THE STATE OF SOUTH CAROLINA
In The Court of Appeals

____________________

APPEAL FROM LEXINGTON COUNTY
Court of Common Pleas

James W. Johnson, Jr., Circuit Court Judge

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Case No. 2005-CP-32-2645

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Teresa Edwards, ……………………………………… Appellant,

Lexington County Sheriff’s Department and County of Lexington, …………………………………. Respondents.

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BRIEF OF RESPONDENTS

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Patrick J. Frawley
NICHOLSON, DAVIS, FRAWLEY,
ANDERSON & AYER, LLC
Post Office Box 489
Lexington, South Carolina 29071
Phone: (803) 359-2512
Fax: (803) 356-1138
ATTORNEYS FOR RESPONDENTS

Other Counsel of Record:

John A. O’Leary
714 Calhoun Street
Columbia, South Carolina 29201
Phone: (803) 779-5556

Frederick Arnold Beacham, Jr.,
506 East Main Street
Lexington, South Carolina 29072
Phone: (803) 957-2522

ATTORNEYS FOR APPELLANT

TABLE OF CONTENTS

Table of Contents ............…………………………………………….......................… i

Table of Authority………......……………………………………………................ … iii

Statement of Issues on Appeal .................………………………………………..... 1

Statement of the Case ...…………………………………………….......................... 2

Statement of Facts ………………………………………………………………….… 4

Standard of Review ………………………………………………………………….… 13

Argument I ..................................………………………………………………...…… 14

THERE WAS NO GENUINE ISSUE OF MATERIAL FACT BUT THAT NEITHER THE LEXINGTON COUNTY SHERIFF’S DEPARTMENT NOR THE COUNTY OF LEXINGTON OWED A SPECIAL DUTY TO THE APPELLANT EDWARDS, ENTITLING HER TO A PRIVATE RIGHT OF ACTION, AND THE LOWER COURT PROPERLY GRANTED SUMMARY JUDGMENT.

Argument II…………………………………………………………………………… 20

EVEN IF A SPECIAL DUTY IS FOUND TO BE OWED TO THE APPELLANT EDWARDS, AND SHE IS DEEMED TO HAVE A PRIVATE RIGHT OF ACTION, THERE IS NO GENUINE ISSUE OF MATERIAL FACT BUT THAT THE LEXINGTON COUNTY SHERIFF’S DEPARTMENT AND LEXINGTON COUNTY EXERCISED AT LEAST SLIGHT CARE WITH REGARD TO EDWARDS.

Argument III…………………………………………………………………………. 24

EDWARDS DID NOT ALLEGE IN HER COMPLAINT A SPECIFIC COMMON LAW CAUSE OF ACTION—WHETHER THE "BUSINESS VISITOR" ARGUMENT RAISED FOR THE FIRST TIME IN HER MEMORANDUM IN OPPOSITION TO SUMMARY JUDGMENT, OR THE "DEFENDANTS NEGLIGENTLY CREATED THE RISK OF ASSAULT" ARGUMENT IT HAS NOW MORPHED IN TO—AND THAT ISSUE IS NOT PROPERLY BEFORE THIS COURT.

Argument IV………………………………………………………………………….. 27

EVEN IF THE COURT ENTERTAINS EDWARDS’ "BUSINESS VISITOR" OR "NEGLIGENTLY CREATED THE RISK OF ASSAULT" ARGUMENTS, THERE IS NO GENUINE ISSUE OF MATERIAL FACT BUT THAT BAKER’S ACTIONS ON AUGUST 6, 2003 WERE NOT FORSEEABLE, GIVEN HIS PRIOR HISTORY OF NO PHYSICAL ATTACKS WITH EDWARDS, AND THE JUDGE’S AND HOWLAND’S HISTORIES OF HAVING HAD NO PRIOR PHYSICAL ATTACKS IN THE COURTROOM.

Conclusion…………………………………………………………………………… 30

Certificate of Counsel………………………………………………………………… 31

TABLE OF AUTHORITY

Page

CASES

Arthurs v. Aiken County, 338 S.C. 253, 525 S.E.2d 542 (S.C. App. 1999)………..14-16

Arthurs v. Aiken County, 346 S.C. 97, 551 S.E.2d 579 (S.Ct. 2001)……………....14-16, 20

Blackburn and Company v. Dudley, 289 S.C. 415, 338 S.E.2d 151 (S.Ct. 1985)…..25

Callen v. Cale Yarborough Enterprises, 314 S.C. 204,

442 S.E. 2d 216 (S.C.App. 1994)…………………………………………..28

Companion Property and Casualty Ins. Co. v. Airborne Express, Inc.,

369 S.C. 388, 631 S.E.2d 915 (S.C. App. 2006)…………………………. 13

Cowburn v. Leventis, 366 S.C. 20, 619 S.E.2d 437 (S.C. App. 2005)……………...13

Davis v. Campbell, 151 S.C. 359, 149 S.E 1 (1929)………………………………...25

Etheredge v. Richland School District One, 341 S.C. 307,

534 S.E. 2d 275 (S.Ct. 2000)……………………………………………….21, 23

Goode v. St. Stephens United Methodist Church, 329 S.C. 433,

494 S.E.2d 827 (S.C.App. 1997)……………………………………………28, 29

Jensen v. Anderson County Dept. of Social Services, 304 S.C. 195,

403 S.E.2d 615 (S.Ct. 1991)…………………………………………………15, 16

Plyler v. Burns, et al, 373 S.C. 637, 647 S.E.2d 188 (S.Ct. 2007)…………………...21

Rayfield v. South Carolina Dept. of Corrections, 297 S.C. 95,

374 S.E.2d 910 (S.C.App. 1988)…………………………………………… 14, 15

Rogers v. South Carolina Dep’t of Parole and Community Corrections,

320 S.C. 253, 464 S.E.2d 330 (S.Ct. 1995)…………………………………..14

Steinke v. South Carolina Dep’t of Labor, Licensing and Regulation,

336 S.C. 373, 520 S.E.2d 142 (S.Ct. 1999)……………………………………21

Vaughan v. Town of Lyman, 370 S.C 436, 635 S.E.2d 631 (S.Ct. 2006)………………..14-18

Wells v. City of Lynchburg, 331 S.C. 296, 501 S.E.2d 746 (S.C. App. 1998)…………...15

