The Estate of Delila Parrott v. Sanpiper Independent and Assisted Living

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The Estate of Delila Parrott, Respondent,

v.

Sandpiper Independent and Assisted Living-Delaware,
LLC, Appellant.

Appellate Case No. 2020-001643

Appeal From Charleston County
Bentley Price, Circuit Court Judge

Opinion No. 6067
Heard March 12, 2024 – Filed June 26, 2024

REVERSED

Stephen Lynwood Brown, Russell Grainger Hines,
Matthew Oliver Riddle, Donald Jay Davis, Jr., and James
Edward Scott, IV, all of Clement Rivers, LLP, of
Charleston, for Appellant.

Todd Richard Lyle, of Lyle Law Firm LLC, and Paul L.
Reeves, of Reeves Law Firm, LLC, both of Columbia;
and John G. Boswell, of Raleigh, North Carolina, all for
Respondent.

GEATHERS, J.: In this wrongful death and survival action, Sandpiper Independent
& Assisted Living-Delaware, LLC (Sandpiper) challenges the circuit court's order
following a bench trial finding Sandpiper liable for the death and conscious pain and
suffering of Delila Parrott and awarding $1,000,000 to Parrott's estate (Respondent).
Sandpiper argues that the circuit erred in finding that (1) Sandpiper owed Parrott a
duty, (2) Sandpiper's breach of that duty proximately caused Parrott's death, and (3)
Sandpiper failed to establish comparative negligence as a defense. Sandpiper also
contests the circuit court's calculation of damages, arguing the award was wholly
undue and speculative or excessive. We reverse.

FACTS

Tragically, Delila Parrott, who was eighty years old, fell from a rocking chair
she was standing on to hang curtains in her apartment at Sandpiper's independent
living community. Though the exact timeline is disputed, Parrott could have fallen
as early as the evening of Tuesday, June 3, 2014. The fall caused comminuted
fracturing of Parrott's hip, resulting in complete immobility as she laid until the
evening of June 6, when Sandpiper's staff entered Parrott's apartment and called
emergency services.

Parrott spent four days in the hospital to treat her broken hip and other
conditions related to her fall before being discharged and sent to a rehabilitation
facility owned by Sandpiper. From rehab, she was moved into an assisted living
community. Having never returned to an independent living community, she was
hospitalized in January 2015 for mental health reasons, entered hospice care on
January 31, 2015, and died on February 9, 2015—eight months after the fall. Her
death certificate listed her causes of death as "failure to thrive" and "chronic
schizophrenia," among other things. Respondent contended at the bench trial that
Parrott's death was the result of a "long lie"—a medical condition that occurs when
an elderly person is left immobile after a fall for an extended period as they await
rescue—as opposed to her broken hip from the fall. 1 See 4 Attorneys Medical
Advisor § 33:123 (Monique Leahy ed., 2024) (explaining long lies in both injured
and uninjured "fallers" and noting studies showing that older fallers who could not
get up were "more likely to suffer a lasting decline in activities of daily living," but

1
Included in the record as a trial exhibit is a 1996 special article from the New
England Journal of Medicine examining the long lie phenomenon. This article notes
that "[t]he total mortality was [67%] for patients who were estimated to have been
helpless for more than [seventy-two] hours, as compared with [12%] for those who
had been helpless for less than [one] hour." However, the study acknowledged that
it was unable "to determine the independent influence of functional status, the length
of time spent helpless, the extent of social support, diagnosis, demographic
variables, or a number of other factors on the outcomes of persons found dead or
helpless in their homes."
that the increased likelihood of death and hospitalization arising therefrom was not
statistically significant).

