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MILLER v. CITY OF CAMDEN12/29/1997
991). While the law imposes this duty on a volunteer, the question whether such a duty arises in a given case may depend on the existence of particular facts. Carson v. Adgar, 326 S.C. 212, 486 S.E.2d 3 (1997). Where there are factual issues regarding whether the defendant was in fact a volunteer, the existence of a duty becomes a mixed question of law and fact to be resolved by the fact-finder. Id.; accord Jefferson County School Dist. v.
Justus, 725 P.2d 767 (Colo. 1986); Culver-Union Township Ambulance Service v. Steindler, 611 N.E.2d 698 (Ind. App. 1993) (expressly adopted and incorporated by reference 629 N.E.2d 1231 (Ind. Sup.Ct. 1994)); R.A. Peck, Inc. v. Liberty Fed. Sav. Bank, 108 N.M. 84, 766 P.2d 928 (Ct. App. 1988); Chiplock v. Niagara Mohawk Power Corp., 134 A.D.2d 96, 523 N.Y.S.2d 232 (1988); Mozingo v. Pitt County Mem. Hosp., 101 N.C. App. 578, 400 S.E.2d 747 (1991) aff'd on other grounds 331 N.C. 182, 415 S.E.2d 341 (1992).
In this case, there is a factual issue regarding Kendall's status as a volunteer. The facts indicate a Kendall employee was listed on the Land Resources emergency notification form and Kendall had an employee present at the meeting during which an emergency plan was formulated. Summary judgment should be denied if more than one inference can be drawn from the evidence. Koester v. Carolina Rental Center, Inc., 313 S.C. 490, 443 S.E.2d 392 (1994). We find more than one inference can be drawn from this evidence. Whether these facts establish that Kendall volunteered to monitor the lake level for the benefit of third parties or was simply facilitating its own arrangement with City is an issue that should be resolved by the jury. See S.C. Ins. Co. v. James C. Greene & Co., 290 S.C. 171, 348 S.E.2d 617 (Ct. App. 1986) (a cause of action for negligence requires a duty owed by the defendant to the plaintiff).
Accordingly, we reverse the award of summary judgment and remand for the case to be submitted to the jury for it to determine whether Kendall volunteered to monitor the lake level for the benefit of third-parties. The decision of the Court of Appeals is
AFFIRMED AS MODIFIED.
FINNEY, C.J., and WALLER, A.J., concur.
TOAL, A.J., dissenting and concurring in separate opinion.
BURNETT, A.J., dissenting in separate opinion.
In this case, we have wide divergence of opinions from the trial court, the Court of Appeals and this court on the issue of whether and under what circumstances the law imposes liability on a volunteer toward a third party. The Court of Appeals, relying on Restatement (Second) of Torts ยง 324A, held that a duty is imposed on anyone (volunteer or not) who undertakes to render services for the protection of others to avoid risk of harm of any third persons. The majority rejects the expanded liability of the Restatement, but holds that a volunteer can be liable to third parties and that here there is a jury question as to whether Kendall volunteered to monitor for the benefit of third parties. Thus, the majority affirms, with modification, the Court of Appeals' reversal of the trial court's grant of summary judgment for Kendall.
My brother in dissent would hold as a matter of law that Kendall is a volunteer and thus liable. I would hold as a matter of law that Kendall was not a volunteer and thus not liable at all. I agree with the majority that one who volunteers to assume responsibility for the protection of third parties may be liable to third parties for negligent conduct in the performance of the volunteer services. Where I depart from the majority is in its holding that there is a jury question as to Kendall's volunteer status. I wholeheartedly concur wi
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