THE STATE OF SOUTH CAROLINA
In the Court of Appeals

APPEAL FROM BEAUFORT COUNTY
Court of Common Pleas
The Honorable John C. Few, Circuit Court Judge

Carolyn Bair Austin, Individually and
as Personal Representative of the
Estate of Robert Jacob Bair, deceased….......................................................................Appellant

v.

Beaufort County Sheriff’s Office……………........................................................... Respondents

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RESPONDENT’S FINAL BRIEF

Case No. 2004-CP-07-1258

TABLE OF CONTENTS

1. Table of Cases and Authorities
2. Statement of the Issues on Appeal
3. Statement of the Case
4. Law and Argument
5. Conclusion

TABLE OF CASES and AUTHORITIES

Cases
Kershaw County Board of Education v. United States Gypsum Co.
302 S.C. 390, 394 (1990)

Hannah v. Heeter
584 S.E.2d 560, 568-569 (2003)

Arthurs v. Aiken County
346 S.C. 97, 551 S.E.2d 579 (2001)

State v. Hutton
358 S.C. 622, 595 S.E.2d 876 (2004)

Gadson v. Hembree
364 S.C. 316, 613 S.E. 2d 533 (Ct. App. 2005)

Humbert v. State
345 S.C. 332, 548 S.E.2d 862 (2001)

State v. Cheeseboro
246 S.C. 526, 552 S.E. 2d 300 (2001)

Statutes

S.C. Code Ann. §44-53-110 et seq. (2005)
S.C. Code Ann. §44-53-485(c) (2005)


Rules of Civil Procedure

Rule 12(f), SCRCP


STATEMENT OF THE ISSUES ON APPEAL

STATEMENT OF THE CASE

The Plaintiff brought this action following the death of her son, Robert Bair. Bair died on July 25, 2001. R. p. 14 lines 10-12. A neighbor discovered his body in her garage and called 911. R. p. 43 lines 23-30. The Beaufort County Sheriff’s Office (BCSO) responded and began an investigation into his death. R. p. 43 lines 41. Deputies surveyed the scene and obtained a search warrant for Bair’s residence. During the investigation, deputies collected blood swabs, a syringe, marijuana and crack cocaine and retained them as evidence. R. p. 49 lines 9-11. The post mortem revealed that Bair died due to a lethal injection of cocaine. R. p. 70 lines 11-13. On August 1, 2001, Robert Austin, Bair’s stepfather, submitted a memorandum to Solicitor Randolph S. Murdaugh, III, outlining what he believed to be a detailed summary of Bair’s activities prior to his death. Included in this memorandum is Austin’s theory that Bair was beaten with cement-filled socks by an unknown assailant(s) which either preceded or caused his death. R. p. 39-44. BCSO closed the investigation into Bair’s death on September 5, 2001 after determining that a self-induced cocaine overdose caused the death. R. p. 25 lines 9-11. BCSO destroyed the items of evidence taken from Bair’s home in September 2002, over a year after Bair’s death. R. p. 15 lines 9-11.

The Plaintiff filed this action on July 12, 2004. R. p 9. The Defendant responded by filing a Motion for More Definite Statement, R. p. 12, which the Honorable Diane S. Goodstein granted. R. p. 1. The Plaintiff filed her Amended Complaint, R. p. 14, seeking money damages from the Defendant for the destruction of evidence seized during a criminal investigation and the interference with a prospective wrongful death claim arising from the death of the Plaintiff’s son, Mr. Robert Bair.

On July 25, 2005, the Defendant filed its Motion for Summary Judgment based upon the Plaintiff’s failure to state a claim for which relief could be granted. R. p. 22. The Court heard counsel’s argument on September 15, 2005, found no legal basis under South Carolina law for the Plaintiff’s claim and granted the Defendant’s Motion for Summary Judgment. R. p. 64-74. The Order was filed on September 30, 2005. R. p. 5.

The Plaintiff moved the Court to Alter or Amend the Judgment and Order on October 10, 2005. R. p. 57. The motion was denied on January 5, 2006. R. p. 4.

The Notice of Appeal is dated February 21, 2006. The Respondent received the Appellant’s Initial Brief on August 4, 2006.

LAW AND ARGUMENT

The Appellant asks this Court to recognize a cause of action that has yet to be adopted by the South Carolina legislature or the Supreme Court and has no basis in the South Carolina Constitution. Only when the laws and courts of this state recognize a cause of action for spoliation of evidence will the Plaintiff even have a potential cause of action.

In South Carolina civil cases, destroyed evidence entitles a party to a jury instruction allowing an inference that the evidence would have been adverse to the party that destroyed it, Kershaw County Board of Education v. United States Gypsum Co., 302 S.C. 390, 394 (1990); but, there is no authority which establishes a common law duty to preserve evidence that grants a private right of action for its destruction.

Because there is no law in South Carolina supporting a separate cause of action for spoliation of evidence, the Appellant cites the Hannah v. Heeter, 584 S.E.2d 560 (W.Va. 2003). This West Virginia case, of no precedential value, upholds a cause of action for spoliation of evidence; however, even the West Virginia court requires a duty owed by a third party to the potential litigant to preserve such evidence.