I. Background on Sandpiper and its Check-In Policy

In the independent living community where Parrott lived, Sandpiper offered
several amenities to its residents. These amenities included two meals per day,
planned activities for the residents, general maintenance services, weekly laundry
and housekeeping services, and transportation for social events. Though it was not
contained in the lease, Sandpiper also operated a daily check-in policy whereby a
staff member would sign off for each resident on a sheet at the front desk once daily,
confirming that the resident had been seen or at least heard from. Specifically, an
internal document outlining procedures and policies for Sandpiper's front desk
workers stated, "All residents must be seen by staff and initialed off every day. If
you do not see someone, call them[. I]f you can't get them on the phone, go to the
apartment and check on them." Corrine Carrington, the executive director of
Sandpiper's independent living community, further explained:

We check the residents daily, make sure we saw them. If
we hadn't seen the residents by a certain time at night, we
were to be calling them. If they didn't answer their phone,
we should be going to the units to check on them, to make
sure we saw them.

Carrington also explained that Sandpiper had duplicate keys for each apartment in
addition to a master key and that if a resident who had not yet been checked on did
not answer the door, the staff would use one of these keys to enter the apartment.

Residents at Sandpiper were also issued a "panic button"—a wearable device
that allowed residents to call for help in an emergency. Carrington testified that
although "the majority [of residents] probably wore their panic button[,] . . . it was
not uncommon for some of them not to wear it." Carrington and Beth Auld, a
longtime Sandpiper employee, agreed that the panic button was Sandpiper's primary
response to falls. It is undisputed that Parrott was not wearing her panic button when
she was attempting to hang the curtains.

II. Background on Parrott

Parrott signed a lease to live at Sandpiper in April 2013. Joan Acosta, Parrott's
daughter and personal representative, explained that, prior to this, even though
Parrott "was still independent," Acosta "wanted to be proactive . . . and get [Parrott]
in a situation where there would be transportation available, where she would have
activities available, [and] where she was checked [on] every[ ]day." The lease
Parrott signed contained the following language:

Sandpiper is not responsible for the negligence of its
[o]ccupants including acts or omissions that cause injury
or death to other persons or damage to property. . . . You
agree to be responsible . . . and hold
Sandpiper . . . harmless from and against[] any and all
claims . . . resulting from any injury to or death of any
person and/or any damage to property caused by, resulting
from, attributable to, or in any way connected with acts or
omissions of or on the part of you as occupant.

The lease further stated:

Both Sandpiper and you agree that your freedom to make
personal health and non-health related decisions, the
freedom to travel, to come and go as you please, the
decisions that [a]ffect and control your day-to-day
activities should all remain within your sole decision so
long as it does not adversely affect other occupants. As
such, both Sandpiper and you understand and realize that
such decision making ability carries an inherent possibility
of adversity that may directly or indirectly affect you as
occupant. Therefore, you . . . agree to assume such risk
and related consequences and, as it relates to
Sandpiper, . . . waive any and all liability against
[Sandpiper] from any and all damages, both direct and
indirect, that may result from such activities, the risks[,]
and the . . . damages resulting from such activities.

(emphases added). Though Parrott began suffering from mental health problems
around 2009, which included periods of delusions, her condition was considered
stable prior to the fall. In her report following Parrott's fall, Carrington described
Parrott as "very private" and noted that Parrott had told her at least once that she
(Parrott) did not want anyone in her apartment. Consequently, Carrington made a
note on Parrott's file that Parrott was "fearful of people coming in without her
knowledge" and that "no one is allowed in [Parrott's apartment] without [Parrott]
being present." Carrington also testified that Parrott "was probably concerned about
her privacy[] more than any other resident," but noted that a resident's privacy should
not deter staff from entering for the purposes of conducting a check-in. 2

Carrington also stated that about four months prior to the fall, Parrott had
changed her locks. Carrington explained that she learned about the changed locks
only after she came upon Parrott struggling to unlock her apartment and that though
Parrott was hesitant to provide Sandpiper with a duplicate key for the changed locks,
she ultimately relented and provided one.

