Miller v. City of Camden

BURNETT, Justice:

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 *319issued 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, 326 S.C. 212, 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
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 *320resulting 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, 326 S.C. at 217, 486 S.E.2d at 5; see also Evans v. Rite Aid Corp., 317 S.C. 154, 452 S.E.2d 9 (Ct.App.1994), ajfd 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 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 *321was 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.