White v. City of North Charleston ( 2020 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Norris Earl White, Jr., Appellant,
v.
City of North Charleston, Respondent.
Appellate Case No. 2017-001930
Appeal From Charleston County
Kristi Lea Harrington, Circuit Court Judge
Unpublished Opinion No. 2020-UP-231
Submitted March 16, 2020 – Filed August 5, 2020
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
Milton Demetrios Stratos, II, of Joye Law Firm, LLP, of
North Charleston, for Appellant.
Robin Lilley Jackson, of Senn Legal, LLC, of
Charleston, for Respondent.
PER CURIAM: After he was arrested at a Waffle House in 2013 by the City of
North Charleston (the City) police for disorderly conduct and resisting arrest, Norris
Earl White, Jr. sued the City for (1) assault and battery, (2) false arrest, (3) false
imprisonment, (4) "negligence/gross negligence," (5) malicious prosecution, and (6)
unlawful search and seizure.1 The circuit court granted the City summary judgment
in a brief Form 4 order. White now appeals, arguing the circuit court erred in (1)
ruling that no private right of action existed for his claims of false arrest, false
imprisonment, and negligence; (2) holding his claims to a gross negligence standard;
(3) granting the City immunity under the South Carolina Torts Claim Act2 (the Act);
(4) granting summary judgment in favor of the City because there was a genuine
dispute as to whether his arrest was supported by probable cause; and (5) considering
four affidavits submitted by the City that White contends were either untimely or
constituted "sham" affidavits. We affirm in part, reverse in part, and remand.3
I. 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(c), SCRCP." Companion Prop.
& Cas. Ins. Co. v. Airborne Exp., Inc., 369 S.C. 388, 390, 631 S.E.2d 915, 916 (Ct.
App. 2006). "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."Our 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."
Id. at 390–91, 631 S.E.2d at 916 (quoting Estes v. Roper Temp. Servs., Inc., 304 S.C.
120, 121, 403 S.E.2d 157, 158 (Ct. App. 1991)). The nonmoving party "is only
required to submit a mere scintilla of evidence in order to withstand a motion for
summary judgment." Huffman v. Sunshine Recycling, LLC, 426 S.C. 262, 271, 826
S.E.2d 609, 614 (2019) (quoting Hancock v. Mid-S. Mgmt. Co., 381 S.C. 326, 330,
673 S.E.2d 801, 803 (2009)).
II. PRIVATE RIGHT OF ACTION
The circuit court erred in ruling there was no private right of action for false arrest
and false imprisonment against the City. See § 15-78-40 ("The State, an agency, a
political subdivision, and a governmental entity are liable for their torts in the same
manner and to the same extent as a private individual under like circumstances,
subject to the limitations upon liability and damages, and exemptions from liability
1
White also sued the City for negligent hiring, training, and supervision and
intentional infliction of emotional distress. However, these claims are not at issue
on appeal.
2
S.C. Code Ann. §§ 15-78-10 to -220 (2005 & Supp. 2013).
3
We decide this case without oral argument pursuant to Rule 215, SCACR.
and damages, contained herein."); § 15-78-200 (stating the Act "is the exclusive and
sole remedy for any tort committed by an employee of a governmental entity while
acting within the scope of the employee's official duty"); id. ("The provisions of [the
Act] establish limitations on and exemptions to the liability of the governmental
entity and must be liberally construed in favor of limiting the liability of the
governmental entity."). Although White alleged his state constitutional rights were
violated, he asserted false arrest and false imprisonment as common law torts, which
may be brought against the City. Compare Jones v. City of Columbia, 301 S.C. 62,
64–65, 389 S.E.2d 662, 663 (1990) (discussing false arrest and false imprisonment
claims brought against the City of Columbia), with Palmer v. State, 427 S.C. 36, 44–
46, 829 S.E.2d 255, 260–61 (Ct. App. 2019) (discussing how South Carolina has not
recognized private causes of action for violations of the state constitution), petition
for cert. filed (S.C. Aug. 6, 2019).4
III. NEGLIGENCE/GROSS NEGLIGENCE
We find White abandoned his claim for negligence, including gross negligence.