III. Parrott's Fall and Long Lie

Though the parties disputed at trial the timeline for Parrott's fall, the circuit
court accepted Respondent's formulation: Parrott fell on the evening of Tuesday,
June 3, and was not found until Friday, June 6, despite the daily check-in policy.
Towards the end of the day on Wednesday, June 4, one of Sandpiper's employees,
Rebecca Munoz, noticed that Parrott was not signed off on the daily check-in sheet.
Consequently, Munoz walked over to Parrott's unit with the master key to check on
her after unsuccessfully trying to call her. Munoz knocked on the door, but no one
answered. Munoz attempted to enter the apartment using the master key, but it did
not work because Parrott had changed her locks. However, Munoz did not walk the
"very short distance" back to the office from Parrott's apartment to obtain the
duplicate key that would have allowed her to enter the apartment. 3 Instead, she
called Auld, who, in addition to being a longtime Sandpiper employee, is also
Munoz's mother. Together, they decided Munoz did not need to enter Parrott's
apartment that night to complete the check-in; instead, Munoz asked Auld to check
on Parrott on Thursday. Although Auld did not recall the details of the conversation
with Munoz, she agreed that Parrott's privacy concerns "definitely" factored into the
decision not to enter Parrott's apartment, and Munoz testified to the same. Munoz
completed her shift and went home having never visually confirmed Parrott's
wellbeing. Munoz was not scheduled to work again until Friday, June 6.

2
Carrington later seemed to acknowledge that even though it should not impact a
decision on whether to enter a resident's apartment, it could.
3
Munoz claimed that she did not know where to find the duplicate key for Parrott's
apartment after she tried to enter unsuccessfully with the master key. However, she
answered affirmatively when asked if she knew where to locate the key when she
eventually returned and entered Parrott's apartment Friday evening.
The next day—Thursday, June 5—Auld reported to work and signed off on
having seen Parrott. Auld later maintained to Carrington that her marking the
check-in sheet was accurate and reflected the fact that Auld had seen Parrott on June
5. However, even though Sandpiper's practice was to preserve records of the
check-in sheets, the June 5 record with Auld's signature no longer existed at the time
of the trial. Additionally, Auld could not recall at trial exactly when or where she
purportedly saw Parrott on Thursday. A friend and neighbor of Parrott's, Lila
Watters, stated that she did not see Parrott on June 5 even though the two regularly
dined together.

On Friday, June 6, Munoz returned to work. That evening, at the urging of
Watters, Munoz used the duplicate key to enter Parrott's apartment and found Parrott
lying on the floor. Though Parrott told EMS that she had fallen on Tuesday, she
later told Carrington that she fell on Wednesday. Parrott's longtime physician, Dr.
Richard Mills, testified:

I would be willing to say with a reasonable degree of
medical certainty that [Parrott] was on the ground most
likely, in my mind, somewhere between thirty-six hours to
three days. But I don't think it was in the four-hour to the
twenty-four-hour range. And I tend to think that based on
the things I saw . . . in the record that it was longer than
that.

Respondent's theory of the case at the bench trial was that although Parrott recovered
physiologically from her broken hip, the extended period of time she spent on the
floor amounted to a long lie. Further, they maintained that this long lie drained
Parrott of her will to live and resulted in her death. Dr. Mills agreed at the bench
trial that Parrott's long lie shortened her life. Dr. Mills explained that based on
Parrott's recovery from the surgery for her hip, he expected her to live "many more
years" and that her death within eight months was unexpected. Dr. Mills also
testified that the longer the amount of time Parrott spent on the floor, the more
adverse the consequences of the long lie would have been on her mental health.

