McPherson v. CSX Transportation Inc
Filing
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ORDER AND OPINION: It is hereby ORDERED that Defendant's motion to dismiss (ECF No. 16 ) is GRANTED. Signed by Honorable Bruce Howe Hendricks on 3/27/2017.(prou, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
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Civil Action No.: 4:16-cv-2725-BHH
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Plaintiff, )
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vs.
ORDER AND OPINION
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)
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CSX Transportation, Inc.,
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Defendant. )
______________________________ )
Thomas J. McPherson,
This matter is before the Court on Defendant’s motion to dismiss Plaintiff’s
amended Complaint. (ECF No. 16.) For the reasons set forth below, the motion is
GRANTED.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Thomas J. McPherson is a former train engineer for Defendant CSX
Transportation, Inc. (ECF No. 10 ¶ 4.) On July 25, 2009, Plaintiff received a citation from
the North Charleston Police Department for obstructing a highway while operating one of
Defendant’s trains in North Charleston, South Carolina. (Id. ¶¶ 5–9.) According to
Plaintiff, the Police Department “lacked the legal authority” to issue the citation. (Id. ¶ 9.)
Plaintiff alleges that Defendant’s supervisors played an active role as the incident
unfolded. Specifically, one of Defendant’s supervisors, Michael Wiley (“Wiley”), was
present “for all conversations with law enforcement and kept a carbon copy of the
original citation issued to Plaintiff.” (Id. ¶ 10.) Wiley “ensured Plaintiff that Defendant’s
legal department would take care of the improperly issued citation pursuant to company
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policy and procedure.” (Id. ¶ 11.) Later that evening, Plaintiff met with the Florence
supervisor, Joseph Edelbrock (“Edelbrock”), “to discuss the next steps to be taken with
regard to the pending citation.” (Id. ¶ 13.) Edelbrock “made a photocopy of the citation
and further ensured Plaintiff that Defendant’s legal department” would handle the
citation. (Id. ¶ 14.)
Plaintiff alleges that “Defendant’s policies and procedures” required that he follow
the directives of his supervisors and prevented him from independently disputing the
citation “without risking disciplinary action and/or discharge.” (Id. ¶ 15.) He further alleges
that “Defendant intended to retain outside counsel to litigate the citation . . . , but failed to
follow its routine protocol of challenging citations . . . due to the neglect of its managerial
employees.” (Id. ¶ 19.) According to Plaintiff, this failure “was in contravention of
Defendant’s internal policies and procedures, in contravention of Defendant’s
employment contract with the Plaintiff, and in contravention of Defendant’s contract with
and obligations to the United Transportation Union.” (Id. ¶ 20.)
Plaintiff alleges that Defendant failed to take any action to challenge the citation,
unbeknownst to him, and the City of North Charleston tried Plaintiff in his absence for the
violation listed on the citation. (Id. ¶ 23.) A bench warrant was then issued for Plaintiff’s
arrest. (Id.) Despite this, Plaintiff alleges that when he spoke with his supervisors shortly
after his court date, he was informed that the citation had been taken care of on his
behalf. (Id. ¶ 24.) Plaintiff left his employment with Defendant in December 2009. (Id.
¶ 25.) On March 20, 2015, Plaintiff was pulled over for a minor traffic infraction in
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Florence, South Carolina, which revealed the active bench warrant for his arrest. (Id.
¶ 26.) Plaintiff was then arrested. (Id. ¶ 27.)
On June 13, 2016, Plaintiff filed this civil action alleging a negligence claim
against Defendant for its failure to exercise due care in relation to the above events.
Plaintiff asserts that “[a]s a result of his arrest and the acts and omissions of Defendant,”
he has “suffered actual damages, including but not limited to physical restraint, physical
injury, costs associated with the criminal charge and arrest, stigmatism of reputation and
character, loss of enjoyment of life, wrongful imprisonment, false imprisonment and
confinement, deprivation of liberty, mental and emotional distress, worry, and anxiety.”
(Id. ¶ 29.)
On August 24, 2016, Defendant moved to dismiss Plaintiff’s amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 16.) Plaintiff filed a
response on August 25, 2016 (ECF No. 18), to which Defendant replied on September 6,
2016 (ECF No. 19). The Court has reviewed the briefing and the applicable law, and now
issues the following ruling.
STANDARD OF REVIEW
A plaintiff’s complaint should set forth “a short and plain statement . . . showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To show that the plaintiff is
“entitled to relief,” the complaint must provide “more than labels and conclusions,” and “a
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formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.
at 555. In considering a motion to dismiss under Rule 12(b)(6), the Court “accepts all
well-pled facts as true and construes these facts in the light most favorable to the plaintiff
. . . .” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009).
