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24732 - Ethel Miller v. City of Camden, et al.

Davis Adv. Sh. No. 1
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

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,

p. 39


MILLER v. CITY OF CAMDEN ET AL.

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,

p. 40


MILLER v. CITY OF CAMDEN ET AL.

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.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Kershaw County

L. Henry McKellar, Judge

Opinion No. 24732

Heard December 7, 1995 - Filed December 29, 1997

AFFIRMED AS MODIFIED

Robert J. Sheheen, of Savage, Royall & Sheheen, of

Camden, for petitioner.

Desa A. Ballard and Allard A. Allston, III, both of

Ness, Motley, Loadholt, Richardson & Poole, P.A.,

of Charleston and Barnwell; and Thomas D.

Broadwater, of Columbia, for respondents.

MOORE, A.J.: 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

p. 41


MILLER v. CITY OF CAMDEN ET AL.

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 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.


1 Kendall inadvertently retained several feet of property upon which a

portion of the foot of the dam rests. The Court of Appeals found no duty

arose from this incidental ownership and that ruling is not before us on

appeal.

p. 42


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.

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. 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 SC. 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, __S.C.__ 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.

p. 43


MILLER v. CITY OF CAMDEN ET AL.

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 parties2 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, A.J., concur. TOAL, A.J., dissenting

and concurring in separate opinion. BURNETT, A.J., dissenting

in separate opinion.


2 We decline to adopt the expanded liability of Restatement 2d of Torts

§324A (1965). This section imposes a duty on "one who undertakes ... to

render services to another which he should recognize as necessary for the

protection of a third person" and requires no actual volunteer relationship

between the defendant and the third party.

p. 44


MILLER v. CITY OF CAMDEN ET AL.

TOAL, A.J.: 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 is solely premisedupon its perceived "Good Samaritan" or "volunteer"

status.

The land and dam at issue here are owned and controlled by the City of Camden.

Kendall conveyed this property to Camden in 1961. This property is subject to

regulation by the U.S. Army Corps of Engineers pursuant to federal legislation and

regulations known as the National Dam Safety Program. The property is also subject

to regulation by the South Carolina Department of Land Resources pursuant to the

S.C. Dams and Reservoirs Safety Act.

The specific facts upon which the majority concludes that there is a jury issue as to

whether or not Kendall is a volunteer are the following. In June of 1979, the Army

Corps of Engineers issued an inspection report which criticized the safety of the dam

at Kendall

p. 45


MILLER v. CITY OF CAMDEN ET AL.

Lake. In August of 1979, State Land Resources Director of Dam Safety sent a letter

to Camden and Kendall Mills suggesting a meeting at his office to discuss the

inspection report on the Kendall Lake Dam. On September 6, 1979, a meeting was

held with Land Resources officials attended by City of Camden and Kendall

representatives. The only evidence relied on by the majority to find this "volunteer"

status is the attendance by a Kendall employee at this meeting in which an

emergency notification plan was formulated, as well as the placement of that

representative's name on an "Emergency Alert Notification" form used by the South

Carolina Department of Land Resources. Far from showing Kendall volunteered to

monitor Kendall Lake Dam or the water level at Kendall Lake, the emergency

notification forms merely constituted a recognition that Kendall was

usually the first party to experience flooding from high water levels in the lake.

City's public works director clearly stated that his own department and City's police department were responsible for monitoring the lake and the dam.

Kendall attended the 1979 meeting at the written request of State Land Resources.

The emergency notification forms on which Kendall employees are listed are

required by the Dams and Reservoirs Safety Act, S. C. Code Ann. § § 49-1 1 -1 I 0

to -260 (Supp. 1995). The Dams and Reservoirs Safety Act does not create a private

cause of action in third parties. It simply eludes my understanding how Kendall's

agreeing to place the name of one of its employees on a form developed by a

governmental agency and required by the Act gives rise to a duty to members of the

general public.

We live in an age in which governmental regulation increasingly intrudes into

almost every aspect of business and private life. Much of this regulation is the

necessary price we pay for order and safety in our society. Nevertheless, the

Orwellian "Big Brother is watching you"1d power of late 20th century bureaucrats

makes any meeting between the regulator and the regulated inherently coercive. It

simply does not square with common sense experience to characterize a business

response to a governmental inquiry as voluntary.

This was not a situation where a business unilaterally decided to render assistance

to someone in distress. Instead, the Director of the Dams and Reservoirs Safety

Program within the South Carolina Land Resources Conservation Commission

requested that the plant engineer of Kendall Mills meet with him to prepare an

"Emergency Alert Notification" form. It is dubious that any company in a similar

position would resist compliance. Under the rule established in this case, civil

liability as a volunteer could attach when a company does nothing more than comply

with a governmental request for information. I would reverse the Court of Appeals

and reinstate the summary judgment


1d George Orwell [Eric Blair], 1984 (1948).

p. 46


MILLER v. CITY OF CAMDEN ET AL.

granted defendant Kendall by the trial court.

Accordingly, I concur in part and dissent in part.

p. 47


MILLER v. CITY CF CAMDEN ET AL.

Burnett, A.J.: I agree with the majority's conclusion Kendall owed no

duty of care to respondents based on its contract with the City. However,

I conclude, by virtue of its status as a volunteer, Kendall owed a duty of

care to respondents as a matter of law. Accordingly, I dissent.