Respondent also introduced testimony from Dr. Lawrence Bergmann, an
expert witness in trauma, that Parrott's psychological condition continually declined
following the fall and that the scientific literature supported finding a causal link
between Parrott's time on the floor and her eventual death. 4

4
Dr. Bergmann's testimony was presented via a deposition de benne esse.
In October 2016, Acosta, as personal representative of Parrott's estate, brought
wrongful death and survival actions against Sandpiper, alleging that Sandpiper
negligently caused Parrott's death by breaching its internal policy requiring a
Sandpiper staff member to sign off on a check-in sheet each day indicating they had
verified the wellbeing of each resident. Following a bench trial, the circuit court
awarded Respondent $500,000 for the wrongful death cause of action and $500,000
for the survival action. Sandpiper moved post-trial for relief from the judgment,
which the circuit court denied on November 18, 2020. This appeal follows.

ISSUES ON APPEAL

I. Did the circuit court err by finding that Sandpiper owed Parrott a duty?

II. Did the circuit court err by finding that Sandpiper's breach of the duty it owed
Parrott proximately caused Parrott's conscious pain and suffering and death?

III. Did the circuit court err by failing to find comparative negligence on the part
of Parrott?

IV. Did the circuit court err in its calculation of the $1,000,000 award?

STANDARD OF REVIEW

"In an action at law tried by a judge without a jury, the appellate court will
correct any error of law, but it must affirm the trial court's factual findings unless no
evidence reasonably supports those findings." Frazier v. Smallseed, 384 S.C. 56,
61, 682 S.E.2d 8, 11 (Ct. App. 2009) (per curiam). Wrongful death and survival
actions are actions at law. See First Union Nat'l. Bank of S.C. v. Soden, 333 S.C.
554, 574, 511 S.E.2d 372, 382 (Ct. App. 1998) ("[T]he character of an action as legal
or equitable depends on the relief sought."); see also Longshore v. Saber Sec. Servs.,
Inc., 365 S.C. 554, 560, 619 S.E.2d 5, 9 (Ct. App. 2005) ("An action in tort for
damages is an action at law."); S.C. Code Ann. § 15-51-10 (2005) (establishing the
wrongful death cause of action as "an action for damages.").

LAW AND ANALYSIS

We hold that Sandpiper owed Parrott no duty because (1) internal policies
cannot, standing alone, create a duty in South Carolina, and (2) there is no evidence
that Parrott's harm was caused by her reliance on the check-in policy. Therefore, we
reverse the circuit court.

Section 15-51-10 of the South Carolina Code imposes liability on tortfeasors
who cause the death of another party through a wrongful act, neglect, or default that
would have entitled the injured party to maintain an action for damages had they
survived. 5 See generally Land v. Green Tree Servicing, LLC, 140 F. Supp. 3d 539,
544–45 (D.S.C. 2015) (exploring the history of wrongful death actions in South
Carolina and concluding that "the plaintiff in a wrongful death action must establish
that the wrongful act or negligence of the defendant caused the death of the
decedent." (emphasis added)).

"A plaintiff must prove three elements on a negligence claim: '(1) a duty of
care owed by [the] defendant to [the] plaintiff; (2) breach of that duty by a negligent
act or omission; and (3) damage proximately resulting from the breach of duty.'"
Dawkins v. Sell, 434 S.C. 572, 581, 865 S.E.2d 1, 5 (Ct. App. 2021) (alterations in
original) (quoting J.T. Baggerly v. CSX Transp., Inc., 370 S.C. 362, 368–69, 635
S.E.2d 97, 101 (2006)). "If no duty has been established, evidence as to the standard
of care is irrelevant. Only when there is a duty would a standard of care need to be
established." Doe ex rel. Doe v. Wal-Mart Stores, Inc., 393 S.C. 240, 247, 711
S.E.2d 908, 912 (2011). Here, Sandpiper contests the circuit court's conclusions on
duty and causation.

5
In full, the statute reads:

Whenever the death of a person shall be caused by the
wrongful act, neglect or default of another and the act,
neglect or default is such as would, if death had not
ensued, have entitled the party injured to maintain an
action and recover damages in respect thereof, the person
who would have been liable, if death had not ensued, shall
be liable to an action for damages, notwithstanding the
death of the person injured, although the death shall have
been caused under such circumstances as make the killing
in law a felony. In the event of the death of the wrongdoer,
such cause of action shall survive against his personal
representative.

