Wells v. City of LynchburgWells v. City of Lynchburg
- Reporters:
- , ,
- Before:
- Anderson
Larry and Earther Wells (Appellants) brought this tort-action against the City of Lynchburg and Lee County after a fire destroyed Appellants’ home and its contents. The City of Lynchburg and Lee County moved for summary judgment, arguing the suit was barred by the South Carolina Tort Claims Act and the public duty rule. The trial court granted the motion. We affirm. 1
FACTUAL/PROCEDURAL BACKGROUND
On October 29, 1992, Appellants’ home caught on fire. The home was located in the City of Lynchburg, in Lee County, South Carolina. The fire completely destroyed the home and its contents. Appellants filed this action in 1994 alleging, inter alia, that the City was negligent in failing to inspect and maintain the fire hydrants and/or water lines for three nearby fire hydrants, and in failing to notify the Lee County Fire Department that certain fire hydrants were inoperative. They claimed two of the hydrants did not have sufficient water pressure and a third hydrant was rusted shut. Appellants alleged Lee County was negligent in failing to promptly provide adequate firefighting personnel and equipment at its disposal to extinguish the fire. They averred Lee County owed a special duty to them to promptly provide adequate personnel and equipment to extinguish the residential fire.
In their Amended Answer, the City and Lee County contended only one fire hydrant did not operate properly, but it did not affect the County’s ability to fight the fire. They maintained some of the fire trucks at the scene had their own water supply and other nearby fire hydrants were used, but the fire was extremely hot and uncontrollable, despite the firefighters’ maximum efforts to extinguish the blaze. They asserted the Tort Claims Act barred Appellants’ claims and, further, any duty owed to Appellants was a public duty as opposed to a private duty; therefore, no duty of care existed to Appellants specifically and individually.
ISSUES
(1) Did the trial court err in granting the motion for summary judgment as to the City of Lynchburg on the basis that the South Carolina Tort Claims Act barred the action?
(2) Did the trial court err in finding that the duty to maintain fire hydrants is a public duty and not a special duty?
STANDARD OF REVIEW
A trial court should grant a motion for summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together -with the affidavits, if any, show that there is no genuine issue as to any‘material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), SCRCP. See also Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); Kreutner v. David, 320 S.C. 283, 465 S.E.2d 88 (1995).
An appellate court reviews the granting of summary judgment under the same standard applied by the trial court pursuant to Rule 56(c), SCRCP: summary judgment is properly upheld when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.
Baughman v. American Tel. & Tel. Co.,
306 S.C. 101, 410 S.E.2d 537 (1991).
See also
5 Am.Jur.2d
Appel
Under Rule 56(c), SCRCP, the party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact. Baughman, 306 S.C. 101, 410 S.E.2d 537. Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent’s case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings. Rather, the non-moving party must come forward with specific facts showing there is a genuine issue for trial. Rule 56(e), SCRCP; SSI Med. Servs., Inc. v. Cox, 301 S.C. 493, 392 S.E.2d 789 (1990); Baughman, 306 S.C. 101, 410 S.E.2d 537; NationsBank v. Scott Farm, 320 S.C. 299, 465 S.E.2d 98 (Ct.App.1995), cert. denied (S.C.1996).
In determining whether any triable issues of fact exist, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party. Koester v. Carolina Rental Ctr., Inc., 313 S.C. 490, 443 S.E.2d 392 (1994); Eagle Constr. Co. v. Richland Constr. Co., 264 S.C. 71, 212 S.E.2d 580 (1975).
LAW/ANALYSIS
I. South Carolina Tort Claims Act
The common law doctrine of sovereign immunity was abolished by the South Carolina Supreme Court in
McCall by Andrews v. Batson,
285 S.C. 243, 329 S.E.2d 741 (1985). In 1986, the legislature enacted the South Carolina Tort Claims Act,
civil disobedience, riot, insurrection, or rebellion or the failure to provide the method of providing police or fire protection;
The essence of Appellants’ complaint against Lee County is that the County failed to promptly provide adequate firefighting personnel and equipment. Appellants now concede that
Because of the peculiar wording of
Appellants argue even if
In
Shockey v. Oklahoma City,
632 P.2d 406 (Okla.1981), the Oklahoma Supreme Court interpreted its version of
The general rule is that the operation and maintenance of a fire department by a municipal corporation is an exercise of a governmental function so as to accord it sovereign immunity from liability when acting in such capacity. Oklahoma, by enactment of [its tort claims act] has statutorily recognized that a municipality’s immunity from tort liability applies to it while engaged in fire protection and prevention.
