Asher v. Duke Energy Carolinas LLC
Filing
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OPINION AND ORDER granting 4 Motion to Dismiss in case 6:12-cv-02787-JMC; 6:12-cv-02788-JMC; 6:12-cv-02789-JMC. Signed by Honorable J Michelle Childs on 7/1/2013.Associated Cases: 6:12-cv-02787-JMC, 6:12-cv-02788-JMC, 6:12-cv-02789-JMC(mbro)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Crystal Leeann Asher,
as Personal Representative of
the Estate of Joseph Bradley Asher,
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)
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Plaintiff,
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)
v.
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Duke Energy Carolinas, LLC,
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Defendant.
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___________________________________ )
Crystal Leeann Asher,
)
)
Plaintiff,
)
)
v.
)
)
Duke Energy Carolinas, LLC,
)
)
Defendant.
)
___________________________________ )
Crystal Leeann Asher,
)
as Personal Representative of
)
the Estate of Joseph Bradley Asher,
)
)
)
Plaintiff,
)
)
v.
)
)
Duke Energy Carolinas, LLC,
)
)
Defendant.
)
___________________________________ )
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OPINION AND ORDER
Civil Action No.: 6:12-cv-02787-JMC
Civil Action No.: 6:12-cv-02788-JMC
Civil Action No.: 6:12-cv-02789-JMC
This matter is before the court on Defendant Duke Energy Carolinas, LLC’s
(“Defendant”) Motion to Dismiss [Dkt. No. 4] Plaintiff Crystal Leeann Asher’s
(“Plaintiff”) Complaint [Dkt. No. 1], pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. For the reasons set forth below, the court grants Defendant’s motion
without prejudice to Plaintiff’s right to amend her complaint.
FACTUAL AND PROCEDURAL BACKGROUND
This action arises from a September 2009 incident during which Joseph Bradley
Asher (“Decedent”) entered an electrical substation through a gate or fence that
surrounded the substation. Decedent allegedly made contact with electrical equipment in
the substation, which was owned by Defendant. As a result, Decedent sustained personal
injuries and subsequently died on November 21, 2009. On August 31, 2012, Plaintiff
separately filed loss of consortium, survival and wrongful death actions in the Court of
Common Pleas for Greenville County, South Carolina (“the Actions”).
Defendant
properly removed all Actions to this court based on the court’s diversity jurisdiction [Dkt.
No. 1]. On May 15, 2013, the Actions were consolidated because this court determined
they involved common questions of law and fact. [Dkt. No. 26].
Defendant brings the instant Motion to Dismiss [Dkt. No. 4], arguing that
Plaintiff’s claims, which are based on a theory of negligence, do not allege sufficient
facts to show a breach of the duty of care owed to a trespasser, which Defendant alleges
Decedent was at the time he entered the substation. Plaintiff has responded, objecting to
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Defendant’s motion with numerous arguments on why she has pled sufficient facts. [Dkt.
No. 21]1.
STANDARD OF REVIEW
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
the complaint must contain sufficient factual allegations to give the defendant notice of
the basis for the plaintiff’s entitlement to relief. See Fed. R. Civ. P. 8(a)(2); see also Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41,
47, (1957)) (noting that Fed. R. Civ. P. 8 requires a complaint to give sufficient notice of
the claim and theory of liability). This requires less than detailed factual allegations, but
more than “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action….” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). To be sufficiently pled, the complaint must not rest upon “naked assertions
devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009)
(internal quotation marks and brackets omitted) (citing Twombly, 550 U.S. at 557).
The factual allegations must also “state a claim to relief that is plausible on its
face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). In contrast to
possible, or conceivable, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The court
determines whether a complaint states a plausible claim for relief on a case-by-case basis.
Id. at 679 (citation omitted). The court relies on its judicial experience and common
All docket citations will be to Civil Action No.: 6:12-cv-02787-JMC, unless otherwise
noted. Plaintiff has incorporated by reference her Memorandum in Opposition to
Defendant’s Motion to Dismiss filed in Civil Action No.: 6:12-cv-02788-JMC, Dkt. No.
16.
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sense to make this determination. Id. The court must also accept all of the allegations in
the complaint as true, but the court is not required to accept legal conclusions disguised
as factual allegations. Id. at 678 (“[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.”).
To evaluate the instant motion, the court must apply these standards to Plaintiff’s
negligence claim under South Carolina law. In order to prevail in a negligence claim the
plaintiff must show (1) a duty owed by the defendant to the plaintiff; (2) a breach of that
duty by a negligent act or omission; and (3) damages proximately caused by a breach of
that duty. Vinson v. Hartly, 324 S.C. 389, 399, 477 S.E.2d 715, 720 (Ct. App. 1996)
(citing Newton v. S.C. Pub. Rys. Comm’n, 312 S.C. 107, 439 S.E.2d 285 (Ct. App.