Wyatt v. Fowler, 326 S.C. 97, 484 S.E.2d 590 (S.Ct. 1997)……………………………..15, 16

STATUTES

S.C. Code Ann. § 15-78-20 (1986 as amended) ……………………………………… …20, 21

S.C. Code Ann. § 15-78-60 (1986 as amended)…………………………………………..2, 21

S.C. Code Ann. § 15-78-70 (1986 as amended)…………………………………………..20

S.C. Code Ann. §15-78-200 (1997 as amended)………………………………………….21

S.C. Code Ann. § 16-3-1525 (1997 as amended)………………………………………….16-18

S.C. Code Ann. § 16-3-1565 (1997 as amended)…………………………………………17, 18

S.C. Code Ann. § 16-25-10 (1994), amended by 2003 Act No. 92,
§ 3, eff. January 1, 2004; 2005 Act No. 166, § 1,
eff. January 1, 2006………………………………………………………………17

S.C. Code Ann. § 23-13-70 (1976 as amended)……………………………………….......2, 15,

16, 25

OTHER AUTHORITY

SCRCP Rule 56……………………………………………………………………………13

STATEMENT OF ISSUES ON APPEAL

I. WHETHER THERE WAS NO GENUINE ISSUE OF MATERIAL FACT BUT THAT NEITHER THE LEXINGTON COUNTY SHERIFF’S DEPARTMENT NOR THE COUNTY OF LEXINGTON OWED A SPECIAL DUTY TO THE APPELLANT EDWARDS, ENTITLING HER TO A PRIVATE RIGHT OF ACTION, AND THE LOWER COURT PROPERLY GRANTED SUMMARY JUDGMENT?

II. WHETHER, EVEN IF A SPECIAL DUTY IS FOUND TO BE OWED TO THE APPELLANT EDWARDS, AND SHE IS DEEMED TO HAVE A PRIVATE RIGHT OF ACTION, THERE IS NO GENUINE ISSUE OF MATERIAL FACT BUT THAT THE LEXINGTON COUNTY SHERIFF’S DEPARTMENT AND LEXINGTON COUNTY EXERCISED AT LEAST SLIGHT CARE WITH REGARD TO EDWARDS?

III. WHETHER THE "BUSINESS VISITOR" ARGUMENT RAISED FOR THE FIRST TIME IN EDWARDS’ MEMORANDUM IN OPPOSITION TO SUMMARY JUDGMENT, OR THE "DEFENDANTS NEGLIGENTLY CREATED THE RISK OF ASSAULT" ARGUMENT IT HAS NOW MORPHED IN TO—ARE PROPERLY BEFORE THIS COURT?

IV. WHETHER, EVEN IF THE COURT ENTERTAINS EDWARDS’ "BUSINESS VISITOR" OR "NEGLIGENTLY CREATED RISK OF ASSAULT" ARGUMENTS, THERE IS NO GENUINE ISSUE OF MATERIAL FACT BUT THAT BAKER’S ACTIONS ON AUGUST 6, 2003 WERE NOT FORSEEABLE?

STATEMENT OF THE CASE

On August 5, 2005, Teresa Edwards filed suit in the Lexington County Court of Common Pleas, naming the Lexington County Sheriff’s Department and the County of Lexington as Defendants, and alleging that she had been physically attacked and injured by her "estranged boyfriend" in a Lexington County Magistrate’s courtroom during a bond revocation hearing for the ex-boyfriend. See, R. pp. 3-5, Complaint. Ms. Edwards alleged that the "Defendants had a common law duty to protect the Plaintiff in accordance with the Criminal Domestic Violence Act, as well as § 23-13-70 of the South Carolina Code of Laws (1976) among other duties and professional standards." Id., para. 10. The Lexington County Sheriff’s Department and the County of Lexington served a joint Answer on October 6, 2005, asserting thirteen defenses, including South Carolina Tort Claims Act defenses under S. C. Code Ann. §15-78-60(1), (2), (3), (4), (5), (20), and (25), in addition to the Public Duty Rule. See, generally, R. pp. 9-15, Answer.

The case was called for trial on the first day of the August 13, 2007 term of Common Pleas Jury Court in Lexington County. A jury was selected, and pre-trial motions were argued by counsel before Judge James W. Johnson, one of which motions was treated, by consent of the parties, as a summary judgment by the Defendants. R. p. 55, line 21 to p. 57, line 5. The parties had agreed upon a written Stipulation of Facts, which was presented to the Court on August 15, 2008. See, R. pp. 70-78, Supp. R. p. 1, Stipulation of Facts. The Court heard the argument of Counsel, and at the conclusion of the arguments, directed the parties to submit what depositions or portions of depositions would be relied upon in addition to the Stipulation of Facts, and allowed the parties to submit memoranda supporting their respective positions. R. p. 67, lines 6-25.

The Court issued its Order on or about October 12, 2007, granting Summary Judgment to the Defendants.

Ms. Edwards filed and served a timely Notice of Appeal on November 2, 2007.

STATEMENT OF FACTS

In July, 2002, the Plaintiff, Teresa Edwards, then 33-years old and a citizen and resident of the State of South Carolina, County of Lexington, met and began dating Allen Luther Baker. R. pp. 70-71, Stip. #4. The relationship developed without difficulties until the morning of February 16, 2003, when Baker began behaving in an intimidating and controlling manner, refusing to allow Edwards to use the telephone or leave her home. Id. See also, R. p. 109, line 23 to p. 113, line 17 (Edwards’ description of the incident). Baker and Edwards had spent the previous night together in Edwards’ bed, but Edwards and Baker maintained separate residences, and did not co-habitate. Id., p. 107, line 6 to p. 108, line 13, p. 109, line 16 to p. 110, line 2 (emphasis added).