§ 15-51-10.
"A tortfeasor's duty arises from his relationship to the injured party." Ravan
v. Greenville County, 315 S.C. 447, 467, 434 S.E.2d 296, 308 (Ct. App. 1993)
(quoting S.C. State Ports Auth. v. Booz-Allen & Hamilton, Inc., 289 S.C. 373, 376,
346 S.E.2d 324, 325–26 (1986)). "It is essential [for] liability for negligence to
attach that the parties shall have sustained a relationship recognized by law as the
foundation of a duty of care." Id. Whether a duty exists is a question of law.
McCord v. Laurens Cnty. Health Care Sys., 429 S.C. 286, 296, 838 S.E.2d 220, 225
(Ct. App. 2020). Furthermore,

[t]here is no formula for determining duty; a duty is not
sacrosanct in itself but only an expression of the sum total
of those considerations of policy which lead the law to say
that a particular plaintiff is entitled to protection. Suffice
it to say that a multiplicity of factors come into play when
courts contemplate the question of duty. These factors
include the policy of deterring future tortfeasors, the moral
culpability of the tortfeasor and numerous other
conceivable factors; duty is seen in general terms as
requiring a person or corporation to conform his or its
conduct to a standard which is adequate to protect others
from unreasonable risk of harm.

Araujo v. S. Bell Tel. & Tel. Co., 291 S.C. 54, 57–58, 351 S.E.2d 908, 910 (Ct. App.
1986) (footnote omitted).

In South Carolina, "there is no general duty to control the conduct of another."
Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 136, 638 S.E.2d 650,
656 (2006). Consequently, "a person usually incurs no liability when he fails to take
steps to protect others from harm not created by his own wrongful conduct."
Degenhart v. Knights of Columbus, 309 S.C. 114, 116, 420 S.E.2d 495, 496 (1992).
However, there are five main exceptions to this rule:

(1) where the defendant has a special relationship to the
victim; (2) where the defendant has a special relationship
to the injurer; (3) where the defendant voluntarily
undertakes a duty; (4) where the defendant negligently or
intentionally creates the risk; and (5) where a statute
imposes a duty on the defendant.
Babcock Ctr., 371 S.C. at 136, 638 S.E.2d at 656. Beyond these exceptions, "[a]n
affirmative legal duty may be created by statute, a contractual relationship, status,
property interest, or some other special circumstance." Id. at 136, 638 S.E.2d at
656–57.

Here, the circuit court based its finding of duty on the third exception—where
the defendant voluntarily undertakes a duty. A formulation of this exception is
contained in section 323 of the Restatement (Second) of Torts and has been
oft-repeated by South Carolina courts:

One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of the other's person or things,
is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to
perform his undertaking, if

(a) his failure to exercise such care increases the risk of
such harm, or

(b) the harm is suffered because of the other's reliance
upon the undertaking.

Restatement (Second) of Torts § 323 (Am. L. Inst. 1965); see also Doe 2 v. Citadel,
421 S.C. 140, 147, 805 S.E.2d 578, 582 (Ct. App. 2017) ("Under South Carolina
law, the Restatement [(Second)] of Torts establishes the recognition of a voluntarily
assumed duty . . . ."). "In most of the cases finding liability [for a voluntary
undertaking], the defendant has made the situation worse, either by increasing the
danger, by misleading the plaintiff into the belief that [the danger] has been removed,
or by depriving him of the possibility of help from other sources." W. Page Keeton,
et al., Prosser and Keeton on the Law of Torts § 56 at 381 (5th ed. 1984). In South
Carolina, both subsections of section 323 apply only to duty and not to proximate
cause. Wright v. PRG Real Estate Mgmt., Inc., 426 S.C. 202, 219, 826 S.E.2d 285,
294 (2019).