To survive a Rule 12(b)(6) motion to dismiss, a complaint must state “a plausible
claim for relief.” Iqbal, 556 U.S. at 679. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). Stated differently, “where
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is
entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)). Still, Rule 12(b)(6) “does not
countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual
allegations.” Colon Health Centers of Am., LLC v. Hazel, 733 F.3d 535, 545 (4th Cir.
2013) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). “A plausible but
inconclusive inference from pleaded facts will survive a motion to dismiss . . . .”
Sepulveda-Villarini v. Dep’t of Educ. of Puerto Rico, 628 F.3d 25, 30 (1st Cir. 2010)
(Souter, J.).
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DISCUSSION
Defendant moves to dismiss the amended Complaint, arguing, inter alia, that it
fails to allege a legally recognized duty Defendant owed to Plaintiff. (ECF No. 16-1 at 2.)
“An essential element in a cause of action based upon negligence is the existence
of a legal duty of care owed by the defendant to the plaintiff. Without a duty, there is no
actionable negligence.” Oblachinski v. Reynolds, 706 S.E.2d 844, 845–46 (S.C. 2011);
see also Steinke v. S.C. Dep’t of Labor, Licensing & Regulation, 520 S.E.2d 142, 149
(S.C. 1999) (“In a negligence action, a plaintiff must show that the (1) defendant owes a
duty of care to the plaintiff, (2) defendant breached the duty by a negligent act or
omission, (3) defendant’s breach was the actual and proximate cause of the plaintiff’s
injury, and (4) plaintiff suffered an injury or damages.”). “Whether the law recognizes a
particular duty is an issue of law to be determined by the court.” Ellis v. Niles, 479 S.E.2d
47, 49 (S.C. 1996). An affirmative legal duty may be created by statute, a contractual
relationship, status, property interest, or some other special circumstance. Madison v.
Babcock Ctr., Inc., 638 S.E.2d 650, 656–57 (S.C. 2006). However, South Carolina courts
will not extend the concept of a legal duty of care in tort liability beyond reasonable limits.
Huggins v. Citibank, N.A., 585 S.E.2d 275, 277 (S.C. 2003) (holding that the relationship
between banks and potential victims of identity theft was too attenuated to establish a
duty giving rise to a cause of action for negligent enablement of imposter fraud).
“Ordinarily, the common law imposes no duty on a person to act. Where an act is
voluntarily undertaken, however, the actor assumes the duty to use due care.” Hendricks
v. Clemson Univ., 578 S.E.2d 711, 714 (S.C. 2003) (citing Russell v. City of Columbia,
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406 S.E.2d 338, 339 (S.C. 1991)). The recognition of a voluntarily assumed duty in
South Carolina jurisprudence is rooted in the Restatement of Torts, which states:
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the
other’s person or things, is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to perform his
undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the
undertaking.
Restatement (Second) of Torts § 323.
The amended Complaint alleges that “Defendant undertook and assumed a duty
to use reasonable care to appear on Plaintiff’s behalf and challenge the improper citation
that was issued during the course and scope of Plaintiff’s employment with Defendant.”
(ECF No. 10 ¶ 31.) While the amended Complaint appears to rely mainly on the
voluntary assumption of duty doctrine to establish a duty in this case, Plaintiff asserts in
his brief that Defendant’s “duty to act with due care arises under multiple provisions of
South Carolina common law,” specifically through a contractual relationship, status, or
some other special circumstance. (ECF No. 18 at 6.) Thus, the Court will consider
whether a duty was created through the circumstances highlighted by Plaintiff before
addressing the applicability of the voluntary assumption of duty doctrine.
A.
Duty Arising from a Contract
As the source of Defendant’s duty arising from a contractual relationship, Plaintiff
asserts that Defendant has entered into multiple contracts relevant to Plaintiff’s
employment, including: (1) individual employment contracts with its employees, including
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Plaintiff; (2) contracts with the United Transportation Union (“UTU”), of which Plaintiff
was a member; and (3) contracts and private agreements with the Federal Railroad
Administration (“FRA”). (ECF No. 18 at 6–7.) Plaintiff also asserts that the terms of his
employment were further governed by various regulations promulgated by the FRA. (Id.
at 7.)
