THE STATE OF
In The Supreme Court
Judy Vaughan, Appellant,
�J. Derham Cole, Circuit Court Judge
Opinion No.� 26210
Heard April 18, 2006 - Filed September 25, 2006
AFFIRMED IN PART; REVERSED IN PART
Matthew W. Christian, of Christian, Moorehead & Davis, of
Greenville, for Appellant.
William McBee Smith, of Smith & Haskell Law Firm, of
Spartanburg, for Respondent.
CHIEF JUSTICE TOAL:�� Judy Vaughan (Vaughan) brought an action against the Town of Lyman (Lyman) alleging it was negligent in failing to maintain the sidewalks located within its jurisdiction causing her injury.� Lyman made a motion for summary judgment, which the trial court granted.�
Factual / Procedural Background
In October of 1999
Lyman argues that it is not responsible for
I. Did the lower court err in finding that S.C. Code Ann. �5-27-120 (1976) did not create a duty for Lyman to keep the sidewalks within the town in good repair? II. Did the lower court err in finding that no common law duty exists for Lyman to maintain the sidewalk?������ III. Did the lower court err in finding that Lyman did not owe a duty to Vaughan based on Lyman�s voluntary undertaking of the repair and maintenance of the streets and sidewalks within the town? IV. Did the lower court err in excluding certain material from the record on appeal?
Standard of Review
In reviewing the grant of summary judgment, this Court applies the same standard that governs the trial court under Rule 56, SCRCP:� summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.� South Carolina Elec. & Gas Co. v. Town of Awendaw, 359 S.C. 29, 34, 596 S.E.2d 482, 485 (2004) (quoting Osborne v. Adams, 346 S.C. 4, 7, 550 S.E.2d 319, 321 (2001)).� On appeal, all ambiguities, conclusions, and inferences arising in and from the evidence must be viewed in a light most favorable to the non-moving party.�
Law / Analysis
I. Statutory duty
Generally, the common law does not impose any duty to act.� Miller v. City of
Although a statute may impose a duty to act upon a public official, the official may also be immune from a private right 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.�� Steinke v.
The public duty rule�s general principle of non-liability, however, is not absolute.� Under the well established �special duty� exception, a public official may be held liable to an individual for the breach of a statutory 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 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 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.
Jensen, 304 S.C. at 200, 403 S.E.2d at 617.�
The public duty rule is a rule of statutory construction which aids the court in determining whether the legislature intended to create a private right of action for a statute�s breach.� Arthurs ex rel. Estate of Munn, 346 S.C. 97, 104, 551 S.E.2d 579, 582 (2001).� It is a negative defense which denies the existence of a duty of care owed to the individual.�
Our Court has long recognized that a municipality has a duty to maintain its streets. Morris v. Miller, 121 S.C. 200, 113 S.E. 632, 634 (1922).� However, prior to the abolition of sovereign immunity, the liability of a municipality for the breach of the duty was grounded in a waiver statute.� See S.C. Code Ann. � 5-7-70 (1976) repealed by Act No. 463, 1986 S.C. Acts 3001; S.C. Code Ann. � 47-36 (1962); S.C. Code Ann. � 7345 (1942); S.C. Code Ann. � 1972 (1912); 21
In the instant case,
Therefore, we hold that while � 27-5-120 clearly defines the duty to the general public of a municipality to maintain its streets, the public duty rule precludes a private right of action based solely on this statute.� Accordingly, the lower court did not err in granting summary judgment to Lyman on the statutory cause of action because � 27-5-120 does not create a �special duty� upon which an individual may base a tort action against a municipality. ��
II. Common Law Duty
Generally, the common law does not impose any duty to act.� Miller, 329 S.C. at 314, 494 S.E.2d at 815.� However, this Court has acknowledged that �[t]he general rule in this country is that municipalities which have full and complete control over the streets and highways within their corporate limits are liable in damages for injuries sustained in consequence of their failure to use reasonable care to keep them in a reasonably safe condition for public travel.�� Terrell v. City of Orangeburg, 176 S.C. 518, 518-19, 180 S.E. 670, 672 (1935) (emphasis added) overruled on other grounds by McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985) (abrogating sovereign immunity). Additionally, this Court has interpreted this duty to extend, not only to those streets, ways, and bridges owned and maintained by the municipality, but also to those under the control of the municipality.� Dolan, 233 S.C. at 4, 103 S.E.2d at 330; Terrell, 176 S.C. at 519, 180 S.E. at 672.�
The lower court found that Lyman did not owe a duty to
In opposition to Lyman�s motion,
We find that there is a genuine issue of fact regarding whether Lyman exercised any control over the streets in the town, specifically
Lyman contends that even if Lyman has a duty to maintain its streets, ways, and bridges in a safe condition, Lyman nonetheless has immunity under the South Carolina Tort Claims Act (Tort Claims Act).