I. Internal Policies as a Basis for a Legal Duty

Our courts have held that internal policies cannot establish the voluntary
undertaking of a duty pursuant to section 323; instead, they can be used only as
evidence to establish the contours of the standard of care once a duty has been
established. See Citadel, 421 S.C. at 148, 805 S.E.2d at 583 ("[W]e find the internal
policies created by [the respondent] do not establish a voluntary undertaking of a
duty; rather, they can only serve as evidence of the standard of care if the duty was
established by law."); see also Wal-Mart, 393 S.C. at 248, 711 S.E.2d at 912 (finding
that an "internal policy cannot be said to constitute the voluntary undertaking of a
duty," but instead could serve only as evidence of the standard of care); Pacicca v.
Jackson, No. 3:21-CV-03136-DCC, 2023 WL 8242180, at *3 (D.S.C. Nov. 28,
2023) ("[U]nder South Carolina law, a company's internal policies do not establish
a duty for purposes of a negligence claim."); Bernstein v. Walmart, Inc., No.
2:22-CV-1637-BHH, 2024 WL 476300, at *4 n.1 (D.S.C. Feb. 7, 2024) ("[W]hile a
failure to follow company internal policies 'may be evidence of a breach of a
standard of care,' South Carolina law is clear that [the defendant]'s alleged failure to
comply with its [standard operating procedure] does not create a duty towards [the
plaintiff]." (quoting Pacicca, 2023 WL 8242180, at *3)); see generally Peterson v.
Nat'l R.R. Passenger Corp., 365 S.C. 391, 397, 618 S.E.2d 903, 906 (2005) ("[W]e
hold that evidence of [the r]espondent's deviation from their internal maintenance
policies is admissible to show the element of breach." (emphasis added)); Caldwell
v. K-Mart Corp., 306 S.C. 27, 31, 410 S.E.2d 21, 24 (Ct. App. 1991) ("In negligence
cases, internal policies or self-imposed rules are often admissible as relevant on the
issue of failure to exercise due care." (emphasis added)).

Courts in other jurisdictions have often reached similar conclusions. See, e.g.,
Killian v. Caza Drilling, Inc., 131 P.3d 975, 982 (Wyo. 2006) (distinguishing using
violations of internal policies as evidence of the standard of care from using the same
as evidence of duty); Zdrojewski v. Murphy, 657 N.W.2d 721, 729 (Mich. Ct. App.
2002) ("Defendants are correct in their assertion that internal policies of an
institution . . . cannot be used to establish a legal duty in a negligence claim."); Doe
v. Coe, 135 N.E.3d 1, 12 (Ill. 2019) ("We first note that '[w]here the law does not
impose a duty, one will not generally be created by a defendant's rules or internal
guidelines. Rather, it is the law which, in the end, must say what is legally required.'"
(alteration in original) (quoting Rhodes v. Ill. Cent. Gulf R.R., 665 N.E.2d 1260, 1272
(Ill. 1996))); Estate of Catlin v. General Motors Corp., 936 S.W.2d 447, 451 (Tex.
App. 1996) (holding that "the mere creation of an internal policy" prohibiting
employees from drinking alcohol did not create a duty to plaintiffs injured by an
inebriated employee's conduct and that "[m]ore [wa]s required"); Doe v. Saint
Francis Hosp. & Med. Ctr., 72 A.3d 929, 963 (Conn. 2013) ("[A]lthough a violation
of an employer's work rules can be viewed as evidence of negligence, . . . regulations
and policies do not themselves establish the standard of care." (quoting Petriello v.
Kalman, 576 A.2d 474, 479 (Conn. 1990)); Va. Ry. & Power Co. v. Godsey, 83 S.E.
1072, 1073 (Va. 1915) ("A person cannot, by the adoption of private rules, fix the
standard of his duty to others. That is fixed by law, either statutory or common.").

