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MILLER v. CITY OF CAMDEN12/29/1997
Respondents commenced these wrongful death and personal injury actions against petitioner Kendall Company (Kendall) and City of Camden (City) to recover for damages allegedly sustained when the Kendall Lake dam broke. The trial judge granted Kendall summary judgment on the ground Kendall owed respondents no duty of care. The Court of Appeals reversed, finding Kendall owed a duty of care as a matter of law by virtue of its control of the dam and its voluntary
FACTS
Kendall Lake is a forty-one acre reservoir built by Kendall to aid production at its adjacent textile plant. In 1961, Kendall conveyed the lake, the dam, and the adjoining woods to City. City uses water from the lake to supplement its water supply. By agreement, Kendall retained the right to draw water from the lake for production purposes, providing it does not lower the surface level of the lake more than one foot below spillway level. In return, City agreed to maintain the level of the lake at approximate spillway level, absent some repair or weather emergency.
Kendall judges water level to be too high for production if the plant boiler room begins to flood. Water level is controlled by two sluice gates which are kept locked. Kendall has had no keys to the sluice gates since at least 1984. When the boiler room floods, Kendall contacts City to open the sluice gates on the dam to lower the level of the lake.
In 1979, the Army Corps of Engineers inspected the dam and found it unsafe. Kendall received a copy of the report requiring that certain repairs be made. Kendall contacted the South Carolina Land Resources Commission (Land Resources) to advise that it was not the owner of the dam. Both Kendall and City employees subsequently attended a meeting requested by Land Resources to discuss the inspection report. At this meeting, an emergency plan was formulated for notification of the appropriate officials in the event of an imminent dam failure. Along with City employees, Kendall employees were listed on Land Resource's emergency notification forms as personnel assigned to monitor the dam.
On October 10, 1990, heavy rainfall caused the lake to overtop the dam causing its breach. Respondents subsequently commenced these actions for injuries sustained in the flood.
DISCUSSION
The Court of Appeals held Kendall owed respondents a duty of care because Kendall controlled the dam by virtue of its contract with City. Kendall asserts this was error. We agree.
One who controls the use of property has a duty of care not to harm others by its use. Dunbar v. Charleston & W.C. Ry. Co., 211 S.C. 209, 44 S.E. 314 (1947); Peden v. Furman University, 155 S.C. 1, 151 S.E. 907 (1930). Conversely, one who has no control owes no duty. Clark v. Greenville County, 313 S.C. 205, 437 S.E.2d 117 (1993). Here, Kendall's contractual right of control was limited to maintaining a certain normal water level for production purposes. The contract between Kendall and City specifically reserved to City complete control of the dam and water level in the event of a weather emergency. Kendall had no physical control of the sluice gates and no contractual right to control them in this situation. Accordingly, we conclude Kendall owed no duty of care to respondents based on its contractual right of control.
The Court of Appeals also found Kendall owed respondents a duty as a matter of law because it voluntarily undertook to monitor the lake for the benefit of others.
The common law ordinarily imposes no duty on a person to act. If an act is voluntarily undertaken, however, the actor assumes the duty to use due care. Russell v. City of Columbia, 305 S.C. 86, 406 S.E.2d 338 (1
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