Kevin Paul v. Richland County Sheriff's Office

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Kevin L. Paul, Appellant,

v.

Walmart Stores East, L.P.; Wal-Mart Supercenter, d/b/a
Wal-Mart Store #1339; and Richland County Sheriff's
Office, Defendants,

Of Which Richland County Sheriff's Office is the
Respondent.

Appellate Case No. 2020-000550

Appeal From Richland County
L. Casey Manning, Circuit Court Judge

Unpublished Opinion No. 2023-UP-203
Heard April 10, 2023 – Filed May 24, 2023

AFFIRMED

Patrick James McLaughlin, of Wukela Law Office, of
Florence, for Appellant.

Robert David Garfield, of Crowe LaFave, LLC, and
Andrew F. Lindemann, of Lindemann Law Firm, P.A.,
both of Columbia, for Respondent.
PER CURIAM: Kevin L. Paul (Appellant) appeals the circuit court's grant of
summary judgment to Richland County Sheriff's Office (the Sheriff's Office) on
his malicious prosecution, defamation per se, and gross negligence causes of action
arising out of his brother's arrest for shoplifting while identifying himself as
Appellant. Appellant contends the circuit court erred in (1) finding any damages
sustained arose as a result of the criminal activities of a third party, (2) finding the
Sheriff's Office was entitled to absolute immunity because its actions were judicial
or quasi-judicial in nature, (3) failing to find the Sheriff's Office voluntarily
assumed a duty to perform certain acts with due care, and (4) relying on an
erroneous finding of fact. We affirm pursuant to Rule 220(b), SCACR, and the
following authorities: Walterboro Cmty. Hosp. v. Meacher, 392 S.C. 479, 489, 709
S.E.2d 71, 76 (Ct. App. 2011) ("[W]e can affirm for any reason appearing . . . in
the record."); Flateau v. Harrelson, 355 S.C. 197, 203, 584 S.E.2d 413, 416 (Ct.
App. 2003) ("The [South Carolina] Torts Claims Act[ 1 (TCA)] governs all tort
claims against governmental entities and is the exclusive civil remedy available in
an action against a governmental entity . . . ."); Sabb v. S.C. State Univ., 350 S.C.
416, 428, 567 S.E.2d 231, 237 (2002) (providing "[t]he [TCA] waives immunity
for torts committed by the State, its political subdivisions, and governmental
employees acting within the scope of their official duties" with some exceptions);
Hawkins v. City of Greenville, 358 S.C. 280, 292, 594 S.E.2d 557, 563 (Ct. App.
2004) ("The provisions of the [TCA] establishing limitations on and exemptions to
the liability of the State, its political subdivisions, and employees, while acting
within the scope of official duty, must be liberally construed in favor of limiting
liability of the State."); id. at 293, 594 S.E.2d at 564 ("The Plaintiff must present
evidence of the governmental entity's duty to act in order to recover under the
[TCA]."); id. ("The [TCA] is a limited waiver of governmental immunity. Section
15-78-60 sets out [forty] 'exceptions' to this waiver of sovereign immunity. These
exceptions significantly limit the tort liability of government entities." (citation
omitted)); S.C. Code Ann. § 15-78-60 (providing exceptions to the waiver of
immunity for "(1) legislative, judicial, or quasi-judicial action or inaction; (2)
administrative action or inaction of a legislative, judicial, or quasi-judicial nature; .
. . (4) adoption, enforcement, or compliance with any law or failure to adopt or
enforce any law, whether valid or invalid, including, but not limited to, any charter,
provision, ordinance, resolution, rule, regulation, or written policies; (5) the
exercise of discretion or judgment by the governmental entity or employee or the
performance or failure to perform any act or service which is in the discretion or
judgment of the governmental entity or employee; . . . (17) employee conduct