The Tort Claims Act provides that �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 (2005).� Balancing the interests of the state against the interests of a tort victim, the General Assembly, in S.C. Code Ann. � 15-78-60, provided thirty-one exceptions whereby the state was exempted from liability.� There is only one exception to the waiver of immunity contained in the Tort Claims Act regarding street maintenance.� The exception provides that a governmental entity is not liable for a loss resulting from:
absence, condition, or malfunction of any sign, signal, warning device, illumination device, guardrail, or median barrier unless the absence, condition, or malfunction is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice. �Governmental entities are not liable for the removal or destruction of signs, signals, warning devices, guardrails, or median barriers by third parties except on failure of the political subdivision to correct them within a reasonable time after actual or constructive notice. Nothing in this item gives rise to liability arising from a failure of any governmental entity to initially place any of the above signs, signals, warning devices, guardrails, or median barriers when the failure is the result of a discretionary act of the governmental entity. The signs, signals, warning devices, guardrails, or median barriers referred to in this item are those used in connection with hazards normally connected with the use of public ways and do not apply to the duty to warn of special conditions such as excavations, dredging, or public way construction. Governmental entities are not liable for the design of highways and other public ways. Governmental entities are not liable for loss on public ways under construction when the entity is protected by an indemnity bond. Governmental entities responsible for maintaining highways, roads, streets, causeways, bridges, or other public ways are not liable for loss arising out of a defect or a condition in, on, under, or overhanging a highway, road, street, causeway, bridge, or other public way caused by a third party unless the defect or condition is not corrected by the particular governmental entity responsible for the maintenance within a reasonable time after actual or constructive notice.
S.C. Code Ann. �15-78-60(15) (2005) (emphasis added).
Lyman�s reliance on this exception is misplaced.� This exception does not place any limitation on a municipality�s liability for failing to maintain the streets, ways and bridges within its control.� Further, an essential phrase in the exception is �caused by a third party.�� Because the defect in the sidewalk was not caused by a third party, the exception provided by the Tort Claims Act does not apply here.� However, even if the defect in the sidewalk was caused by a third party, Lyman ignores the final words of the exception which read, �unless the defect or condition is not corrected by the particular governmental entity responsible for the maintenance within a reasonable time after actual or constructive notice.�� Lyman�s Mayor, Robert Fogel, testified to knowledge of the defect for at least ten years.� Therefore, the exception to the waiver of immunity provided in �15-78-60(15) does not provide immunity to Lyman in this case.�
III. Voluntary Undertaking
While there is generally no duty to act under the common law, a duty to use due care may arise where an act is voluntarily undertaken.� Russell v. City of
Our court of appeals has addressed a similar issue in Bryant v. City of North Charleston, 304 S.C. 123, 403 S.E.2d 159 (1991).� In that case, Bryant sued the city alleging she was injured when she fell into a hole on the sidewalk.� The court affirmed the jury verdict in favor of Bryant finding that
In this case, the lower court found that there was no evidence that Lyman ever voluntarily undertook to repair, control, or maintain the sidewalk on
We hold that this issue was inappropriately decided on summary judgment.� There is a genuine issue of fact regarding whether Lyman undertook the duty of maintaining city streets, even though all city streets were not owned by Lyman.� The lower court�s reliance on factual allegations of ownership is not determinative of whether Lyman voluntarily undertook the duty to maintain the town�s streets and sidewalks.� Instead, the factual issues regarding whether the defendant did in fact voluntarily undertake the maintenance of the town�s sidewalks, including
Accordingly, the lower court erred in granting Lyman summary judgment on the issue of whether Lyman voluntarily undertook the maintenance and control of the town�s streets and sidewalks, including
IV. Record on Appeal
For the foregoing reasons, the lower court did not err in granting summary judgment to Lyman regarding statutory duty.� However, the lower court erred in granting summary judgment to Lyman on the issue of common law duty because there is a genuine issue of fact regarding whether Lyman exercised control over the
MOORE, WALLER and BURNETT, JJ., concur.� PLEICONES, J., concurring in a separate opinion.
