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Cole v. South Carolina Electric & Gas1/31/2005
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Heard December 1, 2004
AFFIRMED AS MODIFIED
We granted a writ of certiorari to review the Court of Appeals' decision involving application of the Recreational Use Statute, S.C. Code Ann. § 27-3-10 et seq. (1991), and assumption of the risk. We affirm as modified.
FACTS
Petitioners/respondents (hereinafter collectively referred to as "Cole") brought this wrongful death action for the death of their son George Cole. George drowned on August 6, 1997, at the age of fourteen while swimming at a Lake Murray recreation site owned by respondent/petitioner South Carolina Electric & Gas (SCE&G). Cole alleged SCE&G was negligent and grossly negligent for failing to provide lifeguards, life-saving equipment, and the proper warnings at the site. On SCE&G's motion for summary judgment, the trial court found SCE&G was entitled to immunity from liability for simple negligence under the Recreational Use Statute and the trial proceeded only on the issue of SCE&G's gross negligence.
At trial, Cole produced evidence that George was at Lake Murray Site #1 with his friend Vincent, Vincent's mother, and her boyfriend. By all accounts, George was a good swimmer. The boys were told not to go into the water without telling the adults but they did not follow this directive. Vincent testified that he and George swam out to the safety line, or buoy line. They did not know the water at the buoy line was over their heads. The two boys were racing back to shore when Vincent turned around and saw George floundering. Vincent ran for a security guard who called 911.
Another witness saw George crying for help and bobbing up and down. Several bystanders attempted a rescue but could not find George under the water. After about fifteen to twenty minutes, his body was found in seven or eight feet of water at the bottom of the lake. He could not be revived.
At trial, Cole's aquatic safety expert, Stanly Shulman, testified that George would have lived had there been a lifeguard on duty because lifeguards are trained to search under water. Further, bystanders could have saved him had there been safety equipment available. Shulman also testified that the buoy line should have been placed at a depth of three-and-a-half to five feet, rather than seven to eight feet, and that depth markers should have been placed. The signs warning simply "no lifeguard on duty" were inadequate in his opinion to warn of the dangers inherent in swimming in a lake. Shulman also testified that SCE&G failed to develop an effective risk management plan even after two previous drownings at the site.
The jury returned a verdict for SCE&G and Cole appealed. On appeal, the Court of Appeals affirmed summary judgment on the issue of immunity under the Recreational Use Statute but reversed and remanded for a new trial on the gross negligence cause of action because the trial judge failed to charge SCE&G's burden to prove its affirmative defense of assumption of the risk. Both parties petitioned this Court for a writ of certiorari.
DISCUSSION
Cole's Appeal
Application of the Recreational Use Statute
In 1968, our legislature enacted a Recreational Use Statute (RUS), codified at §§ 27-3-10 through -70, which limits the liability of a landowner under certain conditions. In pertinent part, these sections provide as follows.
§ 27-3-10. Declaration of purpose.
The purpose of this chapter is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting
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