In Citadel, a young male (Doe) who was the victim of sexual abuse at the
hands of a former camp counselor of The Citadel sued The Citadel alleging that it
failed to act on an April 2007 report made to the college's general counsel that the
counselor had sexually abused a former camper. 421 S.C. at 142–44, 805 S.E.2d at
579–80. Doe's abuse transpired from the summer of 2005 to the summer of 2007,
and although Doe never attended "any summer camps or educational programs at
The Citadel," he sued under the theory that but for The Citadel's failure to exercise
due care in its 2007 investigation, the former camp counselor would have been
exposed sooner and the harm to Doe would have been mitigated. Id. at 148, 805
S.E.2d at 582. The Citadel had adopted policies for the oversight of its camps and
counselors, which Doe argued "required action following the April 2007
allegations." Id. Doe appealed the circuit court's grant of summary judgment in
favor of The Citadel, arguing, in part, that these policies established the voluntary
undertaking of a duty to investigate and arrest the former camp counselor. This court
rejected this argument, finding that "any violation of an internal policy [requiring
investigations into allegations of sexual abuse did] not give rise to the voluntary
assumption of a duty and [did] not establish that The Citadel owed a duty of care as
a matter of law." Id. at 149, 805 S.E.2d at 583.

In Wal-Mart, the aunt of a minor who was physically and sexually abused
sued Wal-Mart for destroying photographs that the aunt had taken to prove to the
Department of Social Services that the minor was being abused by the minor's father.
393 S.C. at 242–44, 711 S.E.2d at 909–10. The aunt took the roll of film containing
the evidence of abuse to Wal-Mart to have the film developed, but when the aunt
returned to pick up the photos, an employee told the aunt that the employee had
destroyed some of them because the store's policy required destroying photos
depicting nudity. Id. at 243, 711 S.E.2d at 909. The minor's abuse was proven
several months later, and the aunt, as guardian ad litem for the minor, sued
Wal-Mart, alleging that Wal-Mart caused the delay by violating its internal policies
that the aunt maintained required the employee to turn the photos over to a supervisor
rather than destroy them. Id. at 243, 711 S.E.2d at 910. Our supreme court affirmed
the circuit court's grant of summary judgment to Wal-Mart, holding that Wal-Mart's
internal policy requiring photos depicting nudity be turned over to management
"cannot be said to constitute the voluntary undertaking of a duty. Rather, it could
simply serve as evidence of the standard of care, once that duty was established by
law." Id. at 248, 711 S.E.2d at 912.
Here, the circuit court found that Sandpiper "had a policy of providing daily
wellness checks and that this policy created a duty to . . . exercise reasonable care in
utilizing the systems/protocols it put in place." To the extent that the circuit court
relied on the mere existence of Sandpiper's check-in policy to create a duty, we
reverse. See Citadel, 421 S.C. at 148, 805 S.E.2d at 583 (holding that internal
policies do not create voluntary undertakings of a duty); see also Wal-Mart, 393 S.C.
at 248, 711 S.E.2d at 912 ("It is undisputed that Wal-Mart created an internal policy
that was subsequently violated when the photo technician destroyed the photos and
did not inform the store manager or keep them as evidence. However, this internal
policy cannot be said to constitute the voluntary undertaking of a duty. Rather, it
could simply serve as evidence of the standard of care, once that duty was established
by law.").

