737 S.E.2d 512
S.C. Ct. App.2012Background
- Johnson was a bookkeeper/office manager at Robert E. Lee Academy, handling deposits of tuition and funds.
- May 2006: $9,100 cash deposit was recorded; remaining cash/checks were placed in a vault container and not reconciled.
- The May 18 deposit occurred; by May 23 the container with the other funds was missing; Johnson reported the loss to the principal.
- MBW, led by accountant Marc Quigley, was hired to investigate the missing funds; Quigley initially indicated funds appeared missing but later realized the $9,100 deposit had been made.
- Johnson sued MBW and others for defamation, abuse of process, malicious prosecution, negligence, and false imprisonment; the circuit court granted MBW summary judgment on negligence for lack of a duty; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MBW owed Johnson a duty due to Quigley’s actions. | Johnson argues MBW voluntarily undertook a duty. | MBW contends there is no duty to Johnson. | No duty; MBW owed no duty to Johnson. |
| Whether Quigley’s conduct created a voluntary undertaking giving rise to a duty. | Quigley’s cooperation with police created a duty to Johnson. | No duty arises from Quigley’s conduct toward Johnson. | No duty under Restatement §323; not a service to Johnson. |
| Whether the Hamilton affidavit created a genuine issue of material fact to defeat summary judgment. | Hamilton’s affidavit suggests MBW owed a duty. | Affidavit does not raise a factual question; duty is a legal issue. | Affidavit did not create a factual dispute; summary judgment proper. |
Key Cases Cited
- Hendricks v. Clemson Univ., 353 S.C. 449, 578 S.E.2d 711 (2003) (limits on expanding voluntary duty beyond Restatement 323)
- Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 638 S.E.2d 650 (2006) (duty may arise under Restatement §323)
- Russell v. City of Columbia, 305 S.C. 86, 406 S.E.2d 338 (1991) (section 323 duty concepts; voluntary undertaking)
- Sherer v. James, 290 S.C. 404, 351 S.E.2d 148 (1986) (section 323(a) duty relates to protective undertakings)
- Miller v. City of Camden, 329 S.C. 310, 494 S.E.2d 813 (1997) (voluntary undertakings not extending to public safety responses)
- Staples v. Duell, 329 S.C. 503, 494 S.E.2d 639 (Ct.App.1997) (recognition of section 323 as relating to duty)