Watkins v. Hall

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

Kevin Watkins, Appellant,

v.

Jason Hall, Jr., Jason Hall, Sr., Martha Hall, and J.S.
Hall, Inc., Defendants,

Of Which J.S. Hall, Inc. is the Respondent.

Appellate Case No. 2015-001720

Appeal From Greenville County
Letitia H. Verdin, Circuit Court Judge

Unpublished Opinion No. 2017-UP-298
Heard April 18, 2017 – Filed July 19, 2017

AFFIRMED IN PART, REVERSED IN PART

Joshua Thomas Hawkins, of The J.T. Hawkins Law
Firm, LLC, of Greenville, for Appellant.

Courtney Celeste Atkinson, of Metcalfe & Atkinson,
LLC, of Greenville, for Respondent.

PER CURIAM: Kevin Watkins appeals the circuit court's order granting J.S.
Hall, Inc.'s (Hall, Inc.'s) motion to dismiss for failure to state a claim. Watkins
argues the circuit court erred in granting Hall, Inc.'s motion because (1) the
pleadings state Jason Hall, Jr. (Hall, Jr.) acted in his capacity as an employee of
Hall, Inc. when he shot Watkins, (2) Watkins adequately pled negligent hiring and
supervision, and (3) Rule 8, SCRCP, should have been applied to determine the
sufficiency of the pleadings and not Rule 23, SCRCP. We affirm in part and
reverse in part.

A complaint must contain "a short and plain statement of the facts showing that the
pleader is entitled to relief." Rule 8, SCRCP. A circuit court must deny a motion
to dismiss under Rule 12(b)(6) "if facts alleged and inferences reasonably
deducible therefrom would entitle the plaintiff to relief on any theory of the case."
Flateau v. Harrelson, 355 S.C. 197, 203, 584 S.E.2d 413, 415 (Ct. App. 2003).
"The question is whether, in the light most favorable to the plaintiff, and with
every doubt resolved in his behalf, the complaint states any valid claim for relief."
Plyler v. Burns, 373 S.C. 637, 645, 647 S.E.2d 188, 192 (2007). In its review of a
circuit court's dismissal of an action under Rule 12(b)(6), SCRCP, the appellate
court applies the same standard as the circuit court—"whether the defendant
demonstrates the plaintiff has failed to state facts sufficient to constitute a cause of
action in the pleadings." Dawkins v. Union Hosp. Dist., 408 S.C. 171, 176, 758
S.E.2d 501, 503 (2014).

We find the circuit court erred in dismissing Watkins's claim for vicarious liability.
Under the doctrine of respondeat superior, an employer is vicariously liable for
injuries to a third party resulting from torts its employee commits within the scope
of employment. Froneburger v. Smith, 406 S.C. 37, 52, 748 S.E.2d 625, 633 (Ct.
App. 2013). A plaintiff seeking recovery from an employer under a theory of
respondeat superior must establish that the employment relationship existed at the
time of the injuries and the employee was acting within the scope of employment.
Armstrong v. Food Lion, 371 S.C. 271, 276, 639 S.E.2d 50, 52 (2006). In his
complaint, Watkins alleged Hall, Jr. shot Watkins several times as he walked in
front of the home in which Hall, Jr. resided. Further, Watkins made several
allegations regarding an employer-employee relationship between Hall, Jr. and
Hall, Inc., including that "Hall, Jr. acted within his capacity as caretaker [for] the
property owned by one or more of the defendants and Hall, Sr., Hall, Inc.[,] and
Martha Hall acted vicariously through Hall, Jr." Accordingly, we believe the
circuit court erred in dismissing Watkins's claim for vicarious liability because
when viewed in the light most favorable to Watkins, the complaint stated sufficient
facts from which a court could reasonably deduce that Hall, Jr. was acting within
the scope of his employment and in furtherance of Hall, Inc.'s business when he
shot Watkins. See Plyler, 373 S.C. at 645, 647 S.E.2d at 192 ("The question is
whether, in the light most favorable to the plaintiff, and with every doubt resolved
in his behalf, the complaint states any valid claim for relief."); Armstrong, 371 S.C.
at 276, 639 S.E.2d at 52 (providing to state a claim for vicarious liability, a
plaintiff must establish that the employment relationship existed at the time of the
injuries and the employee was acting within the scope of employment).

