*1
July 2002. ORDER 8, 2002, suspended was from the April Respondent On He practice period ninety days. of law for a has now filed 32, an affidavit reinstatement to Rule requesting pursuant Lawyer Disciplinary the Rules for Enforcement contained 413, Rule SCACR. hereby is and he is reinstated to the request granted
practice of law in this state. Toal, Jean H. C.J.
/s/
SOUTH No. 25496. Supreme Court of South Carolina.
Heard Jan. 2002. July
Decided 2002. *5 Johnson, Blood- Nancy Groves, Sr., E. P. Wilbur Stephen Clement, Rivers & Brown, of Young L. all and Stephen good, Charleston, for Tisdale, LLP, appellant. of P.A.; A. Cook, and Richard Koon, of Koon and F. John LLC; Columbia; Firm, of McDowell, Sr., of McDowell Law Bernstein, LLP; of Green- Cook, of Breland & and Elizabeth ville, respondent. for
MOORE, Justice: of Appeals from the Court this case certify agreed We of exclusivity provision of whether the the question determine or nature procedural Act is Compensation the Workers’ finding After jurisdiction. matter subject it involves whether subject juris- matter not involve does exclusivity provision raised court on the issues diction, affirm the trial we appellant.
PROCEDURAL FACTS Sabb) suit (hereinafter brought to as referred Respondent of negligent supervision of asserting claims appellant against as well employee, of an negligent retention an employee as other claims. conclusion, a verdict jury returned trial’s
Upon the $200,000 damages. Appellant in actual in the amount to the Court (hereinafter University) appealed referred to as Appeals. case, Appeals, the Court request by upon We certified exclusivity provision whether question to determine subject matter involves Act Compensation of the Workers’ jurisdiction.
ISSUES of the Workers’ exclusivity provision1 I. Whether it involves or whether procedural Act is Compensation jurisdiction? matter subject (the pro- exclusivity provision), § Ann. 42-1-540 1. S.C.Code vides: II. Whether the trial court granted should have appellant’s motion for a directed verdict judgment notwith- and/or standing the verdict?
III. the trial court Whether erred allowing evidence regarding co-employee of Sabb? *6 I
ISSUE
claims,
Because Sabb’s
as employee
University,
arose out of and in the
course
her employment,
the Work
(the Act)
ers’ Compensation Act
provides the
remedy
exclusive
for her. See
v. Metropolitan
Co.,
Dickert
Ins.
311 S.C.
Life
218,
(the
Subject jurisdiction matter is power the of a court to hear and determine general cases class to which the Kist, Inc., Dove proceedings in question v. Gold belong. 314 235, (1994). 442 S.C. S.E.2d 598 Sabb’s tort action is clearly a of the part general class of which the court of common .cases jurisdiction has the pleas to hear. Accordingly, the trial court in this case subject had jurisdiction matter under the Gold Kist definition.2 rights granted by and remedies employee [the Act] to an when employer Act],
he and accepted his provisions have of [the respectively, pay accept compensation personal on account of accident, injury or death rights shall exclude all other and reme- employee, personal dies of representative, such his parents, depen- against employer, dents or next of kin as his at common law or otherwise, injury, on account of such loss of service or death. following 2. To the extent the provide cases could be read to the circuit subject claims, court is jurisdiction without matter they to hear Sabb’s 240, are Corp., overruled: Woodard v. Westvaco 319 S.C. 460 S.E.2d (1995); Markets, Inc., Ingles Dockins v. 306 S.C. 411 S.E.2d However, while the trial court has acknowledge, we claims, may tort certain cases subject jurisdiction matter over original jurisdiction by from the trial court’s taken be Assembly find the has vested Assembly. General We General jurisdiction over the original with exclusive Commission Sabb, that the circuit court was of claims made such types claims.3 jurisdiction of its over Sabb’s original divested Therefore, original juris had exclusive Commission However, University claims. because diction to hear Sabb’s as a defense to Sabb’s exclusivity provision failed to raise the is waived. reiterate appeal, challenge tort action on that We juris not involve matter exclusivity provision subject does University’s appeal. diction. now address issues We APPEAL UNIVERSITY’S
FACTS Sabb, years, joined for five working after in 1984. she University’s campus police department training a certified officer and Paul White became became *7 chief of the department. chief, training becoming three weeks White Sabb’s
Within
to
officer who was
given
duties were terminated and
another
grievances
filed several
training
not a certified
officer. Sabb
instance,
requested light
Chief
For
when Sabb
against
White.
Shei,
25,
(1991);
(1991);
The Committee recommended that Chief White participate in a mandatory management and leadership improvement plan for 120 days; and that his failure to participate the plan would constitute grounds for removal from the department. It was also that recommended the supervisory staff undergo extensive training pertaining personnel procedures, inter- personal skills development, and shared departmental decision making. The Committee recommended both Chief White and staff, his supervisory member, of which Sabb was a attend workshops learn about institutional policies and procedures pertaining discipline.
