MILLER v. CITY OF CAMDEN
12/29/1997
someone in distress. Instead, the Director of the Dams and Reservoirs Safety Program within the South Carolina Land Resources Conservation Commission requested that the plant engineer of Kendall Mills meet with him to prepare an "Emergency Alert Notification" form. It is dubious that any company in a similar position would resist compliance. Under the rule established in this case, civil liability as a volunteer could attach when a company does nothing more than comply with a governmental request for information. I would reverse the Court of Appeals and reinstate the summary judgment granted defendant Kendall by the trial court.
Accordingly, I concur in part and dissent in part.
I agree with the majority's conclusion Kendall owed no duty of care to respondents based on its contract with the City. However, I conclude, by virtue of its status as a volunteer, Kendall owed a duty of care to respondents as a matter of law. Accordingly, I dissent.
FACTS
In 1979, the United States Army Corps of Engineers inspected the Kendall Lake Dam, found it to be unsafe, and
Consequently, staff members from the South Carolina Land Resources Conservation Commission met with City officials and Kendall managers to discuss the problem. The Army Corps of Engineers' report and a safety program were discussed. At the meeting, Kendall management participated in the formulation of an emergency plan for notification of the appropriate officials in the event of an imminent threat to the dam. An "Emergency Alert Notification" form was prepared, naming Kendall Plant Manager Michael Scronce and Foreman G.H. McCaa as personnel assigned to monitor the dam. Subsequent Emergency Alert Notification forms also listed Kendall employees. In August 1990, two months prior to the accident, a notification form was prepared listing R.M. Kushman, Kendall's Plant Engineer, as primary "Personnel Assigned to Monitor" the dam, and Foreman G.H. McCaa as alternate.
DISCUSSION
The common law ordinarily imposes no duty on a person to act; however, where an act is voluntarily undertaken, the actor assumes the duty to use due care. Carson v. Adgar, 326 S.C. 212, 486 S.E.2d 3 (1997); Roundtree Villas Ass'n, Inc. v. 4701 Kings Corp., 282 S.C. 415, 321 S.E.2d 46 (1984); Crowley v. Spivey, 285 S.C. 397, 329 S.E.2d 774 (Ct. App. 1985). The Restatement of Torts (Second) § 324A (1965) provides as follows:
Liability to Third Person for Negligent Performance of
Undertaking
One who undertakes, gratuitously or for consideration,
to render services to another which he should
recognize as necessary for the protection of a third
person or his things, is subject to liability to the
third person for physical harm
(a) his failure to exercise reasonable care increases
the risk of such harm, or
(b) he has undertaken to perform a duty owed by the
other to the third person, or
(c) the harm is suffered because of reliance of the
other or the third person upon the undertaking.
(Emphasis added).
The determination of the existence of a duty is solely the responsibility of the court. Ellis by Ellis v. Niles, 324 S.C. 223, 479 S.E.2d 47 (1996) (court held supervising members of trauma team who did not undertake to care for patient had no legal duty to patient). "Whether the law recognizes a particular duty is an issue of law to be decided by the court." Carson v. Adgar, 326 S.C. at 217, 486 S.E.2d at 5; see also Evans v. Rite-Aid Corp., 317 S.C. 154, 452 S.E.2d 9 (Ct. App. 1994), aff'd as modified, 324 S.C. 269, 478 S.E.2d 846 (1996); Restatement 2d of Torts § 328B commen
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