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2012-UP-238 - Kennedy v. Johnson

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Shena Kennedy, Individually and as Guardian ad Litem of Daniel Shane Kennedy, Appellant,

v.

Thomas Johnson, Respondent.


Appeal From Horry County
Benjamin H. Culbertson, Circuit Court Judge


Unpublished Opinion No. 2012-UP-238  
Heard November 17, 2011 – Filed April 25, 2012


AFFIRMED


Stephen Anthony Butaitis and Mark C. Tanenbaum, of Charleston, for Appellant.

John Dwight Hudson, of Myrtle Beach, for Respondent.

PER CURIAM:  Shena Kennedy appeals the trial court's grant of summary judgment in favor of Thomas Johnson.  She asserts the trial court erred in holding Johnson was not liable for the injuries her minor son (Minor) sustained when the vehicle in front of his severed a low-hanging limb from a tree growing partially on Johnson's property causing the limb to crash through the front window of the vehicle Minor was driving.  We affirm.

As to Kennedy's argument the trial court erred in finding Johnson had no duty to maintain the portion of the tree overhanging the South Carolina Department of Transportation (Department) right-of-way, we find no error.  See Hendricks v. Clemson Univ., 353 S.C. 449, 456, 578 S.E.2d 711, 714 (2003) ("The determination of the existence of a duty is solely the responsibility of the court."  (citation omitted)); Miller v. City of Camden, 329 S.C. 310, 314, 494 S.E.2d 813, 815 (1997) (stating one who has no control over the use of property owes no duty of care not to harm others by its use).  The live oak tree from which the limb had grown sat partially in the Department's right-of-way and partially in the unencumbered fee of the property belonging to the heirs of Rossy Johnson, Sr.  Johnson acknowledged he was the member of his family responsible for the family property.  Johnson stated his property ended where the Department's right-of-way began.  The limb grew from the Department's side of the tree.  Randy Graham, the resident maintenance engineer with the Department, testified the Department and the State had control of the limbs growing over the right-of-way.  As the trial court found, Johnson did not control the Department's right-of-way or the limbs that grew over the right-of-way.  Accordingly, we agree with the trial court that Johnson did not have control over the portion of the tree from which the limb grew and thus was under no duty to trim the limb. 

AFFIRMED.[1]

HUFF, PIEPER, and LOCKEMY, JJ., concur. 


[1] Because we affirm on this issue, we decline to address Kennedy's other issues.  See Futch v. McAllister Towing Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).