Rogers v. South Carolina Department of Parole & Community Corrections , 320 S.C. 253 ( 1995 )

Moore, Justice:

This is a wrongful death action in which respondent obtained a jury verdict in the amount of $600,000. We reverse.

FACTS

In 1985, Doris Rogers (Doris) was robbed, kidnapped, and murdered. Her assailants were Daniel Jones and Robert Vandroff (Vandroff). Seventeen days prior to Doris’s murder, appellants released Vandroff pursuant to a supervised furlough program provided for in S.C. Code Ann. §§ 24-13-710 and -720.¹ Vandroff had been serving time for breaking into the home occupied by Doris and her son (respondent).

In 1989, respondent brought this action for wrongful death claiming appellants were negligent in failing to warn Doris of Vandroffs release on furlough.² At trial, the jury returned a verdict for respondent in the amount of $600,000.³

ISSUE

Did the trial judge err in denying appellants’ motion for a directed verdict?

DISCUSSION

At trial, appellants moved for a directed verdict on the ground that a common law duty to warn of the release of an individual from custody does not exist in this state and that even if such a duty does exist, they did not have a duty to warn Doris in this case. On appeal, appellants argue the trial judge erred in denying their directed verdict motion. We agree.

An essential element in a cause of action for negligence is the existence of a legal duty of care owed by the defendant to the plaintiff. Without such a duty, there can be no actionable negligence. South Carolina Elec. & Gas Co. v. Utilities Constr. Co., 244 S.C. 79, 135 S.E. (2d) 613 (1964); Kershaw Motor Co. v. Southern Ry. Co., 136 S.C. 377, 134 S.E. 377 (1926).

Generally, one has no duty to control the dangerous conduct of another or to warn a potential victim of such conduct. See Degenhart v. Knights of Columbus, 309 S.C. 114, 420 S.E. (2d) 495 (1992); Rayfield v. South Carolina Dep’t of Corrections, 297 S.C. 95, 374 S.E. (2d) 910 (Ct. App. 1988), cert. denied, 298 S.C. 204, 379 S.E. (2d) 133 (1989); Restatement (Second) of Torts §§ 314 and 315 (1965). However, when a defendant has the ability to monitor, supervise, and control an individual’s conduct, a special relationship exists between the defendant and the individual, and the defendant may have a common law duty to warn potential victims of the individual’s dangerous conduct. See Rayfield v. South Carolina Dep’t of Corrections, supra; Restatement (Second) of Torts §§ 315 and 319 (1965).

We hold such a duty to warn arises when a person being released from custody has made a specific threat of harm directed at a specific individual. See Sheerin v. State, 434 N.W. (2d) 633 (Iowa 1989) (the duty to warn depends upon and arises from the existence of a prior threat to a specific identifiable victim); Cairl v. State, 323 N.W. (2d) 20 (Minn. 1982) (a duty to warn exists only when specific threats are made against specific victims); Thompson v. County of Alameda, 27 Cal. (3d) 741, 167 Cal. Rptr. 70, 164 P. (2d) 728 (1980) (defendants had no affirmative duty to warn of the release of an inmate who had made nonspecific threats of harm directed at nonspecific victims).

In this case, however, there was no evidence presented that Vandroff ever made a specific threat to harm Doris. Therefore, appellants had no common law duty to warn Doris of Vandroff’s release. Consequently, the trial judge erred in denying appellants’ motion for a directed verdict. Carolina Home Builders, Inc. v. Armstrong Furnace Co., 259 S.C. 346, 191 S.E. (2d) 774 (1972) (when evidence presented at trial raises no issue for the jury as to defendant’s liability, a motion for a directed verdict based on the sufficiency of the evidence should be granted); South Carolina Elec. & Gas Co. v. Utilities Constr. Co., supra; Kershaw Motor Co. v. Southern Ry. Co., supra. We need not address the remaining issues.

Reversed.

Finney, C.J., and George T. Gregory, Jr., Acting Associate Justice, concur. Toal, A.J., dissents in separate opinion. Alexander S. Macauley, Acting Associate Justice, concurs with dissent in separate opinion.

1 These statutes have since been amended several times. Currently, § 24-13-710 requires the Department of Corrections to notify victims pursuant to the provisions of the Victim’s and Witness’s Bill of Rights, S.C. Code Ann. §§ 16-3-1510 to -1560 (1985 & Supp. 1994), before releasing an inmate through any supervised furlough program. S.C. Code Ann. § 24-13-710 (Supp. 1994). The statute in effect when Vandroff was released did not contain such a notification provision. See Act No. 96, § 1, 1983 S. Ct. Acts 199.

2 Respondent also claimed appellants were negligent in making the decision to release Vandroff on furlough and in supervising Vandroff after his release. Appellants’ motion for summary judgment was granted as to these claims and no appeal was taken.

3 This action arose before the adoption of the South Carolina Tort Claims Act, S.C. Code Ann. §§ 15-78-10 to -190 (Supp. 1994), but after this Court’s decision in McCall v. Batson, 285 S.C. 243, 329 S.E. (2d) 741 (1985), abrogating sovereign immunity for governmental entities to the extent of any existing tort liability insurance coverage.