White's entire argument in support of this claim is a mere conclusory statement "that
there [were] abundant facts that at least create an issue" of material fact. See Ellie,
Inc. v. Miccichi, 358 S.C. 78, 99, 594 S.E.2d 485, 496 (Ct. App. 2004) ("Numerous
cases have held that where an issue is not argued within the body of the brief but is
only a short conclusory statement, it is abandoned on appeal.").
IV. IMMUNITY
The circuit court erred in ruling discretionary immunity barred White's claims as a
matter of law because there is a genuine issue of material fact as to whether Officer
Christopher Arroyo weighed competing considerations, utilized professional
standards, and made a conscious choice during his encounter with White. See
4
To the extent White asserts the circuit court erred in granting summary judgment
on his negligence claim because there was no private right of action, we note the
circuit court did not grant summary judgment on this ground. Additionally, to the
extent White argues the circuit court erred in holding that there was no private right
of action for his "unlawful search and seizure" claim, we note White listed this claim
in his issues on appeal, but he "voluntarily withdrew" this claim in his brief and did
not argue it in the body of his brief. Cf. Jinks v. Richland County, 355 S.C. 341, 344
n.3, 585 S.E.2d 281, 283 n.3 (2003) (stating that when a party raises an issue on
appeal but fails to argue the issue in "the body of its brief, the issue is deemed
abandoned").
§ 15-78-60(5) (stating governmental entities are not liable for losses "resulting
from . . . the exercise of discretion or judgment by the governmental entity or
employee or the performance or failure to perform any act or service which is in the
discretion or judgment of the governmental entity or employee"); Clark v. S.C. Dep't
of Pub. Safety, 362 S.C. 377, 386, 608 S.E.2d 573, 578 (2005) ("The burden of
establishing an exception to the waiver of immunity is on the governmental entity
asserting the defense."); id. ("To establish discretionary immunity, the governmental
entity must prove its employees, faced with alternatives, actually weighed competing
considerations and made a conscious choice."); id. ("The governmental entity must
show that in weighing the competing considerations and alternatives, it utilized
accepted professional standards appropriate to resolve the issue before them."); id.("Mere room for discretion on the part of the entity is not sufficient to invoke the
discretionary immunity provision.").
We also find the circuit court erred in relying on section 15-78-60(17) in granting
summary judgment to the City on White's claims. See § 15-78-60(17) ("The
governmental entity is not liable for a loss resulting from . . . employee conduct
outside the scope of his official duties or which constitutes actual fraud, actual
malice, intent to harm, or a crime involving moral turpitude . . . ." (emphasis added)).
Initially, we note the City concedes in its brief that "the intent to harm exception
only applies to the [a]ssault and [b]attery cause of action." See Shorb v. Shorb, 372
S.C. 623, 628 n.3, 643 S.E.2d 124, 127 n.3 (Ct. App. 2007) (stating a party is bound
by its concession in its appellate brief). As to the assault and battery claims, while
these are intentional torts, they do not require an intent to harm as an essential
element. See Mellen v. Lane, 377 S.C. 261, 276, 659 S.E.2d 236, 244 (Ct. App.
2008) ("An 'assault' is an attempt or offer, with force or violence, to inflict bodily
harm on another or engage in some offensive conduct."); id. ("The elements of
assault are: (1) conduct of the defendant which places the plaintiff, (2) in reasonable
fear of bodily harm."); id. at 277, 659 S.E.2d at 244 ("A battery is the actual infliction
of any unlawful, unauthorized violence on the person of another, irrespective of its
degree; it is unnecessary that the contact be by a blow, as any forcible contact is
sufficient . . . ." (quoting Gathers v. Harris Teeter Supermarket, Inc., 282 S.C. 220,
230, 317 S.E.2d 748, 754 (Ct. App. 1984))); id. at 277, 659 S.E.2d at 245 ("In civil
actions, the intent, while pertinent and relevant, is not an essential element. The rule,
supported by the weight of authority, is that the defendant's intention does not enter
into the case, for, if reasonable fear of bodily harm has been caused by the conduct
of the defendant, this is an assault." (quoting Herring v. Lawrence Warehouse Co.,
222 S.C. 226, 241, 72 S.E.2d 453, 458 (1952))). Accordingly, the circuit court
should not have granted immunity under this exception, as whether the officers'
conduct constituted an intent to harm is a factual question for the jury.
