757 S.E.2d 695
S.C.2014Background
- Ida Lord was shot at a Cash on the Spot check‑cashing business on Feb. 14, 2008 by Phillip Watts, a serial robber later apprehended and convicted. The shooting lasted ~6 seconds and was captured on video.
- Watts had committed multiple armed robberies in the county in the preceding weeks, two of which involved shootings at nearby businesses; the incidents received local media coverage.
- Cash on the Spot had physical security measures (bars, bulletproof teller glass, cameras, panic/silent alarms) but no posted security guard; the owner told employees to be vigilant because there was a “madman on the loose.”
- Lord sued D & J Enterprises (operator) for negligence, alleging it breached its duty to protect invitees by failing to post a security guard. D & J moved for summary judgment.
- The trial court granted summary judgment finding (1) Gopal II (the SC balancing test for foreseeability) applied prospectively and (2) even under Gopal II Lord failed to show preventative measures were unreasonable. The Supreme Court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this Court’s balancing test in Bass v. Gopal (Gopal II) applies retroactively to crimes that occurred before Gopal II | Gopal II merely clarifies the existing duty and thus should apply retrospectively | Gopal II changes the governing test and therefore should apply prospectively | Court held Gopal II applies retrospectively because it clarified scope of an existing duty rather than creating new liability |
| Whether D & J was entitled to summary judgment on Lord’s negligence claim (duty, breach, causation, damages), specifically whether failure to post a security guard was unreasonable | Lord argued D & J foresaw risk (owner’s warnings and media coverage), presented expert security testimony that a posted guard likely would have prevented the shooting, and thus created a triable issue | D & J argued the crime was not foreseeable at the premises, no prior crimes on site, and hiring a guard would be an unreasonable burden absent on‑premises incidents | Court held Lord produced a scintilla of evidence on foreseeability and on unreasonableness of security measures (expert testimony), so summary judgment was improper and the case must go to a jury |
Key Cases Cited
- Bass v. Gopal, Inc., 395 S.C. 129, 716 S.E.2d 910 (S.C. 2011) (adopts balancing test weighing foreseeability against burden of security measures)
- Miletic v. Wal‑Mart Stores, Inc., 339 S.C. 327, 529 S.E.2d 68 (Ct. App. 2000) (applied imminent‑harm/prior‑incidents approach to merchant duty)
- Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E.2d 167 (S.C. 1977) (articulated imminent harm rule for third‑party criminal acts)
- Daniel v. Days Inn of Am., Inc., 292 S.C. 291, 356 S.E.2d 129 (Ct. App. 1987) (statement of negligence elements: duty, breach, causation, damages)