1
S.C. Code Ann. §§ 15-78-10 to -220 (2005 & Supp. 2022).
outside the scope of his official duties or which constitutes actual fraud, actual
malice, intent to harm, or a crime involving moral turpitude; . . . (20) an act or
omission of a person other than an employee including but not limited to the
criminal actions of third persons; [and] . . . (23) institution or prosecution of any
judicial or administrative proceeding"); S.C. Code Ann. § 16-17-725(A) to (B)
(2015) ("It is unlawful for a person to knowingly make a false complaint to a law
enforcement officer concerning the alleged commission of a crime by another . . . .
It is unlawful for a person to misrepresent his identification to a law enforcement
officer . . . for the purpose of avoiding arrest or criminal charges."); Faile v. S.C.
Dep't of Juv. Just., 350 S.C. 315, 334, 566 S.E.2d 536, 545 (2002) ("In a
negligence action, the court must determine, as a matter of law, whether the
defendant owed a duty of care to the plaintiff."); Creighton v. Coligny Plaza Ltd.
P'ship, 334 S.C. 96, 114, 512 S.E.2d 510, 519 (Ct. App. 1998) ("In a negligence
action, the determination of whether a party has a duty to exercise reasonable care
for the benefit of another is a question of law for the court."); Platt v. CSX Transp.,
Inc., 388 S.C. 441, 446, 697 S.E.2d 575, 577 (2010) ("Under the public duty rule,
public officials are not liable to individuals of the public for negligence in
discharging their statutory obligations."); Faile, 350 S.C. at 324, 566 S.E.2d at 540
("In addition to the judicial immunity under the [TCA], common law judicial
immunity was expressly preserved in South Carolina under the [TCA].");
Hendricks v. Clemson Univ., 353 S.C. 449, 456-57, 578 S.E.2d 711, 714 (2003)
("An affirmative legal duty exists only if created by statute, contract, relationship,
status, property interest, or some other special circumstance. Ordinarily, the
common law imposes no duty on a person to act. Where an act is voluntarily
undertaken, however, the actor assumes the duty to use due care." (citation
omitted)); Wyatt v. Fowler, 326 S.C. 97, 101, 484 S.E.2d 590, 592 (1997) ("[T]he
[S]tate does not owe its citizens a duty of care to proceed without error when it
brings legal action against them."); Williams v. Condon, 347 S.C. 227, 249, 553
S.E.2d 496, 508 (Ct. App. 2001) ("The duties of a prosecutor fall into the
exceptions enumerated by . . . [section] 15-78-60. . . . [A] prosecutor's typical
duties are 'judicial' or 'quasi-judicial' in nature."); Broyhill v. Resol. Mgmt.
Consultants, Inc., 401 S.C. 466, 473, 736 S.E.2d 867, 870 (Ct. App. 2012) ("[I]n a
malicious prosecution action, the plaintiff must prove . . . the institution or
continuation of original judicial proceedings . . . [and] malice in instituting such
proceedings . . . ."); Boone v. Sunbelt Newspapers, Inc., 347 S.C. 571, 580, 556
S.E.2d 732, 737 (Ct. App. 2001) (providing the tort of defamation allows plaintiffs
to recover for injuries to their reputations as the result of defendants'
communications to others of falsities regarding the plaintiffs); Erickson v. Jones St.
Publishers, LLC, 368 S.C. 444, 465, 629 S.E.2d 653, 664 (2006) (stating a person
alleging a cause of action for defamation "must show (1) a false and defamatory
statement was made; (2) the unprivileged publication was made to a third party; (3)
the publisher was at fault; and (4) either actionability of the statement irrespective
of special harm or the existence of special harm caused by the publication"); id.
("A defamation action is analyzed primarily under the common law in cases in
which the plaintiff is a private figure. A statement is classified as defamatory per
se when the meaning or message is obvious on its face."); Kunst v. Loree, 424 S.C.
24, 39, 817 S.E.2d 295, 302 (Ct. App. 2018) ("Slander is actionable per se when
the defendant's alleged defamatory statements charge the plaintiff with one of five
types of acts or characteristics: (1) commission of a crime of moral turpitude; (2)
contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in
one's business or profession." (quoting Goodwin v. Kennedy, 347 S.C. 30, 36, 552
S.E.2d 319, 322-23 (Ct. App. 2001))); id. at 39, 817 S.E.2d at 303 ("[S]tatements
alleging the commission of a crime, such as theft, are actionable per se."); id. at 39,
817 S.E.2d at 302-03 ("When a defamatory statement is actionable per se, . . . the
defendant is presumed to have acted with common law malice."); Erickson, 368
S.C. at 465, 629 S.E.2d at 664 ("The determination of whether or not a statement is
actionable per se is a matter of law for the court to resolve."); id. at 466, 629
S.E.2d at 665 ("Common law malice means the defendant acted with ill will
toward the plaintiff, or acted recklessly or wantonly, i.e., with conscious
indifference of the plaintiff's rights."); Murray v. Holnam, Inc., 344 S.C. 129, 142,
542 S.E.2d 743, 750 (Ct. App. 2001) ("[E]ven if the slander is actionable per se, if
the communication is privileged, the plaintiff must prove actual malice.");
Constant v. Spartanburg Steel Prods., Inc., 316 S.C. 86, 89, 447 S.E.2d 194, 196
(1994) ("A communication made in good faith on any subject matter in which the
person communicating has an interest or duty is qualifiedly privileged if made to a
person with a corresponding interest or duty even though it contains matter which,
without this privilege, would be actionable."); Cullum v. Dun & Bradstreet, Inc.,
228 S.C. 384, 388, 90 S.E.2d 370, 372 (1955) ("A communication thus qualifiedly
privileged is not actionable, even though it contain[s] a charge of [a] crime, unless
malice in fact be shown."); id. at 389, 90 S.E.2d at 372 ("[A] communication
which goes beyond the requirement of the occasion loses the protection of the
privilege . . . . When the protection of the privilege has been thus lost, the
communication falls within the rule, applicable to unprivileged communications,
that the defamatory language, in itself, may warrant the inference of malice.");
Murray, 344 S.C. at 140, 542 S.E.2d at 749 ("In general, the question whether an
occasion gives rise to a qualified or conditional privilege is one of law for the
court. However, the question whether the privilege has been abused is one for the
jury." (citation omitted)); id. ("Factual inquiries, such as whether the defendants
acted in good faith in making the statement, whether the scope of the statement
was properly limited in its scope, and whether the statement was sent only to the
proper parties, are generally left in the hands of the jury to determine whether the
privilege was abused."); Woodward v. S.C. Farm Bureau Ins. Co., 277 S.C. 29, 32-
33, 282 S.E.2d 599, 601 (1981) ("While abuse of the conditional privilege is
ordinarily an issue reserved for the jury, in the absence of a controversy as to the
facts, . . . it is for the court to say in a given instance whether or not the privilege
has been abused or exceeded." (citations omitted)).

AFFIRMED.

KONDUROS and VINSON, JJ., and LOCKEMY, A.J., concur.