Kennedy v. Johnson

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

Shena Kennedy,
Individually and as Guardian ad Litem of Daniel Shane Kennedy, Appellant,

v.

Thomas Johnson, Respondent.

Appeal From Horry County

Benjamin H. Culbertson, Circuit Court
Judge

Unpublished Opinion No. 2012-UP-238  

Heard November 17, 2011 – Filed April 25,
2012

AFFIRMED

Stephen Anthony Butaitis and Mark C.
Tanenbaum, of Charleston, for Appellant.

John Dwight Hudson, of Myrtle Beach, for
Respondent.

PER CURIAM:  Shena
Kennedy appeals the trial court's grant of summary judgment in favor of Thomas
Johnson.  She asserts the trial court erred in holding Johnson was not liable
for the injuries her minor son (Minor) sustained when the vehicle in front of
his severed a low-hanging limb from a tree growing partially on Johnson's
property causing the limb to crash through the front window of the vehicle Minor
was driving.  We affirm.

As to Kennedy's argument the
trial court erred in finding Johnson had no duty to maintain the portion of the
tree overhanging the South Carolina Department of Transportation (Department)
right-of-way, we find no error.  See Hendricks v. Clemson Univ.,
353 S.C. 449, 456, 578 S.E.2d 711, 714 (2003) ("The determination of the
existence of a duty is solely the responsibility of the court."  (citation
omitted)); Miller v. City of Camden, 329 S.C. 310, 314, 494 S.E.2d 813,
815 (1997) (stating one who has no control over the use of property owes no
duty of care not to harm others by its use).  The live oak tree from which the
limb had grown sat partially in the Department's right-of-way and partially in
the unencumbered fee of the property belonging to the heirs of Rossy Johnson,
Sr.  Johnson acknowledged he was the member of his family responsible for the family
property.  Johnson stated his property ended where the Department's
right-of-way began.  The limb grew from the Department's side of the tree.  Randy
Graham, the resident maintenance engineer with the Department, testified the
Department and the State had control of the limbs growing over the
right-of-way.  As the trial court found, Johnson did not control the Department's
right-of-way or the limbs that grew over the right-of-way.  Accordingly, we
agree with the trial court that Johnson did not have control over the portion
of the tree from which the limb grew and thus was under no duty to trim the
limb. 

AFFIRMED.[1]

HUFF, PIEPER,
and LOCKEMY, JJ., concur. 

[1] Because we affirm on this issue, we decline to
address Kennedy's other issues.  See Futch v. McAllister Towing Inc., 335 S.C. 598,
613, 518 S.E.2d 591, 598 (1999) (ruling an appellate court need not review
remaining issues when its determination of a prior issue is dispositive of the
appeal).