Although Baker did not physically strike Edwards, he did grab her by the shoulders in a controlling manner, causing her to fear for her safety. R. pp. 70-71, Stip. #4. Baker did allow a friend of Edwards, Kelly Hamilton Nobles, to speak with Edwards by phone. Id. Following that call, Nobles, concerned for her friend, called 911, and Lexington County Sheriff’s Department (hereinafter "LCSD") deputies responded to the call. Id. Shortly thereafter, the deputies arrested Baker for criminal domestic violence, and removed him from the home. Id. Further, that Allen Luther Baker was arrested for criminal domestic violence as a result of the incident. Id.

Baker was released on personal recognizance bond on February 22, 2003. A condition of his bond was that he not contact Edwards. R. p. 71, Stip. #5.

After being released from jail, Baker returned to Edwards’ home on two occasions: the first when he convinced Edwards’ 10-year old daughter to let him in, staying two days before leaving; and the second, kicking Edwards’ door in to gain entrance, then spending the night. R. p. 71, Stip. #6. Edwards admitted that, after Baker got out of jail, she "didn’t really think that the CDV was anything serious and…[she] talked with him a couple of times on the telephone." R. p. 114, lines 21-24. Edwards did not call LCSD on or following either occasion to report Baker’s return or the fact that she had spent the night with him. R. p. 71, Stip #6; see also, R. p. 114, line 17 to p. 115, line 25.

In the months between February 16 and August 6, 2003, every time Edwards called LCSD, they responded, and if Baker was there, he would leave; Baker was not able to come to Edwards home to hurt her because LCSD got there. R. p. 134, line 1 to p. 135, line 10. Edwards admitted that between February 16 and August 6, 2003, LCSD did provide her with security from Baker. Id., p. 136, lines 8-12.

On April 25, 2003, LCSD responded to a call from Edwards, reporting that Baker had been calling her residence and threatening her and her children. R. p. 71, Stip. #7. While the responding deputy was with Edwards, taking her report, Baker called again. Id. On April 26, 2003, LCSD responded to a call from Edwards, reporting that Baker had called, again threatening her and threatening damage to her car. R. p. 72, Stip. #8. On April 27, 2003, LCSD responded to a call from Edwards, reporting that Baker had come to her residence riding in the backseat of a car being driven by an unknown female, with another unknown female present, and threatened Edwards. R. p. 72, Stip. #9. After the responding deputy was at Edwards’ home, Edwards received a call from Baker, who threatened to kill Edwards. Id.

On April 28, 2003, LCSD Detective Oscar L. McIntosh contacted Edwards regarding the calls, as investigating officer. R. p. 72, Stip. #10. McIntosh made arrangements with South Carolina Victims Assistance to house Edwards and her daughters in a safe place, and they were put in a hotel for protection. Id. McIntosh contacted a magistrate, and presented probable cause for warrants to be issued against Baker for stalking and unlawful use of the telephone. Id.

On April 29, 2003, Edwards contacted Detective McIntosh, and said that she needed to return home, feeling that, if she returned home, Baker could be arrested sooner. After unsuccessfully attempting to encourage Edwards to stay at the hotel until Baker could be arrested, McIntosh contacted LCSD and requested that on duty units conduct checks of Edwards’ home throughout the night. R. p. 72, Stip. #11. Once Edwards returned to her home, Baker’s calls continued. Id. At 2:47 a.m. on April 30, Baker came to Edwards’ residence riding a motorcycle, remaining on the motorcycle, but reving the engine. Id. At 2:49 a.m. Edwards called LCSD, reporting that Baker was in her front yard, on his motorcycle. Id. At 2:51 a.m. the on-duty LCSD unit arrived and arrested Baker in Edwards’ front yard, taking Baker to the Lexington County Detention Center without incident. Id.

On April 30, 2003, Baker was brought before a Lexington County Bond Judge, was found in contempt of court for violating the conditions of his prior bond, and was sentenced to 30 days in jail. R. p. 73, Stip. #12. The Judge then reset Baker’s bond as a $5,000 surety bond. Id. Baker subsequently was able to post a surety bond, and was released. Id.

Nicole Howland, an employee of LCSD serving as Prosecutor for Criminal Domestic Violence cases within Lexington County, had contact with Edwards within the scope of Howland’s employment, and pursuant to her efforts to prosecute the CDV case against Baker arising out of the February 16, 2003 incident. R. p. 73, Stip. #13. At all times relevant herein, Nicole Howland was acting within the scope of her employment. Id.

Even after being released from his second arrest, and despite the no-contact conditions of his surety bond, Baker continued to make telephone calls to Edwards. R. p. 73, Stip #14. Howland told Edwards to tape record any further calls she received from Baker, in order to have evidence of Baker’s further violation of the no-contact conditions of his bond. Id. Edwards did so, and contacted Howland, telling her that Edwards was still calling, and that she had tape recordings of the calls. Id.

Howland contacted Lexington County Magistrate Jamie Lucas, and requested that a bond revocation hearing be scheduled for Baker. R. p. 73, Stip. #15. The normal procedure for such hearings at the time was for the Judge to determine whether the bond revocation hearing would be initiated with a bench warrant, a contempt rule to show cause, or some other means. Id. On or about Monday, August 4, 2003, Judge Lucas called David Crawford, of "A Plus" Bonding Company, with which Baker had his surety bond, and told Crawford to have Baker at Judge Lucas’s Magistrate’s Office at 4458 Augusta Highway, in Lexington County, at 8:30 a.m. on Wednesday, August 6, 2003. Id.

Howland, receiving notice that the bond revocation hearing was scheduled for the morning of August 6, 2003, contacted Edwards, and told her to be present at the hearing, and to bring the tape recordings with her, so the recordings could be presented to the Judge as evidence. R. p. 74, Stip. #16. Edwards told Howland that she was afraid of Baker, and was reluctant to appear at the hearing if Baker was going to be present. Id. Howland told Edwards that Edwards needed to be present at the hearing in order to get the tapes into evidence and prove the contempt. Id.