Sabb testified Chief White did not accomplish the above requirements, that not did ensure compliance with the report, and that conditions did not improve within the *8 Further, department. as a of result the petition, Sabb testi- fied Chief openly White became hostile towards her. University meeting held a in which it an- was University nounced would be the investigating department. the Following meeting, Sabb testified Chief had his White own meeting her, where he singled chief, Sabb out and told as he A decisions he wanted. week any to make right
reserved department from the later, police was removed Chief White and Lieutenant investigation, unrelated to the for a reason the chief. became Wilson his he made Sabb position, Chief assumed
Once Wilson of charge her Operations placed which Acting Lieutenant However, when department. of the operations the entire later, than a he year as chief less returned Chief White Operations. Lieutenant of Acting removed Sabb as Pame- attempted discipline Sergeant Subsequently, Sabb sign discipline refused la Gissentanna. Chief White (who along chief with form; however, Chief remained Wilson following for a of time Chief White’s period Chief White return) recommending suspension. the form Sabb signed result, As a suspended. that was never testified Gissentanna this matter University regarding with grievances filed Sabb her as Acting had removed ground and on the Chief White found to be were Operations. complaints Lieutenant non-grievable. leave, matter, on sick Chief
In another while Sabb was her the mid- training gave duties and eliminated her White could not during meeting officer a she night patrol shift as a officer she was by becoming patrol that attend. Sabb stated commenced her police with which she resuming the duties University respond did not fifteen earlier. years work over regarding this matter. grievance her denied a on the basis she was grievance filed another Sabb a co-em- placed Chief when White promotional opportunity without Operations of Lieutenant of in the ployee position University requirements. Univer- per advertising position Sabb, had not that the position in a letter sity responded, co-employee temporarily was been established and yet informed University responsibilities. assigned Operations Operations position was that when the Lieutenant Sabb be fol- guidelines would established, University job posting result, grievance request denied her As lowed. opportunity. a promotional she had not been denied because case, a newspaper her introduced In the presentation University’s days after the that was two published article that article announced This grievance request. denial of her *9 the “was named lieutenant of co-employee operations.” Sabb testified, to knowledge, position her was never as posted opening an and there were no interviews for the position. testified, actions, a result of Sabb as Chief White’s she had an escalated blood interference with her pressure, sleep, and attacks. panic University’s She called President and related her health also told problems. University She she feared for her life because Chief had attempted fight White her. Hare,
After with consulting physician, her Dr. Ester Sabb a requested department. transfer to another At the time she transfer, requested the she was on rest heavy bed and medi- cation. transfer,
Following her University Sabb informed she police wished to her credentials keep because she intended to However, return to the police department. police her certifi- cation was returned her in change when status form was sent Academy the Criminal Justice form because the stated she resigned had from the for department personal reasons. Sabb testified the return of her credentials Upon devastated her. returned, attempting have the credentials Sabb was told she would have to repeat Academy training. her,
Dr. Hare testified when Sabb first came to see Sabb nervous, tearful, was and had an escalated pressure. blood She testified she prescribed anxiety medicines for Sabb’s Sabb, depression. As a result of conversations with Dr. Hare a to University, stating wrote letter she treating was Sabb hypertension anxiety and work-related because Sabb was letter, of afraid her boss. she recommended Sabb be placed another Since position. police depart- Sabb left ment, Dr. Hare testified Sabb has not on placed been medi- cation.
