THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF
Rhonda Hendrix, Individually and as the duly appointed Guardian Ad Litem of Haley Hendrix, a minor under the age of fourteen years, Appellant,
Duke Energy Corporation, Mike Burton, Individually and d/b/a Burton Plumbing and Electrical Service, Burton Plumbing and Electrical Service, Inc., Recreational Factory Warehouse of Greenville, Inc., and Tri-State Installations, Inc., Defendants,
Of whom Duke Energy Corporation is the, Respondent.
James C. Williams, Jr., Circuit Court Judge
Unpublished Opinion No. 2006-UP-022
Heard December 6, 2005 – Filed January 12, 2006
Eugene Charles Fulton, Jr., of Columbia and J. Edward Bell, III, of
Sumter, for Appellant.
James W. Logan, Jr., of
Anderson, for Respondent.
PER CURIAM: Rhonda Hendrix brought this negligence action against Duke Energy Corporation and others after her daughter suffered an electrical shock when she touched a dock Hendrix owned at
The order “contain[ed] conditions designed to ensure that any authorized use . . . permitted . . . is consistent with the project license and the protection of the project’s scenic, recreational, and other environmental values.” Duke was required to “ensure, to the satisfaction of the Commission’s [FERC’s] authorized representative, that the uses and occupancies for which it grants permission are maintained in good repair and comply with applicable State and local health and safety requirements.” The order further provided as follows:
[Duke] shall . . . have continuing responsibility to supervise and control the use and occupancies for which it grants permission, and to monitor the use of, ensure compliance with the covenants of the instrument of conveyance for, any interests that it has conveyed under this article. If a permitted use and occupancy violates any condition of this article or any other condition imposed by [Duke] for protection and enhancement of the project’s scenic, recreational, or other environmental values, or, if a covenant of a conveyance made under the authority of this article is violated, [Duke] shall take any lawful action necessary to correct the violation.
As part of its management of
In 1999, Rhonda Hendrix was the owner of real property abutting
In 1998, Hendrix purchased a swimming pool from Recreational Factory Warehouse, which subcontracted the installation to Tri-States Installation, Inc. Tri-States, in turn, hired a grading contractor to grade the yard prior to installation. The grading contractor apparently cut some of the electrical wires in the yard. Someone then spliced the wires back together and left them in the yard.
In the spring of 1999, Hendrix hired Mike Burton, an electrician, to install an outlet near the pool. Hendrix informed
On August 14, 1999, Hendrix’s daughter Haley and some friends left the Hendrix dock for a boat outing. When the boat stalled, Haley jumped out of the boat and swam back to the Hendrix dock. When she touched the dock, she received an electric shock and was rendered unconscious. A neighbor, Alan D. Wheeler, heard screams for help and came over in his boat to help. When he touched the Hendrix dock, Wheeler was electrocuted. Haley survived the accident, but suffered severe personal injuries.
Hendrix filed this action against Duke and others to recover for Haley’s injuries, alleging Haley was injured “due to faulty installation of the pool and electrical wiring.” As to Duke, Hendrix alleged Duke was negligent and reckless in the management of
Duke moved for summary judgment, arguing it had no duty of care. Hendrix alleged a duty of care arose from Duke’s status as owner or manager of
STANDARD OF REVIEW
In reviewing the grant of a motion for summary judgment, an appellate court applies the same standard that governs the trial court under Rule 56(c), SCRCP.
I. Negligence Liability
On appeal, Hendrix argues Duke owed a duty to exercise reasonable care to inspect the electrical wiring at the Hendrix dock and to discover the allegedly faulty wiring.
“To establish a cause of action in negligence, a plaintiff must prove the following three elements: (1) a duty of care owed by [the] defendant to [the] plaintiff; (2) breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty.” Bloom v. Ravoira, 339 S.C. 417, 422, 529 S.E.2d 710, 712 (2000). “The absence of any one of these elements renders the cause of action insufficient.” South Carolina State Ports Auth. v. Booz-Allen & Hamilton, Inc., 289 S.C. 373, 376, 346 S.E.2d 324, 325 (1986).
“The court must determine, as a matter of law, whether the law recognizes a particular duty.” Simmons v. Tuomey Reg’l Med. Ctr., 341 S.C. 32, 39, 533 S.E.2d 312, 316 (2000). “If there is no duty, then the defendant in a negligence action is entitled to a judgment as a matter of law.”
a. Duty owed as Owner and Manager
Hendrix asserts Duke owed a duty to exercise reasonable care by virtue of its status as the owner and manager of
“An owner of land possesses a general duty to warn others of latent hazardous conditions on his land.” Byerly v. Connor, 307 S.C. 441, 443, 415 S.E.2d 796, 798 (1992). “This duty arises from the owner’s superior knowledge of conditions on the premises within his control.”
We hold Duke had no duty to warn of faulty electrical wiring on Hendrix’s dock because Duke did not have control of the dock and did not have superior knowledge of the conditions on the dock.
The facts of this case are similar to those of Byerly. In Byerly, a lake user was electrocuted after diving into
While the appeal now before us does not involve a lease, the analysis is the same. The key element imposing a general duty on landowners to warn of latent hazardous defects is the landowner’s presumed superior knowledge based on control and possession of property. A landowner lacking control and possession does not have the same general duty. Duke, like the lake owner in Byerly, did not have control of the dock and therefore possessed no superior knowledge of the property. Accordingly, we hold Duke owed no duty to discover and warn lake users of faulty wiring on Hendrix’s dock.