Under§ 155(6) appellee is exempted from liability for failure to provide, or the method it employs in providing, fire protection. Fire hydrants, as such, are a part of the physical structure of the fire department and their maintenance, including an adequate supply of water, and their repair are incidental to the operation of the fire department. The fire hydrants were installed for the purpose of fire protection. Although appellants’ damages may have resulted from a failure of the water service, supplying water to the fire hydrants was just a part of appellee’s overall operation in providing fire protection. Assuming, arguendo, appellee negligently failed to employ the proper methods in checking its water service for the proper operation of its fire hydrants,§ 155(6) clearly exempts it from liability.
Id. at 408 (citations omitted).
Appellants rely on an Ohio case,
Hall v. City of Youngstown,
15 Ohio St.2d 160, 239 N.E.2d 57 (1968) to support their position. In
Hall,
the court determined that although a municipality acts in a governmental capacity in
We agree with the reasoning of the Oklahoma court in
Shockey
and hold the South Carolina Tort Claims Act precludes Appellants’ action. The maintenance of fire hydrants and the supply of water for fighting fires clearly is included in the exceptions from liability in
II. Public Duty Rule
Appellants also argue the trial court erred in finding the public duty rule bars this action. The trial court ruled that any duty the City of Lynchburg may have owed regarding fire protection was a duty to the public in general and not a special duty to Appellants in particular. Appellants allege the duty to maintain the fire hydrants is a special duty and not a public duty. We find no error.
The public duty rule holds that public officials are generally not liable to individuals for their negligence in discharging public duties because the duty is owed to the public at large rather than to anyone individually. An exception is recognized where the plaintiff can establish that the defendant owed a special duty of care to the plaintiff. Bellamy v. Brown, 305 S.C. 291, 408 S.E.2d 219 (1991). A special duty of care may be created by statute or some other special circumstance:
Generally, there is no common law duty to act. An affirmative legal duty, however, may be created by statute, contract relationship, status, property interest, or some other special circumstance. Many statutes impose a duty on public officials to perform certain acts. Generally, however, such officials enjoy an immunity from a private cause of action under the public duty rule. This rule holds that public officials are generally not liable to individuals for their negligence in discharging public duties as the duty is owed to the public at large rather than anyone individually.
The public duty rule was originally adopted by this Court in Parker v. Brown, 195 S.C. 35, 10 S.E.2d 625 (1940).
Jensen v. Anderson County Dep’t of Soc. Servs., 304 S.C. 195, 199, 403 S.E.2d 615, 617 (1991). Thus, where the duty is owed to the public in general, the official is not liable to an individual who may have been “incidentally injured” by the failure to perform the duty. Id. (quoting Parker v. Brown, 195 S.C. 35, 10 S.E.2d 625 (1940)). An exception to the general rule of non-liability exists when the duty is owing to specific individuals rather than the public. Id. at 200, 403 S.E.2d at 617.
The public duty rule is distinguishable from immunity. Immunity is an affirmative defense which must be pleaded and can be waived. One who pleads immunity conditionally admits the plaintiffs case, but asserts immunity as a bar to liability. In contrast, the public duty rule is a negative defense which denies an element of the plaintiffs cause of action — the existence of a duty of care to the individual plaintiff. The burden is on the plaintiff to show a duty of care was owed to him. Rayfield v. South Carolina Dep’t of Corrections, 297 S.C. 95, 105-06, 374 S.E.2d 910, 916 (Ct.App.1988), cert. denied, 298 S.C. 204, 379 S.E.2d 133 (1989). In the context of a negligence action, the public duty rule may be stated as follows: a statute prescribing the duties of a public office does not, without more, impose on the person holding that office a duty of care towards individual members of the public in the performance of those duties. Id. at 105, 374 S.E.2d at 915-16.
