Jones v. Denmark Police Department

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Shirley Jones, as Personal Representative of the Estate of Christopher
Maurice Jones, Deceased,        Appellant,

v.

Denmark Police Department,       
Respondent.

Appeal From Bamberg County

Rodney A. Peeples, Circuit Court Judge

Unpublished Opinion No. 2003-UP-437

Submitted April 18, 2003 – Filed June 25, 2003

AFFIRMED

Jeffrey Scott Holcombe, of Orangeburg, for Appellant.

Marvin C. Jones and M. Wayne Cockrell, III, both of Walterboro,
for Respondent.

PER CURIAM: Shirley Jones, personal representative
of the estate of Christopher Maurice Jones, brought this action seeking damages
from the Denmark Police Department (Department) relating to the death of her
son.  The trial court granted the Department’s motion for summary judgment. 
Jones appeals.    We affirm.  

I. FACTS AND PROCEDURAL HISTORY                  

On June 26, 1999, Christopher Jones and his girlfriend,
Kenyatta White, had a physical altercation.  Sometime after the altercation,
Kenyatta spoke with Officer Ronald Carnegie and informed him that Christopher
had assaulted her and she wished to press charges against him.   While Kenyatta
and Carnegie were speaking, Kenyatta noticed Christopher walking in the Piggly
Wiggly across the street.  Kenyatta and Carnegie crossed the street to speak
with Christopher.  Christopher informed the officer that Kenyatta and he had
gotten into a fight earlier that evening and that Kenyatta had hit him in the
head with a bottle.  The officer observed that Kenyatta had some blood on her
hand and that Christopher had a slight bump on his head.  The officer informed
the parties that since they both were alleging that the other had assaulted
them, he would have to arrest both parties if they wished to press charges. 
Kenyatta and Christopher both indicated that they did not wish to press charges
against each other. 

The officer observed that both Kenyatta and Christopher
appeared to have been drinking.  The officer noted in his report that Christopher’s
speech was somewhat slurred and that he staggered when he walked.   The officer
told Kenyatta and Christopher to go their separate ways, and the officer observed
Christopher leaving first and Kenyatta leaving a short while later.  Sometime
later that evening Christopher was struck by a train. 

Shirley Jones brought an action as the personal
representative of Christopher’s estate, seeking damages based on wrongful death
and a survival action.  Following a hearing, the trial judge granted summary
judgment to the Department finding the public duty doctrine negated Jones’s
causes of action.   This appeal followed.      

II.  LAW/ANALYSIS  

Jones argues that the trial court erred in granting
summary judgment to the Department.  Jones contends that her claims are not
barred by the public duty doctrine, arguing the trial court erred in finding
that no duty of care was owed to Christopher.  Jones further argues the trial
court erred in finding no duty was created by the actions taken by Officer Carnegie. 

Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to judgment
as a matter of law.  Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d
857, 860 (2002).  When determining whether any triable issue of fact exists,
the evidence and all inferences, which can reasonably be drawn from it, must
be viewed in the light most favorable to the nonmoving party.  Faile
v. S.C. Dep’t of Juvenile Justice, 350 S.C. 315, 324, 566 S.E.2d 536,
540 (2002).  If triable issues exist, those issues must be submitted
to the jury.  Young v. S.C. Dep’t of Corrections, 333 S.C. 714,
718, 511 S.E.2d 413, 415 (Ct. App. 1999).  Even where no dispute as to evidentiary
facts exists, but only as to the conclusions or inferences to be drawn from
them, summary judgment should not be granted.  Hall v. Fedor,
349 S.C. 169, 173-74, 561 S.E.2d 654, 656 (Ct. App. 2002). 