II. Analysis Under Section 323 of the Restatement (Second) of Torts

Regardless of whether Sandpiper's check-in policy is an internal policy akin
to those in Citadel and Wal-Mart, no evidence in the record supports the circuit
court's conclusion that Parrott's reliance on the check-in policy caused her harm.
Respondent points to Wright as controlling authority in this regard. In Wright, an
opinion published after Citadel and Wal-Mart, our supreme court held that it was a
question of fact for the jury as to whether an apartment complex voluntarily assumed
a duty under section 323 when it undertook to provide a courtesy officer service to
its tenants. 426 S.C. at 220–21, 826 S.E.2d at 295. Specifically, the apartment
complex allowed residents affiliated with law enforcement "to receive reduced rent
in exchange for their service as courtesy officers for the apartment complex." Id. at
207, 826 S.E.2d at 287. Employed as independent contractors for the complex, these
courtesy officers were required to devote time to walking the property, answering
calls from tenants about incidents on the property, and reporting daily to the property
manager. Id. The plaintiff in Wright was the victim of an armed robbery in the
parking lot of the apartment complex. Id. at 207–08, 826 S.E.2d at 287–88. Prior
to moving in, an apartment complex manager told the plaintiff that there were
security officers on duty even though an internal employee manual instructed
employees to not indicate that the complex provided security to residents. Id. at 206,
826 S.E.2d at 287. However, this internal instruction was not made available to the
plaintiff. Id. at 206–07, 826 S.E.2d at 287. Our supreme court held that summary
judgment was inappropriate because resolution of the factual conflicts underlying
the analyses of subsections (a) and (b) of section 323 was in the province of the jury.
Id. at 221, 826 S.E.2d at 295. Importantly, the court in Wright was not asked to
address or consider whether the courtesy officer program constituted an internal
policy. The court also emphasized that its holding was tailored to the "existence of
a duty under the narrow facts of this case." Id. at 220, 826 S.E.2d at 294.

In Wright, there was conflicting evidence as to whether the plaintiff relied on
the courtesy officer program and whether the plaintiff's harm arose from this
reliance. Here, on the other hand, there is no evidence supporting the circuit court's
conclusion that Parrott suffered the harm from her long lie because of her reliance
on Sandpiper's check-in policy. Specifically, Respondent proffered no evidence to
suggest that Parrott took the risk of hanging curtains while standing on a rocking
chair—or of not wearing her panic button—because she was relying on the
expectation that someone from Sandpiper would have come by pursuant to the
check-in policy to rescue her. If anything, the evidence in the record suggests that
Parrott was not keen on Sandpiper's check-in policy and the panic button system,
which undermines the notion that Parrott's harm resulted from her reliance on the
check-in policy. See Restatement (Second) of Torts § 323(b) (Am. L. Inst. 1965)
(recognizing a duty may arise when "the [plaintiff's] harm is suffered because of the
other's reliance upon the undertaking"); see also W. Page Keeton, et al., Prosser and
Keeton on the Law of Torts § 56 at 381 (5th ed. 1984) ("In most of the cases finding
liability [for a voluntary undertaking], the defendant has made the situation worse,
either by increasing the danger, by misleading the plaintiff into the belief that [the
danger] has been removed, or by depriving him of the possibility of help from other
sources.").

The Wright court held that there was an issue of fact for the jury as to "whether
any failure by [the apartment complex] to exercise due care in performing the
undertaking [of offering a courtesy officer program] increased the risk of harm to
[the plaintiff]." 426 S.C. at 221, 826 S.E.2d at 295. Here, however, the circuit court
made no finding under subsection (a) that Sandpiper's negligent execution of its
check-in policy increased Parrott's risk of harm. It is therefore unnecessary to
analyze the instant case under subsection (a). See Staubes v. City of Folly Beach,
339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) ("Without an initial ruling by the trial
court, a reviewing court simply would not be able to evaluate whether the trial court
committed error.").

Because we reverse the circuit court's finding that a duty existed, Respondent's
wrongful death claim against Sandpiper must fail. See Ravan, 315 S.C. at 467, 434
S.E.2d at 308 ("It is essential [for] liability for negligence to attach that the parties
shall have sustained a relationship recognized by law as the foundation of a duty of
care."). It is therefore unnecessary to address the remaining issues. See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (noting that an appellate court need not address remaining issues when
resolution of a prior issue is dispositive).

CONCLUSION

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

REVERSED.

HEWITT and VINSON, JJ., concur.