Several of co-workers on Sabb’s testified Sabb’s behalf. Ella Reed testified Chief White told her as long as he was theré, would never get promotion raise or because she Hook, was not fit to be a officer. police Ronald another co- worker, reported testified he with chiefs problems person- nel practices University. Hook testified he had filed a grievance University, partially with due to Chief White’s treat- him, him and harsh cornering making
ment such as re- him.4 marks to case,
Following University the conclusion Sabb’s moved negligence for a directed verdict claims on the basis showing any duty there was no facts that created a on the no had part showing duty and there was for a by University. University been breached also moved *10 on ground University discretionary directed verdict the had 15-78-60(5) § immunity (Supp.1998). under S.C.Code Ann. trial The court denied the motion. jury University returned a verdict in Sabb’s favor. (JNOV), for judgment notwithstanding
moved a the verdict which was denied. II
ISSUE University argues by denying the trial court erred its motion for a directed verdict a for three JNOV and/or (1) reasons: because the “discretion” contained in exception 15-78-60(5) § S.C.Code Ann. barred (Supp.2000) respondent’s (2) claims; University failed to respondent prove because duty; owed her a and failed to respondent prove because a University duty breached owed her. motions, ruling on directed verdict or JNOV the and the required
the trial court is view evidence in the reasonably light inferences that can be drawn therefrom the motions. Steinke v. party opposing most favorable the Labor, Dep’t Licensing Regulation, South Carolina and 336 of (1999). deny 142 The trial court must the S.C. 520 S.E.2d the evidence more than one inference or yields motions when Id. This Court will reverse the trial is in its inference doubt. ruling is no evidence to the only support court when there Id. Further, deny trial court’s or granting below. a decision is trial not disturbed unless the decision ing new will be conclusions by the evidence or the court’s wholly unsupported Id. an of law have controlled error of law. been co-workers, Singletary, 4. Richard Johnson and Herman Two other they grievances and had each filed a testified had filed with University. against lawsuit Directed, discretionary motions on basis verdict and JNOV of immunity com immunity
The Tort Claims Act waives torts subdivisions, State, political governmen mitted its of official duties. acting scope tal within the their employees 343 S.C. Dep’t Transp., Pike v. South Carolina of (2000). to this waiver exceptions S.E.2d 87 There are several immuni immunity, including discretionary what is known as ty. Id. 15-78-60(5) provides § Ann. that a (Supp.2000)
S.C.Code
not
for a loss
from:
governmental entity
resulting
is
liable
governmental
or
judgment by
the exercise
discretion
or the
or failure to
entity
employee
performance
perform
or
or
judgment
act or service which is in the discretion
any
governmental entity
employee.
or
on
entity
Mere room for discretion
part
discretionary immunity provi
is not sufficient to invoke the
(1997).
36, 492
sion. Summer v.
328 S.C.
S.E.2d 55
Carpenter,
Discretionary immunity
contingent
proof
government
is
alternatives,
entity,
actually weighed competing
faced with
using accepted
considerations and made
conscious choice
*11
professional standards. Wooten ex rel. Wooten South Car
(1999).
olina
333 S.C.
The burden was show actually considerations and alternatives weighed competing that, so, of regarding supervision doing the Chief White but accepted professional appropriate it utilized standards to re- However, University solve this issue. there is no evidence did testimony University’s University’s so. The of President and University Human Resources Director belie notion that any weighed competing considerations and alternatives when de- ciding not to or remove Chief discipline WTiite. University change it is true made the attempts
While by in the department requiring hostile environment Chief sessions, to undergo training WTiite and others there is no University weighed competing evidence considerations when Further, testimony these there is no Uni- making decisions. versity utilized accepted professional standards appropriate resolve the issue of hostility Chief White’s towards and actions regarding his trial employees. Accordingly, the court proper- See ly denied the motions for directed verdict and JNOV. (mere Carpenter, supra Summer v. room for discretion on of part governmental entity is not sufficient to invoke discre- tionary immunity provision; governmental entity bears bur- den of establishing discretionary immunity as affirmative de- fense). See also Pike v. South Carolina Dep’t Transp., of (to supra governmental allow entity only shield itself with a of showing “some evidence” would eviscerate standard entity must meet to discretionary establish immunity by enunciated Court; certainly a governmental entity should not be entitled discretionary a immunity as matter of law merely fact). an creating issue of Directed verdict and JNOV motions based on lack or duty of breach alleged duty action,
In a negligence must plaintiff show the (1) (2) duty defendant owes a of care to plaintiff, defendant (3) breached the duty by negligent omission, act or defen dant’s breach was the actual proximate and cause of the plaintiffs injury, and an plaintiff injury suffered or dam Steinke, supra. ages. If there is no duty, then the defendant in a negligence action is entitled to a directed verdict. Id.
A duty arose on University’s part once was University placed notice of Chief White’s behavior and actions. After University grievances received the employ- Sabb and other ees, University had a duty to address the con- employees’s cerns with due care.
A jury issue also existed as to University whether had breached that duty. University was on notice of Chief White’s activities through conversations Sabb and other employees officials, had with petition circulated mem- bers of the police department, grievances and employees, other through report Committee’s detail- ing findings their into investigation Chief White’s *12 actions. these Despite complaints numerous and notifications behavior, of Chief White’s actions and him University allowed to continue as chief serving department any of the "without real effort to rectify the hostile conditions within the depart- ment.
430 Sabb, light in the most favorable
Viewing the evidence
and
the directed verdict
JNOV
the trial court
denied
properly
University
to show
had
motions because evidence existed
Steinke, supra
owed to Sabb. See
duty
breached
possibly
(trial
and
denying
court’s decision
directed verdict
JNOV
unless there is no evidence to
will not be disturbed
motions
trial court’s conclusions of law have
ruling or unless
support
law).
by
been controlled
error
III
ISSUE
have exclud
University
the trial court should
argues
Gissentanna,
Pamela
regarding Sergeant
ed all of the evidence
403, SCRE,
value of the
probative
under Rule
because
its
effect.
substantially outweighed by
prejudicial
evidence was
This issue is not
for our review because Universi-
preserved
trial5
objection
during
did not make an
to the evidence
ty
object
regard-
not
to all the evidence
because
did
but now wishes to do so on
See State
ing
appeal.
