Fayetta Davenport v. Town of Iva, SC

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

Fayetta Sherida Davenport, individually and on behalf of
the Estate of James Davenport, Appellant,

v.

Town of Iva, S.C., Respondent.

Appellate Case No. 2017-002612

Appeal From Anderson County
J. Cordell Maddox, Jr., Circuit Court Judge

Opinion No. 2023-UP-318
Heard September 22, 2020 – Filed September 27, 2023

AFFIRMED

James Mixon Griffin, of Griffin–Davis, of Columbia, for
Appellant.

Mary C. McCormac, of Mary C. McCormac Attorney at
Law, LLC, of Clemson, for Respondent.

MCDONALD, J.: In this tragic case, Fayetta Davenport argues the circuit court
erred in finding the Town of Iva owed no special duty of care to protect her family
from her violent son. We affirm the circuit court's directed verdict.
Facts and Procedural History

On a Sunday evening in July 2012, Robert Frost violently attacked his mother and
stepfather, James Davenport, in their home. James did not survive the attack. 1
Earlier that afternoon, Frost left the couple threatening voicemail messages; the
Davenports alerted law enforcement after Frost stated in one of the messages that
"blood would flow in Iva."

At approximately 3:20 p.m. on the afternoon of Frost's threatening calls, Iva patrol
officer Timothy Richey responded to the Davenports' home and listened to the
messages. In Officer Richey's presence, Davenport called the number from which
Frost made the calls. Frost answered, claiming to be "Jackie," his deceased
brother. According to Officer Richey, Davenport told him Jackie was her son "that
passed away, that is Robert who you're talking to." Officer Richey testified that he
identified himself, stated he was with the police department, and told Frost, "You
don't need to call your parents no more, you don’t need to be harassing them, you
don't need to be trying to come over . . . . Don't come over, don't call again."
Officer Richey noted Frost "never threatened anything suicidal in that phone call,
he never threatened that he was going to hurt anybody when I talked to him." He
also told "Jackie" that if the harassing calls continued, "a warrant would be issued"
and "he would be locked up if he came to Iva."

Once Officer Richey ended the call, he asked Davenport what the couple wanted
him to do. Davenport testified that she responded, "Anything it takes to keep
Robert Frost from coming to Iva." Davenport claims Officer Richey replied,
"Well, if he comes, y'all lock your doors and hide and call me—or call 911."
However, Davenport admitted Officer Richey instructed her "to call 911
immediately if her son called again or if he came to her house."

At the 5:00 p.m. shift change that afternoon, Officer Richey gave Lieutenant
Christopher Vaughn information about the threatening calls and asked him to keep
an eye on the Davenport's home.

1
At the time of the murder, Frost had a documented history of violent behavior,
which included burning down his mother's former home, burning down his
brother's mobile home, and attempting to kill James on a prior occasion by slashing
his face. In the 1980s, Frost served sentences of one year for the attempted murder
of his stepfather and ten years for arson.
Sometime after Officer Richey left the Davenports' house, Frost again called his
mother. This time, Frost was contrite and made statements that Davenport
interpreted to mean he was considering suicide. Despite having been specifically
instructed to call 911 if Frost called again, she did not call 911 or Officer Richey
because "[Frost] said he was sorry." Davenport believed her son had settled down
and was not going to bother the family further that night. On cross-examination,
however, Davenport admitted James did not think Frost's suicide comments were
serious and told her Frost was just "pulling one of his tricks."

Around 7:30 that evening, the Davenports' neighbor, Becky Keith, pulled into her
driveway on East Lake Street and called 911 to report a burglary in progress: "I
told them that somebody rode up on a motorcycle and kicked in the backdoor. My
neighbor's backdoor. And I heard screaming, yelling, coming from the house."

Lieutenant Vaughn was conducting a safety patrol of the Davenports' address when
the neighbor's 911 call came in. He testified he had been keeping an eye on the
house by driving down Front Street, where the Davenport home shares a corner
with East Lake Street. Lieutenant Vaughn responded to the 911 call "roughly,
between 40 and 48 seconds" after passing the Davenport's house. Upon arrival, he
found Frost covered in blood and trying to flee on his motorcycle. After securing
Frost and calling for backup, Lieutenant Vaughn entered the Davenports' home and
found Frost had stabbed his stepfather to death and injured his mother.

