Mitch Randall Yawn v. Dorchester County

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

Mitch Randall Yawn and Juanita Mae Stanley d/b/a
Flowertown Bee Farm and Supplies, Appellants,

v.

Dorchester County, Respondent.

Appellate Case No. 2023-000951

Appeal From Dorchester County
Roger M. Young, Sr., Circuit Court Judge

Unpublished Opinion No. 2026-UP-062
Submitted November 3, 2025 – Filed February 18, 2026

AFFIRMED

Michael T. Rose, of Mike Rose Law Firm, PC, of
Summerville, and W. Andrew Gowder, Jr., of Austen &
Gowder LLC, of Charleston, for Appellants.

Roy Pearce Maybank, of Maybank Law Firm, LLC, of
Charleston, for Respondent.

PER CURIAM: Mitch Randall Yawn and Juanita Mae Stanley d/b/a Flowertown
Bee Farm and Supplies (collectively, Appellants) appeal the circuit court's grant of
summary judgment to Dorchester County (the County) on claims of negligence,
gross negligence, and trespass, arguing the court erred in (1) finding the County
was entitled to an exception to the South Carolina Tort Claims Act's (the TCA)
waiver of immunity under South Carolina Code Section 15-78-60(4) on the
negligence claims and (2) not finding the evidence clearly showed the County
intended to trespass, though it may not have intended or foreseen the consequences
of the trespass. We affirm.

FACTS

In 2016, the Zika virus, a mosquito-borne illness, was a growing threat nationwide.
Clayton Gaskins, the Mosquito Abatement Coordinator for the County, was
contacted in August 2016 by the Department of Health and Environmental Control
(DHEC) informing him of three Zika cases reported in the County. DHEC
provided the addresses of the infected individuals and instructed the County to
spray mosquito pesticide within a certain radius of the properties. Following
DHEC's directive, the County sent trucks to spray the areas at night; however,
some of the locations were inaccessible to trucks; therefore, the spray was to be
done using an alternative method.

The County Council approved funds for an aerial spray and contracted with Allen
Aviation 1 to conduct the spray. Pursuant to section 27-1084(A)(4) of the Rules
and Regulations (the Regulations) for Enforcement of the South Carolina Pesticide
Control Act § 46-13-10, et. seq. (2017 & Supp. 2025)(the Act) 2, the public was to
be given a 24-hour notice before an aerial spray. In accordance with this law, the
County issued a press release notifying the public of the upcoming spray. Gaskins
kept a list of county residents who were beekeepers, and although he was not
required to by law, he had personally notified individual beekeepers of truck sprays

1
Allen Aviation conducted aerial sprays in several counties, including neighboring
Berkeley County.
2
Pesticide use in South Carolina is governed by the Act. The Act delegates
authority regarding pesticide use to the "director," which is defined as "the Director
of the Division of Regulatory and Public Service Programs, College of
Agricultural Sciences, Clemson University." S.C. Code Ann. § 46-13-20(k)
(2017). The director is responsible for promulgating regulations regarding the use
of pesticides in South Carolina. S.C. Code. Ann. § 46-13-30 (2017). The
Regulations are contained in Article 17 of the South Carolina Pesticide Control
Regulations and govern, inter alia, notice requirements. § 46-13-10, et. seq. (2017
& Supp. 2025).
in the past as a courtesy. The day after the spray, Appellants contacted Gaskins
stating they were not informed of the aerial spray, and as a result, the pesticide
killed approximately 50 beehives. The County, in conjunction with Clemson
University's Department of Pesticide Regulation, began an investigation as
required by the Act to determine whether the aerial spray contributed to the bee
deaths (the Clemson Investigation). The report's findings did not eliminate the
pesticide's contribution to the bee deaths, but it found no violations as to the aerial
mosquito spray.

Appellants filed suit alleging both federal and state constitutional violations, as
well as negligence, gross negligence, and trespass claims pursuant to the TCA. In
May 2020, the Federal District Court for the District of South Carolina granted the
County's motion for summary judgment as to the federal constitutional claims and
remanded the remaining claims to state court. See Yawn v. Dorchester County,
446 F. Supp. 3d 41 (D.S.C. 2020). The United States Court of Appeals for the
Fourth Circuit affirmed the District Court. See Yawn v. Dorchester County, 1 F.4th
191 (4th Cir. 2021). The only remaining causes of action before the circuit court
were the South Carolina constitutional claims, negligence, gross negligence, and
trespass pursuant to the Act.