To prevail in a negligence action, a plaintiff must
demonstrate:  (1) a duty of care owed by the defendant to the plaintiff;  (2)
a breach of that duty by a negligent act or omission; and (3) damage proximately
resulting from the breach.  Tanner v. Florence Co. Treasurer,
336 S.C. 552, 562, 521 S.E.2d 153, 158 (1999).  An essential element in a negligence
cause of action is the existence of a legal duty of care owed by the defendant
to the plaintiff.   Wyatt v. Fowler, 326 S.C. 97, 101, 484 S.E.2d 590,
592 (1997).  Without such a duty, there can be no actionable negligence.  Rogers
v. South Carolina Dep’t of Parole and Cmty. Corrs., 320 S.C. 253, 255, 464
S.E.2d 330, 332 (1995).   The court must determine, as a matter of law, whether
the law recognizes a particular duty.   Steinke v. South Carolina Dep’t of
Labor, Licensing and Regulation, 336 S.C. 373, 387, 520 S.E.2d 142, 149
(1999).   

Under South Carolina’s public duty doctrine, an action for
negligence based upon an alleged violation of a statute cannot be maintained
if the statute was enacted for a purpose other than preventing the injury of
which complaint is made.   Arthurs v. Aiken Co., 338 S.C. 253, 262, 525
S.E.2d 542, 547 (Ct. App. 1999).  An exception to the general rule of non-liability
exists when a duty is owed to specific individuals rather than the public only. 
Id at 264, 525 S.E.2d at 548.  An affirmative legal duty may be created
by statute, contract relationship, status, property interest, or some other
special circumstance.  Jensen v. Anderson County Dep’t of Soc. Servs., 304
S.C. 195, 199, 403 S.E.2d 615, 617 (1991).

 A police officer, acting in his or her official
capacity, owes a duty to the public at large rather than to any particular individual. 
Wyatt, supra.  To determine if a police officer is under a special
duty to an individual, the court looks to the statute and the facts of the particular
case.  “A plaintiff may prevail against a public duty defense if the statute
not only concerns the duties of a public office, but also has the essential
purpose of protecting identifiable individuals from a particular kind of harm.
 In such cases, the statute creates a special duty which may give rise to a
negligence suit against an officer for failure to perform his duties properly.” 
See Rayfield v. S.C. Dep’t of Corrs., 297 S.C. 95, 106, 374 S.E.2d
910, 916. The burden is on the Plaintiff to establish that her decedent was
owed a duty of care.  Id.

Initially, Jones contends that the Denmark police owed a duty of care
to Christopher pursuant to Denmark ordinance, sec. 9-2-3, which addresses disorderly
conduct and drunkenness.  The ordinance provides that:

It shall be unlawful for any person to engage in riotous or disorderly
conduct of any kind, or be in a state of intoxication or drunkenness in or on
any of the streets and thoroughfares of the city, or in any of the churches,
public halls, theaters, or any place where the citizens lawfully assemble, within
the corporate limits of the city. 

Jones argues the Denmark ordinance contemplates the particular kind
of harm suffered by Christopher in this case, and Carnegie, as a police officer,
had a duty to enforce this ordinance.  Therefore, Jones contends, the Department,
and more specifically Officer Carnegie, owed a special or private duty to Christopher. 

We agree with the trial court that Jones failed
to establish that the Denmark ordinance mandated an arrest or created a duty
of care to an individual rather than to the public at large.  A clear reading
of the Denmark ordinance shows that the ordinance was created to protect the
public from exposure to drunken behavior, not to protect the drunken individual
from injuries to himself. 

Jones alternatively argues that if no duty was
created under the ordinance, that Officer Carnegie, by his action of talking
with Kenyatta and Christopher, undertook a duty to Christopher, and that by
failing to take Christopher into custody, Carnegie breached that duty.  Jones
cites Russell v. City of Columbia, 305 S.C. 86, 406 S.E.2d 338 (1991),
for the proposition that once a police officer takes control of a situation
and preempts individuals already attempting to aid an obviously injured and
intoxicated decedent, the officer incurred a duty to follow through and finish
what was begun. 

We find that Russell is not applicable
to this case.  We agree with the trial court that Jones has failed to present
any evidence of an undertaking by the officer.  In addition, this case is distinguishable
from Russell in that there is no evidence that Christopher was severely
injured, or that any individual was prevented from offering him aid.

III. CONCLUSION

Based on the foregoing, the trial judge’s
decision to grant the Department’s motion for summary judgment is

AFFIRMED.

CURETON, ANDERSON and HUFF, JJ., concur.