THE STATE OF SOUTH CAROLINA
In the Court of Appeals

___________________________

APPEAL FROM LEXINGTON COUNTY
Court of Common Pleas

James W. Johnson Jr., Circuit Court Judge

___________________________

Case No. 2005-CP-32-2645

___________________________

Teresa Edwards, ............................................................................................ Appellant,

v.

Lexington County Sheriff's Department and
County of Lexington, .................................................................................... Appellees.

___________________________

FINAL BRIEF OF APPELLANT

___________________________

                                                                        John A. O'Leary
                                                                        714 Calhoun Street
                                                                        Columbia, SC  29201
                                                                        Telephone:  (803) 779-5556
                                                                        Attorney for Appellant

TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................................ ii

STATEMENT OF THE ISSUES.................................................................................... 1

STATEMENT OF THE CASE........................................................................................ 1

STATEMENT OF THE FACTS...................................................................................... 2

ARGUMENT..................................................................................................................... 6

I.        BECAUSE THE PLAINTIFF WAS WITHIN THE CLASS INTENDED TO BE BENEFITTED BY THE DOMESTIC VIOLENCE ACT, THE COURT ERRED IN CONCLUDING THAT THE ACT DID NOT IMPOSE ANY DUTY ON THE DEFENDANTS.......................................................................... 8

II.        BECAUSE THE DEFENDANTS NEGLIGENTLY CREATED THE RISK OF AN ASSAULT, THE COURT ERRED IN CONCLUDING THAT THERE WAS NO DUTY OF CARE.................................................................... 20

III.       BECAUSE THE DEFENDANTS HAD A SPECIAL RELATIONSHIP WITH THE INJURER, THE COURT ERRED IN CONCLUDING THAT THERE WAS NO COMMON-LAW DUTY TO PROTECT THE PLAINTIFF 24

IV.       BECAUSE THE DEFENDANTS HAD A SPECIAL RELATIONSHIP WITH THE PLAINTIFF, THE COURT ERRED IN CONCLUDING THAT THERE WAS NO DUTY TO PROTECT HER..................................... 26

CONCLUSION................................................................................................................ 28

TABLE OF AUTHORITIES

CASES

Adams v. Clarendon County Sch. Dist. No. 2, 270 S.C. 266,
            241 S.E.2d 897 (1978)................................................................................. 11,12

Arthurs v. Aiken County,  346 S.C. 97, 551 S.E.2d 579 (2001)..... 7, 8, 9, 13 passim

Arthurs v. Aiken County, 338 S.C. 253, 525 S.E.2d 542 (Ct.
            App. 1999), aff'd in pertinent part, 346 S.C. 97,
            551 S.E.2d 579 (2001)......................................................................... 8, 9, 10,13

Bellamy v. Brown, 305 S.C. 291, 408 S.E.2d 219 (1991).......................................... 17

Brady Dev. Co. v. Town of Hilton Head Island, 312 S.C. 73,
            439 S.E.2d 266 (1993)............................................................................ 9, 10, 16

Clarke v. Sweeney, 312 F. Supp. 2d 277 (D. Conn. 2004)........................................ 23

Crescent Mfg. Co. v. Tax Comm'n, 129 S.C. 480, 124 S.E. 761
            (1924)................................................................................................................... 13

Doe v. Marion, 361 S.C. 463, 605 S.E.2d 556 (Ct. App. 2004)............................ 9,11

Faile v. State Dep't of Juv. Justice, 350 S.C. 315, 566 S.E.2d
            536 (2002).............................................................................................. 24, 25, 27

Feldman v. State Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943)........................... 12

Greenville Mem. Auditorium v. Martin, 301 S.C. 242, 391 S.E.2d
            546 (1990).............................................................................................. 20, 21, 23

Huggins v. Metts, 371 S.C. 621, 640 S.E.2d 465 (Ct. App. 2006)
            (certiorari denied)................................................................................................ 6

Jensen v. Anderson County Dep't of Soc. Servs., 304 S.C. 195,
            403 S.E.2d 615 (1991)................................................................................... 9, 10

Jensen v. State Dep't of Soc. Servs., 297 S.C. 323, 377 S.E.2d 102
            (Ct. App.1988), aff'd, 304 S.C. 195, 403 S.E.2d 615 (1991)................. 18, 19

Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123,
            638 S.E.2d 650 (2006)......................................................................................... 7

Priester v. Lowndes County, 354 F.3d 414 (5th Cir. 2004)....................................... 28

Pulliam v. Ceresini, 221 F. Supp. 2d 600 (D. Md. 2002)................................... 22, 23

Rayfield v. State Dep't of Corr., 297 S.C. 95, 374 S.E.2d 910
            (Ct. App. 1988)........................................................................................ 9, 16, 18

Rogers v. State Dep't of Parole & Cmty. Corr., 320
            S.C. 253, 464 S.E.2d 330 (1995) (rehearing denied).............................. 24, 25

State v. Bowden, 92 S.C. 393, 75 S.E. 866 (1912)..................................................... 13

Steinke  v. State Dep't of Labor, Licensing & Regul., 336 S.C. 373,
            520 S.E.2d 142 (1999).................................................................... 11,12, 16, 19

TABLE OF AUTHORITIES (CONT'D)

Summers v. Harrison Constr., 298 S.C. 451, 381 S.E.2d 493 (Ct.
            App. 1989)...................................................................................................... 6, 17

Tanner v. Florence County Treas., 336 S.C. 552, 521 S.E.2d 153
            (1999)................................................................................................. 9, 10, 16, 17

Vaughan v. Town of Lyman, 370 S.C. 436, 635 S.E.2d 631 (2006).......... 8, 9, 10, 21

Williamson v. City of Virginia Beach, 786 F. Supp. 1238 (E.D. Va.
            1992), aff'd, 991 F.2d 793 (4th Cir. 1993)................................................ 21, 27

