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25159 - Etheredge v. Richland School District One
Etheredge v. Richland School District One


Shearouse Adv. Sh. No.
S.E. 2d




THE STATE OF SOUTH CAROLINA

In The Supreme Court



Linda L. Etheredge, as

Personal Representative

of the Estate of Ernest

Dunlap, III, Deceased, Respondent,



v.



Richland School District

One, Petitioner.



ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS



Appeal From Richland County

L. Casey Manning, Circuit Court Judge



Opinion No. 25159

Heard January 19, 2000 - Filed June 26, 2000



REVERSED



Charles E. Carpenter, Jr., Donald V. Richardson, III,

Georgia Anna Mitchell and S. Elizabeth Brosnan, all

of Richardson, Plowden, Carpenter & Robinson, PA,

of Columbia, for petitioner.



Henry Hammer, Howard Hammer, and John W.

Carrigg, Jr., all of Hammer, Hammer, Carrigg &

Potterfield, of Columbia; and Douglas N. Truslow, of



p.327


Etheredge v. Richland School District One







Columbia, for respondent.





PER CURIAM: We granted certiorari to review the opinion of

the Court of Appeals in Etheredge v. Richland School District One, 330 S.C.

447, 499 S.E.2d 238 (Ct. App.1998). We reverse.







On January 25, 1994, Ernest Dunlap (Dunlap), was shot and

killed by Floyd Brown (Floyd), a student at Eau Claire High School (Eau

Claire), while standing in the hallway during a class change. Linda

Etheredge (Etheredge), personal representative of the estate of Dunlap filed

an action against Richland County School District One (School District)

alleging wrongful death. The School District moved for summary judgment

averring that the actions were barred by the South Carolina Tort Claims Act.

S.C. Code Ann. §§ 15-78-10, et seq. (Supp. 1999).









The evidence submitted to the trial court at the summary

judgment hearing consisted primarily of several affidavits. The School

District submitted the affidavits of two Eau Claire employees (1) Dorothy

Walker, a teacher and (2) Ellen Mosely, the principal at the time of the

shooting. Etheredge submitted the affidavit of Harland Brown (Brown), one

of the campus monitors employed by the school.







Brown was employed at Eau Claire from September 1993

through February 1994. In his affidavit, he stated that he was informed that

his job would entail breaking up fights, preventing the students from having

drugs and alcohol on the premises at the high school, and providing security

for the school. Brown alleged that he received absolutely no training from

the School District or Eau Claire.







Brown asserted that he was not given the proper equipment to

perform his job 1 and his requests to the School District for the appropriate

equipment were ignored. He also insisted that he needed the authority to




1 Brown felt that he needed a uniform, a badge to display authority,

possibly a sidearm, a night stick, a flashlight, chemical mace, and handcuffs

and/or other restraining devices.



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Etheredge v. Richland School District One





search the persons, bookbags or lockers of the students. Brown described the

situation at Eau Claire as very volatile. He expressed his belief that

students apprehended for criminal activity were never disciplined in a

manner consistent with the severity of their offense. He was present at Eau

Claire in his capacity as campus monitor on the day of the shooting.







The trial court granted the School District's motion based on S.C.

Code Ann. § 15-78-60 (Supp. 1999). 2 Etheredge appealed.







On appeal, the Court of Appeals reversed and remanded, holding

that the trial court erred in granting summary judgment and finding that

there was sufficient evidence to create a jury question whether the School

District acted in a grossly negligent manner. We granted the School

District's petition for a writ of certiorari.









The School District argues that the Court of Appeals erred in

holding that Brown's affidavit created a genuine issue of material fact

whether the School District was grossly negligent. We agree.







A governmental entity is not liable for a loss resulting from the

"responsibility or duty including but not limited to supervision, protection,

control, confinement, or custody of any student . . . except when the

responsibility or duty is exercised in a grossly negligent manner." S.C. Code

Ann. § 15-78-60(25) (Supp. 1999).







