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MILLER v. CITY OF CAMDEN12/29/1997
t e (1965) ("it is the . . . function of the court to determine whether, upon facts in evidence which the jury may reasonably find to be true, the law imposes upon the defendant any legal duty to act or to refrain from acting for the protection of the plaintiff. This decision is always for the court") (emphasis added).
The majority declines to adopt § 324A and, instead, suggests, in order for respondents to prevail, Kendall must have contemplated that monitoring the lake level was for respondents' benefit. Although this Court has not affirmatively adopted § 324A, it has on occasion considered the section. For instance, in Salvo v. Hewitt, Coleman & Associates, Inc., 274 S.C. 34, 260 S.E.2d 708 (1979), the Court found the plaintiff's evidence did not support a negligence action under § 324A. The Court did not, however, indicate any disapproval of the principles set forth in § 324A.
The facts and circumstances regarding Kendall's status as a volunteer are not in dispute. Knowing the dam was classified as a "high" hazard dam because of "the potential for property damage and/or loss of life in the event of dam failure," Kendall participated in the creation of an emergency notification plan. As part of the plan, an "Emergency Alert Notification" form
The Court of Appeals properly found Kendall owed a duty to respondents to use reasonable care in the operation of the lake and dam as a matter of law. Ellis by Ellis v. Niles, supra (whether the law recognizes a particular duty is an issue of law to be decided by the court). I would reverse the award of summary judgment and remand the case to be submitted to the jury to determine whether Kendall breached its duty of due care and, if so, whether there were any resulting damages.
TOAL, A.J.:
Burnett, A.J.:
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