STATUTES

S.C. Code Ann. §§ 15-78-10 et seq. (1976).................................................................. 6

S.C. Code Ann. § 15-78-20 (1976)................................................................................ 7

S.C. Code Ann. § 15-78-40 (1976)................................................................................ 6

S.C. Code Ann. § 16-3-1505 (1976)............................................................................ 12

S.C. Code Ann. § 16-3-1525 (1976)..................................................................... 11, 12

S.C. Code Ann. § 16-3-1565 (1976)..................................................................... 11, 12

S.C. Code Ann. § 16-25-20 (1976).............................................................................. 11

S.C. Code Ann. § 16-25-80 (1976).............................................................................. 11

S.C. Code Ann. § 16-25-100 (1976)............................................................................ 11

OTHER

Restatement (Second) of Torts § 314A (1965).......................................................... 27

Restatement (Second) of Torts § 320 (1965)............................................................. 27

Restatement (Second) of Torts § 323 (1965)............................................................... 7

Restatement (Second) of Torts § 324 (1965)............................................................... 7

STATEMENT OF THE ISSUES

1. Did the court err in concluding that the Domestic Violence Act and or other Act did not impose any duty on the defendants and that the plaintiff was not within the class intended to be benefitted?

2. Did the court err in concluding that there was no duty of care based on negligent creation of a risk of harm?

3. Did the court err in concluding that there was no common-law duty to protect the plaintiff based on the defendants' special relationship with the perpetrator?

4. Did the court err in concluding that there was no duty to protect the plaintiff because of the defendants' special relationship with her?

STATEMENT OF THE CASE

The Plaintiff, Teresa Edwards, filed her action in the Lexington County Court of Common Pleas on August 5, 2005, alleging Negligence on behalf of the Defendants and seeking an amount greater than $10,000 in damages.  (R. p. 3-8.)  The Defendants, answered this action on October 6, 2005, asserting the public rule doctrine.  (R. p 9-15)  The matter was set for trial beginning on August 13, 2007, before the Honorable James W. Johnson in Lexington County, South Carolina.  A jury was selected and pretrial motions were conducted at the outset of the trial.  At the conclusions of various pretrial motions, the defendants moved for a directed verdict.  (R. p 55, lines 21-23)  Since the jury had not been sworn and had not heard the evidence, the judge suggested they make it a motion for summary judgment.  (R. line 24-p.56, line 2.)  The trial proceedings thus segued into a summary judgment determination.  (R. p. 67, lines 6-25.)  Arguments were heard and the Court then requested that the parties enter into a Stipulation of Facts in lieu of taking trial testimony.  Such Stipulations were entered into the record and additional arguments were heard on August 15, 2007.  Both parties filed additional Memoranda of Law and argument.

The Court issued an Order on October 12, 2007, granting the Defendants' Summary Judgment Motion.  (R. p. 1-2.)

The Plaintiff filed and served her Notice of Appeal on November 2, 2007.  (Notice of Appeal.)

STATEMENT OF THE FACTS

In July of 2002, Teresa Edwards (Edwards), the plaintiff, began a relationship with Allen Luther Baker (Baker).  (R. p. 70, No. 4.) On the morning of February 16, 2003, Baker began behaving in an intimidating and controlling manner, refusing to allow Edwards to use the phone or leave her home, grabbing her and causing her to fear for her safety.  ( R. p. 70, No. 4.)   After a friend of Edwards called 911, deputies from the Lexington County Sheriff's Department ("LCSD") responded, arrested Baker for criminal domestic violence, and removed him from Edwards's home.  (R. p.70, No. 4.)

Baker was released on bond on February 22, 2003, on condition that he not contact Edwards.  ( R. p. 71, No. 5.)   After being released, however, Baker returned to Edwards's home twice, staying two days the first time, after convincing Edwards's 10-year-old daughter to let him in, and spending the night the second time after kicking the door in to gain entrance.  ( R. p. 71, No. 6.)  Beginning in April of 2003, Baker began calling Edwards's residence, threatening her and her children.  ( R. p. 71, No. 7-p. 72 No. 9)  The LCSD responded to calls from Edwards reporting these calls on three occasions.  (Stipulation of Facts Nos. 7-9.)  After the last of these, Baker called Edwards, threatening to kill her.  (R. p. 72, No. 9.)

Thereafter, LCSD arranged for Edwards and her children to move to a hotel for their protection and presented probable cause to a magistrate for warrants against Baker for stalking and unlawful use of the phone, although Edwards arranged to return home shortly thereafter, feeling that Baker would be arrested more quickly that way.   (R. p. 72, Nos. 10-11.)  Indeed, on April 30, Baker returned to Edwards's home, revving his motorcycle in her front yard.   (R. p. 72, No. 11.)  Shortly after Edwards called the LCSD, a unit arrived and arrested Baker again.  (R. p. 72, No. 11.)  He was brought before a Lexington County Bond Judge, was found in contempt for violating the condition of his prior bond, was sentenced to 30 days, and had his bond reset.  (R. P. 73, No. 12.)  Baker subsequently posted bond and was again released.  (R. p. 73, No. 12.)

Baker continued to call Edwards, despite the no-contact condition of his bond.  (R. p. 73, No. 14.)  Nicole Howland, as an LCSD prosecutor for criminal domestic violence cases, was in contact with Edwards and told her to document any further contact, which Edwards did.  (R. p. 73, Nos. 13-14.)  After Edwards informed Howland that she had recorded Baker's telephone messages, Howland requested a bond revocation hearing.  (R. p. 73, Nos. 14-15.)  The judge called the bonding company and told David Crawford to have Baker at the Magistrate's Office at 8:30 a.m. on August 3, 2003.  (R. p. 73, No. 15.)  Howland then contacted Edwards and told her to be present, with the recordings, in order to prove contempt, notwithstanding Edwards's expressed reluctance to appear if Baker was going to be present because she was afraid of him.  (R. p. 74, No. 16.)