In
Rayfield,
the Court of Appeals articulated a six-part test in determining whether a statute creates a special duty to an individual member of the public: (1) an essential purpose of
The public duty rule presumes statutes which create or define the duties of a public office have the essential purpose of providing for the structure and operation of government or for securing the general welfare and safety of the public. Such statutes create no duty of care towards individual members of the general public. Summers v. Harrison Constr., 298 S.C. 451, 455, 381 S.E.2d 493, 496 (Ct.App.1989) (statute requiring county planning department to refuse to issue building permits to unlicensed residential home builders created no special duty such that department could be held liable for damages on the ground it negligently issued permit to builder).
We note, however, that even if the existence of a special duty is found, the inquiry does not end there. Rather, it must still be determined whether the alleged negligent conduct occurred during the performance of a ministerial or a discretionary duty.
Jensen,
304 S.C. at 203, 403 S.E.2d at 619. Under the Tort Claims Act, sovereign immunity is abrogated,
inter alia,
as to ministerial acts by governmental entities.
Id.
at 205 n. 4, 403 S.E.2d at 620 n. 4. In contrast, the Tort Claims Act provides a governmental entity is not liable for a loss resulting from the exercise of discretion by the governmental entity or employee or the performance or failure to perform any act which is in the discretion or judgment of the governmental entity or employee.
Other than mentioning the existence of certain DHEC regulations, Appellants have failed to point to any statute that creates a special duty on behalf of any public officer of the City of Lynchburg.
See Adkins v. Varn,
312 S.C. 188, 193, 439 S.E.2d 822, 825 (1993) (where there is a duty to the general public only, an officer is not liable to an individual who is incidentally injured by the officer’s failure to perform that duty). The DHEC regulations pertaining to municipal water systems or more particularly, fire hydrants, do not create a special duty reaching beyond the public at large. There is no identification of a particular class of potential victims and there is no particular harm identified in its terms. Accordingly, the trial court did not err in this regard.
See, e.g., O’Dell v. City of Breckenridge,
859 S.W.2d 166 (Mo.Ct.App.1993) (municipality owed
no
duty to individuals to provide fire service; ordinarily municipality bears no liability for any act or omission associated with the performance of fire service and without a duty, plaintiffs negligence action must fail);
Stevens v. City of Manchester,
81 N.H. 369, 127 A. 873 (1924) (city is under no duty to supply water for extinguishment of fires on private property, nor to do it in any particular way; a plaintiff must establish the breach of a duty owed to him privately, as distinguished from one owed to the public; in the absence of a duty, there is no cause of action in negligence for fire losses caused by the city’s alleged failure to keep street hydrants in working order);
Blancovitch v. City of New York,
131 A.D.2d 418, 516 N.Y.S.2d 77 (N.Y.App.Div.1987) (municipality owes no special duty to particular persons to provide adequate water supply to fight fires or to keep its water system in proper repair for firefighting purposes);
Jaramillo v. Callen Realty,
154 Misc.2d 869, 588 N.Y.S.2d 61 (N.Y.Sup.Ct.1992) (duty of city to furnish water for fighting of fires inures to the benefit of the public at large rather than to any specific person),
aff‘d,
200 A.D.2d 425, 607 N.Y.S.2d 226 (N.Y.App.Div.1994) (motion to dismiss properly granted where plaintiff failed to plead or
CONCLUSION
For the foregoing reasons, we hold Appellants’ action against the City of Lynchburg is precluded by the South Carolina Tort Claims Act. Moreover, Appellants have failed to establish the existence of a special duty owing to them individually as distinguishable from the public as a whole; therefore, under the public duty rule, an essential element of their tort claim, a duty of care, is lacking. Accordingly, the decision of the trial court is
AFFIRMED.
HEARN and HOWARD, JJ., concur.
Notes
. We decide this case without oral argument pursuant to Rule 215, SCACR.
. Section 15-78-70(b) states no governmental employee is immune from liability if his conduct was not within the scope of his official
duties or it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.