Nоrma J. Hubbard (the daughter) brought this negligence action against Leonard Taylor, the owner and director of Greenbrier Retirement Village, for the injuries and resulting death of her mother, Marjorie Hammond Hubbard (the mother), a resident of Greenbrier. Taylor moved for summary judgment based on the daughter’s executiоn of a Covenant Not to Sue which settled all claims against Taylor and Green-brier except for any claim against Taylor, individually, to the extent he was not acting on behalf of Greenbrier. The trial court granted Taylor’s motion for summary judgment, finding Taylor had no duty to the mother separate and apart from his duty as operator of Greenbrier and that, even if there were a duty, Taylor’s alleged negligence was not the proximate cause of the mother’s injuries. The daughter appeals. We affirm.
FACTUAL/PROCEDURAL BACKGROUND
Taylor owned and operated the Greenbrier Retirement Village located in Winnsboro, South Carolina. In 1991, the daughter applied for admission of her mother to Greenbrier. The mother was then 76 and had experienced periods of confusion and had wandered from her home on several occasions. She suffered from hardening of the arteries, which affected her mental сondition. Her short-term memory was very poor, and she seemed to regress to past incidents. Taylor visited with the mother to determine her needs and accepted her as a resident of Greenbrier.
On January 8, 1992, Taylor’s automobile was in the parking lot at Greenbrier. The vehicle was unlocked, and an unsealed *586 container of antifreeze was in the floorboard of the back seat. A couple days before, Taylor had used the container of antifreeze to refill the radiator. Taylor usually left his car unlocked, and he did so on this occasion. The car had been used at Greenbrier since 1988 to transport residents at the facility.
When Ada Willingham, a Greenbrier employee, arrived for work on January 8, 1992, she heard a car horn blowing and went to investigate. She found the mother and another resident, Meen Waddell, sitting in Taylor’s car in the parking lot. Waddell was in the driver’s seat and the mother was in the back. When asked what they were doing, the mother stated they were going for a ride, and Waddell said next time they would get a car that cranks. The mother picked up the container of antifreeze from the floor, held it in her arms, and called it her “doll baby.” Willingham told them to go back inside, and both ladies returned to Greenbrier without assistance.
Later that evening, Rhonda Jennings, a supervisor at Greenbrier, noticed that both the mother and Waddell began experiencing stomach pains and falling down. Jennings had the mother transported to the emergency room after she began throwing uр brown material. Waddell was taken to the hospital the following morning. Both the mother and Waddell subsequently died of antifreeze poisoning.
On April 7, 1994, the daughter settled her claims with Taylor and Greenbrier for the death of the mother for $750,-000. Of the settlement amount, $7,500 was allocated to the action for cоnscious pain and suffering and $742,500 for wrongful death. In exchange, the daughter executed a “Covenant Not to Sue,” which expressly provided the daughter was releasing
Greenbrier Retirement Center, Greenbrier Retirement Village, Inc., Continental Insurance Company, their agents, servants, employers, emрloyees, affiliates, subsidiaries, parent companies, officers, directors, shareholders, personal representatives, heirs, successors, and assigns and all others who could be held responsible for the actions of these persons, firms, corporations and companies [hеreinafter referred to collectively as “Covenantees”], to refrain and desist from instituting or asserting against Covenantees any *587 claim, demand, action or suit of whatsoever kind or nature, either directly or indirectly, for injuries or damage to person or property resulting from, or arising out of, the injury to or death of Marjorie H. Hubbard. [Emphasis added.]
The covenant operated as a general release subject to one exception. The covenant expressly reserved the right for the daughter to sue any other persons against whom there may be a claim for damagеs,
including, but not limited to, Leonard Taylor, individually, to the extent that Leonard Taylor was not acting on behalf of any of the Covenantees, provided that among the foregoing rights, the undersigned [the daughter] hereby expressly and specifically reserves the right to sue Leonard Taylor individually on account of his negligence and/or recklessness in connection with his ownership, maintenance and use of an automobile. [Emphasis added.]
The daughter filed this complaint dated December 2, 1994, asserting damages for Taylor’s alleged “negligence, carelessness, recklessness, and wantonness ... in the ownership, operation, maintenance and use” of his automobile. Sрecifically, the daughter asserted Taylor was negligent in parking his car on the premises of Greenbrier with a container of antifreeze inside, without locking the vehicle, “when he knew or should have known that accessibility of entry into said automobile with an unsealed container of antifreeze would be dangerous to residents of the facility, including [the mother], who would be likely to enter said automobile .”
Taylor moved for summary judgment. The trial court granted summary judgment to Taylor, finding Taylor owed no duty to the mother exclusive of any duties related to his status as an agent, servant, employee, officer, or director of Green-brier. The trial court further found that, even if Taylor had a duty to lock his car so as to make the antifreeze inaccessible to the mother, the breach of that duty was not the proximate cause of the harm to the mother.
ISSUE
Did the trial court err in granting summary judgment to Taylor on the daughter’s claim of negligence in the operation, maintenance, and use of an automobile?
