Bowzard v. Sheriff Wayne Dewitt

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
Jennifer D. Bowzard, Appellant,
v.
Sheriff Wayne Dewitt and Berkeley County Sheriff's
Office, Respondents.
Appellate Case No. 2013-001482
Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge
Unpublished Opinion No. 2015-UP-333
Heard March 4, 2015 – Filed July 1, 2015
AFFIRMED
Lawrence C. Kobrovsky, of Law Offices of Lawrence C.
Kobrovsky, of Charleston, and John E. Parker and
William Franklin Barnes, III, both of Peters, Murdaugh,
Parker, Eltzroth & Detrick, PA, of Hampton, for
Appellant.
Sandra J. Senn and Robin Lilley Jackson, both of Senn
Legal, LLC, of Charleston, for Respondents.
PER CURIAM: Jennifer D. Bowzard (Bowzard) brought this tort action for
mental injuries against Sheriff Wayne Dewitt and Berkeley County Sheriff's Office
(Respondents), alleging gross negligence in regard to Respondents' detention of
James Sanders (Sanders), who had been charged with criminal domestic violence
of a high and aggravated nature (CDVHAN) and violation of an order of protection
involving Bowzard. Bowzard appeals from an order of the trial court granting
summary judgment in favor of Respondents, finding Respondents were immune
from liability under South Carolina Code sections 15-78-60(3), (4), (5), (6), (20),
and (21) (2005) of the South Carolina Tort Claims Act. We affirm.
1. As to Bowzard's assertion this court should interpolate a gross negligence
exception to all of Respondents' asserted defenses based upon Steinke v. S.C. Dep't
of Labor, Licensing and Regulation, 336 S.C. 373, 520 S.E.2d 142 (1999) because
South Carolina Code section 15-78-60(25) (2005) would be applicable to this
matter and this subsection provides a gross negligence exception to immunity, we
find this argument is not preserved. Respondents filed a motion for summary
judgment asserting they were immune from liability pursuant to sections 15-78-
60(3), (4), (5), (6), (20), and (21). At the hearing on the motion for summary
judgment, Bowzard argued that none of the subsections under the Tort Claims Act
asserted by Respondents applied, summarily asserted the reasons why some of the
individual subsections would not apply to the case, and contended only section 15-
78-60(25), which includes a "gross standard," would apply. In other words,
Bowzard's argument to the trial court was that none of the immunity provisions
relied upon by Respondents applied, the only immunity provision of the Tort
Claims Act that could apply to the facts of this case was subsection (25), and
subsection (25) provided an exception to immunity if Respondents were grossly
negligent. At no time did Bowzard argue to the trial court that a gross negligence
exception should be interpolated to the various subsections relied upon by
Respondents for immunity. Thus, Bowzard did not raise this argument to the trial
court.1 Further, even assuming arguendo her summary assertion to the trial court—
1
During oral argument, Bowzard's appellate counsel argued the matter was raised
by virtue of the fact that during the summary judgment hearing, Respondents'
attorney acknowledged the gross negligence standard applied and the trial court
also applied the gross negligence standard. This is not an accurate reflection of the
hearing. The record shows Bowzard's complaint alleged Respondents were grossly
negligent. In response, Respondents' attorney merely noted their summary
judgment motion asserted there was no gross negligence, and additionally asserted
they were entitled to immunity under the Torts Claims Act and on the ground that
section 23-17-70 (2007) was not applicable. Further, the trial court never stated a
that section 15-78-60(25) was applicable and that it included a "gross standard"—
was sufficient to raise the matter, the trial court did not rule on whether a gross
negligence exception should be interpolated to the subsections relied upon by
Respondents, 2 and Bowzard did not thereafter file a motion to alter or amend the
judgment on that ground. Accordingly, this argument it is not preserved for our
review. See Pikaart v. A & A Taxi, Inc., 393 S.C. 312, 324, 713 S.E.2d 267, 273
(2011) ("A matter may not be presented for the first time on appeal; rather, it must
have been both raised to and ruled upon by the court below."); Mathis v. Brown &
Brown of S.C., Inc., 389 S.C. 299, 311, 698 S.E.2d 773, 779 (2010) (holding, in
order for an issue to be properly preserved for appeal, it must have been both
raised to and ruled on by the trial court, and where the trial court's order did not
address appellant's argument and appellant did not bring the absence of this issue
to the trial court's attention in a motion to alter or amend, the issue was not
