Case Overview

Gloria Cole and George Dewalt, Jr., in their capacities as Personal
Representatives of the Estate of George Ernest Cole, deceased, v. South
Carolina Electric and Gas, Inc.

George Cole drowned while swimming at Lake Murray on land owned by SCE&G. (This is the swimming area at the dam.) Mr. Cole's estate filed this lawsuit against SCE&G for negligence, nuisance, and unreasonably dangerous activity. In its defense, SCE&G argued, among other things, that it was protected by the Recreational Use Statute and that Mr. Cole assumed the risk. This case was heard in the Richland County Court of Common Pleas. Before the trial began, the judge ruled in favor of SCE&G, or granted their motion for summary judgment, on the nuisance and unreasonably dangerous activity causes of action. The judge granted partial summary judgment on the negligence cause of action, finding that the Recreational Use Statute protected SCE&G from allegations of simple negligence. However, the judge allowed the jury to determine whether SCE&G committed gross negligence. The jury found for SCE&G.

Mr. Cole's estate appealed to the South Carolina Court of Appeals. The Court of Appeals affirmed (agreed with) the grant of partial summary judgment on the negligence cause of action, but reversed the jury verdict and sent the case back to the county court for a new trial. (See Court of Appeals opinion attached).

Both SCE&G and Mr. Cole's estate have asked the South Carolina Supreme Court to review the Court of Appeals' decision. Mr. Cole's estate asks the Court to determine whether the parking fee SCE&G charges for the beach area at the dam constitutes a "charge" for the use of the property. Under the Recreational Use Statute, a landowner owes no duty of care to keep the premises safe for recreational users unless the landowner charges persons who enter or go on the land for recreational use. A landowner may also be liable under the Recreational Use Statute if gross negligence is proven.

SCE&G asks the Court to determine whether a regulation of the South Carolina Department of Health and Environmental Control (DHEC), which requires owners of natural bathing beaches to have an elevated station or platform equipped with a life saving ring, a life line, and a swimming buoy with a torpedo line as well as a minimum of one lifeguard for every 100 yards of beach, conflicts with the requirements of the Recreational Use Statute. The trial judge informed the jury of the DHEC regulation. SCE&G argues that the jury should not have been given that information.

The other two issues argued by SCE&G involve their defense of assumption of the risk. The first involves the instructions the trial judge gave to the jury regarding SCE&G's defense of assumption of the risk.¹ The Court of Appeals found that the trial judge's instruction did not adequately inform the jury that SCE&G had the burden of proving each element of this defense. SCE&G also argues the trial judge should have found Mr. Cole assumed the risk as a matter of law instead of allowing the jury to make that determination.

¹Assumption of the risk requires that the plaintiff (1) have knowledge of the facts constituting a dangerous condition; (2) know the condition is dangerous; (3) appreciate the nature and extent of the danger; and (4) voluntarily expose himself to the danger. Mr. Cole's estate alleged the dangerous condition was caused by the lack of safety equipment and personnel at the beach. SCE&G argued that because Mr. Cole knew that there was no lifeguard on duty and had swam the same route on prior occasions, he assumed the risk.

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