrants is a public duty and not a special duty?

STANDARD OF REVIEW

A trial court should grant a motion for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP. See also Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); Kreutner v. David, 320 S.C. 283, 465 S.E.2d 88 (1995).

An appellate court reviews the granting of summary judgment under the same standard applied by the trial court pursuant to Rule 56(c), SCRCP: summary judgment is properly upheld when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991). See also 5 Am.Jur.2d Appellate Review § 700 (1995) ("In reviewing a grant of summary judgment, the appellate court is limited to the evidence that was before the trial court and applies the same standard of review as did the trial court").

Under Rule 56(c), SCRCP, the party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact. Baughman, 306 S.C. 101, 410 S.E.2d 537. Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings. Rather, the non-moving party must come forward with specific facts showing there is a genuine issue for trial. Rule 56(e), SCRCP; SSI Med. Servs., Inc. v. Cox, 301 S.C. 493, 392 S.E.2d 789 (1990); Baughman, 306 S.C. 101, 410 S.E.2d 537; NationsBank v. Scott Farm, 320 S.C. 299, 465 S.E.2d 98 (Ct.App.1995), cert. denied (S.C.1996).

In determining whether any triable issues of fact exist, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party. Koester v. Carolina Rental Ctr., Inc., 313 S.C. 490, 443 S.E.2d 392 (1994); Eagle Constr. Co. v. Richland Constr. Co., 264 S.C. 71, 212 S.E.2d 580 (1975).

LAW/ANALYSIS

I. South Carolina Tort Claims Act

The common law doctrine of sovereign immunity was abolished by the South Carolina Supreme Court in McCall by Andrews v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985). In 1986, the legislature enacted the South Carolina Tort Claims Act, S.C.Code Ann. §§ 15-78-10 to -200 (Supp.1997), which waives immunity while also providing specific, enumerated exceptions limiting the liability of the state and its political subdivisions in certain circumstances. The Tort Claims Act "is the exclusive civil remedy available for any tort committed by a governmental entity, its employees, or its agents except as provided in § 15-78-70(b)."2 S.C.Code Ann. § 15-78-20(b) (Supp.1997). Under the Act, a governmental entity is not liable for a loss resulting from certain enumerated events, including the following:

civil disobedience, riot, insurrection, or rebellion or the failure to provide the method of providing police or fire protection;

S.C.Code Ann. § 15-78-60(6) (Supp.1997) (emphasis added).

The essence of Appellants' complaint against Lee County is that the County failed to promptly provide adequate firefighting personnel and equipment. Appellants now concede that section 15-78-60(6) of the Tort Claims Act quoted above bars their action against Lee County for the alleged failure to provide adequate firefighting personnel and equipment. However, Appellants contend its remaining claim against the City of Lynchburg for failure to inspect and/or maintain a system of fire hydrants and to notify proper authorities of inoperative fire hydrants survives despite the provision in section 15-78-60(6).

Because of the peculiar wording of section 15-78-60(6), the trial court looked beyond the actual language to interpret the statute. Oklahoma and Texas have similar statutes in their respective tort claims acts. In both Oklahoma and Texas, the statutes provide for no liability for any claim arising from the failure to provide, or the method of providing, police or fire protection. See Okla. Stat. Ann. tit. 51, § 155(6) (Supp.1998) (statute excludes liability for "civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire protection"); Tex. Civ. Prac. & Rem.Code Ann. § 101.055(3) (1997) (no liability "from the failure to provide or the method of providing police or fire protection"). The conjunctive "or" is missing from the South Carolina statute. The trial court noted that a report of the Judiciary Committee of the South Carolina House of Representatives dated February 13, 1980, Calendar Number H.2499, contains a version of the section that includes the word "or." That version states a governmental entity is not liable for "the failure to provide, or the method of providing, police or fire protection." We agree with the trial court's conclusion that the subsequent omission of the word "or" in section 15-78-60(6) is apparently a scrivener's error.

Appellants argue even if section 15-78-60(6) contains a scrivener's error, it does not operate as a bar to their claim for negligent maintenance and inspection of the fire hydrant system against the City of Lynchburg. We disagree.

In Shockey v. Oklahoma City, 632 P.2d 406 (Okla.1981), the Oklahoma Supreme Court interpreted its version of section 15-78-60(6) based on facts similar to the case at bar. In Shockey, the plaintiff alleged the city negligently failed to properly maintain a fire hydrant or to warn the plaintiffs of its malfunction. In sustaining the dismissal of the plaintiffs' action, the court explained:

The general rule is that the operation and maintenance of a fire department by a municipal corporation is an exercise of a governmental function so as to accord it sovereign immunity from liability when acting in such capacity. Oklahoma, by enactment of [its tort claims act] has statutorily recognized that a municipality's immunity from tort liability applies to it while engaged in fire protection and prevention.
Under § 155(6) appellee is exempted from liability for failure to provide, or the method it employs in providing, fire protection. Fire hydrants, as such, are a part of the physical structure of the fire department and their maintenance, including an adequate supply of water, and their repair are incidental to the operation
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