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BYERLY v. CONNOR3/16/1992
Heard Feb. 4, 1992.
Decided Mar. 16, 1992.
This is a wrongful death action. The dispositive issue is whether respondent South Carolina Public Service Authority, by and through its wholly owned state utility, Santee Cooper (Santee Cooper), owed a duty to warn of a latent hazardous
I. FACTS
On June 20, 1987, Karl A. Byerly, the son of appellant Marvin Byerly, was electrocuted after he dived from a houseboat into the waters of Lake Marion. The houseboat on which the decedent was a guest was moored to a dock constructed and maintained by J & J Marina, Inc., a lessee of Santee Cooper. The electrical current which killed Byerly was emitted either from a defectively wired outlet on the dock to which the houseboat was moored, or from a defect in the wiring of the houseboat itself. Appellant brought an action alleging that the defendants committed various acts of negligence which proximately caused Karl A. Byerly's death. The trial judge granted summary judgment in favor of Santee Cooper on the ground that, among other things, Santee Cooper had no duty to warn the decedent that a latent hazardous condition existed at J & J Marina.
II. DISCUSSION
A legal duty is that which the law requires to be done or forborne with respect to a particular individual or the public at large. South Carolina Electric & Gas Co. v. Utilities Construction Co., 244 S.C. 79, 135 S.E.2d 613 (1964). Without a violation of such a legal duty, there is no negligence. Id.
An owner of land possesses a general duty to warn others of latent hazardous conditions on his land. This duty arises from the owner's superior knowledge of conditions on the premises within his control. See Dunbar v. Charleston & W.C. Ry. Co., 211 S.C. 209, 44 S.E.2d 314 (1947). However, when land is occupied by a lessee, as in this case, the law of property regards the lease as equivalent to a sale of the premises for the term of the lease. In the absence of an agreement to the contrary, the lessor surrenders possession and control of the land to the lessee. After the premises are surrendered in good condition, the lessor typically is not responsible for hazardous conditions which thereafter develop or are created by the lessee. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts 434 (5th
Appellant urges that, despite these general rules, Santee Cooper possessed a special duty to discover and to warn of the latent hazardous condition existing at J & J Marina. Appellant contends that this special duty stems from a federal regulation and from Santee Cooper's undertaking to inspect the dock at J & J Marina. We disagree.
A. DUTY ARISING FROM 18 C.F.R. § 12.43 (1990)
An affirmative legal duty to act can be created by statute, contract, relationship, status, property interest, or other special circumstances. Rayfield v. South Carolina Department of Corrections, 297 S.C. 95, 374 S.E.2d 910 (Ct. App. 1988). Appellant asserts that Santee Cooper had a duty to discover and warn of the latent hazardous condition at J & J Marina as a consequence of obligations imposed by the licensed granted to Santee Cooper by the Federal Energy Commission. Under the license, Santee Cooper must take all reasonable precautions to ensure that "any power or communication line or gas pipeline that is located over, under, or in project waters does not obstruct navigation for recreational or commercial purposes or otherwise endanger public safety." 18 C.F.R. § 12.43 (1991). Appellant claims that the electrical outlet and wiring at J & J Marina are "power lines," and that Santee Cooper breached its duty to discover and warn of a
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