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MILLER v. CITY OF CAMDEN10/31/1994
These six negligence actions for wrongful death and personal injury arise out of a flood which occurred in Camden, South Carolina on October 10, 1990. The circuit court granted summary judgment to The Kendall Company (Kendall), finding Kendall owed no duty of care to appellants. We reverse and remand.
Kendall Lake, formerly known as Wateree Pond, is a reservoir of approximately 41 acres. The reservoir was originally built to facilitate production at The Kendall Company textile plant, which is located adjacent to the reservoir, in close proximity to the Kendall Lake Dam. On November 7, 1961, Kendall conveyed the dam, the lake and the adjoining woods to the City of Camden as a donation. The city uses the lake water to supplement its water supply. Kendall continues to use the water in the reservoir for various production, cooling and fire safety purposes, having entered into an agreement with the City of Camden for water rights. Kendall also retained an easement across the property to maintain, repair or replace intake piping as necessary.
The level of water in the reservoir is controlled by two "sluice gates." These gates are opened or closed by hand-turned
After the conveyance, Kendall transferred all keys for the padlock to the City of Camden, without explanation, at some time prior to 1984. Since that time it has not had keys to open the sluice gates.
Subsequent surveys and engineering studies indicate Kendall inadvertently retained several feet of property upon which a portion of the foot of the dam is located. It is at this place that appellants assert the dam broke. This strip of land appears on the survey as an encroachment on Kendall's property.
On October 10, 1990, heavy rains inundated Camden at such a rate that the reservoir overflowed, the dam was breached, and waters flooded the property below. The sluice gates were not opened. Appellants and their relatives were traveling on Highway 1, which is below the dam. Their car was overtaken by the floodwater, resulting in death and injury to the occupants.
The circuit court held that the ownership of the small strip of land by Kendall, whether by design or through inadvertence, was not sufficient ownership of the dam property to give rise to a duty to third persons. The court concluded, "Nothing Kendall did or could have done with this small strip of land could have prevented the ultimate tragedy." The court further held that no duty arose by virtue of the easement or the statutory provisions found in the Dams and Reservoirs Safety Act, S.C. Code Ann. ยงยง 49-11-110 to -260 (1987 & Supp. 1993). It reasoned these statutory provisions are regulatory in nature and do not provide a private cause of action. Even if they did, the court held Kendall was not an owner within the purview of the Act.
Summary judgment is only appropriate when there are no factual issues presented, and the moving party is entitled to
The issue of negligence is a mixed question of law and fact. The court must first determine whether a duty arises in one party to exercise reasonable care for the benefit of another under the facts of a given case. The existence and scope of the duty are questions of law. Ballou v. Sigma Nu General Fraternity, 291 S.C. 140, 352 S.E.2d 488 (Ct.App. 1986). Thereafter, the jury determines whether a breach of the duty has occurred, resulting in damages. Cantrell, 302 S.C. at 560, 397 S.E.2d at 779.
We agree with the circuit court that no duty arose from Kendall to appellants by virtue of the incidental and inadvertent retention of an insignificant strip of land upon which a small portion of the dam is located. As recognized in Dunbar v. Charleston & W.C.
Page 1 2 3 South Carolina Personal Injury Attorneys
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