Doe v. Smith

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

Jane Doe, Appellant,

v.

Charles Smith, Charleston County School District and
James Island High School, Respondents.

Appellate Case No. 2013-000084

Appeal From Charleston County
W. Jeffrey Young, Circuit Court Judge

Unpublished Opinion No. 2014-UP-267
Heard May 7, 2014 – Filed June 30, 2014

AFFIRMED

Lawrence E. Richter, Jr., Alice Richter Lehrman, Aaron
Eric Edwards, all of The Richter Firm, LLC, of Mount
Pleasant, for Appellant.

Stephen Lynwood Brown, Wilbur E. Johnson, Brian Lee
Quisenberry, and Russell Grainger Hines, all of Young
Clement Rivers, of Charleston, for Respondents
Charleston County School District and James Island High
School; Robin Lilley Jackson, of Senn Legal, LLC, of
Charleston, for Respondent Charles Smith.

PER CURIAM: Jane Doe appeals the order of the trial court granting summary
judgment to Charles Smith, Charleston County School District (District), and
James Island High School (High School) on her claims for breach of fiduciary
duty, outrage, and gross negligence. We affirm.

(1) We find the trial court did not err in granting the District and the High School
summary judgment on Doe's negligent supervision claim. See S.C. Code Ann. §
15–78–60(25) (2005) (providing a governmental entity is not liable for a loss
resulting from the "responsibility or duty including but not limited to supervision,
protection, control, confinement, or custody of any student, . . . except where the
responsibility or duty is exercised in a grossly negligent manner . . . "); Degenhart
v. Knights of Columbus, 309 S.C. 114, 116–17, 420 S.E.2d 495, 496 (1992)
(stating an employer may be liable for negligent supervision when the employee
intentionally harms another when he is on the employer's premises, he is on
premises he is privileged to enter only as an employee or is using the employer's
chattel, the employer knows or has reason to know he has the ability to control the
employee, and the employer knows or has reason to know of the necessity and
opportunity to exercise such control); Moore v. Berkeley Cnty. Sch. Dist., 326 S.C.
584, 591-92, 486 S.E.2d 9, 13 (Ct. App. 1997) (finding district not liable for
negligent supervision when although there was evidence teacher's classroom was
conducted in a lax manner and some teachers observed what they considered
"inappropriate" behavior in the classroom, none of the alleged classroom incidents
were of such a character that the administration would have, if aware of them,
reasonably anticipated that the teacher would engage in sexual intercourse with a
student in her own home after school hours). Doe presented no evidence that the
District knew or had reason to know of a need to exercise control over Smith to
prevent him from abusing Doe.

(2) We find Doe's contention the School District and the High School failed to
exercise slight care because it made no effort to offer guidance, accommodation, or
other support to Doe after her suicide attempt is not preserved for appellate review.
See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is
axiomatic that an issue cannot be raised for the first time on appeal, but must have
been raised to and ruled upon by the trial judge to be preserved for appellate
review.").
(3) We find the trial court did not err in holding the District and the High School
are not liable under a theory of respondeat superior. See S.C. Code Ann. § 15–78–
60(17) (2005) (excluding a governmental entity from liability for a loss resulting
from "employee conduct outside the scope of his official duties or which
constitutes actual fraud, actual malice, intent to harm, or a crime involving moral
turpitude . . . "); Froneberger v. Smith, 406 S.C. 37, 748 S.E.2d 625, 633 (Ct. App.
2013) (stating the modern doctrine of respondeat superior makes a master liable to
a third party for injuries caused by the tort of his servant committed within the
scope of the servant's employment); Kase v. Ebert, 392 S.C. 57, 61-62, 707 S.E.2d
456, 458 (Ct. App. 2011) ("If a servant steps aside from the master's business for
some purpose wholly disconnected with his employment, the relation of master
and servant is temporarily suspended; and this is so no matter how short the time,
and the master is not liable for his acts during such time." (internal citations and
quotation marks omitted)); Frazier v. Badger, 361 S.C. 94, 103, 603 S.E.2d 587,
591 (2004) ("[S]exual harassment by a government employee is not within the
employee's 'scope of employment.'"); Brockington v. Pee Dee Mental Health Ctr.,
315 S.C. 214, 218, 433 S.E.2d 16, 18 (Ct. App. 1993) (holding an employee clearly
was acting in his individual capacity and not as an agent for the defendants when
he sexually assaulted the victim in his office).