On the morning of August 6, 2003, Edwards, her nine-year-old daughter, Howland, Baker, Baker's bondsman, and Judge Lucas came together at the Magistrate's Office/Courtroom.  (R. p. 76, Nos. 23,25)  The room had a desk for the Judge, two very small tables for counsel, and eleven chairs; there was one door for ingress and egress to an anteroom, where two staff employees worked, and one door into the Magistrate's Office/Courtroom.  (R. p. 74, No. 17.)  At that time, there were no metal detectors, no audio-visual monitoring or other security systems—no video cameras or panic buttons; no holding cell, security plans, or transport mechanism for detained persons; and no assigned deputy or bailiff.  (R. p.74 No. 18-p. 75 No.19.).  All that the Judge had was a canister of pepper spray, not something issued by Lexington County, but something that he had retained from a prior job as chief of another municipality's police department  (R. p. 76, No. 22)

Edwards was seated near Baker, with Howland sitting between them.  ( R. p. 76 No. 22)  After the 20-minute hearing, the Judge found Baker in contempt, revoked his bond, and sentenced him to an additional 30 days.  (R. p. 77, Nos. 26-27)  As the judge was writing the sentence, Baker suddenly rose from his chair, turned, and violently struck Howland, then pinned Edwards, who was still sitting in her chair, against the wall and violently struck her on the head at least three times before Crawford grabbed him from behind and got him to the floor.  (R. p. 77, Nos. 27-28.)  The judge jumped over his desk and sprayed Baker with pepper spray.  (R. p. 77, No. 28.)  Five to ten minutes after staff called 911, one deputy arrived and others arrived shortly thereafter and took control of Baker  (Supp. R. p. 1)   Edwards was taken by ambulance to the hospital where she was treated for the injuries to her head and ear.  (Supp. R. p. 1)  Edwards has continued to suffer from, and receive periodic treatment for, the injuries she received and from anxiety, depression, and Post Traumatic Stress Disorder.  (Supp. R. p. 1)

As a result of the events on August 6, 2003, Edwards brought this action.

ARGUMENT

This action was brought pursuant to the South Carolina Tort Claims Act (TCA), S.C. Code Ann. §§ 15-78-10 et seq. (1976), based the defendants' failure to protect Teresa Edwards, the plaintiff, from attack by her former boyfriend, Allen Luther Baker, during a court proceeding to revoke his bond for failure to adhere to its condition that he have no contact with Edwards.  While the TCA does not itself create causes of action, it does remove the common-law bar of sovereign immunity, except as retained by specific enumeration.  See, e.g., Huggins v. Metts, 371 S.C. 621, 624, 640 S.E.2d 465, 466-67 (Ct. App. 2006) (certiorari denied); Summers v. Harrison Constr., 298 S.C. 451, 454-55, 381 S.E.2d 493, 495 (Ct. App. 1989).  In removing the bar of sovereign immunity, the TCA provides:

The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained herein.

S.C. Code Ann. § 15-78-40 (emphasis added).  It also provides:

Liability for acts or omissions under this chapter is based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty.

S.C. Code Ann. § 15-78-20(a).

Under South Carolina common law, while there is no general duty to control the conduct of another or to protect a potential victim, there are at least five exceptions to the general rule:

(1) where the defendant has a special relationship to the victim; (2) where the defendant has a special relationship to the injurer; (3) where the defendant voluntarily undertakes a duty; (4) where the defendant negligently or intentionally creates the risk; and (5) where a statute imposes a duty on the defendant.  Faile v. S.C. Dept. of Juvenile Justice, 350 S.C. 315, 334, 566 S.E.2d 536, 546 (2002) (listing cases and authority supporting each proposition). . . .  Moreover, it has long been the law that one who assumes to act, even though under no obligation to do so, thereby becomes obligated to act with due care.

Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 136, 638 S.E.2d 650, 656-57 (2006) (citing Restatement (Second) of Torts §§ 323, 324 (1965) for the last proposition).

In South Carolina, the courts treat cases arising under the last exception differently from those arising under the others, characterizing the former as involving a "special duty" and the latter as involving "special circumstances."  See, e.g., Arthurs v. Aiken County,  346 S.C. 97, 109-10, 551 S.E.2d 579, 585 (2001).

Importantly, the burden of establishing an exception to the waiver of immunity under the TCA is upon the governmental entity asserting it as an affirmative defense.  Arthurs v. Aiken County, 338 S.C. 253, 270-71, 525 S.E.2d 542, 551 (Ct. App. 1999), aff'd in pertinent part, 346 S.C. 97, 551 S.E.2d 579 (2001).

Although it is difficult to decipher the basis for the court's determination or its reasoning, what is clear is that it concluded there was no duty of care.  As explained infra, the record in the present case and the law support liability under some, if not most, of the accepted exceptions.  The court below clearly erred in concluding that the defendants owed the plaintiff no duty of care.

I. BECAUSE THE PLAINTIFF WAS WITHIN THE CLASS INTENDED TO BE BENEFITTED BY THE DOMESTIC VIOLENCE ACT, THE COURT ERRED IN CONCLUDING THAT THE ACT DID NOT IMPOSE ANY DUTY ON THE DEFENDANTS.