V. PROBABLE CAUSE
Next, we conclude the circuit court erred in granting summary judgment to the City
on White's false arrest claim because there was a question of material fact as to
whether Officer Arroyo had probable cause to arrest White. The affidavits submitted
by White, the surveillance video, the depositions, and other evidence—when viewed
in the light most favorable to White—demonstrate at least a scintilla of evidence that
probable cause did not exist. See Jones, 301 S.C. at 64, 389 S.E.2d at 663 ("The
essence of the tort of false imprisonment consists of depriving a person of his liberty
without lawful justification."); id. ("An action for false imprisonment cannot be
maintained where one is arrested by lawful authority."); id. at 65, 389 S.E.2d at 663("'Probable cause' is defined as a good faith belief that a person is guilty of a crime
when this belief rests on such grounds as would induce an ordinarily prudent and
cautious man, under the circumstances, to believe likewise."); id. ("South Carolina
follows the minority rule that the issue of probable cause is a question of fact and
ordinarily one for the jury."); Carter v. Bryant, 429 S.C. 298, 306, 838 S.E.2d 523,
527 (Ct. App. 2020) ("False arrest in South Carolina is also known as false
imprisonment."), petition for cert. filed (S.C. Mar. 16, 2020); id. ("False arrest and
false imprisonment overlap; the former is a species of the latter." (quoting Wallace
v. Kato, 549 U.S. 384, 388 (2007))); City of N. Charleston, S.C., Code § 13-36 (Nov.
27, 2013) ("A person shall be guilty of disorderly conduct, which is hereby
prohibited, if . . . his conduct is likely to cause . . . nuisance, he willfully does any of
the following acts in a public place: . . . [m]akes or causes to be made any loud,
boisterous or unreasonable noise or disturbance to the annoyance of any other
persons nearby . . . ."). In addition, a factual issue exists as to whether Officer
Arroyo was acting as an authorized agent or representative of Waffle House. See
S.C. Code Ann. § 16-11-620 (2015) (providing that "any person who, having entered
into [a] . . . place of business[] or on the premises of another person without having
been warned fails and refuses, without good cause or good excuse, to leave
immediately upon being ordered or requested to do so by the person in possession
or his agent or representative" is guilty of a misdemeanor (emphasis added)).5
5
To the extent White raises a malicious prosecution claim, we find this issue is
unpreserved because White withdrew this claim at the summary judgment hearing.
See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("[A]n
issue . . . must have been raised to and ruled upon [in circuit court] to be preserved
for appellate review."); TNS Mills, Inc. v. S.C. Dep't of Revenue, 331 S.C. 611,
617, 503 S.E.2d 471, 474 (1998) ("An issue conceded [in circuit court] may not be
argued on appeal.").
Given our conclusion that a genuine issue of material fact exists as to probable cause,
and therefore, the circuit court erred in granting the City summary judgment on
White's false arrest, false imprisonment, and assault and battery claims, we need not
address White's claim that the circuit court erred in considering certain affidavits
submitted by the City. The affidavits submitted by White, the videos, and other
evidence in the record create a genuine dispute over the material factual issue of
probable cause that the challenged affidavits of the City cannot remove, so it matters
not whether the circuit court considered them. See McCall v. Finley, 294 S.C. 1, 4,
362 S.E.2d 26, 28 (Ct. App. 1987) ("Appellate courts recognize—or at least they
should recognize—an overriding rule of civil procedure which says: whatever
doesn't make any difference, doesn't matter.").
VI. CONCLUSION
Based on the foregoing, we reverse and remand White's claims for false arrest, false
imprisonment, and assault and battery for further proceedings consistent with this
opinion. White's claims for unlawful search and seizure; negligence, including gross
negligence; and malicious prosecution are either abandoned or not preserved for
review. Accordingly, the decision of the circuit court is
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
WILLIAMS, KONDUROS, and HILL, JJ., concur.