Plaintiff acknowledges that it may not be a direct party to the contracts with the
UTU and FRA, but contends that a duty may still arise out of these contracts because “a
tortfeasor may be liable for injury to a third party arising out of the tortfeasor’s contractual
relationship with another, despite the absence of privity between the tortfeasor and the
third party.” (Id. (quoting McCullough v. Goodrich & Pennington Mortg. Fund, Inc., 644
S.E.2d 43, 46 (S.C. 2007)).) Plaintiff also admits that he cannot cite any specific
contractual provisions giving rise to this duty and claims he will need discovery to be able
to do so. However, he asserts that he “has illustrated” that Defendant adopted the
“practice of hiring counsel to represent locomotive operators who were ticketed in the
scope and course of their employment.” (Id.) Plaintiff apparently believes this is sufficient
at the dismissal stage to establish a duty arising from a contractual relationship.
There are several flaws with Plaintiff’s reliance on these alleged contracts as the
source of Defendant’s duty. First, to the extent the duty contemplated here arises out of
Plaintiff’s individual employment contract, discovery should not be necessary. Plaintiff
would have the same access to this document as Defendant. Furthermore, to the extent
Plaintiff bases the duty on the contractual relationship between Defendant and UTU or
Defendant and FRA, Plaintiff has provided no explanation for how these contracts
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establish that Defendant may be liable for injury to Plaintiff, as contemplated in the
allegations. Plaintiff cites no cases where a court has found a contractual basis for a
legal duty to a third party under analogous facts.1 In fact, Plaintiff fails to offer any helpful
analysis on this issue.
The allegations in the amended Complaint fail to establish a contractual
relationship giving rise to Defendant’s alleged duty to Plaintiff and there are no grounds
to find a duty on this basis under the arguments put forth by Plaintiff.
B.
Duty Arising from Status
Plaintiff next briefly argues that Defendant’s duty arises from “the ‘status’ of its
train engineers as employees operating within a unique federal jurisdiction.” (ECF No. 18
at 7.) Other than rebutting arguments made by Defendant on this issue, the only
supportive argument Plaintiff makes here is that “the status of [an] employee, particularly
one hired pursuant to a contract, fundamentally alters the status between two parties and
can give rise to a duty to act with due care.”2 (Id. at 8.) Plaintiff appears to place some
reliance on Johnson v. Robert E. Lee Academy, Inc., 737 S.E.2d 512 (S.C. Ct. App.
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A review of South Carolina case law does not support Plaintiff’s assertion that a duty can be found on this
contractual basis. See, e.g., Dorrell v. SCDOT, 605 S.E.2d 12, 18 (S.C. 2004) (holding that a
subcontractor hired by SCDOT to repave a roadway owed a duty to motorists using the road); Barker v.
Sauls, 345 S.E.2d 244 (S.C. 1986) (holding that an insurance broker who contracted to sell workers’
compensation coverage to an employer was liable to the employee who was denied workers’
compensation benefits because the broker failed to procure coverage on behalf of the employer); Terlinde
v. Neely, 271 S.E.2d 768, 770 (S.C. 1980) (holding that a contract between a homebuilder and
homeowner extended to future home purchasers because, by placing his product into the stream of
commerce, the builder owed a duty of care to the product’s users); Edward’s of Byrnes Downs v.
Charleston Sheet Metal Co., 172 S.E.2d 120, 123 (S.C. 1970) (holding that in performing a contract with a
building owner for the installation of a roof, the roofer owed a duty of due care to the occupant of the
adjacent building to which the work was being performed).
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Here, Plaintiff cites his allegation in the amended Complaint that “Defendant’s failure to retain outside
counsel to challenge the traffic ticket inappropriately issued to the Plaintiff was in contravention of
Defendant’s internal policies and procedures, in contravention of Defendant’s employment contract with
the Plaintiff, and in contravention of Defendant’s contract with and obligations to the United Transportation
Union.” (ECF No. 10 ¶ 20.)
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2012), for the proposition that the employer-employee relationship can give rise to a duty
of care based on the status of the parties. However, Johnson discussed the scope of the
voluntary assumption of duty doctrine—it did not address when a legal duty may arise by
status. Id. at 513–514. Further, the plaintiff’s claims against the employer were not at
issue in Johnson. Rather, in Johnson, the court addressed the plaintiff’s claims against
an outside accounting firm hired by plaintiff’s employer. Id. The Johnson court did not
make any ruling regarding duties between plaintiff and her employer and the case is
inapplicable to Plaintiff’s arguments here.
In sum, Plaintiff cites no authority that supports finding a duty exists here by virtue
of the “status” of Defendant’s “train engineers as employees operating within a unique
federal jurisdiction” and the amended Complaint does not establish a duty on such
grounds. (ECF No. 18 at 7.)
C.