However, we find the circuit court properly dismissed Watkins's claim for
negligent hiring and supervision because Watkins failed to sufficiently allege one
or more elements of both claims. An employer can be liable for negligent hiring
and supervision when the "employer knew or should have known that employing a
specific person created an undue risk of harm to the public." James v. Kelly
Trucking Co., 377 S.C. 628, 632, 661 S.E.2d 329, 331 (2008). "Negligent hiring
cases 'generally turn on two fundamental elements—knowledge of the employer
and foreseeability of harm to third parties.'" Kase v. Ebert, 392 S.C. 57, 64, 707
S.E.2d, 456, 459 (Ct. App. 2011) (quoting Doe v. ATC, Inc., 367 S.C. 199, 206,
624 S.E.2d 447, 450 (Ct. App. 2005)). Under a theory of negligent supervision, an
employer can be liable for its employee's intentional acts while on the employer's
premises or using the employer's chattel when the employer knew or had reason to
know of its ability to control the employee and the necessity and opportunity for
exercising such control. Degenhart v. Knights of Columbus, 309 S.C. 114, 117,
420 S.E.2d 495, 497 (1992). In his complaint, Watkins alleged Hall, Inc. knew or
should have known of Hall, Jr.'s dangerous propensities. However, Watkins failed
to make any factual allegations regarding Hall, Jr.'s alleged dangerous propensity.
Without any factual allegations about Hall, Jr.'s dangerous propensity, there is no
information from which the court could reasonably deduce that Hall, Inc. knew or
should have known about Hall, Jr.'s dangerous propensities. See Flateau, 355 S.C.
at 203, 584 S.E.2d at 415 (providing a circuit court must deny a motion to dismiss
under Rule 12(b)(6) "if facts alleged and inferences reasonably deducible
therefrom would entitle the plaintiff to relief on any theory of the case").
Therefore, we hold Watkins failed to sufficiently state a claim for both negligent
hiring, which requires knowledge of dangerous propensity, and negligent
supervision, which requires an employer's knowledge of the necessity to supervise
the employee. See Kase, 392 S.C. at 64, 707 S.E.2d at 459 ("Negligent hiring
cases 'generally turn on two fundamental elements—knowledge of the employer
and foreseeability of harm to third parties.'" (quoting Doe, 367 S.C. at 206, 624
S.E.2d at 450)); Degenhart, 309 S.C. at 117, 420 S.E.2d at 497 (providing an
employer may be liable for negligent supervision if he knew or had reason to know
of "the necessity and opportunity" for exercising control over his employee).
Accordingly, we affirm the circuit court's dismissal of this claim.
Finally, we find Watkins's argument that the circuit court erred by applying Rule
23, SCRCP, is not preserved for appellate review. During the circuit court's
hearing on the motion to dismiss, Watkins noted Hall, Inc. cited to Carolina First
Corporation v. Whittle, 343 S.C. 176, 539 S.E.2d 402 (Ct. App. 2000), a
shareholder derivative action governed by Rule 23, SCRCP, in support of its
motion to dismiss. Watkins explained Rule 23, SCRCP, contains pleading
requirements that differ from the pleading requirements found in Rule 8, SCRCP.
However, the circuit court did not acknowledge this argument at the hearing.
Thereafter, the circuit court granted Hall, Inc.'s motion to dismiss using a Form 4
order, without any indication the ruling was based on Rule 23, SCRCP.
Subsequently, Watkins filed a Rule 59(e) motion; however, he did not argue in his
Rule 59(e) motion that the circuit court improperly relied on Rule 23, SCRCP.
Therefore, because the issue was not ruled on, the issue has not been preserved for
appellate review. See Elam v. S.C. Dep't of Transp., 361 S.C. 9, 23, 602 S.E.2d
772, 779 (2004) (providing an issue not ruled upon by the circuit court is not
preserved for appellate review).

In conclusion, we find the circuit court did not err in dismissing Watkins's claim
for negligent hiring and supervision because Watkins failed to state a claim for
relief. However, we find the circuit court erred in dismissing Watkins's claim for
vicarious liability and remand for further proceedings on this claim. Thus, the
circuit court's order is

AFFIRMED IN PART AND REVERSED IN PART.

LOCKEMY, C.J., and HUFF and THOMAS, JJ., concur.