Categorizing Haley as an invitee does not change the analysis. Hendrix argues Duke owed Haley a duty to exercise reasonable care because of Haley’s status as an “invitee.” A landowner has a duty to warn an invitee of latent or hidden dangers of which the landowner has knowledge or should have knowledge. See, e.g., Callander v. Charleston Doughnut Corp., 305 S.C. 123, 126, 406 S.E.2d 361, 362 (1991). The invitor’s liability rests entirely upon his superior knowledge of the danger that caused the invitee’s injuries. Larimore v.
b. Duty arising from FERC License
Hendrix next contends Duke owed a duty to exercise reasonable care based on the provisions of the FERC license (as amended).
“An affirmative legal duty to act exists only if created by statute, contract, relationship, status, property interest, or some other special circumstance.” Charleston Dry Cleaners & Laundry, Inc. v. Zurich American Ins. Co., 355 S.C. 614, 618, 586 S.E.2d 586, 588 (2003).
We agree with the trial court’s conclusion that the general requirements imposed by the FERC license cannot be read to create in Duke a duty to discover and warn of a latent hazardous defect which it did not create and about which it had no knowledge. The FERC license requires Duke to “ensure . . . that the uses and occupancies for which it grants permission are maintained in good repair and comply with applicable State and local health and safety requirements,” and imposes on Duke a “continuing responsibility to supervise and control the use and occupancies for which it grants permission.” As noted by the trial court, there is no indication the license creates a private right of action, even if Duke failed to meet the license’s conditions.
Reading the license’s general requirements to create a special duty to inspect dock wiring would make Duke an absolute insurer of the safety of every person who uses or comes in contact with a dock on
c. Duty Arising from Undertaking and by Virtue of Guidelines
Hendrix alleges Duke’s own Guidelines and its undertaking to inspect docks on
“At common law, where there is no duty to act, but an act is voluntarily undertaken, the actor assumes a duty to use due care.” Byerly, 307 S.C. at 445, 415 S.E.2d at 799. Nonetheless, “[t]he concept of a duty in tort liability will not extend beyond reasonable limits.” Huggins v. Citibank, 355 S.C. 329, 333, 585 S.E.2d 275, 277 (2003).
We agree with the trial court that Duke did not undertake to inspect the electrical wiring of the docks on
Hendrix next argues the trial court erred in ruling the
“The purpose of [the Recreational Use Statute] is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” S.C. Code Ann. § 27-3-10 (1991). A “‘[r]ecreational purpose’ includes, but is not limited to, any of the following, or any combination thereof: . . . swimming, boating, . . . [and] summer and winter sports . . . .”
The Recreational Use Statute states “an owner of land owes no duty of care to keep the premises safe for entry or use by persons who have sought and obtained his permission to use it for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to such persons entering for such purposes.”
The Recreational Use Statute specifically limits the liability of landowners who make property available to the public for recreational purposes. Duke falls squarely within the parameters of the Recreational Use Statute because Duke allowed members of the public to use
On appeal, Hendrix asserts Duke falls within the grossly negligent exception to the Recreational Use Statute. We find there is no evidence to support an allegation that Duke was grossly negligent. “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.”
III. Punitive Damages
Hendrix lastly argues the trial court improperly granted summary judgment on her punitive damages claim because a jury could find a conscious failure to exercise due care by Duke.
“In order for a plaintiff to recover punitive damages, there must be evidence the defendant’s conduct was wilful, wanton, or in reckless disregard of the plaintiff’s rights.” McCourt v. Abernathy, 318 S.C. 301, 308, 457 S.E.2d 603, 607 (1995). “A conscious failure to exercise due care constitutes wilfulness.”
No evidence in the record indicates Duke acted in a wilful, wanton, or reckless manner. As discussed above, Duke owed no duty of care to discover or warn of faulty wiring on Hendrix’s dock. Accordingly, Duke did not demonstrate “a conscious failure to exercise due care,” and we find the trial court properly dismissed Hendrix’s claim for punitive damages.
Based on the foregoing, we find, as a matter of law, Duke owed no duty of care to lake users to discover or warn of a latent hazardous defect which it did not create and about which it had no knowledge. The decision of the trial court is
GOOLSBY, ANDERSON, and SHORT, JJ., concur.
 The trial court also found that Hendrix could not rely on the provisions in the FERC license to create a duty in this state court action because 16 U.S.C.A. § 825p (2005) provides violations come within the jurisdiction of the federal courts. This section provides as follows:
The District Courts of the United States . . . shall have exclusive jurisdiction of violations of [the Federal Power Act] or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by . . . this chapter or rule, regulation, or order thereunder.
Hendrix disputes the trial court’s finding. She acknowledges that, where FERC seeks to enforce an obligation against a licensee for violating a provision of its FERC license, it must do so in federal court, but argues this “does not mean that a plaintiff suing on a state law negligence claim must sue in federal court when he uses the FERC license to establish a duty of care.” Since we have found the FERC license would not, in any event, create a duty in this regard, we need not decide whether it is applicable in state court.
 Hendrix does not argue on appeal that the second exception regarding the charge of a fee applies in this case. The trial court ruled that this exception did not apply as Hendrix had made “no allegation and no proof that Duke charged a fee for the Plaintiffs’ recreational use of