Contrary to Respondent’s assertion, Appellant (“Austin”) is not asking this Court to adopt a cause of action that has yet to be adopted in South Carolina. As discussed in her initial brief, and as will be hereinafter discussed, a cause of action for spoliation of evidence by a third-party is consistent with, and supported by, current South Carolina law.

In order to establish liability in a negligence action, the plaintiff must show (1) a duty of care owed by the defendant to the plaintiff; (2) breach of that duty; and (3) damages resulting from the breach. Tanner v. Florence County Treasurer, 336 S.C. 552, 521 S.E.2d 153 (1999). An affirmative legal duty to act may be created by statute, contract relationship, status, property interest, or some other special circumstance. Steinke v. South Carolina Dep't of Labor, Licensing & Regulation, 336 S.C. 373, 520 S.E.2d 142 (1999); Jensen v. Anderson County Dep't of Social Services, 304 S.C. 195, 403 S.E.2d 615 (1991). When, and only when, the plaintiff relies upon a statute as creating the duty does a doctrine known as the "public duty rule" come into play.

Arthurs v. Aiken County, 346 S.C. 97, 103, 551 S.E.2d 579, 582 (2001)(emphasis added).

In its recognition of “spoliation of evidence as a stand-alone tort,” in Hannah v. Heeter, 584 S.E.2d 560 (W.Va. 2003), the West Virginia Supreme Court of Appeals turned to its prior tort decisions, which are reminiscent of South Carolina’s. Through its analysis of the duty required of the tortfeasor, the court recognized and held that “a duty to preserve evidence for a pending or potential civil action may arise in a third party to a civil action through a contract, agreement, statute, administrative rule, voluntary assumption of duty by the third party, or other special circumstances.” Id. at 569 (emphasis added).

While the State might not have an “absolute duty” to preserve evidence for a criminal defendant, each situation must be individually analyzed. See State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300 (2002), State v. Mabe, 306 S.C. 355, 412 S.E.2d 386 (1991), State v. Hutton, 358 S.C. 622, 595 S.E.2d 876 (Ct. App. 2004). This would be especially appropriate in determining whether there were “special circumstances” giving rise to duty.

As stated by the supreme court,

A cause of action, as defined with reference to its elements, consists of a primary right of plaintiff, a corresponding duty of the defendant, and a wrong by the defendant in breach of such right and duty.

It follows that a cause of action for damages is not on the one hand the damage suffered by plaintiff, nor on the other hand the mere evidentiary facts showing the defendant's wrong; but it is the wrong itself done by defendant to plaintiff, that is, the breach of duty by the defendant to the plaintiff, whether it is the duty arising out of a contract or of tort. Every violation of a legal right imports damage and authorizes the maintenance of an action and the recovery of at least nominal damages, regardless of whether any actual damage has been sustained.

Livingston v. Sims, 197 S.C. 458, 15 S.E. 770, 772 (1941)(citations omitted).

Robert Bair died on July 25, 2001. BCSO then commenced an investigation, seized evidence from his residence, and closed the investigation on September 5, 2001. (R. p. 14). The evidence was apparently destroyed in September 2002. (R. p. 15).

Through its appellate brief, BCSO asserts, for the first time, that, under S.C. Code Ann. § 44-53-485(c), it could “destroy the evidence after a reasonable period of time.” However, the record before the circuit court is void of any reference to, or consideration of, § 44-53-485 with respect to the destruction or disposition of the seized evidence. Moreover, BCSO has presented no details of the destruction, tests conducted, or other relevant information.

Here, the circuit court failed to consider that there might be “some other special circumstance” before making its pronouncement that “there can never be a cause of action against someone who is not connected to a potential tortfeasor for spoliation of evidence, particularly a sheriff’s department.” (R. p. 73).

The South Carolina courts do not appear to have adopted a test for determining what conduct constitutes a “special circumstance” giving rise to a common law duty. See Arthurs, 346 S.C. at 109, 551 S.E.2d at 585.

Accordingly, Austin submits that the circuit court erred in preemptively determining that “there can never be a cause of action against someone who is not connected to a potential tortfeasor for spoliation of evidence.” (R. p. 73).

II.	THE CIRCUIT COURT ERRED IN HEARING AND GRANTING BCSO’S MOTION FOR SUMMARY JUDGMENT.

Prior to the hearing on the motion for summary judgment, Austin served and filed an affidavit under Rule 56(f), SCRCP (“When Affidavits are Unavailable”) (R. p. 53), a motion to continue the hearing (R. p. 55), and a motion to strike the affidavit of one Eileen Rios. (R. p. 51).

Through the Rule 56(f) affidavit, Austin demonstrated her inability to “present by affidavit facts essential justify her opposition.” More particularly, she alleged that BCSO had not adequately responded to her interrogatories. (R. p. 54). Although the Rule 56(f) affidavit was called to the circuit court’s attention, it failed to consider the affidavit. (R. pp. 72-73).

Respondent BCSO questions the propriety of the motion to strike the affidavit of Eileen Rios. BCSO overlooks that Rule 103(a), SCRE, provides that:

Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context;

* * *

Emphasis added.

Moreover, through her Rule 59(e) motion she renewed her objections to the summary judgment and called to the circuit court’s attention that it had not entered an order on the motion to continue or the motion to strike. (R. pp. 57-58, 61). The circuit court denied the Rule 59(e) motion without comment. (R. p. 8).

On appeal from an order granting summary judgment, the appellate court should review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below. Willis v. Wu, 362 S.C. 146, 150-51, 607 S.E.2d 63, 65 (2004); see also, Schmidt v. Courtney, 357 S.C. 310, 316-17, 592 S.E.2d 326, 330 (Ct. App. 2003) (stating all ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party).

Summary judgment is not appropriate when further inquiry into the facts of the case is desirable to clarify the application of the law. Gadson v. Hembree, 364 S.C. 316, 320, 613 S.E.2d 533, 535 (2005); Montgomery v. CSX Transp., Inc., 362 S.C. 529, 542, 608 S.E.2d 440, 447 (Ct.
App. 2004).

Since Austin is not relying on a statute as creating duty, the "public duty rule" does not come into play.
According, Austin submits that the motion for summary judgment was erroneously granted.

CONCLUSION

For Austin to have been able to address adequately the existence of conduct constituting “special circumstances,” she required discovery which she requested but was denied. Moreover, the circuit court’s preemptive statement that “there can never be a cause of action against someone who is not connected to a potential tortfeasor for spoliation of evidence, particularly a sheriff’s department” demonstrated an unalterable, predetermined position, that is inconsistent with South Carolina law.

For the reasons stated herein, and in appellant’s initial brief, the underlying summary judgment should be reversed and this matter remanded for further proceedings.

	Respectfully submitted,
January 3, 2007	_________________________ M. Adam Gess McDaniel & Gess, LLC P. O. Box 2085 Beaufort, SC 29901 843-379-5117 Attorney for Appellant