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MILLER v. CITY OF CAMDEN10/31/1994
gh contract, interest in property, and as a volunteer, by which a duty arose to use reasonable care to monitor the lake level and take precautions for persons downstream.
Kendall argues it had no absolute authority or present capability to open the sluice gates at the time of the flood because it had no key. Therefore, Kendall postulates it had no control over the dam. However, while Kendall divested itself of the keys to the sluice gates, it continued to exert control over the artificially high level of water under the agreement with the City of Camden. Clearly, the city was obligated as a result of the contract to maintain the water at spillway level or to provide alternative sources of water to Kendall. Thus, Kendall indirectly controlled the level of water. Further, Kendall retained the benefits of the artificially high level of water for its purposes, indeed, the purposes for which the dam was originally built. As stated in Dunbar, 211 S.C. 209, 44 S.E.2d 314, liability is based on control of the property, not ownership. See also Richland County v. Anderson, 129 Mont. 559, 291 P.2d 267 (1955). Under the arrangement with the City of Camden, Kendall indirectly maintained substantial control over the artificially high level of water and the instrument by which it was maintained: the dam.
Equally convincing is the duty which Kendall undertook to monitor the lake level, whether or not it was obligated to do so. Our court has long recognized that one who assumes to act, even though under no obligation to do
One who undertakes, gratuitously or for
consideration, to render services to another which he
should recognize as necessary for the protection of a
third person or his things, is subject to liability
to the third person for physical harm resulting from
his failure to exercise reasonable care to protect
his undertaking, if (a) his failure to exercise
reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the
other to the third person, or (c) the harm is
suffered because of reliance of the other or the
third person upon the undertaking.
See also Sherer v. James, 290 S.C. 404, 351 S.E.2d 148 (1986) (recognizing analogous ยง 323A of the Restatement (Second) of Torts establishes a duty on one who undertakes to render services for protection of another to use due care to avoid increasing the risk of harm).
In this case, Kendall participated with the Corps of Engineers in the meeting in which dam safety was addressed. The report recognized the danger to downstream occupants, including those on highways. Kendall was represented at the meeting by its engineer, who along with the foreman, was named as the responsible party to monitor lake levels in the Emergency Notification Form. In practice, Kendall employees monitored the lake water levels, and the City of Camden opened or closed the sluice gates at their request. According to the testimony of the city's public works manager, it relied, rightly or wrongly, on the monitoring by Kendall employees.
In summary, Kendall maintained control over the water level above the dam and voluntarily undertook emergency monitoring. Under these circumstances, we conclude Kendall owed a duty to third persons to use reasonable care in the operation of the Kendall Lake Reservoir and Dam to protect
For all the foregoing reasons, the judgment of the lower court is
Reversed and remanded.
GOOLSBY and CONNOR, JJ., concur.
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