Under our tort law, "in order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken." …. There is no general duty in the common law to preserve evidence in a third-party spoliation situation. "Absent some special relationship or duty rising by reason of an agreement, contract, statute, or other special circumstance, the general rule is that there is no duty to preserve possible evidence for another party to aid that other party in some future legal action against a third party."

Id. at 568-569. As the Appellant argues, the Respondent has a statutory duty to investigate crimes and gather evidence; however, this duty is owed to the general public and not an individual. The Appellant can point to no duty owed to her specifically. Under the public duty rule, statutes, ordinances and regulations which create or define the duties of public offices and governmental entities create no duty of care to individuals of the general public. Arthurs v. Aiken County, 346 S.C. 97, 551 S.E.2d 579 (2001). The South Carolina Court of Appeals addressed the issue of preservation of evidence in State v. Hutton, 358 S.C. 622, 595 S.E.2d 876 (2004). The Court notes that there is no absolute duty to preserve evidence, even if such evidence may have exculpatory value in a criminal proceeding. Hutton at 631, 595 S.E.2d at 881. The Defendant had no duty to preserve the items sought by the Plaintiff.

The Appellant cites Gadson v. Hembree, 364 S.C. 316, 613 S.E.2d 533 (Ct. App. 2005), to support her claim that the Respondent had a duty to preserve and maintain the evidence. That case is distinguishable in that the property in Gadson was actual real property that was owned by the Plaintiff. The property in the case before the Court consisted of blood swabs, syringes, green leafy matter, and white rock substance. The Appellant has no legitimate claim of ownership for these items. See §44-53-110 et seq. The evidence in this case was subject to the statutory regulations of §44-53-485(c) which allows for a seizing agency to destroy the evidence after a reasonable period of time. The Respondent destroyed the evidence in September, 2002, over a year after Bair’s death.

Because there exists no cause of action for spoliation of evidence in South Carolina and because the Respondent owed no duty to the Appellant to preserve evidence, this Court must affirm the lower Court’s grant of summary judgment finding that there can never be a cause of action against someone who is not connected to a potential tortfeasor for the spoliation of evidence, particularly a Sheriff’s Department.

 
The Respondent filed its Motion for Summary Judgment on July 25, 2005 supported by the Affidavit of Eileen Rios. Not until September 13, 2005, just two days before the scheduled Summary Judgment hearing, did the Appellant file her Motion to Strike the Affidavit and Motion for Continuance. Rule 12(f) of the South Carolina Rules of Civil Procedure states:

Upon motion pointing out the defects complained of, and made by a party before responding to a pleading or, if no responsive pleading is required with 30 days after the service of the pleading upon him ….the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.

The Appellant’s motion was brought more than 30 days after service of Respondent’s Motion for Summary Judgment and the Affidavit of Eileen Rios. Further, an Affidavit is not a pleading as contemplated by the rules and not subject to being stricken under Rule 12(f). The Appellant’s motion to strike was untimely brought and an inappropriate vehicle to contest the validity of the affidavit.

Although the Appellant contends that the disposition of her motion to strike was a prerequisite to the trial court hearing the motion for summary judgment, she failed to raise the issue before the court below during the hearing. Because the issue was not raised below it is improper for the Appellant to attempt to raise it now. “In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial judge. Issues not raised and ruled upon in the trial court will not be considered on appeal.” Humbert v. State, 345 S.C. 332, 548 S.E.2d 862 (2001).

The Appellant argues that the Motion for Summary Judgment was granted prematurely because she did not have sufficient time to conduct discovery. In support of her argument, she attempts to apply the due process standard applicable to a criminal proceeding in her claim for a potential civil cause of action. The Apellant relies on State v. Cheeseboro, 246 S.C. 526, 552 S.E.2d 300(2001) which lays out what must be demonstrated for a party to show a due process violation. The Cheeseboro case has nothing to do with plaintiffs seeking to bring a civil cause of action for spoliation of evidence and, therefore, is inapposite to the case at bar.

Because the trial court in the instant case was satisfied that there could never be a cause of action against someone who is not connected to a potential tortfeasor for the spoliation of evidence, particularly a Sheriff’s Department, there will never be sufficient discovery to show otherwise. Therefore the Court’s decision to grant summary judgment is unaffected by the Plaintiff’s alleged lack of discovery and should be affirmed.

CONCLUSION

“Summary judgment is appropriate when it is clear that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Gadson v. Hembree, 364 S.C. 316, 320 (Ct. App. 2005). “An appellate court reviews the granting of summary judgment under the same standard applied by the trial court.” Id. at 320. As reflected by the transcript, there was no issue of material fact as to whether spoliation of evidence is a recognized cause of action in South Carolina; the Appellant admitted it was not at the hearing. The Court’s decision as a matter of law to grant summary judgment was proper.

In South Carolina there is no cause of action for spoliation of evidence and no duty owed to the Appellant to preserve criminal evidence beyond a reasonable period of time, and therefore, the trial Court’s grant of summary judgment should be affirmed.

DATED at Bluffton, South Carolina this ________ day of December 2006.