Gissentanna
(2000) (motion
74,
in
Griffin,
v.
339 S.C.
5. Prior to made a motion in limine the trial any testimony presentation exclude from Sabb's at trial concern- court party,” alleged ing way a third which was “sexual harassment grievances University. University stated in its motion that Sabb’s Gissentanna, actually and that the meant that Chief White favored unduly prejudicial use of the words "sexual harassment” was to Univer- sity. trial, University’s objection At an exhibit which contained a refer- asked ence to sexual harassment was overruled. When Sabb’s counsel Hook, co-employee, any if he had observed favoritism Chief Sabb’s Gissentanna, University object. White towards did not event, any attempting improper 6. the evidence to demonstrate an properly relationship was between Chief White and Officer Gissentanna
431 C.J., TOAL, BURNETT, JJ., WALLER and concur. PLEICONES, J., in a dissenting separate opinion. PLEICONES, Justice:
I the the agree majority Compensation with that Workers (“the Act”) subject Act does not the of divest circuit court however, would, in I jurisdiction grant matter this matter. the University’s negli- motion for a directed verdict on Sabb’s claims,7 therefore, I gent and retention and re- supervision spectfully dissent.
I question whether an
should
allowed to
employee
ever be
on theory
negligent
super
sue her
of
or
employer
retention
acts
vision for the
of a
Patriarca
supervisory employee.8 See
Inc.,
v.
Living
Working,
Center For
and
Ins. Co. as an training or must include hiring, supervision, negligent act committed wrongful tort or underlying an element Co., N.C.App. 79 Country Club Forsyth v. Hogan employee); (1986) (before can be held liable employer 340 S.E.2d must employee, plaintiff an hiring retaining or for negligently a tortious act committed offending employee that prove Willis, 995 S.W.2d Gonzales resulting injury plaintiff); negligent hiring, (plaintiff-employee’s (Tex.Ct.App.1999) *14 failed employer retention, against claims supervision and offending to actions of failed show plaintiff-employee where tort); Haverly Kaytec, v. to an actionable amounted employee (1999) (the negligent tort of Inc., A.2d 86 738 169 Vt. tort or underlying an include as an element must supervision employee). committed wrongful act at trial established by Sabb presented The evidence duties, is, (1) that he job Sabb’s reassigned following: White duties, and and training supervisory her relieved Sabb of (2) shift; reported when Sabb night her to work the scheduled job her normal perform unable to physically that she was leave to make Sabb submit “threatened” White assignments, (after carry did not University, White to the complained Sabb light to “threat,” reassigned but instead with the through (3) and meeting at a staff singled-out Sabb duty); White police depart- of the authority his as head verbally reiterated (4) request ment; approve Sabb’s and White refused None of this by Sabb. employee supervised an discipline a tort.9 to the level of conduct rises in this case theory on the advanced recovery To allow based relation- employer-employee for the grave consequences has fre- Employees is often stress-laden. ship. workplace complaints is a only theory perceive from Sabb's possible I can 9. The There outrage infliction of emotional distress. for or intentional claim recovery support matter of law to evidence as a is insufficient Glenn, (Ct.App. outrage. Shipman 314 S.C. 443 S.E.2d See 1994) ("callous supervisor insufficient and offensive conduct" recovery infliction of emotional support employee’s for intentional distress; outrageous exceed and as to must be so extreme conduct utterly decency regarded as atrocious and and must be bounds of theory community; plaintiff proceeding on not in a civilized intolerable supervision). negligent or retention quently disagree personnel supervi- with the decisions of their employees complain management job sors. Often about assignments and the treatment from they supervisors. receive an Allowing employee to recover from the on employer based the facts this with two employers options case leaves (1) future: fire the supervisor employee when a subordinate or retain the and complains, supervisor, become liable for damages if on money complaining employee a prevails retention claim.10 negligent supervision and White’s While conduct an bespeaks management undesirable the Uni- style, versity should not be liable to this as unhappy plaintiff result. opinion, my was entitled to a directed
verdict Sabb’s of negligent supervision claims negligent and wholly retention. Sabb has to show that White’s actions failed her towards constituted tort.
No. 25495. Supreme Court of South Carolina. April
Heard 2002. July 2002. Decided course, exists, option: against 10. take There third action University pur- complained-of employee job short of termination. The here, option sued that that course action did not it of but relieve liability to Sabb.