Smart v. Gullick

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Jon Smart, Diana Smart and Richard Smart,       
Appellants,

v.

Roy Gullick, Jr.;  State of South Carolina (Department of Juvenile Justice),       
Defendants,

Of Whom/ORoy Gullick, Jr., is the       
Respondent.

Appeal From Greenville County

John W. Kittredge, Circuit Court Judge

Unpublished Opinion No. 2003-UP-387

Submitted March 26, 2003 – Filed June
5, 2003   

AFFIRMED

Theo W. Mitchell, of Greenville; for Appellants.

Andrew Lindemann, Esquire; William Davidson, of Columbia;
for Respondent.

PER CURIAM:  Richard Smart
(Richard) and his parents (collectively the Smarts) appeal the circuit court’s
grant of a 12(b)(6) motion to dismiss in favor of Department of Juvenile Justice
(DJJ)  Employee, Roy Gullick, Jr. on their allegations Gullick acted negligently
by assigning Richard to the Marine Institute.  The Smarts insist in their appeal
Gullick acted outside the scope of his official duty in making the assignment
and therefore does not enjoy immunity from personal liability under the South
Carolina Tort Claims Act, S.C. Code Ann. § 15-78-70 (1976 as amended). 

FACTS AND PROCEDURAL
HISTORY

On November 5,
1998, Richard pled guilty to second-degree burglary.  The family court committed
him to the custody of the DJJ and recommended that the DJJ provide drug treatment
and counseling to address his glue huffing addiction.  Further, the family court
recommended the Marine Institute as a consideration for possible placement.
During the guilty plea proceeding, Richard’s mother informed the court that
her son had club feet and this physical limitation might prevent him from participating
in the Marine Institute Program.  Roy Gullick, Jr., an employee and agent of
the DJJ, assisted in assigning Richard to the Marine Institute. On August 12,
1999, while engaged at a Marine Institute work site, Richard murdered a truck
driver and stole his vehicle. Pursuant to a plea bargain, Richard was sentenced
to life without parole for the murder of the driver and grand larceny. 

On August 20, 2001,
the Smarts filed a complaint in the circuit court against Gullick and the DJJ
alleging Gullick was negligent in pursuing the recommendation for possible placement
at the Marine Institute. Gullick made a 12(b)(6) motion to dismiss arguing he
was immune from liability under the South Carolina Tort Claims Act, S.C. Code
Ann. § 15-78-10 et. seq. (1976 as amended).  Gullick contended
he was at all times acting within the course and scope of his official duties
as an employee of the DJJ.   The circuit court granted Gullick’s 12(b)(6) motion
to dismiss. [1]   The circuit
court noted the complaint only alleged negligence.  The court found “such allegations
clearly render Agent Gullick immune under the Tort Claims Act.”

STANDARD OF REVIEW

Generally, a ruling on a motion to dismiss under Rule 12(b)(6),
SCRCP, must be based solely on the allegations contained in the complaint. 
Baird v. Charleston County, 333 S.C. 519, 527, 511 S.E.2d 69, 73 (1999). 
“Viewing the evidence in favor of the plaintiff, the motion must be granted
if facts alleged in the complaint and inferences reasonably deducible therefrom
do not entitle the plaintiff to relief on any theory of the case.”  Jarrell
v. Petoseed Co., 331 S.C. 207, 209, 500 S.E.2d 793, 794 (Ct. App. 1998).

DISCUSSION

The Smarts contend the circuit court erred in granting Gullick’s
12(b)(6) motion to dismiss arguing their pleadings stated facts sufficient to
constitute a cause of action.  We disagree.

Pursuant to the Tort Claims Act, an employee of a governmental entity
who commits a tort while acting within the scope of his official duty is generally
immune from suit.  § 15-78-70(a) and (b).  Instead, a person seeking to file
a tort claim against a governmental entity must "name as a party defendant
only the agency or political subdivision for which the employee was acting." 
§ 15-78-70(c).  Tatum v. Medical University of South Carolina, 346 S.C.
194, 198, 552 S.E.2d 18, 20-21 (S.C. 2001). 

The DJJ is a governmental agency subject to the provisions of the Tort Claims
Act.  Accordingly, an employee of the DJJ is immune from suit for alleged negligence
committed in the course of employment. Accordingly, Gullick would be denied
employee immunity only if he acted outside the scope of his official duties
or his actions constituted fraud, malice, an intent to harm, or a crime of moral
turpitude.  Antley v. Shepard, 340 S.C. 541, 553, 532 S.E.2d 294, 299
(Ct. App. 2000).

The Smarts made no allegations in their complaint that Gullick ever
acted outside of the scope of his official duties.  To the contrary, the complaint
consistently referred to Gullick in his official capacity as an “ the agent,
employee and assign of the D.J.J.” (Emphasis added)  The only causes of
action are for negligence. The compliant makes no mention of any conduct which
could constitute fraud, malice, an intent to harm, or a crime of moral turpitude. 
Accordingly, the general cloak of immunity provided by the Tort Claims Act shields
Gullick from any liability that may have arisen out of his alleged negligence
and renders the Smarts’ complaint meritless. [2]   The order of the circuit court granting a
motion to dismiss under 12(b)(6) is,

AFFIRMED.

CURETON, ANDERSON, and HUFF, JJ., concur.

[1] Both parties submitted affidavits to support their positions. However,
the court ultimately determined that material outside of the pleadings should
not be considered.

[2] We note that the Smarts included in the Record on Appeal affidavits
and a partial transcript from a prior family court proceeding. Mindful of
our standard of review and consistent with the proceeding below we decline
to extend our review to these additional materials.