Miller v. City of Camden , 329 S.C. 310 ( 1997 )

TOAL, Justice:

In this case, we have wide divergence of opinions from the trial court, the Court of Appeals and this court on the issue of whether and under what circumstances the law imposes liability on a volunteer toward a third party. The Court of Appeals, relying on Restatement (Second) of Torts § 324A, held that a duty is imposed on anyone (volunteer or not) who undertakes to render services for the protection of others to avoid risk of harm of any third persons. The majority rejects the expanded liability of the Restatement, but holds that a volunteer can be liable to third parties and that here there is a jury question as to whether Kendall volunteered to monitor for the benefit of third parties. Thus, the majority affirms, with modification, the Court of Appeals’ reversal of the trial court’s grant of summary judgment for Kendall.

My brother in dissent would hold as a matter of law that Kendall is a volunteer and thus liable. I would hold as a matter of law that Kendall was not a volunteer and thus not liable at all. I agree with the majority that one who volunteers to assume responsibility for the protection of third parties may be liable to third parties for negligent conduct in the performance of the volunteer services. Where I depart from the majority is in its holding that there is a jury question as to Kendall’s volunteer status. I wholeheartedly concur with the majority’s rejection of Restatement (Second) of Torts § 324A, which expands liability to third parties for one who undertakes to render a service. I respectfully dissent from the portion of the majority opinion that concludes there was evidence that Kendall volunteered to assume responsibility for monitoring threats to the Kendall Lake Dam. With the greatest respect for my brothers in the majority, I believe the trial court’s grant of summary judgment to Kendall should be affirmed. I would reverse the Court of Appeals.

The majority opinion contains an excellent outline of the facts and legal claims presented. It quite appropriately concludes that Kendall has absolutely no liability for injury and death claims arising out of the ownership, maintenance and operation of Kendall Lake and Dam. The City is the owner and operator of this property. Kendall has not even had a key to this property since the early 1980’s. Kendall’s liability is solely premised upon its perceived “Good Samaritan” or “volunteer” status.

The land and dam at issue here are owned and controlled by the City of Camden. Kendall conveyed this property to Camden in 1961. This property is subject to regulation by the U.S. Army Corps of Engineers pursuant to federal legislation and regulations known as the National Dam Safety Program. The property is also subject to regulation by the South Carolina Department of Land Resources pursuant to the S.C. Dams and Reservoirs Safety Act.

The specific facts upon which the majority concludes that there is a jury issue as to whether or not Kendall is a volunteer are the following. In June of 1979, the Army Corps of Engineers issued an inspection report which criticized the safety of the dam at Kendall Lake. In August of 1979, State Land Resources Director of Dam Safety sent a letter to Camden and Kendall Mills suggesting a meeting at his office to discuss the inspection report on the Kendall Lake Dam. On September 6, 1979, a meeting was held with Land Resources officials attended by City of Camden and Kendall representatives. The only evidence relied on by the majority to find this “volunteer” status is the attendance by a Kendall employee at this meeting in which an emergency notification plan was formulated, as well as the placement of that representative’s name on an “Emergency Alert Notification” form used by the South Carolina Department of Land Resources. Far from showing Kendall volunteered to monitor Kendall Lake Dam or the water level at Kendall Lake, the emergency notification forms merely constituted a recognition that Kendall was usually the first party to experience flooding from high water levels in the lake. City’s public works director clearly stated that his own department and City’s police department were responsible for monitoring the lake and the dam.

Kendall attended the 1979 meeting at the written request of State Land Resources. The emergency notification forms on which Kendall employees are listed are required by the Dams and Reservoirs Safety Act, S.C.Code Ann. §§ 49-11-110 to - 260 (Supp.1995). The Dams and Reservoirs Safety Act does not create a private cause of action in third parties. It simply eludes my understanding how Kendall’s agreeing to place the name of one of its employees on a form developed by a governmental agency and required by the Act gives rise to a duty to members of the general public.

We live in an age in which governmental regulation increasingly intrudes into almost every aspect of business and private life. Much of this regulation is the necessary price we pay for order and safety in our society. Nevertheless, the Orwellian “Big Brother is watching you”¹ power of late 20th century bureaucrats makes any meeting between the regulator and the regulated inherently coercive. It simply does not square with common sense experience to characterize a business response to a governmental inquiry as voluntary.

This was not a situation where a business unilaterally decided to render assistance to someone in distress. Instead, the Director of the Dams and Reservoirs Safety Program within the South Carolina Land Resources Conservation Commission requested that the plant engineer of Kendall Mills meet with him to prepare an “Emergency Alert Notification” form. It is dubious that any company in a similar position would resist compliance. Under the rule established in this case, civil liability as a volunteer could attach when a company does nothing more than comply with a governmental request for information. I would reverse the Court of Appeals and reinstate the summary judgment granted defendant Kendall by the trial court.

Accordingly, I concur in part and dissent in part.

1 . George Orwell [Eric Blair], 1984 (1948).