1993)); see also Snow v. City of Columbia, 305 S.C. 544, 554, 409 S.E.2d 797, 803 (Ct.
App. 1991). Defendant argues, and Plaintiff does not dispute2, that Decedent was a
trespasser on Defendant’s property at the time Decedent sustained his injuries. Because
he was a trespasser, Defendant owed Decedent no duty other than to not willfully,
wantonly or recklessly injure him. Estate of Adair v. L-J, Inc., 372 S.C. 154, 160, 641
S.E.2d 63, 66 (Ct. App. 2007) (citing Nettles v. Your Ice Co., 191 S.C. 429, 436, 4 S.E.2d
797, 799 (1939)). Thus, in the instant matter, the critical question is whether Plaintiff has
pled sufficient facts to show a plausible claim for relief for negligence, including willful,
wanton or reckless behavior on the part of Defendant in order to show a breach of the
duty of care owed to a trespasser.
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Plaintiff does not dispute that Decedent was a trespasser. However, Plaintiff argues that
the complaint states sufficient facts to show a breach of the duty of care owed to a
trespasser. [See Dkt. No. 16, Civil Action No.: 6:12-cv-02788-JMC]. Plaintiff argues in
the alternative that Decedent was a licensee in the substation. Id. The court rejects this
argument for the reasons stated in this opinion.
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Under South Carolina law, negligence is the failure to exercise due care, whereas
recklessness, willfulness and wantonness are synonyms meaning a conscious failure to
exercise due care. Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011)
(quoting Hart v. Doe, 261 S.C. 116, 122, 198 S.E.2d 526, 529 (1973)); Fairchild v. S.C.
Dept. of Transp., 398 S.C. 90, 99, 727 S.E.2d 407, 412 (2012) (citing Berberich, 392 S.C.
at 287) (emphasis added) (noting that when pled in a negligence action, the terms willful,
wanton, and reckless are synonymous); McGee v. Bruce Hosp. Sys., 321 S.C. 340, 346,
468 S.E.2d 633, 637 (1996) (“A conscience failure to exercise due care constitutes
willfulness.”). The test to determine whether conduct is reckless, willful or wanton is
whether it has been committed in a manner or under such circumstances that a reasonable
person would have been conscious that the act invaded the rights of the injured party.
Berberich, 392 S.C. at 287 (quoting Rogers v. Florence Printing Co., 233 S.C. 567, 577,
106 S.E.2d 258, 263 (1958)). In other words, if a reasonable person would have known
that the conduct was dangerous and posed a risk of injury to another, even if the
Defendant did not, the Defendant’s conduct was indeed reckless, willful or wanton. Id.
(citing Yaun v. Baldridge, 243 S.C. 414, 419, 134 S.E.2d 248, 251 (1964)); see also 62
AM. JUR. 2D Premises Liability § 213 (2013) (“[I]t is not necessary to establish that the
defendant actually recognized the conduct as dangerous. It is sufficient that a reasonable
person under such circumstances would have been aware of the dangerous character of
such conduct and the high degree of injury to another which it entailed.”).
DISCUSSION
In applying these standards to the instant matter, the court finds that the complaint
must have first pled enough factual content to show Defendant knew or should have
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known that the electrical substation was accessible by unauthorized persons, and second
that a reasonable person would know that leaving the substation accessible could cause
injury to another.
It is not enough to merely allege the gate was accessible by
unauthorized persons. Plaintiff must allege sufficient factual content to show Defendant
knew or should have known the electrical substation could be accessed by unauthorized
persons.
See Nettles, 4 S.E.2d at 799 (trespasser could recover where defendant
employer hired known drunk driver to operate vehicle and driver caused injury to
trespasser).
In paragraph eleven of her Complaint, Plaintiff alleges:
11. Defendant, by and through its duly authorized agents and servants, was
negligent, reckless, and grossly negligent in one or more of the following ways:
a. In permitting an improperly closed gate to theSubstation[sic];
b. In failing to close and/or to secure the Substation gate properly;
c. In failing to inspect and to maintain the Substation properly;
d. In failing to prevent reasonably foreseeable entries into the Substation;
e. In allowing the Substation to be accessible by individuals it could
reasonably foresee coming into contact with it;
f. In failing to warn adequately of known dangers presented by the
Substation;
g. In failing to meet to the requirements of the National ElectricalSafety[sic]
Code and other industry safety standards;
h. In failing to meet the requirements of its own safety standards;
i. In failing to remedy defects in the Substation that could reasonably be
expected to endanger life or property by repair, disconnecting, isolation, or
other practical safeguarding of persons;
j. In failing and omitting to exercise that degree of care and caution that an
ordinary and prudent person would have used under like conditions and
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circumstances then and there existing; and
k. In otherwise being negligent, reckless, and grossly negligent.
[Dkt. No. 1].