Just as the general rule provides that there is no duty unless one of the exceptions to the rule applies, so when a statute is invoked as an exception to the general rule, the public duty rule1 provides that there is no duty under the statute unless the statute imposes a "special duty."   See, e.g., Vaughan v. Town of Lyman, 370 S.C. 436, 441-43, 635 S.E.2d 631, 634-35 (2006) (citing Jensen v. Anderson County Dep't of Soc. Servs., 304 S.C. 195, 200, 403 S.E.2d 615, 617 (1991)); Tanner v. Florence County Treas., 336 S.C. 552, 561-64, 521 S.E.2d 153, 157-59 (1999) (citing Brady Dev. Co. v. Town of Hilton Head Island, 312 S.C. 73, 439 S.E.2d 266, 268 (1993)).  The public duty rule is grounded in the presumption that where a statute merely creates or defines duties for the essential purposes of providing for the structure and operation of government or of securing the general welfare and safety fo the public, no duty of care towards individual members of the public is created.  Arthurs, 346 S.C. at 104, 551 S.E.2d at 582.  When, however, a statute imposes a special duty, a government actor may be held liable to an individual person for the breach of that duty.2  E.g., Vaughan, 370 S.C. at 441, 635 S.E.2d at 634.

As the court outlined in an early case, there are two basic elements which a plaintiff must show in order to show a duty of care under a statute:

From a comparison of these cases and others, we are able to derive a test for determining when a duty created by statute will support an action for negligence. In order to show that the defendant owes him a duty of care arising from a statute, the plaintiff must show two things: (1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect.

Rayfield v. State Dep't of Corr., 297 S.C. 95, 103, 374 S.E.2d 910, 914 (Ct. App. 1988) (footnote omitted).  The  court went on to explain that a court must look to both the statute and the particular facts in issue.  Arthurs, 338 S.C. at 106, 374 S.E.2d at 916.  From those, the court explained that a statute imposes a special duty, as opposed to a general duty, when

(1) an essential purpose of the statute is to protect against a particular kind of harm; (2) the statute, either directly or indirectly, imposes on a specific public officer a duty to guard against or not to cause that harm; (3) the class of persons the statute intends to protect is identifiable before the fact; (4) the plaintiff is a person within the protected class; (5) the public officer knows or has reason to know of the likelihood of harm to members of the class if he fails to do his duty; and (6) the officer is given sufficient authority to act in the circumstances or he undertakes to act in the exercise of his office.

Id.  In subsequent cases, the courts have continued to apply the same analysis.  See, e.g., Vaughan, 370 S.C. at 441-42, 635 S.E.2d at 634 (same (citing Jensen, 304 S.C. at 200, 403 S.E.2d at 617)); Tanner, 336 S.C. at 562, 521 S.E.2d at 158 (same (citing Brady Dev. Co., 312 S.C. 73, 439 S.E.2d at 268)).

The statutory provision at issue in the present case provides, in pertinent part, that it is unlawful to

(1)       cause physical harm or injury to a person's own household member; or

(2)       offer or attempt to cause physical harm or injury to a person's own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.

S.C. Code Ann. § 16-25-20(A).  "Household members" are defined to include "a male and female who are cohabiting or formerly have cohabited."  S.C. Code Ann. § 16-25-20.  The statute further provides:

Nothing in this article may be construed to repeal, replace, or preclude application of any other provisions of law pertaining to assault, assault and battery, assault and battery of a high and aggravated nature, or other criminal offenses.

S.C. Code Ann. § 16-25-80.  It then provides that magistrates and municipal, family, and circuit court judges are to receive continuing legal education on issues concerning domestic violence.  S.C. Code Ann. § 16-25-100.  Finally, under another provision, the legislature has provided:

A law enforcement agency must provide any measures necessary to protect the victims and witnesses, including transportation to and from court and physical protection in the courthouse.

S.C. Code Ann. § 16-3-1525 (emphasis added).  While neither of these provisions may, independently, create a cause of action,3 together they clearly impose a duty to protect victims/witnesses under the test for a special duty.  State v. Bowden, 92 S.C. 393, 75 S.E. 866, 872 (1912); see also Crescent Mfg. Co. v. Tax Comm'n, 129 S.C. 480, 124 S.E. 761, 766 (1924).

In a case involving the Criminal Domestic Violence Act, the court concluded that no special duty was owed to the plaintiff under the facts presented in that case, declining to reach the question of whether there could be such a duty under different circumstances.  Arthurs, 346 S.C. at 105-07 & n.4, 551 S.E.2d at 583-84 & n.4.  Arthurs must be distinguished from the present case on its facts, and the present case presents exactly the kind of circumstances that should be the basis for liability under the Criminal Domestic Violence Act.  In Arthurs, officers responded to two calls in which the plaintiff's nephew, brother, and sister-in-law—not the plaintiff—were designated as the victims.  The court noted that even if the plaintiff had been identifiable as the true object of the perpetrator's hostility, the perpetrator was not present when the officers arrived, and the officers were unable to locate him.  On the basis of those facts, the court concluded that the Act imposed no duty on law enforcement to post a guard for the plaintiff's protection.  Id. at 106-07, 551 S.E.2d at 584.  The facts of the present case are entirely different.  In this case, law enforcement, knowing that Baker had already perpetrated violence against Edwards and had threatened to kill her, required her to be present in the same place as Baker with absolutely no protection—not just in the same place, but in the courthouse, a place in which law enforcement is under an explicit statutory duty to protect victims/witnesses from harm.  In the present case, in contrast to Arthurs, the factors required in order to show a special duty are clearly satisfied.

As to the first factor, the essential purpose of the provisions outlined supra, taken together, is to protect against a particular kind of harm—that is, harm to one household member by another, who is already a victim or a witness; in the courthouse or on the way to or from the courthouse.  As to the second factor, the provisions directly impose on law enforcement agencies a duty to guard against, and not to cause, that very harm. 

As to the third and fourth factors, there can be no question that the class of persons the statutes intend to protect—domestic violence victims and witnesses at or coming to or from the courthouse—was identifiable before the harm and that the plaintiff was a person within the protected class.  Although the court below concluded that the plaintiff and Baker did not come within the protected class of "household members" (R. p. 2), the law and the evidence are to the contrary.  As noted supra, that term is defined to include individuals who have cohabited, and the evidence supports the fact that Edwards and Baker did cohabit for at least some period of time.4  (R. p. 70 No. 4-p. 71 No. 6.)