As of August 6, 2003, Judge Lucas’s Oak Grove Magistrate’s District Office was temporarily housed in a small, two-roomed building with two desks, a fax machine, and three chairs in the anteroom where the two staff employees worked, and a desk for the Judge, two very small counsel tables, and eleven chairs in the Judge’s Office/Courtroom. R. p. 74, Stip. #17. There was one door for ingress and egress, entering the building into the anteroom, and one door from the anteroom into the Judge’s Office/Courtroom. Id.

As of August 6, 2003, Judge Lucas’s Oak Grove Magistrate’s Office had no metal detectors at the entrance of the building nor the door leading into the Judge’s Office/Courtroom, no audio-visual system monitoring the entrance into the building nor the inside of the Judge’s Office/Courtroom, no video cameras, no panic buttons, no holding cell, no security plans or transport mechanism for detained persons. R. p. 74, Stip. #18.

As of August 6, 2003, Judge Lucas’s Oak Grove Magistrate’s Office had no LCSD deputy nor bailiff assigned to the office as security. R. p. 75, Stip. #19.

As of August 6, 2003, the July 10, 2001 Administrative Order of The Honorable Jean H. Toal, Chief Justice of the South Carolina Supreme Court, was in effect, ordering, inter alia, that county governing authorities shall provide courtroom security for each term of Circuit Court, if requested by the Circuit Court judge, to include the presence of a law enforcement officer in the courtroom, or immediately available to provide assistance in the courtroom upon request by the presiding judge. R. p. 75, Stip. #20. The Chief Justice further ordered county governing authorities to provide courtroom security during each term of Family Court, with a law enforcement officer to be present in each Family Court courtroom while court is in session, unless excused by the presiding Family Court Judge. The Chief Justice further ordered county governing authorities to provide courtroom security during estate and commitment hearings in Probate Court, if requested by the Probate Judge, with the presence of a law enforcement officer in the courtroom, or the immediate availability of an officer to provide assistance in the courtroom, to be determined by the Probate Judge and county sheriff in consultation with the county administrator. Id. The Chief Justice’s Order does not address courtroom security for summary courts, nor bond courts, nor municipal courts, nor magistrates courts. Id.

As of August 6, 2003, Judge Lucas had never had a litigant attack another litigant in his courtroom, and Allen Luther Baker, despite the pending CDV charge, his repeated verbal threats, intimidation, pushing and stalking of Edwards, had never hit Edwards. R. p. 76, Stip. #21. See also, R. p. 116, line 21 to p. 117, line 19, p. 121, lines 18-20, p. 133, lines 7-18 (Baker did not hit Edwards prior to the bond revocation hearing, she never had a problem with him from July, 2002 through February 16, 2003).

As of August 6, 2003, Judge Lucas did have a canister of pepper spray within reach as he sat at his desk. R. p. 76, Stip. #22. The pepper spray had not been issued to him by Lexington County, but he had retained it from his service as Chief of the South Congaree Police Department, prior to his becoming a magistrate. Id.

Prior to August 6, 2003, Nicole Howland had never expressed concerns over security in dealing with CDV cases to Lexington County Sheriff James Metts. R. p. 142, lines 6-9. Howland had not been involved in a similar courtroom confrontation prior to August 6, 2003. R. p. 142, lines 13-15.

On the morning of August 6, 2003, David Crawford, Baker’s bondsman, arrived at Judge Lucas’s office located at 4458 Augusta Highway shortly before 8:30. R. p. 76, Stip. #23. Baker arrived shortly thereafter. Id. Howland and Edwards were present; Edwards had brought her 9-year-old daughter. Id. No LCSD deputies were present, nor had any been called. Id.

Prior to entering Judge Lucas’s Office/Courtroom, Baker handed Crawford an "exacto"-type razor-blade knife that he took out of his back pocket, telling Crawford that it was his work knife, and telling Crawford that he might want to hold it. R. p. 76, Stip. #24. Crawford put the knife in his pocket. Id.

Inside the Office/Courtroom, Judge Lucas sat behind his desk at the head of the room. R. p. 76, Stip. #25. In front of the Judge’s desk were the two small counsel tables. Id. Edwards was seated behind the table on the left, facing the Judge, nearly against the wall opposite the door entering the room, Howland was seated to Edwards’ immediate right, and Baker was seated behind the second counsel table, to the right of Howland and nearest to the door. Id. Edwards’ daughter sat in a chair behind her, and Crawford sat in a chair behind Baker. Id.

The hearing lasted approximately twenty minutes, during which time Howland presented a summary of the matter to Judge Lucas, who addressed Baker regarding Baker’s apparent lack of understanding of what a "no contact" condition on a bond meant. R. p. 77, Stip. #26. Baker responded to the Judge’s inquiry, and attempted to present his defense, although admitting, in his presentation, that he had called Edwards. Id. Edwards said nothing throughout the hearing, keeping her eyes lowered, and avoiding any eye contact with Baker. Id. At some point during the hearing, Howland requested that she be allowed to remove Edwards’ daughter from the courtroom, and the little girl was taken out into the anteroom, where she sat in one of the three chairs in the presence of the two staff employees. Id.

Judge Lucas found Baker in contempt, revoked his bond, and sentenced Baker to an additional thirty days. R. p. 77, Stip. #27. There were no deputies nor law enforcement officers present to take Baker into custody and transport him upon revocation of his bond. Id. As the Judge was writing out the sentence, Baker suddenly rose from his chair and, turning to his left, violently struck Howland at least two times, then pinned Edwards, still sitting in her chair, up against the wall, violently striking her on the right side of her head at least three times. Id.

Crawford grabbed Baker from behind, pinning Baker’s arms to his sides, then spun Baker counterclockwise to his left, kicking Baker’s legs out from under him, and slammed Baker to the floor and against the wall adjacent to the door. See, R. p. 77, Supp. R. p. 1, Stip. #28. While Crawford was grabbing Baker, Judge Lucas had grabbed his pepper spray, had jumped over his desk, and sprayed Baker—and Crawford—with the pepper spray after Crawford had Baker on the floor. Id. The entire attack lasted approximately twenty seconds. Id.