After examining the complaint, the court finds it to be lacking sufficient allegations
concerning Defendant’s knowledge that the electrical substation could be accessed by
unauthorized persons, and thus cannot survive Defendant’s Motion to Dismiss. The
aforementioned paragraph is the only one in Plaintiff’s complaint that comes close to
discussing Defendant’s knowledge that the electrical substation could be accessed by
unauthorized persons; however, it does not come close enough.
Plaintiff argues she has pled sufficient facts to establish breach of the duty owed to
a trespasser. [See Dkt. No. 16, Civil Action No.: 6:12-cv-02788-JMC]. This argument is
without merit for the reasons described above. Plaintiff attempts to make numerous other
arguments, none of which enable her to overcome the threshold issue of Defendant’s
knowledge. For instance, Plaintiff argues that Defendant’s duty is established because
Decedent’s injuries were or should have been a foreseeable result of Defendant’s
conduct, but this does not suffice without alleging Defendant knew or should have known
of its negligence.
Plaintiff also argues that Decedent was a foreseeable trespasser, and was thus
owed a duty of care similar to a licensee rather than a trespasser. Plaintiff relies on Jones
v. Atlanta-Charlotte Air Line Ry. Co., 218 S.C. 537, 63 S.E.2d 476 (1951) and Miller v.
Atlantic Coast Line R. Co., 225 S.C. 217, 81 S.E.2d 335 (1954) to conclude that “South
Carolina courts have held that, when a property owner conducts a dangerous activity on
its property and may reasonably expect the presence of trespassers on its property, the
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law imposes on it a duty of care to those trespassers similar to that owed to licensees.”
[Dkt. No. 16 at 5, Civil Action No.: 6:12-cv-02788-JMC].
Plaintiff merely offers
conclusory allegations that Decedent was a foreseeable trespasser, but her Complaint is
devoid of any facts suggesting Defendant should have been aware of Decedent’s presence
or that of other trespassers.
Accordingly, the facts in the instant matter are
distinguishable from those in Jones and Miller, and Plaintiff’s argument in this regard is
unpersuasive.
Additionally, Plaintiff, relying on Franks v. Southern Cotton Oil Co., 78 S.C. 10,
58 S.E. 960 (1907), asserts that Decedent’s mental capacity should be considered in
determining Defendant’s duty to Decedent. [See Dkt. No. 16, Civil Action No.: 6:12-cv02788-JMC]. The court disagrees. Plaintiff overlooks the fact that the Franks court
found the defendant liable to trespassing children because children were known to play in
the area where the child was injured. See Franks, 58 S.E. at 960 (citing Sioux City v.
Stout, 84 U.S. 657, 21 L.Ed. 745, (1906)); Union Pac. Ry. Co. v. McDonald, 152 U.S.
262, 38 L.Ed 434 (1894); Biggs v. Conn. Barb Wire Co., 60 Kan. 217 (1990). Plaintiff
in the instant matter has not presented facts showing that the electrical substation was an
area where the public was known to frequent. Thus, a comparison of the instant matter to
Franks, or the cases cited therein, is inapposite.
In a similar vein, Plaintiff argues that Defendant’s duty is established by having
conducted a dangerous activity on its property. [Dkt. No. 16 at 10-11, Civil Action No.:
6:12-cv-02788-JMC]. Under South Carolina law, a defendant may be liable to a plaintiff
for injuries caused by the defendant conducting a dangerous activity on his property only
if the injured party is a child. Henson ex rel. Hunt v. Int’l Paper Co., 374 S.C. 375, 386-
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87, 650 S.E.2d 74, 80-71 (2007) (adopting the Restatement (Second) § 339). Decedent is
not a child. Accordingly, Plaintiff cannot establish liability against Defendant under this
theory.
Finally, Plaintiff maintains that Defendant assumed a duty by “erecting a fence
and gate in an effort to preclude entry to the Substation.” [Dkt. No. 16 at 11, Civil Action
No.: 6:12-cv-02788-JMC]. “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., 353 S.C. 449, 457, 578 S.E.2d 711, 714 (2003)
(citing Carson v. Adgar, 326 S.C. 212, 486 S.E.2d 3 (1997)). The instant matter is
distinguishable from cases where South Carolina courts have found an assumed duty
because Plaintiff has not alleged Defendant contractually undertook the responsibility of
keeping Decedent safe, nor has Defendant admitted such responsibility. See Madison ex.
rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 638 S.E.2d 650 (2006); see also Bryant v.
City of N. Charleston, 304 S.C. 123, 403 S.E. 159 (Ct. App. 1991).
CONCLUSION
Accordingly, Defendant’s motion is GRANTED without prejudice to Plaintiff’s
opportunity to amend her complaint consistent with the opinion herein. Plaintiff shall file
an amended complaint by July 19, 2013.
IT IS SO ORDERED.
United States District Judge
July 1, 2013
Greenville, South Carolina
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