Duty Arising from a Special Relationship
Plaintiff also briefly argues that a “special relationship” “exists in this case given
the inability of an individual motorist to appear and successfully defeat a traffic violation
on the grounds of federal preemption and federal constitutional law.” (ECF No. 18 at 8.)
Plaintiff doesn’t explain what he means by “federal preemption and federal constitutional
law” and does not otherwise elaborate on this line of thought. Rather, he states that in
Defendant’s relationship with Plaintiff, Defendant “functions as the DMV, the vehicle
owner, and the vehicle driver’s employer,” and states that such a role would naturally
mean that Defendant would “insist on being involved in a criminal proceeding arising
from the locomotive operation of one of its employees, no matter how trivial.” (Id. at 8–9.)
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He claims “this special relationship is further altered . . . where the employer essentially
forbids the employee from doing so himself.” (Id. at 9.)
Again, Plaintiff cites no authority to support his argument that a duty arose by
virtue of a special relationship under these facts and the Court has independently found
no support for such an assertion in the case law. In Bahringer v. ADT Sec. Servs., Inc.,
another court in this district provided a helpful list of scenarios in which a special
relationship has been found:
Examples of such special relationships include those between design
professionals and general contractors who work under their supervision,
[Tommy L. Griffin Plumbing & Heating Co. v. Jordan, Jones & Goulding,
Inc., 463 S.E.2d 85, 89 (S.C. 1995)] (contractors could maintain negligence
action against engineer who supervised them), between lawyers and their
clients, Lloyd v. Walters, 276 S.C. 223, 277 S.E.2d 888, 889 (1981)
(corporation could maintain negligence action against lawyer who had a
professional duty to protect its interests), and between corporate
consultants and a state agency that is the subject of a report prepared by
those consultants. S.C. State Ports Auth. v. Booz–Allen & Hamilton, Inc.,
289 S.C. 373, 346 S.E.2d 324, 326 (1986) (state agency could maintain
negligence action against corporate consultant when the consultant
“undertakes to objectively analyze and compare the attributes of
commercial competitors for the purpose of giving one a market advantage
over the other”).
942 F. Supp. 2d 585, 589–90 (D.S.C. 2013). None of the examples listed in Bahringer
are analogous to the instant facts, and they are not persuasive to finding a special
relationship under the circumstances presented here. In short, the allegations in the
amended Complaint fail to establish a special relationship giving rise to Defendant’s
alleged duty to Plaintiff and there are no grounds to find a duty on this basis under the
arguments put forth by Plaintiff.
D.
Voluntary Assumption of Duty Doctrine
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Finally, Plaintiff asserts that Defendant “undertook to provide a defense to the
Plaintiff” and that such an undertaking created a duty to carry out that defense in due
care under Restatement (Second) of Torts § 323. (ECF No. 18 at 9.) Defendant objects
that the voluntary assumption of duty doctrine is limited “to situations where an actor
undertakes a duty to prevent physical harm” and argues that such a situation is not
alleged here. (ECF No. 19 at 8).
As Defendant notes, South Carolina courts have generally applied the voluntary
assumption of duty doctrine “only to situations in which a person suffers physical harm
from the failure to exercise reasonable care and not cases in which financial harm is the
only damage.” Founders Ins. Co. v. Richard Ruth’s Bar & Grill LLC, No. 2:13-CV-3035DCN, 2016 WL 3189214, at *3 (D.S.C. June 8, 2016) (emphasis in original); see, e.g.,
Johnson, 737 at 514 (refusing to apply the doctrine to recognize a duty of care between
an accounting firm and a bookkeeper and office manager for the firm’s negligence in
analyzing financial records, finding firm’s “conduct was not undertaken for [bookkeeper’s]
protection”); Hendricks v. Clemson Univ., 578 S.E.2d 711, 714 (S.C. 2003) (“The line of
cases Miller [v. City of Camden, 451 S.E.2d 401 (S.C. Ct. App. 1994)] discusses have
thus far been limited to situations in which a party has voluntarily undertaken to prevent
physical harm, not economic injury.”).
Here, Plaintiff admits that Defendant’s actions were motivated in part by a desire
to “protect[] itself from financial harm,” but he argues that his arrest and incarceration
were also foreseeable results of Defendant’s failure to challenge the citation on his
behalf. (ECF No. 18 at 10.) He asserts that an issue of fact exists as to Defendant’s
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motivations for assuming a defense on Plaintiff’s behalf and argues that the “physical
restraint/physical damage associated with being wrongly arrested and detained” falls
under the type of physical harm contemplated in § 323. (Id.)