(4) Doe failed to challenge the trial court's granting of summary judgment to the
District and the High School on Doe's breach of fiduciary duty claim and outrage
claim. She also failed to challenge the trial court's ruling that all of Doe's claims
against the High School fail because the High School did not exist as a separate
legal entity until 2003. These rulings are the law of the case. See Jones v. Lott,
387 S.C. 339, 346, 692 S.E.2d 900, 903 (2010) ("Under the two issue rule, where a
decision is based on more than one ground, the appellate court will affirm unless
the appellant appeals all grounds because the unappealed ground will become the
law of the case."); First Union Nat'l Bank of S.C. v. Soden, 333 S.C. 554, 566, 511
S.E.2d 372, 378 (Ct. App. 1998) (holding an "unchallenged ruling, right or wrong,
is the law of the case and requires affirmance").

(5) We find Doe failed to challenge properly the trial court's ruling that her claims
against Smith for outrage and punitive damages were barred by the Tort Claims
Act. Her only discussion of this ruling is in a footnote in her brief within the
argument section "The Respondents owed a duty of care to Doe," in which she
states: "To the extent Smith was acting outside the scope of his employment by
taking Doe for rides in his car and tending to Doe after her suicide attempt, the
ruling by the trial court barring the claims of outrage and for punitive damages
against Smith are in error because those limitations on liability apply only to
employees acting within the scope of their employment." See Rule 208(b)(1)(B),
SCACR ("Ordinarily, no point will be considered which is not set forth in the
statement of the issues on appeal."); Walde v. Ass'n Ins. Co., 401 S.C. 431, 435 n.1,
737 S.E.2d 631, 633 n.1 (Ct. App. 2012) (refusing to address an issue when the
appellant's brief did not include an issue on appeal addressing this contention, did
not argue the specific issue, and only briefly referred to this concern in another
argument without providing any supporting authority); Fassett v. Evans, 364 S.C.
42, 50 n.5, 610 S.E.2d 841, 846 n.5 (Ct. App. 2005) (holding that even if a one-
sentence argument could be construed as raising a separate issue on appeal, it was
abandoned for being conclusory and failing to cite any supporting authority).

(6) We find the trial court did not err in holding Doe's claims were barred by the
statute of limitations. See Moriarty v. Garden Sanctuary Church of God, 341 S.C.
320, 336, 340, 534 S.E.2d 672, 680, 682 (2000) (stating a plaintiff must present at
the summary judgment stage and at trial independently verifiable, objective
evidence that corroborates a repressed memory claim in order to assert the
discovery rule); id. at 335, 534 S.E.2d at 680 (explaining the requirement of
corroborating evidence "appropriately balances the plaintiff[']s interest in pursuing
a valid claim and the defendant's interest in being able to defend a stale or false
claim); id. at 335-36, 534 S.E.2d at 680 (noting reasons for the requirement are
"the disagreement among the psychological and medical communities about the
validity of repressed memory syndrome, the danger a plaintiff's memories could be
faked or implanted during therapy, and the desire that a plaintiff not have the
ability to control the running of the statute of limitations solely by allegations
whose only support is contained within the plaintiff's mind"); id. at 336, 534
S.E.2d at 680 (listing examples of corroborating evidence that may satisfy the
objective verifiability requirement as "(1) an admission by the abuser; (2) a
criminal conviction; (3) documented medical history of childhood sexual abuse;
(4) contemporaneous records or written statements of the abuser, such as diaries or
letters; (5) photographs or recordings of the abuse; (6) an objective eyewitness's
account; (7) evidence the abuser had sexually abused others; or (8) proof of a chain
of facts and circumstances having sufficient probative force to produce a
reasonable and probable conclusion that sexual abuse occurred"). In order to avoid
application of the statute of limitations, Doe was required to establish
independently verifiable, objective evidence to corroborate her repressed memory
claim. We find Doe failed to present evidence that meets the requirements of
Moriarty.

AFFIRMED.

HUFF, THOMAS, and PIEPER, JJ., concur.