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ROGERS v. S.C. PAROLE & COMM. CORRECTIONS11/27/1995
al victims of the individuals dangerous conduct. I further agree that this duty to warn arises only when defendant has knowledge that a specific individual poses a threat to a specific victim. Where I part company with the majority is with its overly restrictive holding regarding how the defendant custodian acquires knowledge of the individual's threat to a specific victim. The majority holds that 3 defendant custodian of a dangerous individual only has a duty when the dangerous individual has made a specific threat against a potential victim. Under the majority's holding, if the dangerous individual's conduct indicates his intent to harm a potential victim, but the individual in custody has not specifically verbalized or written the threat, the custodian has no duty to warn the potential victim. This restrictive holding defies logic as well as common sense. Quite often, an individual's threat to another is made known by violent acts or attempted violent acts, not by words. Many dangerous individuals in custody are incapable of verbalizing a threat but very capable of carrying out the threat. I would hold that a common law duty exists when the individual has made a specific threat of harm directed at the potential victim or when the individual's conduct indicates an intent to harm the potential victim. I would hold therefore, that whether or not Vandroff's prior course of conduct indicated an intent to harm the victim was a question of fact for the jury to decide.
The following evidence was presented at trial. In 1980, Vandroff was sentenced to seven years for house breaking and larceny of the victim's home. Vandroff admitted to breaking into the victim's home three times before he was apprehended. All persons the parole board contacted when considering Vandroff's parole, including the judge, solicitor, parole officer, and victim's son, stated they did not think parole was
In my opinion, viewing the evidence in the light most favorable to the respondent, there was evidence that Vandroff's prior course of conduct indicated to defendants an intent on his part to physically harm Doris after his release from prison. Accordingly, the trial judge properly sent this issue to the jury. See Hollins v. Richland County School District, 310 S.C. 486, 427 S.E.2d 654 (1993)(when the evidence of gross negligence is susceptible to more than one inference, whether defendant exercised slight care was question for the jury); Moore v. Levitre, 294 S.C. 453, 365 S.E.2d 730 (1988) (if the evidence supports more than one reasonable inference with respect to a claim or defense, the judge must submit the case to the jury); Lundy v. Southern Bell Telephone and Telegraph, 90 S.C. 25, 72 S.E. 558 (1911) (what constitutes negligence is a question of law for the court, but whether negligence in fact exists in a particular case is a question of fact for the jury). In my view, the trial judge in this case properly submitted the issue of defendants liability to the jury. I would AFFIRM.
I concur with Justice TOAL, and respectfully dissent. Inasmuch as there is "a duty to warn . . . when a person being released from custody has made a specific threat of harm directed at a specific individual," as held by the majority, I agree that there was sufficient evidence to submit the case to the jury.
This was not a case where the victim was not known to the perpetrator, Sharpe v. S.C. Dept. of Mental Health, 292 S.C. 11, 354 S.E.2d 778 (Ct.App. 1987). In this case there was evidence that Vandroff had made specific threats of harm against Doris, housebreaking and larceny of her home, which was why he had been incarcerated. See Rayfield v. S.C. Dept. of Corrections, 297 S.C. 95, 374 S.E.2d 910 (Ct.App. 1988), cert. denied, 298 S.C.
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