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MCKENZIE v. LEEKE6/22/1987
Heard May 27, 1987.
Decided June 22, 1987.
Thomas Lee McKenzie, a former "A" custody prison inmate at the Midlands Reception and Evaluation Center in Columbia, brought this action against William D. Leeke, the Commissioner of the South Carolina Department of Corrections, Louise Brown, the Warden at the Center, and James L. Harvey, the Department's Regional Administrator, in their official capacities alleging that a breach of their duty to protect him against attack by third parties caused him to be wounded by a shotgun blast fired by Eartha Louis Carr, a former boyfriend of Dye Ann Burkett, McKenzie's registered visitor at Midlands Center. The trial court granted the defendant prison officials summary judgment. McKenzie appeals. The dispositive question concerns whether McKenzie's injuries resulted from a breach of duty on the part of these officials to protect McKenzie from a third party attack. We affirm.
On May 25, 1985, McKenzie saw Carr running along Hampton Street, up Lincoln Street, and into an open parking lot where McKenzie was visiting with Burkett. When McKenzie and Burkett realized Carr was carrying a shotgun, they ran toward a van parked in the parking lot. Carr chased them down and shot them both. He also struck McKenzie with the shotgun. Columbia police officers arrested Carr moments after the shootings.
The Department allowed inmates with either "A" or "AA" custody to receive visitors within the parking lot where Carr shot McKenzie and Burkett. A policy guideline adopted by Brown and Harvey and applicable to automobiles coming into this parking lot states that " he Shift Supervisor
Assuming, without deciding, that the doctrine of sovereign immunity does not bar the action against Leeke, Brown, and Harvey in their official capacities, that these officials owed McKenzie a duty to protect him from an assault by a third party, and that Policy No. 1500.3 imposed on each of them the duty periodically to spot check motor vehicles using the parking lot in question, we do not see how their failure to carry out this duty resulted in McKenzie's injuries. See McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985) (the abrogation of the doctrine of sovereign immunity does not extend to discretionary acts); RESTATEMENT (SECOND) OF TORTS ยง 320 (1965) (wherein is discussed the duty owed by a person having custody of another to control the conduct of third persons); Annot., 41 A.L.R. 3d 1021 (1972) (wherein is discussed the liability of prison officials for an injury to a prisoner directly caused by an assault by another prisoner).
In Horne v. Beason, 285 S.C. 518, 331 S.E.2d 342 (1985), the administrator of the estate of a prisoner who hanged himself in a jail cell brought
" amages for an injury resulting from a negligent act
of the defendant may be recovered if a reasonably prudent
and careful person should have anticipated, under
the same or similar circumstances, that injury to the
... The existence of actionable negligence depends,
not upon what actually happened, but upon what reasonably
might have been expected at the time, and not
by a judgment from actual consequences which were not
then to be apprehended by a prudent and competent
man. . . ."
285 S.C. at 521, 331 S.E.2d at 344.
Although foreseeability is ordinarily a jury issue, we do not think it reasonably foreseeable as a matter of law that a prison official's failure periodically to spot check motor vehicles in an open parking lot used as a visiting area by prison inmates would probably result in a prisoner being injured by a third person who ran, not drove, from a city street
Page 1 2 South Carolina Personal Injury Attorneys
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