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Brown v. Brown6/21/2004
Officer McKee of the Harleyville Police Department stopped Earl Felder's car after he noticed Felder driving in an erratic manner. Woodrow, his brother Joseph, and another young man were all traveling as passengers in the car. While speaking with Felder, the officer smelled alcohol on his breath and required him to perform several field sobriety tests. Felder performed marginally well indicating that, although he had consumed alcohol, he did not lack control of his functions, nor was he fully impaired. The men insisted they lived at an address less than one mile from the stop site and promised to go straight home. Officer McKee did not issue a citation but determined one of the passengers should drive the car.
When asked by the officer whether any of the passengers could drive, Joseph volunteered. Joseph was allowed to drive only after he satisfactorily completed the same battery of field sobriety tests given to Felder. The men assured the officer they would go straight home.
As an added precaution, Officer McKee followed the car to observe Joseph's driving. The officer testified that Joseph was not driving erratically or unsafely. He finally turned around and resumed his patrol once the car reached the town limit of Harleyville.
Rather than driving home as promised, the men waited until the patrol car was out of sight and reversed course and began driving to a party. Sometime before reaching the party, Joseph ran off the road and into a tree. Woodrow, along with other passengers, suffered minor injuries. When the highway patrol arrived they discovered Joseph was not a licensed driver. He was issued tickets for driving without a license, no insurance, driving too fast for conditions, and failing to wear a safety belt. No citation was issued for DUI.
Two years after the accident, Woodrow brought this action asserting claims for common law negligence against Joseph and negligence against the town for 1) failing to properly train and supervise its officers; 2) failing to properly require officers to provide for health and safety on the roadway; 3) failing to charge Felder with DUI; 4) choosing Joseph, an unlicensed driver, to operate the vehicle; and 5) violations of statutes and the common law of South Carolina. The trial court granted the town's motion for summary judgment, finding the public duty rule applied and as such Woodrow failed to establish a duty owed to him individually by Officer McKee. Additionally, the court concluded Woodrow produced no evidence of any special undertaking by the officer that would create an exception to the rule.
DISCUSSION
When we review the trial court's grant of a motion for summary judgment, we apply the same standard that governs the trial courts. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. On appeal, we review the evidence and all inferences reasonably drawn from it in the light most favorable to the nonmoving party. Rule 56(c) SCRCP; Osborne v. Adams, 346 S.C. 4, 7, 550 S.E.2d 319, 321 (2001).
Woodrow claims the trial court incorrectly applied the public duty rule without first determining whether the officer properly exercised his discretion under S.C. Code Ann. § 15-78-60 (Supp. 2003). We disagree.
Woodrow's complaint alleges general acts of negligence without basing those allegations on any specific statutory authority. Rather, he claims only generally that the town violated state statutes and common law. The trial court granted summary judgment based upon the public duty rule. The public duty rule is only implicated when a plaintiff relies upon a statute as creating a duty. See Trousdell v. Cannon, 35
Page 1 2 3 South Carolina DUI Attorneys
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