Gross negligence is the intentional conscious failure to do

something which it is incumbent upon one to do or the doing of a thing

intentionally that one ought not to do. Clyburn v. Sumter County District

Seventeen, 317 S.C. 50, 451 S.E.2d 885 (1994); Richardson v. Hambright,

296 S.C. 504, 374 S.E.2d 296 (1988). It is the failure to exercise slight care.

Clyburn, supra. Gross negligence has also been defined as a relative term,

and means the absence of care that is necessary under the circumstances.

Hollins v. Richland County School District One, 310 S.C. 486, 427 S.E.2d 654

(1993). Additionally, while gross negligence ordinarily is a mixed question of

law and fact, when the evidence supports but one reasonable inference, the




2 The trial court relied upon five subsections of § 15-78-60: subsections

(4), (5), (9), (20), and (25).



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Etheredge v. Richland School District One





question becomes a matter of law for the court. Clyburn, supra.







Summary judgment is appropriate when it is clear that there is

no genuine issue of material fact and the conclusions and inferences to be

drawn from the facts are undisputed. SSI Medical Services. Inc. v. Cox, 301

S.C. 493, 392 S.E.2d 789 (1990). In ruling on a motion for summary

judgment, the evidence and the inferences which can be drawn therefrom

should be viewed in the light most favorable to the nonmoving party. Id.







In Clyburn, supra, we affirmed the decision of the Court of

Appeals and the lower court granting summary judgment to the School

District. We held that the School District was not grossly negligent as a

matter of law in its handling of a dispute between a student and a

nonstudent where the nonstudent attacked the student on a school bus with

a knife. After hearing of the initial altercation on the bus, the school bus

administrator called the student and the nonstudent's sister into the office to

discuss the situation, warned the sister that the nonstudent sister would face

criminal charges if she boarded the bus again and attempted to contact the

parents. The bus driver watched for the nonstudent and stated she would

not stop the bus if she saw the nonstudent. We found that the intervention

showed that the School District exercised at the very least "slight care."







In Hollins, supra, we found that whether the School District

exercised "slight care" in sending a note home with an eleven-year old

student who lost her bus privileges was a question for the jury. The

suspension notice was given to the child and not directly to her mother.

While walking home, the eleven-year old was fatally struck by an automobile

while attempting to cross the highway. We said that the school itself created

the risk by failing to give adequate notice to the parent about the

suspension. We took notice of the age difference between the parties and

distinguished the steps taken by the administrators in Clyburn to control the

situation.







In this case, the students were high school age and the School

District had no direct knowledge or notice of the animosity between Dunlap

and Floyd. The only reasonable inference that can be drawn is that the

School District, at the very least, exercised "slight care" to ensure the safety

of its students. The principal, assistant principal and the two security

monitors constantly monitored the hallways and were in constant contact



p.330


Etheredge v. Richland School District One





with each other by walkie talkies. The teachers stood in their doorways to

watch students during the change of class. Some of the doors were locked to

limit the flow of traffic. A list of suspended students was circulated daily.

There was an intervention system set up to help resolve conflicts between

the students. At the very least, "slight care" was taken.







Brown's affidavit describes what he finds to be deficiencies at

Eau Claire, but there is no evidence in Brown's affidavit that links these

deficiencies or the School District's failure to provide him with a uniform,

night stick or to properly train him to the prevention of this tragic incident.

Further, the fact that the School District might have done more does not

negate the fact that it exercised "slight care."







The School District also argues that the Court of Appeals

erroneously interpreted the School District's Answer as an admission that

the School District had notice, before the shooting, of the problems between

Dunlap and Floyd. We agree.









Paragraph three (3) of the School District's answer states:



The Defendant admits that Earnest Dunlap,

III was shot and killed while attending Eau Claire

High School as a student. The Defendant further

admits that prior to this incident, Ernest Dunlap,

III's actions toward the pupil who shot him created a

belief by that pupil that such pupil was in imminent

danger of losing his life or sustaining serious bodily

injury.







There is no indication from this language that the School District knew

about the specific problems between these two students. Nor is there an

admission that the School District had advance notice that a shooting was

about to happen. The answer merely attempts to state the belief of Floyd.







Based on the foregoing, the Court of Appeals is



REVERSED.



p.331