*588 STANDARD OF REVIEW
Summary judgment is appropriate only where no genuine issue as to a material fact is involved and further inquiry into the facts is not desirable to clarify the application of the law.
Tupper v. Dorchester County,
LAW
The elements for a cause of action for the tort of negligence are: (1) a duty owed to the plaintiff by the dеfendant, (2) a breach of that duty by the defendant, and (3) damages proximately resulting from the breach of duty.
Bishop v. South Carolina Dep’t of Mental Health,
A legal duty of care owed by the defendant to the plaintiff must exist to maintain an action for negligence.
Bishop,
“The common law ordinarily imposes no duty on a person to act. If an act is voluntarily undertaken, however, the actor assumes the duty to use due care.”
Miller v. City of Camden,
Negligence is not actionable unless it is the proximate cause of the plaintiffs injury.
Hanselmann v. McCardle,
“Causation in fact is proved by establishing the injury would not have occurred ‘but for’ the defendant’s negligence.”
Bramlette v. Charter-Medical-Columbia,
Legal cause is proved by establishing foreseeability, i.e., that the injury occurred as a natural and рrobable consequence of the defendant’s negligence.
Id.
at 72,
ANALYSIS
The daughter argues the trial court erred in finding that Taylor did not owe the mother an individual duty to lock his car or otherwise secure the antifreeze so as to prevent the mother from obtaining the antifreeze from his parked vehicle. The daughter also argues the trial court erred in finding that, even if there were a duty, a breach of that duty was not the proximate cause of the harm to the mother. We disagree.
*590 The Covenant Not to Sue limited the daughter’s right to maintаin an action against Taylor for his individual negligence to the extent he was not acting on behalf of Greenbrier and only for “his negligence and/or recklessness in connection with his ownership, maintenance and use of an automobile.” Thus, Taylor’s duties in this case were no greater than those of any ordinary automobile owner or operator.
The daughter relies on
Everett v. White,
The dаughter maintains the antifreeze was a dangerous item which Taylor “left exposed under circumstances where those mentally incapable of appreciating the danger” were likely to come into contact with it. Specifically, the daughter asserts Taylor knew the antifreeze was a toxic substance. She says Taylor knew from past experience that toxic substances were dangerous and could cause injury if mishandled. She asserts Taylor knew her mother often became confused and wandered aimlessly. She states Taylor knew her mother needed to be watched regularly because of her tendency to wander. She asserts she informed Taylor her mother was unable to care for herself properly and was a danger to herself. The daughter further contends Taylor was not acting on behalf of Greenbrier when he serviced his car and left the antifreеze in his unlocked car in the Greenbrier parking lot. Therefore, the daughter argues, Taylor had a duty, exclusive of his duty as operator of Greenbrier, to lock his automobile or otherwise secure the antifreeze after servicing his car to prevent injury to the mother, her companion, оr someone similarly situated.
*591
Even assuming the daughter is correct in her statement of the facts and circumstances in this case, her reliance on
Everett
is misplaced.
Everett
specifically addresses a child’s grounds for recovery in a negligence action which parallels the attractive nuisance doctrine.
See Everett,
We conclude the trial court did not err in granting summary judgment in favor of Taylor. Although the daughter contends that Taylor should have been aware of her mother’s tendency to wander and her failing mental faculties and that he should have acted to protect her, the daughter executed a covenant for $750,000 releasing Taylor from any liability in that regard. We find that, in his status as an ordinary automobile owner, Taylor had no duty to the mother under the circumstances present here.
Moreover, we agree with the trial court that, even if there were a duty, the daughter failed to establish proximate causation because the mother’s actions were not reasonably foreseeable. The fact that the mother may wander does not mean she would necessarily drink a substance not meant for human consumption. Thus, even if the daughter can prove everything in her complaint, foreseеability is not present.
See Horne v. Beason,
In Home, the plaintiff argued that the defendants, including employees of the jail and highway patrol, should have anticipated that Horne would harm himself while incarcerated after an arrest. Thе court held the jailers were not expected to be fortunetellers or to foresee that Horne would use the cloth belt of his bathrobe to hang himself in prison. The court stated:
[DJamages for an injury resulting from a negligent act of the defendant may be recovered if a reasonably prudent and careful person should have anticipated, under the same or similar circumstances, that injury to the plaintiff or to those in a like situation would probably result. The most common test of negligence, therefore, is whether the consequences of the alleged wrongful act were reаsonably to be foreseen as injurious to others coming within the range of such acts.
*592 * * *
... The existence of actionable negligence depends, not upon what actually happened, but upon what reasonably might have been expected at the time, and not by a judgment from actual consequences which were not then to be apprehended by a prudent and competent man.
Id.
at 521,
In this case, the mother’s act of ingesting the antifreeze was too remote to be attributable to any act or omission by Taylor independent from his duty as the operator of Greenbrier.
For the foregoing reasons, the trial court’s order granting summary judgment in favor of Taylor is
AFFIRMED.