As to the fifth factor, law enforcement agencies clearly know, as a matter of law, and the officers involved in this case knew or had reason to know, as a matter of fact, not only of the likelihood of harm to members of the class generally if they fail to fulfill their duty, but of the specific danger to the plaintiff in this case.  In the present case, as outlined supra, it is undisputed that domestic violence cases generally are a high risk for violence and can present a very dangerous situation.  (R. p. 70, No. 3.)  It is undisputed that Baker was arrested for criminal domestic violence against Edwards, that he was released on condition that he not contact Edwards, that he repeated violated the bond condition and had threatened to kill Edwards, and that law enforcement was fully aware of all of these facts.  (Stipulation of Facts Nos. 4-9, 14-16.)  Law enforcement, therefore, clearly knew of the high risk of harm to Edwards, individually.  Finally, as to the last factor, there can scarcely be any question that law enforcement agencies and officers are given sufficient authority to act in such circumstances—they are, in fact, required to do so.  There should be no question that the defendants were under a statutory duty to protect Edwards from the very harm that ensued.

In a closely analogous case, the court found a private cause of action under the Amusement Rides Safety Code, finding that the six-factor test was met.  Steinke v. State Dep't of Labor, Licensing & Regul., 336 S.C. 373, 520 S.E.2d 142 (1999).5  The court explained that, first, the statute's essential purpose was to protect against harm caused by poorly designed, constructed, or maintained rides; second, the statute directly imposed a duty on the department to guard against, or not cause, harm to amusement park visitors and workers; third, the statute intended to protect a readily identifiable class before any injury based on specific, reportedly dangerous rides; fourth, the plaintiffs, as visitors or employees, were within the protected class; fifth, the department knew or had reason to know the likelihood of harm to members of the protected class, given its knowledge that certain systems were dangerous and could result in deaths; and, finally, the department had authority to act in the circumstances.  Id. at 390-92, 520 S.E.2d at 150-51.  In the present case, similarly, as outlined supra, the applicable statutes imposed a mandatory duty to protect victims/witnesses of criminal domestic violence from harm while in the courthouse or while being transported to or from the courthouse and, hence, created a special duty to the protected class and to Edwards, as a member of that class known to be at risk.6

In a case which is informative by contrast, the court concluded that the statute at issue in that case, which imposed only requirements for record keeping concerning prisoners' habits, deportment, and parole candidacy, created no special duty to protect particular individuals against crimes by released prisoners.  Rayfield, 297 S.C. at 108, 374 S.E.2d at 917.  Clearly, the statute at issue in Rayfield related primarily to the internal functioning of government and in no way purported any purpose to protect even the general public7 against violent crimes by released prisoners, let alone any particular class of individuals.  In contrast, the applicable statutes in the present case are targeted to the protection of victims/witnesses of domestic abuse in the specific context of courtroom proceedings.

In a case invoking the Child Protection Act, an analogous statute, the court first found, as in Rayfield, that requirements under the statute that full contents of telephone reports of suspected cases of child abuse be forwarded to local child protection agencies, that training programs be run for the staff, that a separate organizational unit be established to fulfill the purposes of the act, that child protection responsibility be assigned and monitored, and that assistance be provided in diagnosing cases of child abuse were organizational and related to management of the child protection program at the statewide level and did not impose any duties on statewide officers with respect to individual cases of child abuse.  Jensen v. State Dep't of Soc. Servs., 297 S.C. 323, 329-30, 377 S.E.2d 102, 106 (Ct. App. 1988), aff'd, 304 S.C. 195, 403 S.E.2d 615 (1991).  The court went on to explain, however:

The sections mandating investigation and intervention to remove an endangered child from the home stand on a different footing.  The essential purpose of these sections is to protect abused children when their cases have been reported to DSS officials.  Such children comprise a clearly identifiable class; Michael Clark was plainly a person within the class.  These sections impose on the local child protection agency and its social workers a specific duty to investigate and to intervene in cases involving children like Michael. Jenkins received a report that children were being abused in the Clark home.  She knew from personal observation that Shane Clark had visible physical injuries which pointed to child beating.  In the circumstances, she could foresee that serious injury was likely to come to the Clark children if there were no intervention to protect them.  Upon receipt of the report, Jenkins had full authority to investigate and to petition the family court for removal of the children from the home to prevent further injury.

Since all of the elements of a special duty were present, Jenkins, Straup, and the Anderson County DSS Board had a special duty to protect Michael Clark.

Id. at 331, 377 S.E.2d at 106-07 (emphasis added).  The present case is most similar to Jensen and Steinke and is clearly distinguishable, both on the statutory language and on the facts, from the cases in which no duty has been found.  The essential purpose of the provisions was to protect victims/witnesses of domestic violence when they are in the courtroom or being transported to or from the courtroom.  Such individuals comprise a clearly identifiable class, and Edwards was plainly a person within that class.  Further, the provisions impose on law enforcement a specific duty to protect members of the class in those limited circumstances.  Law enforcement, further, knew from reports and personal observations that Edwards was at risk of serious harm based on Baker's prior conduct, his threats, and Edwards's expressions of apprehension about her safety, and should have foreseen that Baker might harm Edwards if allowed to be in close proximity to her without protection.  Law enforcement, finally, had full authority to provide protection—in fact, was under a mandate to do so. 

As with the provisions at issue in Jensen and Steinke, the provisions at issue in the present case must be construed to impose a special duty to protect known and identified class members who are at risk of the very harm addressed unless given the protection mandated.  The court below clearly erred in concluding to the contrary.  Should this Court disagree concerning the statutory duty, however, the result should still be the same, based on the duties imposed under the common law.  Although the court below acknowledged that Edwards was relying on duties under the common law, as well as under the statute, it apparently considered only the six-factor analysis for imposition of a private duty under a statute.  (R. pp. 1-2.)  There are at least three theories that apply under the facts of this case for finding duties under the common law, as explained infra, which the court apparently did not consider.