Judge Lucas’s staff called 911 and requested emergency assistance. Supp. R. p. 1, Stip. #29. A single LCSD deputy arrived in 5-10 minutes; several others arrived shortly thereafter. Id. Crawford and Judge Lucas kept Baker secured by sitting on him until the LCSD deputies arrived and took Baker into custody. Id.

Edwards, bruised and swollen on the right side of her face and behind her right ear, was taken by ambulance to the Lexington Medical Center Emergency Room, where she was treated and released. Supp. R. p. 1, Stip. #30.

STANDARD OF REVIEW

In reviewing a motion for summary judgment, the appellate court applies the same standard of review as the trial court under Rule 56, SCRCP. Companion Property and Casualty Ins. Co. v. Airborne Express, Inc., 369 S.C. 388, 390, 631 S.E.2d 915, 916 (S.C. App. 2006), citing Cowburn v. Leventis, 366 S.C. 20, 30, 619 S.E.2d 437, 443 (S.C. App. 2005). Summary Judgment should be affirmed if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. See also, Companion Property, 369 S.C. at 390-391, 631 S.E.2d at 916 ([appellate court’s] standard of review in evaluating a motion for summary judgment is to liberally construe the record in favor of the nonmoving party and give the nonmoving party the benefit of all favorable inferences that might reasonably be drawn therefrom).

ARGUMENT I

The "public duty" rule presumes statutes which create or define the duties of a public office have the essential purpose of providing for the structure and operation of government or for securing the general welfare and safety of the public. Arthurs v. Aiken County, 346 S.C. 97, 104, 551 S.E.2d 579, 582 (S.Ct. 2001)(hereinafter cited as "Arthurs II"). Such statutes create no duty of care toward individual members of the general public. Id.

The public duty rule is a negative defense which denies an essential element of the plaintiff’s cause of action: the existence of a duty of care owed to the individual plaintiff. Id., citing Rayfield v. South Carolina Dept. of Corrections, 297 S.C. 95, 105-06, 374 S.E.2d 910, 916 (S.C.App. 1988); see also, Vaughan v. Town of Lyman, 370 S.C 436, 442, 635 S.E.2d 631, 634 (S.Ct. 2006). Without such a duty, there can be no actionable negligence. Arthurs v. Aiken County, 338 S.C. 253, 262, 525 S.E.2d 542, 547 (S.C. App. 1999)(hereinafter cited as "Arthurs I"), citing Rogers v. South Carolina Dep’t of Parole and Community Corrections, 320 S.C. 253, 464 S.E.2d 330 (S.Ct. 1995).

Ordinarily, the common law imposes no duty on a person to act; but an affirmative legal duty exists if created by statute, contract, relationship, status, property interest, or some other special circumstance. See, e.g., Vaughan, 370 S.C at 441, 635 S.E.2d at 634; Wyatt v. Fowler, 326 S.C. 97, 101, 484 S.E.2d 590, 592 (S.Ct. 1997); Jensen v. Anderson County Dept. of Social Services, 304 S.C. 195, 199, 403 S.E.2d 615, 617 (S.Ct. 1991); Rayfield v. South Carolina Dept. of Corrections, 297 S.C. 95, 100, 374 S.E.2d 910, 913 (S.C.App. 1988). It follows, then, that a person usually incurs no liability for failure to take steps to protect others from harm not created by his own wrongful act, absent the creation of such an affirmative legal duty. Rayfield, 297 S.C. 95, 100, 374 S.E.2d 910, 913.

An exception to the general rule of non-liability exists when the statutory duty is owed to specific individuals rather than to the public only. Arthurs II, 346 S.C at 106, 551 S.E.2d at 583. In the context of a negligence action, the Public Duty Rule provides that a statute prescribing the duties of a public office does not, without more, impose on the person holding that office a duty of care toward individual members of the public in the performance of those duties. Arthurs I, 338 S.C. at 263, 525 S.E.2d at 547, citing Wells v. City of Lynchburg, 331 S.C. 296, 307, 501 S.E.2d 746, 752 (S.C. App. 1998). A police officer, acting in his or her official capacity, owes a duty to the public at large, rather than to any particular individual. Arthurs I, 338 S.C. at 263, 525 S.E.2d at 547, citing Wyatt v. Fowler, 326 S.C. 97, 484 S.E.2d 590 (S.Ct. 1997).

The Appellant Edwards asserted in her Complaint that "the Defendants had a common law duty to protect the Plaintiff in accordance with the Criminal Domestic Violence Act, as well as § 23-13-70 of the South Carolina Code of Laws (1976) among other duties and professional standards." R. p. 3, Complaint, para. 10. Much later, Edwards added S.C. Code Ann. § 16-3-1525 to the statutory mix in an attempt to create a private duty at the argument of pre-trial motions. See, generally, e.g., R. p. 60, lines 2-22. Contrary to the Plaintiff’s allegation, the Respondents Lexington County Sheriff’s Department and Lexington County have no "common law" duty to protect the Plaintiff. Cf., e.g., Vaughan, 370 S.C at 441, 635 S.E.2d at 634; Wyatt v. Fowler, 326 S.C. 97, 101, 484 S.E.2d 590, 592 (S.Ct. 1997); Jensen v. Anderson County Dept. of Social Services, 304 S.C. 195, 199, 403(ordinarily, the common law imposes no duty on a person to act; but an affirmative legal duty exists if created by statute, contract, relationship, status, property interest, or some other special circumstance). Two of the statutorily-created duties alleged by Edwards--§ 23-13-70 and the Criminal Domestic Violence Act—had been argued, unsuccessfully, in the Arthurs v. Aiken County cases as creating special duties giving rise to a private right of action for the Plaintiff in those cases. See, generally, Arthurs I, 338 S.C. at 265-266, 525 S.E.2d at 548-549; Arthurs II, 346 S.C. at 105-108, 551 S.E.2d at 583-584. The Arthurs decisions held that no statutory special duty was created by either statute, although the South Carolina Supreme Court tentatively left the door ajar for future Plaintiffs with a footnote in Arthurs II, disclaiming that "[w]e do not reach the question whether under different circumstances the CDV Act can be the basis of a ‘special duty.’" Arthurs II, 346 S. C. at 107, 551 S.E.2d at 584, FN6.

