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Hendericks v. Clemson University3/20/2000
o consult her supervisors or adequately review Hendricks's transcript after realizing her first mistake constitutes gross negligence. Thirdly, Hendricks maintains Kennedy-Dixon's lack of knowledge of the requirement that she notify her supervisor constituted gross negligence. Although we empathize with Kennedy-Dixon's personal struggles during Hendricks's time at Clemson, we cannot say her actions did not constitute gross negligence as a matter of law. Because gross negligence is ordinarily a mixed question of law and fact, and the facts of this case are susceptible of more than one inference, the trial court erred in granting Clemson summary judgment on the negligence cause of action.
Clemson maintains Kennedy-Dixon's actions cannot constitute gross negligence because the university has no duty to ensure students' athletic eligibility. We disagree. "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." Miller v. City of Camden, 329 S.C. 310, 314, 494 S.E.2d 813, 815 (1997).
In the complaint, Hendricks alleged "Dixon's duties as an agent and employee of Defendant included advising Plaintiff as to the number and type of classes Plaintiff should take to achieve and maintain athlete eligibility." The complaint further alleged that "Dixon undertook at the commencement of the fall, 1995, semester to advise Plaintiff as to the number and type of classes Plaintiff should take to achieve and maintain athletic eligibility, and did so advise Plaintiff." At the summary judgment hearing, Hendricks asserted:
. . . the controlling law on this is that Clemson University in the form of the academic advisor assumed the duty. . . . once [Kennedy-Dixon] assumed the duty she had an obligation to exercise in this case at least slight care and she's failed to exercise that slight care.
Kennedy-Dixon was hired as an "athletic academic counselor." The position required that she periodically meet with the registrar to discuss relevant changes in NCAA requirements and undergo an annual NCAA compliance test. In fact, Kennedy-Dixon testified to her "primary two-fold duties," which were
. . . to make sure athletes are maintaining academic excellence as they work towards graduation, and secondly to - along with the primary goal is to make sure the athletes are eligible according to the NCAA regulations.
Thus, the evidence creates at least a factual dispute as to whether Clemson undertook a duty to advise Hendricks concerning compliance with NCAA eligibility standards. Therefore, the trial court erred in granting summary judgment as to the negligence claim.
Breach of Fiduciary Duty
Hendricks argues the trial court erred in ruling South Carolina does not recognize a cause of action for breach of fiduciary duty in an educational setting. He asserts a breach of fiduciary duty is not a tort and the trial court erred in applying the South Carolina Tort Claims Act standard to his cause of action. We agree with the trial court's determination that the Tort Claims Act is applicable, but find the trial court erred in summarily dismissing the breach of fiduciary duty claim.
The Restatement 2nd of Torts recognizes that one "who commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act." Restatement 2nd Torts ยง 874 cmt. (C) (1979). South Carolina cases have considered breaches of fiduciary duty as the basis for contractual and tort actions. See e.g., Corley v. Ott, 326 S.C. 89, 485 S.E.2d 91 (1997)(dissolution of partnership based on breach of fiduciary duty); Jacobson v. Yaschik, 249 S.C.
Page 1 2 3 4 5 6 7 8 South Carolina Personal Injury Attorneys
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