II. BECAUSE THE DEFENDANTS NEGLIGENTLY CREATED THE RISK OF AN ASSAULT, THE COURT ERRED IN CONCLUDING THAT THERE WAS NO DUTY OF CARE .

In the present case, the defendants acted either based on their duties or voluntarily in compelling Edwards to be present at the courthouse in close proximity to Baker.  Either way, the common law imposes a duty of reasonable care.  When it is reasonably foreseeable that one's conduct, including his negligence, will probably cause injury to someone, that conduct may be actionable, and, importantly, it is not necessary that the person should have contemplated the particular event that occurs, nor is it necessary that a similar event have already occurred at some point in the past.  Greenville Mem. Auditorium v. Martin, 301 S.C. 242, 244-46, 391 S.E.2d 546, 547-48 (1990).  Even when one voluntarily undertakes an act, a duty to use due care may arise.  See Vaughan, 370 S.C. at 446-47, 635 S.E.2d at 637 (city which had assumed duty of maintaining street in safe condition could be liable for negligence, even where street where injury occurred was not owned by it). When one's conduct creates or increases the risk of harm, whether or not the conduct is voluntary, such conduct is clearly actionable.  See Williamson v. City of Virginia Beach, 786 F. Supp. 1238, 1252 (E.D. Va. 1992) (decided under federal constitutional law), aff'd, 991 F.2d 793 (4th Cir. 1993).

In Greenville, in rejecting the governmental entity's argument that it had not caused the plaintiff's injuries, which were inflicted by the criminal acts of a third person, after noting that the defendant was aware that when a rock group whose songs invite the use of illegal drugs and alcohol performs there would be a potential for greater security problems, the court explained:

Here, respondent's complaint alleged appellant and its employees were negligent in adequately securing and maintaining the premises during the concert and this negligence created a reasonably foreseeable risk of such third party conduct. Respondent's complaint did not allege appellant was liable because of the criminal act of a third party. Consequently, Section 15-78-60(20) would not operate to exonerate appellant of liability for its own conduct.

Appellant cannot successfully defend that respondent's injuries were caused by the wrongful criminal act of a third party, where the very basis upon which appellant is claimed to be negligent is that appellant created a reasonably foreseeable risk of such third party conduct.

301 S.C. at 246-47, 391 S.E.2d at 548-49 (emphasis added). 

In a similar case, involving a federal rather than a state claim, but addressing liability under the "state-created danger theory," the court noted that the Fourth Circuit has recognized the validity of the theory, noting that an exception to the general rule that government is not liable for the acts of third parties exists when government itself has created the danger,8 although in order to have created a danger, a governmental actor has to have taken some affirmative step.  Pulliam v. Ceresini, 221 F. Supp. 2d 600, 604 n.4 (D. Md. 2002).  Distinguishing cases in which the governmental actor was under no affirmative duty to act and merely stood by and did nothing, even where the circumstances may have dictated a more active role, the court explained that the case before it involved affirmative conduct which created the opportunity for harm:

The officer injected Mr. Pulliam into Plaintiff's home, thus creating a danger where previously none existed. According to the allegations in the Complaint, Mr. Pulliam would not have been in a position to assault Plaintiff if he had not been driven to her home by the officer and if the officer had not ordered Plaintiff to admit him, over her repeated and impassioned protestations. While the Fourth Circuit may be reluctant to impose liability on police officers whose omissions create increased dangers from third parties, there is no indication that the court would have the same reluctance where it is an officer's affirmative conduct that creates the danger.

Id. at 604-05; cf. Clarke v. Sweeney, 312 F. Supp. 2d 277, 295-96 (D. Conn. 2004) (declining to find liability, in part, because the state had not caused the witnesses to interact with the perpetrator of the injury, even though, after providing visible protection, it had then withdrawn it).

The facts of the present case are very similar to those in Pullium and far more compelling than in Greenville.  Baker would not have been in a position to assault Edwards had he not been brought to the courthouse and had Edwards not been compelled to be physically present there at the same time, despite her protestations concerning her safety.  While South Carolina courts may be reluctant to impose liability on law enforcement when it merely stands by, as is clear from Greenville, they have no reluctance to impose liability where a governmental actor's affirmative conduct has created a reasonably foreseeable risk of injury by a third party.  Even where a government actor has not created the risk, furthermore, if it has a special relationship with the perpetrator, that relationship imposes a duty of care to persons who might be injured by that person.

III. BECAUSE THE DEFENDANTS HAD A SPECIAL RELATIONSHIP WITH THE INJURER, THE COURT ERRED IN CONCLUDING THAT THERE WAS NO COMMON-LAW DUTY TO PROTECT THE PLAINTIFF .

Although an actor generally has no duty to control the dangerous conduct of another, as noted supra,

when a defendant has the ability to monitor, supervise, and control an individual's conduct, a special relationship exists between the defendant and the individual.

Rogers v. State Dep't of Parole & Cmty. Corr., 320 S.C. 253, 255-56, 464 S.E.2d 330, 332 (1995) (rehearing denied).  In that circumstance, the defendant  has a common- law duty to protect potential victims, at least when it knows that a specific threat has been made against a specific individual.  Id.

In a similar case to the present one, the court concluded that where the defendant had custody of a known dangerous person, it had a duty, based on an established authority relationship and a substantial risk of serious harm, to control and supervise him to prevent him from harming others.  Faile v. State Dep't of Juv. Justice, 350 S.C. 315, 566 S.E.2d 536 (2002).  The court explained:

The Restatement provides no duty exists "to control the conduct of a third person as to prevent him from causing physical harm to another unless . . . a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct." Restatement (Second) of Torts § 315(a) (1965). Section 319 provides:  "One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." Restatement (Second) of Torts § 319 (1965).