Edwards attempts to cloak herself with a special duty under the CDV Act, given the Supreme Court’s disclaimer; but her attempt failed before the lower court, and should similarly fail on appeal. The dispositive issue is not whether a statute creates a duty, but whether the statute was intended to provide an individual a private right of action in the event that duty is breached. Vaughan v. Town of Lyman, 370 S.C. 436, 442, 635 S.E.2d 631, 634 (S.Ct. 2006)(emphasis added). In Edward’s case, the more central issue is whether the CDV Act even applies to her at all.

Under the definition of "Household Member," in effect at the time of Edwards’ seven-month tryst with Baker, the act applied to "spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, persons who have a child in common and a male or female who are cohabitating or formerly have cohabitated." S.C. Code Ann. § 16-25-10 (1994), amended by 2003 Act No. 92, § 3, eff. January 1, 2004; 2005 Act No. 166, § 1, eff. January 1, 2006. The only category under which Edwards and Baker--who were neither married, related by blood, nor shared children—might have fit was as a female and male who were cohabitating or had in the past cohabitated; but by her own deposition testimony, Edwards vigorously and repeatedly disclaimed that possibility, testifying that she and Baker maintained separate residences, and did not co-habitate. R. p. 107, line 6 to p. 108, line 13, and p. 109, lines16-22.

Late in the game—raising the issue for the first time on July 19, 2007, through the deposition testimony of Michael Thomas, who had only been identified as an expert less than a week earlier—Edwards attempted to create a special duty and private right of action under S.C. Code Ann. § 16-3-1525 (G)(1997 as amended), but overlooked S.C. Code Ann. § 16-3-1565, which specifically precludes a private right of action against a public agency for monetary damages. While the public duty rule has been called a rule of statutory construction which aids the court in determining whether the legislature intended to create a private right of action for a statute’s breach, see, e.g., Vaughan, 370 S.C. at 442, 635 S.E.2d at 634, such a guiding light to divine legislative intent is obviated by the clear language of § 16-3-1565. Edwards attempts to argue on appeal—for the first time—that even though neither the CDV Act nor § 16-3-1525, independently, afford her a private right of action, collectively they provide her shelter under the test for a special duty. See, Brief of Appellant, pp. 11-12. Ignoring, for a moment, the claimed private right of action under § 16-3-1525, was neither pled, nor even mentioned earlier than one month before the case was called for trial, no modern case law addressing the Public Duty Doctrine supports that argument.

Edwards argued at the August 15 oral argument on the Motion for Summary Judgment that a special relationship was somehow created, thereby allowing her to circumvent the absence of a statutorily created duty; but there is no evidence that Lexington County nor LCSD, through its deputies nor through Nicole Howland, had any more special relationship with Edwards than they had with any other victim or witness, in any other case they responded to or prosecuted. Edwards argues that Howland required her to appear at the hearing, when, in fact, the very reason for the hearing was for Edwards’ benefit—to get Baker off of the street so he could no longer pose a threat to her—and the means of doing that was to get into evidence, through Edwards, the tapes Howland felt she needed to revoke Baker’s bond. Edwards’ presence at Judge Lucas’s courtroom was without subpoena, and for Edwards’ own benefit. No special duty was created through relationship.

There was no genuine issue of material fact but that neither the Lexington County Sheriff’s Department nor the County of Lexington owed a special duty to Teresa Edwards, and that she had no private right of action against either for their acts or omissions between February 16 and August 6, 2003. The lower court properly reached that conclusion in granting summary judgment; and this Court should affirm that granting of summary judgment.

ARGUMENT II

EVEN IF A SPECIAL DUTY IS FOUND TO BE OWED TO EDWARDS, AND SHE IS DEEMED TO HAVE A PRIVATE RIGHT OF ACTION, THERE IS NO GENUINE ISSUE OF MATERIAL FACT BUT THAT THE LEXINGTON COUNTY SHERIFF’S DEPARTMENT AND LEXINGTON COUNTY EXERCISED AT LEAST SLIGHT CARE WITH REGARD TO EDWARDS.

Only if a special duty is found and Edwards is able to establish the other elements of a negligence action, does she get to the South Carolina Tort Claims Act immunities. Cf., Arthurs II, 346 S.C. at 105, 551 S.E.2d at 583 (only if a duty is found, and the other negligence elements shown, will it ever be necessary to reach the TCA immunities issue). But even assuming, for arguments sake, that she gets there, she still loses as a matter of law, given the gross negligence standard she must establish under the Tort Claims Act provisions, the stipulations of fact, and her own deposition testimony, as well as the opinion of her own expert.

The remedy provided by the South Carolina Tort Claims Act is the exclusive civil remedy available for any tort committed by a governmental entity, its employees, or its agents, so long as they act within the scope of their official duties, and did not commit actual fraud, actual malice, intent to harm, or a crime involving moral turpitude. See, e.g., S.C. Code Ann. §§ 15-78-20(b), 15-78-70(b) (1986 as amended). Provisions establishing limitations upon and exemptions from liability of a governmental entity must be liberally construed in favor of limiting liability. S.C. Code Ann. §§ 15-78-20(f), 15-78-200 (1997 as amended). When a governmental entity asserts an exception to the waiver of immunity and any other applicable exception contains a gross negligence standard, the Court must read the gross negligence standard into all of the exceptions under which the entity seeks immunity. Plyler v. Burns, et al, 373 S.C. 637, 651, 647 S.E.2d 188, 196 (S.Ct. 2007) citing Steinke v. South Carolina Dep’t of Labor, Licensing and Regulation, 336 S.C. 373, 393, 520 S.E.2d 142, 152 (S.Ct. 1999). In their Answer, the Lexington County Sheriff’s Department and the County of Lexington raised, as affirmative defenses, immunities or limitations on liability afforded by S.C. Code Ann. § 15-78-60(1), (2), (3), (4), (5), (20), and (25), the last of which provides that, a governmental entity, such as the Respondents herein, is not liable for a loss resulting from the responsibility or duty, including, but not limited to supervision, protection, control, confinement, or custody of any prisoner or inmate, except when the responsibility or duty is exercised in a grossly negligent manner. S.C. Code Ann. § 15-78-60(25)(1985 as amended)(emphasis added). Accordingly, in order to prevail in her private right of action against the Lexington County Sheriff’s Department and the County of Lexington—assuming, for argument’s sake, that she even had a private right of action—Edwards would need to prove gross negligence.

Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do. E.g., Etheredge v. Richland School District One, 341 S.C. 307, 311, 534 S.E. 2d 275, 277 (S.Ct. 2000). It is the failure to exercise even slight care. Id. While gross negligence ordinarily is a mixed question of law and fact, when the evidence supports but one reasonable inference, the question becomes a matter of law for the Court. Id.

The facts to which the parties stipulated in this case are replete with acts on the part of the Lexington County Sheriff’s Department and the County of Lexington that go well beyond the "slight care" threshold. The Sheriff’s Department responded to the original call to Edwards’ home on February 16, 2003, and arrested Baker. See, e.g., R. pp. 70-71, Stip. #4. Over the next five-plus months, it responded repeatedly to subsequent calls by or on behalf of Edwards, R. pp. 71-72, Stip. ## 7, 8, 9; and even arranged to put Edwards and her daughters up in a motel "safehouse" to avoid Baker. R. p. 72, Stip. #10. Even though she, herself, was somewhat less than consistent in her actions in avoiding Baker or reporting his transgressions, cf., R. p.114, lines 21-24(she "didn’t really think that the CDV was anything serious" after his arrest and release, and "talked with him a couple of times on the telephone."); p. 114, line 17 to p. 115, line 25, R. p. 71, Stip. #6(Edwards did not call the Sheriff’s Department to report the two times Baker returned to her home following his arrest, including spending the night in her home one of the two times), Edwards nevertheless testified on deposition that every time she called the Sheriff to come to her aid between the February 16, 2003 initial call about Baker and the August 6, 2003 bond hearing, they responded and kept Baker away. R. p. 136, lines 8-12. Edwards’ own testimony establishes slight care and beyond.

Edwards now attempts to ignore the considerable efforts of the Sheriff’s Department in responding to her calls to safeguard her and her children from February 16, 2003 through the August 6, 2003 hearing, and "cherry pick" the Lucas Courtroom absence of a deputy as the basis for liability; but Edwards’ Complaint alleges, as particulars of negligence, the entire gamut of LCSD involvement—from "failing to properly investigate the complaints of the Plaintiff", R. p. 6, Complaint, para. 12(a), to allowing Baker to remain at large after threats of physical violence, despite two arrests, id., para 12(b). Edwards’ Complaint commencing this action alleges fault with the Respondents throughout the period, not just the alleged failure at Judge Lucas’s courtroom; and the actions of the Sheriff’s Department throughout the February 16 to August 6, 2003 period were considerable, by Edwards’ own admission.

Even Edwards’ own expert, Michael Thomas, places little fault on the Sheriff’s Department, conceding he thought "they did their jobs pretty well," R. p. 183, lines 18-23, and that the Sheriff’s Department was not called to the courtroom before the attack, id., p. 183, line 24 to p. 184, line 1, laying blame at the feet of Judge Lucas for failing to call the Sheriff before he began the hearing. Id., p. 184, line 13 to p. 185, line 6. Even then, Thomas opines only that the Respondents were "negligent," not grossly negligent. Id., p. 186, line 15 to p. 187, line 14; see also, Defendant’s Exhibit 3 to Thomas Deposition. He asserts that everything that should have been done was not done. But the hindsight possibility that the Respondents might have done more does not negate the fact that they exercised at least slight care. Etheredge, 341 S.C. at 312, 534 S.E.2d at 278.

There is no genuine issue of material fact on the issue of gross negligence—by the testimony of Edwards herself, the opinion of her hired expert, and by the facts stipulated by counsel. The Respondents clearly exercised at least slight care, and beyond, and there is only one reasonable inference—that the Respondents were—and are—entitled to summary judgment as a matter of law on the gross negligence issue, even should Edwards be able to hurdle the Public Duty Rule.

ARGUMENT III

Edwards argued in her September 4, 2007 Supplemental Memorandum in Opposition to Summary Judgment that, as a "business visitor" she was owed a reasonable expectation of safety by the Respondents, and, therefore, a duty to provide reasonable protection existed. See, R. p. 90, Plaintiff’s Supplemental Memorandum in Opposition to Summary Judgment. However, Edwards raised that newly-found "business visitor" status for the first time in arguing against summary judgment, having not raised the issue in her Complaint, and should have been precluded from raising a theory of recovery for the first time two years after filing and serving her Summons and Complaint. That theory of recovery has now evolved, on appeal, to an argument not made below, that the Lexington County Sheriff’s Department and the County of Lexington "negligently created the risk of assault." Brief of Appellant, pp. 19 -22. See, also, id., p. 21, fn. 8 ("[a]lthough Edwards couched this argument and the next in the court below in terms of the duty of government to a ‘business invitee,’ …").

In her Complaint, filed August 8, 2005, the only two places Edwards used the term "common law" were in paragraph 10, when she allegd that the Defendants "had a common law duty to protect the Plaintiff in accordance with the Criminal Domestic Violence Act, as well as § 23-13-70 of the South Carolina Code of Law [sic](1976) among other duties and professional standards," see, R. pp. 6-7, Complaint, para. 10; and in paragraph 13, following her paragraph 12 enumeration of particulars of negligence, when she alleged "[a]ll of which acts are in violation of the statutory and common law of South Carolina, and which are imputed to the Defendants under the Tort Claims Act,… ." Id., para. 13. Nowhere in the Complaint did the words "business visitor," nor any reasonable derivative appear; nowhere in the Complaint did Edwards allege her late-claimed status as a "business visitor." Nor, for that matter, was there an allegation that the Defendants negligently had created the risk of the assault. See R. pp. 4-8, Complaint.