Iva Police Chief Thomas Miller was aware of Frost's past violent behavior, and
testified that he anticipated there would be another altercation between Frost and
James at some point. He also knew that two months before the fatal attack, Frost
had come to Iva to demand money from his mother. On that day, Davenport gave
her son her debit card and then called the police. Chief Miller and another officer
responded to the May call, found Frost using his mother's ATM card, and put him
on a trespass notice for her home. Although Chief Miller instructed Davenport to
call 911 if Robert violated the trespass notice, when Frost subsequently approached
his mother on her porch, she did not report the violation because he left when she
told him to go and "he was there less than two minutes."

Davenport testified that in the aftermath of James's murder, Chief Miller
apologized for "letting her down" and for not doing a better job protecting the
family. Additionally, Davenport's nephew testified that when law enforcement
came to retrieve the recordings from the Davenports' phone, Chief Miller "made a
statement that he was apologetic about [the fact that] he should have done a better
job at taking Robert's threats more serious[ly], that he should have done a better
job protecting James."

Davenport filed this action asserting the Town's police department was negligent
and grossly negligent in breaching its common law duty of care "to protect the
bodily integrity of Plaintiff and her deceased husband, James." The Town moved
to dismiss, or alternatively for summary judgment, asserting the protections of the
South Carolina Tort Claims Act, 2 as well as a defense that its employees did not
owe a "special duty" of care to the Davenports "outside of the duty owed to the
public at large; thus, the public duty rule operates to bar her lawsuit." Following a
hearing, the circuit court denied the Town's motion, and the case went to trial.
After the close of Davenport's case-in-chief, the circuit court directed a verdict for
the Town "based upon the fact that [the court did not find] that there's any duty."
Davenport seeks a new trial.

Law and Analysis

"In ruling on motions for directed verdict and JNOV, the trial court is required to
view the evidence and the inferences that reasonably can be drawn therefrom in the
light most favorable to the party opposing the motions and to deny the motions
where either the evidence yields more than one inference or its inference is in
doubt." Law v. S.C. Dep't of Corr., 368 S.C. 424, 434, 629 S.E.2d 642, 648
(2006). "The appellate court will reverse the trial court's ruling on a directed
verdict motion only when there is no evidence to support the ruling or where the
ruling is controlled by an error of law." Donevant v. Town of Surfside Beach, 414
S.C. 396, 406, 778 S.E.2d 320, 326 (Ct. App. 2015), aff'd, 422 S.C. 264, 811
S.E.2d 744 (2018) (quoting Jones v. Lott, 349 S.C. 285, 288–89, 665 S.E.2d 642,
644 (Ct. App. 2008)).

Davenport argues the circuit court erred in finding the Town owed no special duty
of care despite its affirmative acts to address the Davenports' safety because: (1)
there is sufficient evidence from which a reasonable jury could conclude the Town
voluntarily assumed a duty to protect the Davenports and then failed to exercise
reasonable care; (2) special circumstances existed giving rise to a duty of care; and
(3) Davenport provided evidence from which a jury could find the Town's agents
were negligent and grossly negligent. We disagree.

2
S.C. Code Ann. §§ 15-78-10 to -200 (2005 and Supp. 2022).
"In a negligence action, '[t]he court must determine, as a matter of law, whether the
law recognizes a particular duty." Repko v. Cnty. of Georgetown, 424 S.C. 494,
500, 818 S.E.2d 743, 747 (2018) (quoting Steinke v. S.C. Dep't of Lab.,
Licensing & Regul., 336 S.C. 373, 387, 520 S.E.2d 142, 149 (1999)). "If there is
no duty, then the defendant in a negligence action is entitled to a directed verdict."
Id. (quoting Steinke, 336 at 387, 520 S.E.2d at 149). "An affirmative legal duty to
act may be created by statute, contract relationship, status, property interest, or
some other special circumstance." Arthurs ex rel. Estate of Munn v. Aiken Cnty.,
346 S.C. 97, 103, 551 S.E.2d 579, 582 (2001). Public officials are "generally not
liable to individuals for their negligence in discharging public duties as the duty is
owed to the public at large rather than anyone individually." Vaughan v. Town of
Lyman, 370 S.C. 436, 441, 635 S.E.2d 631, 634 (2006). "An exception to this
general rule of non-liability exists when a duty is owed to individuals rather than
the public only." Jensen v. Anderson Cnty. Dep't of Soc. Servs., 304 S.C. 195, 200,
403 S.E.2d 615, 617 (1991).