JUSTICE PLEICONES:� The circuit court granted the Town of
�A plaintiff alleging negligence on the part of a governmental actor or entity may rely either upon a duty created by statute or one founded on the common law.�� Arthurs v.
In 1892 the General Assembly passed an act titled �An act providing for a right of action against a municipal corporation for damage sustained by reason of defects in the repair of streets, sidewalks and bridges within the limits of said municipal corporation.�� 21
Although the Court never undertook to specifically define the common law duty owed by a town to travelers on its sidewalks, it cited with approval to this statement:
The general rule in this country is that municipalities which have full and complete control over the streets and highways within their corporate limits are liable in damages for injuries sustained in consequence of their failure to use reasonable care to keep them in a reasonably safe condition for public travel.� 13 R. C. L. 310.
Heath v. Town of
, 175 S.C. 27, 29, 177 S.E. 894(1934). Darlington
This waiver statute was recodified several times, last appearing as S.C. Code Ann. � 57-5-1810 (1976).� Section 57-5-1810 was repealed by the 1986 Act which created the South Carolina Tort Claims Act.� S.C. Code Ann. �� 15-78-10 et seq. (2005 and Supp. 2005).� The Tort Claims Act (TCA) does not create liability but rather removes the bar of sovereign immunity to the extent permitted by the Act.� Arthurs v. Aiken County, supra.
Heath acknowledged a municipal common law duty, breach of which gave rise to liability only by virtue of the waiver status.� In my opinion, the enactment of the TCA and the concomitant repeal of the waiver statute effectively restored liability for a municipality�s breach of its duty to use reasonable care to keep streets and highways within its corporate limits, over which it has full and complete control, in a reasonably safe condition for public travel.� I therefore agree with the majority to the extent it holds that summary judgment was improperly granted to Lyman on the common law duty theory as there are genuine issues of material fact whether Lyman exercised a sufficient degree of control over the
In addition, the majority holds that summary judgment is inappropriate because there is some evidence that Lyman voluntarily undertook to repair and maintain streets and sidewalks within the town�s municipal boundaries, and was aware that the
I would reverse the circuit court order granting Lyman summary judgment because I would find that there is a material question of fact whether Lyman breached a common law duty to
 The South Carolina Code provides:
The city or town council of any city or town of over one thousand inhabitants shall keep in good repair all the streets, ways and bridges within the limits of the city or town and for such purpose it is invested with all the powers, rights and privileges within the limits of such city or town that are given to the governing bodies of the several counties of this State as to the public roads.
S.C. Code Ann. �5-27-120 (1976).�
 Both parties concede that under S.C. Code Ann. �56-5-480, the definition of street includes the sidewalk.�
 See Reeves v. City of Easley, 167 S.C. 231, 166 S.E. 120 (1932); see also
 1986 Act No. 463.