A rule of pleading recognized by South Carolina Courts is based upon the principle that a Plaintiff who has pled one theory should not be allowed to recover upon another. Blackburn and Company v. Dudley, 289 S.C. 415, 418, 338 S.E.2d 151, 152 (S.Ct. 1985). A Defendant is entitled to notice of the type of claim to which he is required to respond. Id. Cf., Davis v. Campbell, 151 S.C. 359, 149 S.E 1 (1929)(holding that, because the question of homestead was not raised by the pleadings, it was not properly before the Court).

Accordingly, Edwards should be precluded from making either her "business visitor" argument or the "negligently created risk of assault" argument, neither of which were plead nor properly raised below. Summary judgment was properly granted to the Lexington County Sheriff’s Department and the County of Lexington based on the issues that were raised in the pleadings.

ARGUMENT IV

Even should the Court consider Edwards’ "business visitor" argument, there is no genuine issue of material fact but that Baker’s attack on August 6, 2003 was not foreseeable, given his history of no physical attacks on Edwards, and the absence of any similar courtroom attacks in the experiences of Judge Lucas or the prosecutor, Nicole Howland.

Although Baker had been threatening Edwards, he had never physically assaulted her in the seven months she had known him prior to the February 16, 2003 incident that prompted the calling of LCSD, had not struck her that day, and had only hit her for the first time on August 6, 2003. See, e.g., R. p. 76, Stip. # 21; see also, R. p. 116, line 21 to p. 117, line 15, p. 121, lines 18-20, p. 133, lines 7-18. As of August 6, 2003, Judge Lucas had never had a litigant attack another litigant in his courtroom. R. p. 76, Stip. #21. Similarly, prosecutor Nicole Howland had never had a similar confrontation in a courtroom in her experience prior to August 6, 2003. R. p. 142, lines 13-15.

Assuming for purposes of argument, that Edwards’ attempted shoe-horning of her status as a "business visitor" is appropriate, without so admitting, and then similarly assuming that the Respondents are similarly shoe-horned into the status as "business owners," a business owner has a duty to take reasonable care to protect invitees; but that duty does not extend to protection from criminal attacks from third parties unless the business owner knew or had reason to know the criminal act would occur. Goode v. St. Stephens United Methodist Church, 329 S.C. 433, 443, 494 S.E.2d 827, 832 (S.C.App. 1997). See also, Callen v. Cale Yarborough Enterprises, 314 S.C. 204, 206, 442 S.E. 2d 216, 218 (S.C.App. 1994)(a Hardees restaurant held not liable for injuries an invitee suffered as a result of a fight when Hardees knew that, although other violent incidents had occurred over the past several years, there had been not previous incident that night to put Hardees on notice, and therefore no evidence that Hardees knew or had reason to know a fight was about to occur). Notwithstanding Edwards’ 20-20 hindsight and her argument that CDV cases are fraught with the potential for violence, Baker’s history with Edwards was not one that included physical assaults, and the respective experiences of the judge and the prosecutor did not include courtroom violence. Baker’s actions were not foreseeable, given what was known at the time.

Furthermore, if Baker did pose such a potential for violence, who in that courtroom knew him better than Edwards, herself? And notwithstanding her after-the-fact protestations that she feared Baker, Edwards brought her nine-year-old daughter to the hearing with her. R. p. 76, Stip. #23. Had even Edwards reasonably foreseen the extent of Baker’s actions, she would not have done that. With no such foresight, the Respondents could not be liable. Cf., Goode, 329 S.C. at 443-444, 494 S.E.2d at 832 (Court granted summary judgment on liability, even though Plaintiff and his mother stated they knew of criminal activity at Defendant’s facility in the past and knew of fights the third party had been involved in, but no evidence that the Defendant was aware of third party’s previous fights or any incident earlier in the day that should have put them on notice).

Even if the Court chooses to entertain Edwards’ Johnny-come-lately "Business Visitor" argument, or its morphed-over "negligently created risk of assault" version, there is no genuine issue of material fact on the issue of forseeability, and the granting of summary judgment still should be affirmed.

CONCLUSION

There is no genuine issue of material fact on either the Public Duty Rule issue, nor, even were Edwards able to get beyond that, on the gross negligence issue; and the lower court properly granted summary judgment to the Respondents. That grant of summary judgment should be affirmed.

Respectfully submitted,

s/Patrick J. Frawley
Patrick J. Frawley

NICHOLSON, DAVIS, FRAWLEY,ANDERSON & AYER, LLC
140 East Main Street, P.O. Box 489
Lexington, South Carolina 29071
(803) 359-2512
ATTORNEYS FOR RESPONDENTS

Lexington, South Carolina
July 17, 2008.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

____________________

APPEAL FROM LEXINGTON COUNTY
Court of Common Pleas

James W. Johnson, Jr., Circuit Court Judge

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Case No. 2005-CP-32-2645

____________________

Teresa Edwards, ……………………………………… Appellant,

Lexington County Sheriff’s Department and County of Lexington, …………………………………. Respondents.

___________________________

CERTIFICATE OF COUNSEL

___________________________

I hereby certify that this Brief of Respondents complies with Rule 211(b) of the South Carolina Appellate Court Rules, and with the August 13, 2007 Order of the South Carolina Supreme Court, providing Interim Guidance Regarding Personal Data Identifiers and Other Sensitive Information in Appellate Court Filings.

s/Patrick J. Frawley
Patrick J. Frawley

NICHOLSON, DAVIS, FRAWLEY,ANDERSON & AYER, LLC
140 East Main Street, P.O. Box 489
Lexington, South Carolina 29071
(803) 359-2512
ATTORNEYS FOR RESPONDENTS

Lexington, South Carolina

July 17, 2008.