The County moved for summary judgment on all claims. Following a hearing, the
circuit court granted summary judgment in favor of the County as to the
negligence, gross negligence, and trespass claims. In its order, the court found it
was undisputed that the County issued a press release, as required, to numerous
media outlets prior to the spray. It cited the Clemson Investigation, which found
the County complied with the provisions of the Regulations of the Act. The court
applied the TCA, which governs all tort claims against governmental entities and is
the exclusive civil remedy for any alleged tort committed by a governmental entity,
its employees, or its agents. See S.C. Code Ann. § 15-78-20 (2005). The court
next addressed section 15-78-60, which provides certain exceptions to the waiver
of immunity within the TCA. The exceptions state a governmental entity is not
liable for a loss resulting from specific acts. The court found the applicable
exceptions here were:

(1) legislative, judicial, or quasi-judicial action or
inaction;
...
(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; [and]

(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.

§ 15-78-60 (2005).

As to Gaskins' failure to personally notify Appellants of the spray, the court found
subsection 4 applied. It next applied Repko v. County of Georgetown,3 which
addressed similar negligence claims based on a county's failure to abide by its own
policies and found the County complied with the notice requirements of the
Regulations by issuing the press release greater than 24 hours prior to the
application. Thus, the circuit court held the County was immune from suit
pursuant to subsection 4 of the TCA. The court next addressed Appellants'
trespass claim and found Appellants did not satisfy the "intentional act"
requirement for trespass. The court agreed with the conclusion made by the
federal District and Fourth Circuit courts that the death of the bees was neither
intended nor foreseeable. The court held that under the TCA, the County has wide
discretion in its operation of the Mosquito Abatement Program, and the County
properly weighed competing alternatives and utilized professionally acceptable
standards when conducting the spray. Accordingly, the court granted the County's
motion for summary judgment as to the negligence, gross negligence, and trespass
claims. This appeal followed.

STANDARD OF REVIEW

"Appellate courts apply the same standard of review applied by the trial court to
review the grant of summary judgment pursuant to Rule 56(c) of the South
Carolina Rules of Civil Procedure." Williams v. Jeffcoat, 444 S.C. 224, 233, 906
S.E.2d 588, 593 (2024). "Summary judgment is proper when the pleadings,
depositions, affidavits, and discovery on file show there is no genuine issue of
material fact such that the moving party must prevail as a matter of law." Id.

LAW/ANALYSIS

3
424 S.C. 494, 818 S.E.2d 743 (2018).
1. Negligence Claims

Appellants argue the circuit court erred in granting the County's motion for
summary judgment on the negligence claims based on an exception to the TCA's
waiver of immunity under section 15-78-60(4) when the County's duty arose not
from statutory law, but from the County's own conduct. Specifically, Appellants
argue the record presented more than a mere scintilla4 of evidence that the County
had assumed a legal duty to Appellants through its actions. Accordingly, they
argue section 15-78-60(4) did not apply because the County's legal duty arose from
its assumed duties rather than through written law or policy. We disagree.

a. Voluntary Undertaking
In analyzing whether Gaskins created a duty, we must ask whether his failure to
exercise reasonable care in performing the undertaking increased the risk of harm
to Appellants, or Appellants suffered harm because they relied upon Gaskins'
undertaking. See Wright v. PRG Real Est. Mgmt., Inc., 426 S.C. 202, 213, 826
S.E.2d 285, 290– 91 (2019) ("The recognition of a voluntarily assumed duty in
South Carolina jurisprudence is rooted in section 323 of the Restatement (Second)
of Torts," and under this section, "the voluntary undertaking does not create a duty
of care unless (a) the undertaker's failure to exercise reasonable care in performing
the undertaking increased the risk of harm to the plaintiff, or (b) the plaintiff
suffered harm because she relied upon the undertaking."). We hold Gaskins did
not assume a duty to notify by making calls in the past because the County is
required by statute to adhere to specific notice requirements when using pesticides.
Further, Appellants were the only beekeepers who reported damage after the spray.
We find neither Gaskins nor the County increased the risk of harm by failing to
call beekeepers individually because the proper notice and procedures were
followed pursuant to the Act. Although Gaskins admitted he made a mistake when
he called the incorrect number prior to the spray, we nevertheless find he was
acting with reasonable care. The County satisfied its only notice duty by issuing
the press release and complying with all other statutory requirements as
highlighted in the Clemson Investigation. Prior to 2016, the County had never
conducted aerial sprays for mosquitoes. Accordingly, there is no history of
Gaskins' previous actions because an aerial spray had never been conducted. His
previous calls to local beekeepers only took place before truck sprays, and he did

