ADKINS v. VARN
12/20/1993
t the trial court erred in finding that the county animal control ordinance did not create a special duty of care towards individual members of the general public.
Prior to the adoption of the South Carolina Tort Claims Act, the Court of Appeals developed a six element test to determine when an ordinance created a special duty. Rayfield v. South Carolina Dept. of Corrections, 297 S.C. 95,
(1) an essential purpose of the statute
is to protect against a particular kind of
harm;
(2) the statute, either directly or
indirectly, imposes on a specific public
officer a duty to guard against or not cause
that harm;
(3) the class of persons the statute
intends to protect is identifiable before the
fact;
(4) the plaintiff is a person within the
protected class;
(5) the public officer knows or has
reason to know the likelihood of harm to
members of the class if he fails to do his
duty; and
(6) the officer is given sufficient
authority to act in the circumstances or he
undertakes to act in the exercise of his
office.
Id. at 294, 408 S.E.2d at 221.
Moreover, in Jensen v. Anderson County DSS, 304 S.C. 195, 403 S.E.2d 615 (1991), we held that where there is a duty to the general public only, an officer is not liable to an individual who is incidentally injured by the officer's failure to perform that duty. In Jensen, we also recognized that the Rayfield analysis may have a different implication in cases arising after the adoption of the South Carolina Tort Claims Act. Id. at 201 n.2, 403 S.E.2d at 618 n.2. However, assuming arguendo that the ordinance did create a special duty, it would still not rise to a level which would abrogate the plain meaning of ยง 15-78-60(4).
Therefore, the ordinance would have to create a special duty which reaches beyond the general public. The terms used in the Animal Control Ordinance are general, and they allow for a discretionary delegation of the duty to a non-government contractor. There is no identification of a particular class of potential victims, and the terms do not identify a particular kind of harm. It would be difficult to read a special duty into the language of the Animal Control Ordinance, and there does not appear to be a legislative intent to create such a duty.
Accordingly, for the reasons stated, the trial court's granting of a summary judgment is affirmed.
HARWELL, C.J., and CHANDLER, FINNEY and MOORE, JJ., concur.
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