Here, Davenport relies on the common law to support her argument that the Town
violated a duty of care and properly asserts that "under the South Carolina Tort
Claims Act, [the Town] is to be treated as a private citizen for purposes of
determining whether a duty exists." 3

Although there is no general duty to control the conduct of another or to warn a
potential victim of danger, there are five exceptions to this general rule:

1) where the defendant has a special relationship to the
victim; 2) where the defendant has a special relationship
to the injurer; 3) where the defendant voluntarily
undertakes a duty; 4) where the defendant negligently or
intentionally creates the risk; and 5) where a statute
imposes a duty on the defendant.

Edwards, 386 S.C. at 291, 688 S.E.2d at 128 (quoting Faile v. S.C. Dep't. of Juv.
Just., 350 S.C. 315, 334, 566 S.E.2d 536, 546 (2002)); see also Russell v. City of

3
"When the duty is created by statute, we refer to this as a 'special duty,' whereas
when the duty is founded on the common law, we refer to this as a legal duty
arising from 'special circumstances.'" Edwards v. Lexington Cnty. Sheriff's Dep't,
386 S.C. 285, 290, 688 S.E.2d 125, 128 (2010) (quoting Arthurs, 346 S.C. at 109–
10, 551 S.E.2d at 585).
Columbia, 305 S.C. 86, 89, 406 S.E.2d 338, 339 (1991) ("Under common law,
even where there is no duty to act but an act is voluntarily undertaken, the actor
assumes the duty to use due care.").

Our supreme court has considered in a number of cases the question of whether a
legal duty arises from special circumstances in the law enforcement context. For
example, in Edwards v. Lexington County Sheriff's Department, after the plaintiff
was attacked by her ex-boyfriend outside a magistrate's office, the supreme court
found the sheriff's department owed her a common law duty because of the unique
circumstances of her case. 386 S.C. at 294, 688 S.E.2d at 130. These
circumstances included the sheriff's department relationship with Edwards, its
knowledge of her former boyfriend, Allen Baker, and the department's own actions
in creating the risk of harm. Id. at 293, 688 S.E.2d at 129–30. Finding "special
circumstances" existed for purposes of the duty analysis, the court explained:

Respondents were well aware of Baker's unrelenting
violent tendencies toward Edwards. Edwards had called
the sheriff's office to report Baker's harassment on
numerous occasions, and the sheriff's office arranged for
Edwards to stay in a hotel after one of the incidents. The
sheriff's office. . . . arranged the bond revocation hearing
at the magistrate's office with no security present.
Despite Respondents' awareness that Edwards feared
Baker and was reluctant to attend the bond revocation,
Respondents strongly encouraged Edwards' presence.

Respondents cannot claim lack of knowledge of Baker's
violent tendencies towards Edwards since the reason they
were seeking to revoke Baker's bond was due to his
failure to obey the no-contact order, which was issued as
a direct result of his violent actions. We hold
Respondents created a situation in which it was
foreseeable that Baker would harm Edwards.

We hold that Respondents owed Edwards a duty solely as
a result of the unique facts of this case, i.e., "special
circumstances." Respondents created a situation that
they knew or should have known posed a substantial risk
of injury to Edwards. Moreover, given Respondents'
knowledge of Baker's demonstrated threats against
Edwards, Respondents owed her a duty. Respondents'
duty is one of due care and whether Respondents acted
reasonably, negligently or grossly negligently is not
before us. We do note that Respondents were not under a
duty to guarantee Edwards' safety with absolute certainty.

Id. at 293–94, 688 S.E.2d at 130.

Davenport asserts two of the exceptions to the general rule considered in Edwards
applied to defeat the directed verdict motions in her case: the Town's voluntary
undertaking of a duty and the police department's special relationship to the
victims. While there are some similar aspects, such as an attack by an assailant
with a close relationship to the victim and law enforcement's prior knowledge of
the dangerous individual, the facts of this case differ markedly from those of
Edwards. Like the sheriff's department in Edwards, the Town was aware of Frost's
harassment of and violent tendencies toward the Davenports. However, in
Edwards, the sheriff's department controlled the premises where Edwards was
attacked and "strongly encouraged" her to attend the bond revocation hearing—
where officers knew her physically abusive ex-boyfriend would be present—and
then failed to provide any security. Id. at 293, 688 S.E.2d at 130. Here, the Town
neither created the hazardous circumstances nor invited the Davenports to a
dangerous situation.