Plaintiff’s arguments fail to establish that Defendant voluntarily assumed any duty
as contemplated by § 323. As an initial matter, Plaintiff’s assertion that a duty arises from
the foreseeability that Defendant’s failure to defend the citation would result in his arrest
and incarceration is attenuated at best. The South Carolina Supreme Court has held that
“[f]oreseeability of injury, in and of itself, does not give rise to a duty.” Charleston Dry
Cleaners & Laundry, Inc. v. Zurich Am. Ins. Co., 586 S.E.2d 586, 588 (S.C. 2003).
Further, Plaintiff does not even allege that Defendant undertook his defense in order to
prevent his arrest and incarceration. Such an allegation would indeed be incredulous
given that there was no apparent risk of incarceration under the terms of the citation—
the statute under which Plaintiff was charged appears to carry only a $25.00 penalty for
its violation. See S.C. Code Ann. § 58-17-4080 (“If any person, including any conductor
of any train of railroad cars or any other agent or servant of any railroad company, shall
obstruct unnecessarily any public road or highway by permitting any railroad car or
locomotive to be or remain upon or across any street, public road or highway for a longer
period than five minutes, after notice to remove such cars has been given to the
conductor, engineer, agent or other such person in charge of such train . . . every such
person so offending shall forfeit and pay for every such offense any sum not exceeding
twenty nor less than five dollars . . . All fines so accruing under the provisions of this
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section, when collected, shall be paid over by the magistrate to the county treasurer for
the district in which such offense was committed.”).
In addition, the Court cannot find that the harm alleged here as a result of
Defendant’s alleged negligence satisfies the “physical harm” requirement under § 323.
The Restatement (Second) of Torts defines “physical harm” as “the physical impairment
of the human body, or of land or chattels.” § 7(3). There is “an impairment of the physical
condition of another’s body if the structure or function of any part of the other’s body is
altered to any extent even though the alteration causes no other harm.” Restatement
(Second) of Torts § 15 Comment a. Even if Defendant’s alleged negligence resulted in
Plaintiff’s arrest and incarceration, this bare bones allegation, without more, does not
establish that Plaintiff suffered physical harm as contemplated by § 323. There is nothing
in the amended Complaint or the briefs to support Plaintiff’s allegation that he suffered
“physical injury.” (ECF No. 10 ¶ 29.) In other words, the allegations do not establish that
the structure or function of any part of Plaintiff’s body was altered due to Defendant’s
alleged negligence.
Moreover, applying the Restatement to this situation would potentially deter other
employees in similar situations from appearing in court and cooperating with authorities.
Such a contortion of the Restatement would be poor public policy. See Johnson, 737
S.E.2d at 514 (declining to impose on defendant a duty to communicate with police
officials regarding an investigation because such an imposition could have a
“chilling effect on cooperation with the authorities”); Underwood v. Coponen, 625 S.E.2d
236, 239 n.3 (S.C. Ct. App. 2006) (“If we extended the duty to require private landowners
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to ensure that their trees do not hinder traffic control devises [sic], we would be
discouraging private landowners from voluntarily maintaining vegetation on their property
which adjoins a public roadway or highway in an effort to shield themselves from
unwarranted liability.”); Staples v. Duell, 494 S.E.2d 639, 643 (S.C. Ct. App. 1997)
(declining to impose duty on defendant to inspect property under circumstances as doing
so “would create the highly undesirable precedent of encouraging rural landowners to
shield their eyes and never inspect their land”).
The amended Complaint fails to establish that Defendant’s conduct was
undertaken for Plaintiff’s protection and that any negligence in its performance resulted
in Plaintiff’s physical harm. Accordingly, the circumstances of this case do not fit within
the existing voluntary assumption of duty framework. The Court declines to expand the
doctrine under the facts presented and finds that Defendant owed no legal duty on this
basis.
In sum, assuming that Plaintiff’s allegations are true and construing all inferences
in his favor, the Court finds that Plaintiff has failed to establish that Defendant owed any
duty to Plaintiff in defending his citation. Accordingly, the Court finds that Plaintiff’s
negligence claim should be dismissed.3 See Oblachinski, 706 S.E.2d at 845–46 (“An
essential element in a cause of action based upon negligence is the existence of a legal
duty of care owed by the defendant to the plaintiff. Without a duty, there is no actionable
negligence.”)
3
Because the Court finds dismissal appropriate on this basis, it does not address Defendant’s other
arguments.
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CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendant’s motion to
dismiss (ECF No. 16) is GRANTED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
March 27, 2017
Greenville, South Carolina
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