FACTS

In 1979, the United States Army Corps of Engineers inspected

the Kendall Lake Dam, found it to be unsafe, and issued a written report

placing the dam in the "high" hazard classification because of "the

potential for property damage and/or loss of life in the event of dam.

failure." The report noted there was no warning system in place in the

event of flooding and recommended implementation of a warning system.

The report was mailed to Kendall's engineer and the City.

Consequently, staff members from the South Carolina Land

Resources Conservation Commission met with City officials and Kendall

managers to discuss the problem. The Army Corps of Engineers' report

and a safety program were discussed. At the meeting, Kendall

management participated in the formulation of an emergency plan for

notification of the appropriate officials in the event of an imminent threat

to the dam. An "Emergency Alert Notification" form was prepared,

naming Kendall Plant Manager Michael Scronce and Foreman G.H. McCaa

as personnel assigned to monitor the dam. Subsequent Emergency Alert

Notification forms also listed Kendall employees. In August 1990, two

months prior to the accident, a notification form was prepared listing R.M.

Kushman, Kendall's Plant Engineer, as primary "Personnel Assigned to

Monitor" the dam, and Foreman G.H. McCaa as alternate.

DISCUSSION

The common law ordinarily imposes no duty on a person to

act; however, where an act is voluntarily undertaken, the actor assumes

the duty to use due care. Carson v. Adgar, __S.C. __, 486 S.E.2d 3

(1997); Roundtree Villas Ass'n. Inc. v. 4701 Kings Corp., 282 S.C. 415, 321

S.E.2d 46 (1984); Crowley v. Spivey, 285 S.C. 397, 329 S.E.2d 774 (Ct.

App. 1985). The Restatement of Torts (Second) § 324A (1965) provides as

follows:

Liability to Third Person for Negligent Performance of

Undertaking

p. 48


MILLER v. CITY OF CAMDEN ET AL.
One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as

necessary for the protection of a third person or his things, is

subject to liability to the third person for physical harm

resulting from his failure to exercise reasonable care to protect

his undertaking, if

(a) his failure to exercise reasonable care increases the risk of

such harm, or

(b) he has undertaken to perform a duty owed by the other to the

third person, or

(c) the harm is suffered because of reliance of the other or the

third person upon the undertaking.

(Emphasis added).

The determination of the existence of a duty is solely the

responsibility of the court. Ellis by Ellis v. Niles, 324 S.C. 223, 479 S.E.2d

47 (1996)(court held supervising members of trauma team who did not

undertake to care for patient had no legal duty to patient). "Whether the

law recognizes a particular duty is an issue of law to be decided by the

court." Carson v. Adgar, S.C. at __, S.E.2d at 5; see also Evans v. Rite-

Aid Corp., 317 S.C. 154, 452 S.E.2d 9 (Ct. App. 1994), aff'd as modified,

324 S.C. 269, 478 S.E.2d 846 (1996); Restatement 2d of Torts § 328B

comment e (1965)("it is the ... function of the court to determine whether,

upon facts in evidence which the jury may reasonably find to be true, the

law imposes upon the defendant any legal duty to act or to refrain from

acting for the protection of the plaintiff. This decision is always for the

court")(emphasis added).

The majority declines to adopt § 324A and, instead, suggests,

in order for respondents to prevail, Kendall must have contemplated that

monitoring the lake level was for respondents' benefit. Although this

Court has not affirmatively adopted § 324A, it has on occasion considered

the section. For instance, in Salvo v. Hewitt, Coleman & Associates, Inc.,

274 S.C. 34, 260 S.E.2d 708 (1979), the Court found the plaintiffs evidence

did not support a negligence action under § 324A. The Court did not,

however, indicate any disapproval of the principles set forth in § 324A.

The facts and circumstances regarding Kendall's status as

p. 49


MILLER v. CITY OF CAMDEN ET AL.

a volunteer are not in dispute. Knowing the dam was classified as a

"high" hazard dam because of "the potential for property damage and/or

loss of life in the event of dam failure," Kendall participated in the

creation of an emergency notification plan. As part of the plan, an

"Emergency Alert Notification" form was prepared. Specific Kendall

personnel were assigned to monitor the dam. More recent notification

forms named other Kendall personnel as primary and alternate "Personnel

Assigned to Monitor" the dam. Only one conclusion can be drawn from

these facts: Kendall understood breach of the dam could result in serious

damage to life and property and it volunteered to monitor the dam and to

notify appropriate officials in the event of an imminent threat. Kendall's

undertaking was clearly for its own benefit and for the benefit of others.

As such, Kendall owed a duty to use reasonable care in monitoring the

dam and in notifying appropriate officials of any danger. Compare Carson

v. Adgar, supra (where facts and circumstances indicated only that

defendant did not take charge of intoxicated plaintiff, trial judge properly

concluded defendant did not assume any duty to plaintiff).

The Court of Appeals properly found Kendall owed a duty to

respondents to use reasonable care in the operation of the lake and dam

as a matter of law. Ellis by Ellis v. Niles, supra (whether the law

recognizes a particular duty is an issue of law to be decided by the court).

I would reverse the award of summary judgment and remand the case to

be submitted to the jury to determine whether Kendall breached its duty

of due care and, if so, whether there were any resulting damages.

p. 50