4
"[T]he 'mere scintilla' standard does not apply under Rule 56(c)." Kitchen
Planners, LLC v. Friedman, 440 S.C. 456, 463, 892 S.E.2d 297, 301 (2023).
them as a courtesy in addition to the statutorily mandated notice requirement from
the Regulations. We hold Gaskins did not assume, and thus violate, a duty to
personally notify local beekeepers prior to pesticide sprays. See Dorrell v. S.C.
Dep't of Transp., 361 S.C. 312, 318, 605 S.E.2d 12, 15 (2004) (In an action
alleging negligence, "a plaintiff must show (1) the defendant owed a duty of care to
the plaintiff, (2) the defendant breached the duty by a negligent act or omission, (3)
the defendant's breach was an actual and proximate cause of the plaintiff's injury,
and (4) the plaintiff suffered injury or damages."); Madison ex rel. Bryant v.
Babcock Ctr., Inc., 371 S.C. 123, 135–36, 638 S.E.2d 650, 656 (2006) ("If there is
no duty, then the defendant in a negligence action is entitled to a judgment as a
matter of law.")

b. Application of S.C. Code Ann. § 15-78-60(4)
Even if Gaskins created a duty, which we hold he did not, we nevertheless find the
negligence claim is barred pursuant to section 15-78-60(4). Appellants contend
that section 15-78-60(4) is not applicable as Gaskins' practice of personally
notifying local beekeepers of sprays was never "codified as a law, or as a written
policy having the force of law." However, subsection 4 specifically states that the
applicability is not limited to the examples written in the section.

Here, we find the circuit court properly determined that even if Gaskins' actions
created a duty on behalf of the County, the TCA, specifically, section 15-78-60(4)
was applicable and barred Appellants' claims. The purpose of the TCA and its
immunity sections is to protect governmental entities from liability when acting in
the course of their governmental duty. See S.C. Code Ann. § 15-78-20(b) (2005)
(providing the TCA is the "exclusive civil remedy available for any tort committed
by a governmental entity, its employees, or its agents . . ."). The TCA was
designed to protect governmental entities from excessive liability and it is to be
liberally construed in favor of limiting the liability of governmental entities. See
Steinke v. S.C. Dep't of Lab., Licensing & Regul., 336 S.C. 373, 393, 520 S.E.2d
142, 152 (1999) (holding "[p]rovisions establishing limitations upon and
exemptions from liability of a governmental entity must be liberally construed in
favor of limiting liability.") We do not find the legislature intended for immunity
to apply under the TCA only if the policy is codified as law or written policy, and
that is evidenced in the statutory language "but not limited to" and applied in a
similar context in Repko. See White v. State, 375 S.C. 1, 7, 649 S.E.2d 172, 175
(Ct. App. 2007) ("In construing a statute, this Court should not consider the
particular clause being construed in isolation, but we should read the clause in
conjunction with the purpose of the whole statute and the policy of the law.").
Even if Gaskins voluntarily assumed a duty through his prior calls, the negligence
claim is still barred pursuant to section 15-78-60(4). See Repko, 424 S.C. at 500,
818 S.E.2d at 747 (finding there was a dispute as to whether regulations created a
private duty of care owed by the county to Repko; however, declining to resolve
that dispute because "even if such a duty was created, the County is immune from
liability to Repko under subsection 15-78-60(4) of the TCA"). We hold the circuit
court properly granted summary judgment as to Appellants' negligence claims.

2. Trespass Claim

Appellants argue the circuit court erred in granting the County's motion for
summary judgment as to their trespass claim when the evidence shows the County
intended to trespass, though it may not have intended or foreseen the consequences
of the trespass. We disagree.

We acknowledge the affirmative act—flying the plane over the designated areas to
spray for mosquitoes. See Snow v. City of Columbia, 305 S.C. 544, 553, 409
S.E.2d 797, 802 (Ct. App. 1991) ("To constitute an actionable trespass, [ ] there
must be an affirmative act, the invasion of the land must be intentional, and the
harm caused must be the direct result of that invasion."). However, we do not find
the invasion was intentional nor was it conclusively proven that the harm caused—
the bee deaths—were the direct result of that invasion. The death of Appellants'
bees was unintentional. See id. ("Intent is proved by showing that the defendant
acted voluntarily and that he knew or should have known the result would follow
from his act.") The County's stated objective was to abate mosquitoes to prevent
the spread of the virus, and it took specific measures to avoid the death of the bees.
It issued a press release to a wide array of media outlets prior to the spray, hired an
experienced pilot, and provided him with a map of the beehive locations to avoid.
There was no intention on the part of the County to spray the beekeeper locations,
and it took the necessary steps to avoid damage. Following careful consideration,
the County selected, and was authorized to conduct, a common practice employed
throughout the state and neighboring counties. Further, the Clemson Investigation
concluded the aerial spray was properly conducted pursuant to the Act and did not
violate any of the Regulations. Accordingly, we hold the circuit court did not err
in granting summary judgment as to the trespass claim.

Based on the foregoing, the order of the circuit court is

AFFIRMED.5

5
We decide this case without oral argument pursuant to Rule 215, SCACR.
WILLIAMS, C.J., and THOMAS and CURTIS, JJ., concur.