Our courts have customarily applied § 315 and § 319 in conjunction with duty to warn cases.  See Bishop, supra; Rogers, supra; Rayfield, supra.  We have held a defendant has a duty to exercise reasonable care by issuing warnings after the third party has made specific threats to a specific individual.  The rationale behind this line of cases is an individual does not have a duty to protect the public from speculative harm from a dangerous individual within his control.  However, where the custodian knows of a specific, credible threat from a person in their care the injury is no longer speculative in nature.

The application of § 319 is not limited to duty to warn cases.

Id. at 335, 566 S.E.2d at 546 (distinguishing cases that have not addressed the common-law duty to control a dangerous person in one's custody because they involved perpetrators who had been released from custody); cf. Rogers, 320 S.C. 253, 464 S.E.2d 330 (court declined to find any duty where perpetrator had been released from active custody and was, thus, not under defendant's direct control and where no specific threats had been made).  The Faile court went on to explain:

Respondents do not assert DJJ had a duty to warn potential victims. Instead, Respondents assert a breach of the duty to supervise and control a dangerous juvenile by the custodial entity.  Therefore, Respondents argue DJJ had a specific § 319 duty to control a dangerous person legally placed in its direct custodial care.

350 S.C. at 336, 566 S.E.2d at 547.  The court explained that, while it had not previously recognized such a duty, other South Carolina courts had done so in dicta, and the Fourth Circuit had done so explicitly.  Turning to the facts before it, the court concluded:

Here, DJJ had custody of a known dangerous individual. It had an independent duty to control and supervise Fredrico to prevent him from harming others as long as it retained custody of him by court order.

Id. at 339, 566 S.E.2d at 548.  

In the present case, Baker was under the control of the defendants or their agents, having been required to attend the bond revocation hearing, and, after the revocation of his bond, at the time of the relevant events he was again in their custody.  The defendants knew that he was dangerous and that he had threatened to kill Edwards.  They, therefore, had a duty to prevent Baker from harming Edwards or, stated differently, to protect Edwards from Baker—particularly in light of the fact that they had forced the contact and created the risk for harm.  The court below clearly erred in concluding that the defendants owed no duty of care.

IV. BECAUSE THE DEFENDANTS HAD A SPECIAL RELATIONSHIP WITH THE PLAINTIFF, THE COURT ERRED IN CONCLUDING THAT THERE WAS NO DUTY TO PROTECT HER .

When an individual is in the actual or functional custody of the state, such that the person is effectively prevented from protecting him or herself, a special relationship exists, imposing a duty to protect during the period of custody whenever the state actor has reason to know or knows that he has the ability to control the conduct of third persons and knows or should know of the necessity for exercising such control.  Restatement § 320.9  When the state holds open its property to members of the public, it, similarly, owes a duty to those who come upon its property to protect them against unreasonable risk of physical harm.  Restatement § 314A.  This case comes within one or both of these "special relationship" provisions.

In a federal case involving the issue of a special relationship, the court noted that some of the factors to be included in the analysis are whether the victim or the perpetrator was in legal custody at the time of the alleged conduct or prior thereto, whether the state had expressed a desire to provide affirmative protection to particular persons or members of their class, and whether the state knew of the plaintiff's plight.  Williamson, 786 F. Supp. at 1251 n.15.  The court went on to state that when a state actor holds a person in custody against his will, the Constitution imposes a duty to assume some responsibility for that person's safety and well-being, explaining that

[t]he affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.

Id. at 1251-52.  In Williamson, the court concluded that there was no special relationship where an informant was not in the state's custody at the time he took his life, but cited numerous cases in which liability had been imposed under a special relationship analysis where the injured person had been in the "functional custody" of the state when the harm occurred. Id.  at 1252-53 (including during interrogation, mandatory school attendance, and situations analogous to incarceration or institutionalization, where state exercises control over person's whereabouts); cf. Priester v. Lowndes County, 354 F.3d 414, 422 (5th Cir. 2004) (while no special relationship exists  during voluntary extra-curricular activity, it does exist during compelled school attendance).

In the present case, Edwards was in a situation analogous to custody.  She was compelled to appear in the courthouse, despite the fears she had expressed concerning her safety.  She was without any ability to protect herself, either in the situation or by removing herself from the situation.

CONCLUSION

For all the foregoing reasons, this Court should reverse the decision of the Court of Common Pleas.

                                                                        Respectfully submitted,

                                                                        _____________________________
                                                                        John A. O'Leary, Esquire
                                                                        714 Calhoun Street
                                                                        Columbia, SC  29201
                                                                        Telephone:  (803) 779-5556
                                                                        Attorney for Appellant

Columbia, South Carolina
July 7, 2008


1 Analysis under the public duty rule is triggered only when a plaintiff's cause of action against a governmental party is based on a statutory duty; if based on the common law, the issue of duty is analyzed as it would be for any private defendant.  Arthurs, 346 S.C. at 105, 551 S.E.2d at 583.  The rule does not create, or reserve immunity—rather it has been characterized as a "negative  defense which denies an essential element of the plaintiff's cause of action," that is the existence of a duty of care to the individual plaintiff.  Id. at 104, 551 S.E.2d at 582.

2 In addition to the special duty exception, another generally recognized exception to the public duty rule is where there is a special relationship between the injured party and law enforcement,  "for example, a state's witness or informant who has aided law enforcement officers."  Arthurs, 338 S.C. at 269, 525 S.E.2d at 550.  This theory, whether viewed as an exception to the public duty rule or as a common-law basis for imposing liability, is discussed infra, in Argument IV.