preserved); S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295,
301-02, 641 S.E.2d 903, 907 (2007) (holding, to be preserved for appellate review,
an issue must have been: (1) raised to and ruled upon by the trial court, (2) raised
by the appellant, (3) raised in a timely manner, and (4) raised to the trial court with
gross negligence "exception" applied to the matter. Instead, in considering
whether there was even any evidence of gross negligence on the part of
Respondents, the trial court simply acknowledged that there was a question as to
whether, as asserted by Bowzard, the loosening of Sanders's handcuffs which
allowed him to easily walk away from the jail constituted gross negligence. In
other words, this is just one of the arguments the trial court was mulling. It
appears Bowzard is confusing whether she alleged Respondents were grossly
negligent and whether a gross negligence "standard" would apply, with whether
she asserted that a gross negligence "exception" should apply to the immunity
granted in other subsections of 15-78-60 which do not otherwise carry a gross
negligence exception to immunity. At any rate, it remains clear that Bowzard
never argued below, as she does on appeal, that a gross negligence standard should
be interpolated as an exception to the subsections relied upon by Respondents for
immunity based upon section 15-78-60(25) containing a gross negligence
exception to immunity.
2
The trial court simply ruled Respondents were immune from liability regarding
the escape based upon sections 15-78-60(20) and (21), and never addressed
whether a gross negligence exception to immunity would apply before they would
be entitled to such immunity or whether the actions of Respondents could
constitute gross negligence.
sufficient specificity); I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526
S.E.2d 716, 724 (2000) (stating imposing preservation requirements on the
appellant is meant to enable the lower court to rule properly after it has considered
all relevant facts, law, and arguments, and noting that the purpose of an appeal is to
determine whether the trial court erroneously acted or failed to act, and when
appellant's contentions are not presented or passed upon by the trial court, such
contentions will not be considered on appeal); id. ("If the losing party has raised an
issue in the lower court, but the court fails to rule upon it, the party must file a
motion to alter or amend the judgment in order to preserve the issue for appellate
review.").
2. In regard to Sanders's escape, we find the trial court properly granted
summary judgment to Respondents pursuant to section 15-78-60(21) of the South
Carolina Code. This section provides that a "governmental entity is not liable for a
loss resulting from: . . . the decision to or implementation of release, discharge,
parole, or furlough of any persons in the custody of any governmental entity,
including but not limited to a prisoner, inmate, juvenile, patient, or client or the
escape of these persons." S.C. Code Ann. § 15-78-60(21) (emphasis added). First,
we disagree with Bowzard's assertion that Sanders's actions on the day in question
could constitute anything other than escape. While handcuffed to a bench, Sanders
managed to slip his hand free. He waited and furtively watched until an electronic
door was opened for Sgt. Sanders, and he then slipped out of that door. Although
Sgt. Sanders apparently questioned Sanders about still having his armband once
she saw Sanders outside, there is no evidence the officer had any understanding of
Sanders's custody status or realized Sanders had walked away from lawful
confinement, thus it is not reasonable to argue she knowingly allowed Sanders to
walk away from custody. The only evidence is that Sanders escaped from
Respondents' custody.3 Additionally, Bowzard's trial counsel failed to argue to the
trial court, as she does on appeal, that section 15-78-60(21) should be read with a
gross negligence exception based upon section 15-78-60(25) containing a gross
negligence standard, and this argument is not preserved for review. See Pikaart,
393 S.C. at 324, 713 S.E.2d at 273 ("A matter may not be presented for the first
time on appeal; rather, it must have been both raised to and ruled upon by the court
below."). Finally, Bowzard's trial counsel also never argued section 15-78-60(21)
should not apply to give Respondents immunity based upon any conflict with
section 23-17-70, and Bowzard cites no law to support this position. See id. ("A
matter may not be presented for the first time on appeal; rather, it must have been
3
We also note that at oral argument, Bowzard's appellate counsel twice agreed that
Sanders had, in fact, escaped.
