Doe v. Batson

THIS OPINION HAS NO PRECEDENTIAL
VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

John Doe, individually, and as Guardian for his minor child, James Doe
and Jason Doe, individually and on behalf of all others similarly situated,       
Appellants,

v.

Merle Batson,       
Respondent.

Appeal From Pickens County

John W. Kittredge, Circuit Court Judge

Unpublished Opinion No. 2004-UP-335

Submitted April 6, 2004 – Filed May
17, 2004

AFFIRMED

Gregg E. Meyers, of Charleston and J. David Flowers, of Greenville,
for Appellants. 

Edward R. Cole, of Spartanburg, for Respondent.

PER CURIAM:  John Doe, individually, and
as guardian for his minor sons, James and Jason Doe (the Does), and on behalf
of all others similarly situated, brought this action against Merle Batson alleging
she breached her duty to warn the Does of her son’s deviancy after several boys,
including James and Jason, reported that Batson’s son molested them in Batson’s
house. [1]   The circuit court
granted Batson’s motion for summary judgment.  The Does appeal.  We affirm.
[2]

FACTS

Batson’s son served as a youth minister
at the church James and Jason attended with their family.  He befriended a number
of teenage boys in the congregation and spent time with them outside of church-related
activities.  Eventually, he invited some of the boys, including James and Jason,
to visit and spend the night with him in his bedroom located in the basement
of Batson’s house.  It was during these visits that Batson’s son molested James
and Jason. 

The Does concede that Batson had no actual knowledge
of her son’s sexual deviancy until the charges became publicly known.  James
and Jason both testified their interaction with Batson was limited to some breakfasts
following overnight visits in her home.  Both boys testified they did not believe
she was suspicious of any sexual activity between them and her son.  Jason testified
he and Batson’s son sneaked into Batson’s son’s bedroom through an adjacent
storage room in the basement.  In another instance, Jason admitted to hiding
from Batson in her son’s bedroom and stated he did not believe she knew he was
in her house.  Eventually, the boys admitted the clandestine activities to their
parents. 

The Does brought this premises liability
action alleging Batson either expressly knew or should have known of her son’s
“dangerous propensities.”  As such, they contend she breached her duty to appropriately
warn the Does.  The circuit court granted Batson’s motion for summary judgment. 
On appeal, this court reversed the circuit court and remanded, finding the Does
were denied a full and fair opportunity to complete discovery.  Doe v. Batson,
338 S.C. 291, 525 S.E.2d 909 (Ct. App. 1999).  The supreme court, after granting
certiorari, affirmed our decision to reverse and remand while vacating other
portions of the opinion.  Doe ex rel. Doe v. Batson, 345 S.C. 316, 548
S.E.2d 854 (2001).  On remand, the circuit court again granted Batson’s motion
for summary judgment.  The Does appeal.  We affirm.

DISCUSSION

The Does contend the circuit court erred by ruling
Batson did not owe a duty of care to warn James or Jason of her son’s deviant
behavior.  They also assert the court erred in concluding that even if a duty
of care existed, they failed to prove Batson breached it as a matter of law. 
Finally, the Does contend summary judgment was improper because genuine issues
of material fact exist.  We disagree. 

When this court reviews the grant of a
motion for summary judgment, it applies the same standard of review that governs
the circuit court under Rule 56(c), SCRCP.  Summary judgment is proper when,
viewing the evidence in the light most favorable to the non-moving party, there
is no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law.  Baril v. Aiken Reg’l Med. Ctrs., 352 S.C. 271, 279-80,
573 S.E.2d 830, 835 (Ct. App. 2002). 

A landowner’s duty toward a person depends
upon the person’s status.  F. Patrick Hubbard & Robert L. Felix, The
South Carolina Law of Torts 76 (1990).  The Does conceded James and Jason
were licensees for purposes of their premises liability claim against Batson. 
Accordingly, Batson owed James and Jason a duty to warn of any concealed dangerous
conditions or activities known to her, or of any change in the condition of
the premises that might have been dangerous to them, and which she may reasonably
have been expected to discover.  Neil v. Bynum, 288 S.C. 472, 473, 343
S.E.2d 615, 616 (1986). 

The Does do not allege Batson had direct
knowledge that the boys were being molested.  Rather, they attempt to create
genuine issues of material fact regarding whether she knew the boys were spending
the night with her son on a regular basis by citing instances when Batson saw
the boys in or around her home.  The Does note Batson saw the boys with their
sleeping bags on one visit and during a few breakfasts following overnight stays.
 Jason testified that on one occasion Batson gave him a package of pop-tarts. 
James testified Batson saw him eating breakfast on several occasions.  However,
there was no evidence that Batson’s son was present during any of these encounters. 
Batson testified she had seen James and Jason in her house on two occasions
and, although she saw them with their sleeping bags, she had “no earthly idea
what their sleeping arrangements were.” 

The Does also claim Batson once saw Jason and her
son sitting in her son’s car in her driveway at night.  Jason testified that
after Batson saw him and her son in the driveway, they drove away, only to return
later and sneak into Batson’s house through a basement entrance.  These casual
encounters suggest only that Batson knew of the boys’ presence in or around
her house.  They do not suggest any unusual activity that would have alerted
Batson to any deviant behavior by her son. 

More significantly, both James and Jason testified
they did not believe Batson knew about her son’s sexual activities with them,
and there is evidence suggesting they actively prevented her from discovering
them.  The boys sneaked into the son’s room through an adjacent storage room
in the basement.  Jason admitted hiding from Batson in another instance, and
stated he did not believe she knew he was in her house. 

Batson had no duty to warn the boys of a danger
of which she was unaware.  Under these facts, we conclude Batson had neither
actual nor constructive notice her son posed a danger to James or Jason.  Without
notice, she could not have been reasonably expected to discover the deviant
activity clandestinely occurring in her son’s basement room.  As such, we find
no duty was created and no genuine issues of material fact were left in dispute. 
In light of our determination Batson had no duty to James or Jason, we need
not address the Does’ claim of breach of duty. 

AFFIRMED.

HUFF and STILWELL, JJ., CURETON, A.J., concur.

[1]        The circuit court noted the Does filed but did not pursue
a motion to certify this action as a class action.  Further, the Does’ deposition
testimony revealed there were no other participants in the putative class. 
We agree with the circuit court this is not a class action. In any event,
the Does have abandoned their attempt to obtain class certification.  

[2]        We decide this
case without oral argument pursuant to Rule 215, SCACR.