3 While the Criminal Domestic Violence Act does not explicitly state that it creates a cause of action, neither does it state that it does not, and the court has clearly not ruled that out.  Furthermore, when a statute does not explicitly create a private cause of action, one may be implied when the legislation was enacted for the benefit of a class of persons.  Doe v. Marion, 361 S.C. 463, 474, 605 S.E.2d 556, 562 (Ct. App. 2004).  The court below, therefore, erred in concluding that it imposes no duty, given that, as explained infra, the factors for showing a special statutory duty are clearly satisfied in this case.  While  § 16-3-1565 provides, on the one hand, that it is not intended to create a cause of action, on the other hand, it clearly creates a statutory duty to a discrete, identifiable class of persons. 

Since the courts must presume that the legislature did not intend a futile thing, in construing a statute or statutes with conflicting provisions, the court must avoid a construction that would read out any part of a statute and must, therefore, reconcile any conflicts if reasonably and logically possible.  Steinke  v. State Dep't of Labor, Licensing & Regul., 336 S.C. 373, 396, 520 S.E.2d 142, 154 (1999); Adams v. Clarendon County Sch. Dist. No. 2, 270 S.C. 266, 272, 241 S.E.2d 897, 900 (1978).  As the court explained in an early case, no principle of construction is better settled by both authority and reason than that, where a special provision is made that would otherwise be embraced in the general provision on the same subject, the special provision must be considered to be an exception not intended to come within the general provision.  In addition, the court must select the construction that best secures the rights of the parties affected.  Feldman v. State Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22, 24 (1943).

In the present case, therefore, the mandatory duty imposed under § 16-3-1525 must be considered an exception not intended to come within § 16-3-1565.  In Steinke, faced with an analogous conflict, the court explained:

We hold the inspection powers exception must be read in conjunction with the key exception at issue in this case, Section 15-78-60(12), the licensing powers exception.  Department must inspect an amusement device before deciding whether to issue, suspend, or revoke a license. S.C.Code Ann. §§ 41-18-70 and 41-18-80.  Department also has an implicit duty to investigate potentially hazardous substantial modifications when it learns of them.  It would make no sense to say Department may be found grossly negligent in a licensing decision, yet allow Department to escape liability because the inspection powers exception does not contain a gross negligence standard.  The logical way to read these closely related provisions when both are at issue is that a governmental entity may be liable if it is grossly negligent in licensing or inspecting a particular device or activity.

336 S.C. at 396, 520 S.E.2d at 154 (emphasis added).  In the present case, it would, likewise, make no sense to say that law enforcement may be found negligent in failing to protect a victim/witness known to be at risk, in the courthouse, where it has a mandatory duty to protect, but may, nevertheless, escape liability.  The logical way to read the statutes is that law enforcement may not be liable for failing in its general duties, including that victims and witnesses be treated with "dignity, respect, courtesy and sensitivity," that their rights and services be honored, and that they be provided a network of services, see S.C. Code Ann. § 16-3-1505, but may be liable for failing to perform its mandatory special duty to protect victims and witnesses in the courtroom, and that is clearly the construction that best secures the rights of the affected parties.

Under the above principles, therefore, the provisions concerning victims/witnesses in criminal domestic abuse cases, taken together, must be read to create a special duty, giving rise to a cause of action in the limited class of cases where the mandatory, special duty attaches.

4 While Baker did not permanently move in with Edwards, it is clear that he was regularly spending the night and that they were living as a couple.  (R. p.107, l. 22-p. 108, l. 20)  More importantly, the defendants  believed they were covered by the Act and treated them on that basis, as evidenced by the fact that they arrested Baker under the Act, charged him with a violation thereunder, and assigned Howland, who dealt solely with criminal domestic violence cases, to the case.  (R. p. 70 No. 4, p. 73 No. 13)  The judge's conclusion that the Act did not apply is, therefore, contrary to the facts.

5 In Tanner, similarly, in a different context, the court concluded that a statute which imposed a mandatory duty to notify delinquent taxpayers of impending tax sales was for the very purpose of protecting taxpayers against the surprise sacrifice of their property and, hence, created a special duty to taxpayers who have provided a correct contact address.  336 S.C. at 563, 521 S.E.2d at 158-59.

6 Importantly, it is not always necessary that members of the protected class be known by name to the defendants prior to injury.  Id. at 391, 520 S.E.2d at 151.  That said, it should be evident that where a member is known by name and known to be at risk, as in the present case, the case for imposing a duty is that much stronger.

7 In a number of other cases, as in Rayfield, the court declined to find a special duty, for similar reasons.  See Tanner, 336 S.C. at 562-63, 521 S.E.2d at 158 (citing Brady Dev. Co., 312 S.C. 73, 439 S.E.2d at 268 (holding that the town's Development Standards Ordinance was intended to protect the public from over-development, not to protect homeowners from deprivation of water and other services); Bellamy v. Brown, 305 S.C. 291, 408 S.E.2d 219, 220-21 (1991) (holding that statutorily prescribed exceptions to the disclosure requirements of the state's Freedom of Information Act did not establish a duty to maintain confidentiality); Summers, 298 S.C. 451, 381 S.E.2d 493 (holding that a state statute requiring officers who issue building permits to secure evidence that the builders and renovators of residences are licensed did not create a special, actionable duty to protect homeowners)).  In each of the cited cases, the statute clearly ran to the general public, for the general good, rather than to protection of an identified class of individuals.

8 Although Edwards couched this argument and the next in the court below in terms of the duty of government to a "business invitee," the thrust of her argument there, as here, was that the defendants had a duty to protect her from Baker in the courthouse and that, by forcing her to be in the courthouse, unprotected, at the same time and in the same space as Baker, the defendants created the risk of the very harm that occurred.

9 It seems clear that South Carolina courts have adopted these Restatement sections.  See Faile (relying on similar Restatement provisions).