both raised to and ruled upon by the court below."); First Sav. Bank v. McLean,
314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (noting an issue is deemed
abandoned where appellant fails to provide arguments or supporting authority for
his assertion); Eaddy v. Smurfit-Stone Container Corp., 355 S.C. 154, 164, 584
S.E.2d 390, 396 (Ct. App. 2003) ("[S]hort, conclusory statements made without
supporting authority are deemed abandoned on appeal and therefore not preserved
for our review."). Accordingly, we find no error in the trial court's determination
that Respondents were entitled to immunity pursuant to section 15-78-60 (21) and
affirm summary judgment as to the matter of escape on this basis.
3. In regard to Bowzard's claim concerning the phone calls and contact made
from Sanders to her while Sanders was in jail, we find Bowzard failed to challenge
an alternate ruling of the court. Specifically, as an alternate ground for granting
summary judgment on Bowzard's allegations concerning the contact, the trial court
found Bowzard "only alleges in her complaint that she suffered her injuries after
[Sanders's] escape," and "[t]hus, [Sanders's] phone calls to her from the Detention
Center, occurring before his escape, could not have been a proximate cause for this
alleged injury."4 Bowzard does not challenge this determination concerning
proximate cause on appeal. Because Bowzard failed to appeal this alternate ruling
by the trial court, we affirm under the two issue rule. Jones v. Lott, 387 S.C. 339,
346, 692 S.E.2d 900, 903 (2010) ("Under the two issue rule, where a decision is
based on more than one ground, the appellate court will affirm unless the appellant
appeals all grounds because the unappealed ground will become the law of the
case.").
4. As to Bowzard's arguments concerning sections 23-15-50 (2007) and 23-17-
70, we find her assertion that the trial court should not rely on the affidavit of Lt.
Jacumin is not preserved. At no time before the trial court did Bowzard ever
challenge the court's consideration of this affidavit at all, much less argue it failed
to comply with Rule 6(d) or 56(e), SCRCP, as she now argues on appeal. See
Pikaart, 393 S.C. at 324, 713 S.E.2d at 273 ("A matter may not be presented for
the first time on appeal; rather, it must have been both raised to and ruled upon by
the court below."). Thus, the evidence supports the trial court's determination that,
at the time of Sanders's escape, he was only being held on criminal charges.
Further, even without consideration of Lt. Jacumin's affidavit, the record clearly
4
In her complaint, Bowzard alleged as follows: "After [Sanders's] release,
[Bowzard] suffered extreme fear and mental anguish which resulted in her having
medical care to cope with this fear and mental anguish caused by [Sanders] being
released."
demonstrates, though Sanders had not been released from custody at the time he
escaped, he was not exposed to further detention based upon the civil charge but
only based upon the CDVHAN charge. Because Sanders was being held on a
criminal charge and not a civil one, recovery is not authorized under section 23-17-
70. See Washington v. Lexington Cnty. Jail, 337 S.C. 400, 407, 523 S.E.2d 204,
207 (Ct. App. 1999) (holding section 23-17-70 does not create a special duty
because "it is clear that recovery under section 23-17-70 is authorized for damages
suffered when a prisoner escapes the sheriff's custody after the prisoner has been
committed to custody of the sheriff in a civil action and not in a criminal action.").
AFFIRMED.
FEW, C.J., and HUFF and WILLIAMS, JJ., concur.