The "voluntary undertaking" Davenport alleges relates to Officer Richey's
increased safety patrols at the Davenport residence, which he testified he asked
Lieutenant Vaughn to implement when Vaughn arrived to start his evening shift.
But there is no evidence in the record to suggest the Davenports were aware of the
safety patrols until after this lawsuit began. This supports the circuit court's
finding that the Davenports did not rely on a voluntary undertaking by the Town in
making their decision to remain in their home after receiving Frost's threatening
phone calls. Davenport claims in her complaint that the couple relied on Officer
Richey's advice to hide with the doors locked and call 911 if Frost called again or
came to their house, believing "they would be safe staying in their home with the
doors locked." But there is no evidence in the record that Officer Richey advised
the couple to stay in the home or guaranteed their safety, and—contrary to his
specific instruction—Davenport failed to call 911 or otherwise alert law
enforcement when Frost called her back that afternoon to express his contrition.

Nor did Davenport testify or present other evidence that the couple relied on advice
from Officer Richey in choosing to remain in their home. Instead, she explained
that she and her husband stayed that night because they felt safer there and were
"homebodies," who "preferred to stay home." Davenport additionally stated that,
after listening to Frost's voicemail apology, she thought he had settled down and
would not bother the couple further. Therefore, even as we view "the evidence and
the inferences that reasonably can be drawn therefrom in the light most favorable
to" the plaintiff, we agree with the circuit court that no affirmative act (or failure to
act) by the Town increased the risk of harm Frost presented to his mother and
stepfather. Law, 368 S.C. at 434, 629 S.E.2d at 648. In sum, Davenport was
unable to present evidence that the couple relied on a voluntary undertaking, and
she admittedly disregarded the responding officer's specific instruction to alert law
enforcement if Frost contacted her again.

Davenport contends our supreme court's reversal of summary judgment in Wright
v. PRG Real Estate Management, Inc., 426 S.C. 202, 826 S.E.2d 285 (2019),
supports her argument that the circuit court erred in declining to submit to the jury
the question of whether a "voluntary undertaking" by the Town created special
circumstances giving rise to a duty of care to the Davenports. In Wright, a tenant
sued her landlord and apartment complex managers after she was abducted at
gunpoint from the complex parking lot. Id. at 205–06, 826 S.E.2d at 287. The
tenant claimed the defendants negligently failed to protect residents from
third-party criminal activity by failing to provide appropriate lighting, failing to
maintain overgrown shrubbery, and failing to properly manage the complex's
courtesy security officer program. Id. at 206, 826 S.E.2d at 287. The circuit court
granted summary judgment in favor of the landlord defendants, and a divided court
of appeals affirmed. Id. at 209, 826 S.E.2d at 289. However, a divided supreme
court reversed, noting the tenant's "reliance upon the undertaking" of her landlord
to provide security and explaining:

The recognition of a voluntarily assumed duty in South
Carolina jurisprudence is rooted in section 323 of the
Restatement (Second) of Torts (1965),[ ] which provides:

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.

Under section 323, the voluntary undertaking does not
create a duty of care unless (a) the undertaker's failure to
exercise reasonable care in performing the undertaking
increased the risk of harm to the plaintiff, or (b) the
plaintiff suffered harm because she relied upon the
undertaking.

Id. at 213, 826 S.E.2d at 290–91 (footnote omitted).

The majority emphasized plaintiff's testimony that she chose the apartment
complex, at least in part, because "there were security officers on duty. So [she]
felt like it would be a safe place." Id. at 219–20, 826 S.E.2d at 294. Thus, the
supreme court reversed the grant of summary judgment, finding the landlord
defendants' failure to provide the security upon which the tenant specifically relied
triggered the Restatement's "voluntary undertaking" exception and required
evaluation by a jury. Id. at 221, 826 S.E.2d at 295.

By contrast, the evidence here support does not support a finding of a voluntary
undertaking. No act of the Town or its agent increased the risk of harm to the
Davenports, and the plaintiff demonstrated her lack of reliance when she
disregarded the responding officer's specific instruction to call 911 if her son
contacted her again. 4 Accordingly, the circuit court's grant of a directed verdict is

AFFIRMED.

KONDUROS, J., and LOCKEMY, A.J., concur.

4
As our holding on the duty question is dispositive, we decline to address the
parties' Tort Claims Act arguments. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating court
need not address remaining issues when disposition of a prior issue is dispositive).