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Steinke v. South Carolina Department of Labor9/7/1999
breach was the actual and proximate cause of the plaintiffs injury, and (4) plaintiff suffered an injury or damages. Bishop v. South Carolina Dep't of Mental Health, 331 S.C. 79, 502 S.E.2d 78 (1998); Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E.2d 167 (1977); W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on the Law of Torts, 164-65 (1984). The court must determine, as a matter of law, whether the law recognizes a particular duty. If there is no duty, then the defendant in a negligence action is entitled to a directed verdict. Ellis v. Niles, 324 S.C. 223, 479 S.E.2d 47 (1996); Sharpe v. South Carolina Dep't of Mental Health, 292 S.C. 11, 16, 354 S.E.2d 778, 781 (Ct. App. 1987) (Bell, J., Concurring).
In Jensen v. Anderson County Dep't of Social Services, 304 S.C. 195, 403 S.E.2d 615 (1991), the Court explained the public duty rule and the six-factor test for determining whether a governmental entity owes a special or private duty to an injured plaintiff.
Generally, there is no common law duty to act. An affirmative legal duty, however, may be created by statute, contract relationship, status, property interest, or some other special circumstance. Many statutes impose a duty on public officials to perform certain acts. Generally, however, such officials enjoy an immunity from a private cause of action under the public duty rule. This rule holds that public officials are generally not liable to individuals for their negligence in discharging public duties as the duty is owed to the public at large rather than anyone individually....
An exception to this general rule of non-liability exists when a duty is owed to individuals rather than the public only. Our Court of Appeals has developed a test comprised of six elements to determine when such a "special duty" exists:
(1) an essential purpose of the statute is to protect against a particular kind of harm;
(2) the statute, either directly or indirectly, imposes on a specific public officer a duty to guard against or not cause that harm;
(3) the class of persons the statute intends to protect is identifiable before the fact;
(4) the plaintiff is a person within the protected class;
(5) the public officer knows or has reason to know the likelihood of harm to members of the class if he fails to do his duty; and
(6) the officer is given sufficient authority to act in the circumstances or he undertakes to act in the exercise of his office. Jensen, 304 S.C. at 199-200,403 S.E.2d at 617 (citing Parker v. Brown, 195 S.C. 35, 10 S.E.2d 625 (1940)). The public duty rule is distinguishable from a defense of immunity, which is an affirmative defense that must be pleaded and can be waived. A defendant who pleads immunity conditionally admits the plaintiff's case, but asserts immunity as a bar to liability. In contrast, the public duty rule is a defense that denies an element of the plaintiffs cause of action - the existence of a duty of care to the individual plaintiff. Wells v. City of Lynchburg 331 S.C. 296, 307, 501 S.E.2d 746, 752 (Ct. App. 1998).
In Jensen, the Court determined that child abuse statutes imposed a special duty on the local child protection agency and its social workers to investigate and intervene in cases where child abuse has been reported. Thus, a plaintiff may allege in a private cause of action that the agency failed to properly investigate a report of child abuse. See also Bellamy v. Brown, 305 S.C. 291, 408 S.E.2d 219 (1991) (holding that dismissed official could not sue government agency for breach of confidentiality under state Freedom of Information Act because Act is intended to p
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