Wright v. PRG Real Estate Management , 426 S.C. 202 ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Denise Wright, Petitioner,
v.
PRG Real Estate Management, Inc., Franklin Pineridge
Associates, Karen Campbell Individually and in her
Representative Capacity as an Agent of PRG Real Estate
Management, Respondents.
Appellate Case No. 2015-001921
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Richland County
W. Jeffrey Young, Circuit Court Judge
Opinion No. 27868
Heard March 6, 2018 – Filed March 20, 2019
REVERSED
S. Randall Hood, Jordan C. Calloway, and Deborah G.
Casey, all of McGowan, Hood & Felder, LLC, of Rock
Hill, E. Wayne Ridgeway Jr., of Burriss Ridgeway, of
Columbia and Gerald Malloy, of Malloy Law Firm, of
Hartsville, for Petitioner.
Charles A. Kinney and Christian Stegmaier, both of
Collins & Lacy, PC, of Columbia, for Respondents.
JUSTICE JAMES: Denise Wright was abducted and robbed at gunpoint by two
unknown assailants in a common area of an apartment complex (Wellspring) in
which she resided. Wellspring was owned by Respondent Franklin Pineridge
Associates and operated by Respondent PRG Real Estate Management, Inc.
Respondent Karen Campbell was Wellspring's property manager and an employee
of PRG at the time of the incident. Wright sued Respondents for negligence, alleging
Respondents voluntarily undertook a duty to provide security to residents of
Wellspring and breached this duty, thereby causing her damages. She also alleged
Respondents were negligent in failing to properly maintain shrubbery and lighting
on the premises. The circuit court granted summary judgment to Respondents on
Wright's negligence claim. A divided court of appeals affirmed. Wright v. PRG
Real Estate Mgmt., Inc., 413 S.C. 276, 775 S.E.2d 399 (Ct. App. 2015).
We granted Wright's petition for a writ of certiorari to review the following
questions: (1) whether Respondents voluntarily undertook a duty to provide security
services to residents, (2) if such a duty exits under the facts of this case, whether
there is a genuine issue of material fact that Respondents breached the duty, and (3)
whether there is a genuine issue of material fact that any such breach proximately
caused Wright's damages. We reverse the court of appeals and remand the matter to
the circuit court for trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2003, Wright began her search for an apartment she could rent in the
Columbia area. Wellspring is part of a planned unit development known as the
"Harbison Community Association," and several walking trails weave throughout
the community. Wellspring and other properties within the community are
accessible via these public trails. Wright testified she initially became interested in
Wellspring because of its proximity to her job and because of several
recommendations from members of her church. Wright testified security was an
important factor in her decision-making process. She testified that at the time she
signed her lease, a Wellspring manager told her there were security officers on duty.
During oral argument at the court of appeals, Respondents conceded Wright "was
told that there are security officers" and that when Wright moved into the complex,
she had that expectation. Wright testified this representation caused her to believe
Wellspring would be a safe place in which to live. Wright leased an apartment at
Wellspring from 2003 until the subject incident occurred in 2008.
An internal Wellspring employee manual stated, "We generally do not provide
security for our residents[,] and employees should never indicate that we do so."
This information was not given to residents. Wellspring had designed a courtesy
officer program allowing residents affiliated with law enforcement to receive
reduced rent in exchange for their service as courtesy officers for the apartment
complex. Wellspring employed these courtesy officers as independent contractors
and entered into agreements requiring the courtesy officers to (1) spend a minimum
of two hours daily of their off-duty time walking the property, (2) answer calls
regarding incidents on the property, and (3) submit daily reports to the property
manager. Courtesy officers were asked not to carry a weapon unless required by
their law enforcement employer. Courtesy officers were asked, but were not
required, to park their law enforcement vehicles on the Wellspring premises. The
parameters of these agreements were kept internally and were not provided to
residents. Wellspring published a "security pager" number in a monthly tenant
newsletter. The newsletter also prominently noted "[s]ecurity is also [a] very top
priority with us" and advised tenants to "call the security pager or Richland County
Sheriff Dept. if you see anything suspicious." Respondents did not alert Wright or
other tenants that the provision of "security" was limited to the confines of the
courtesy officer program, as those particulars were known only to Respondents.
Also, Respondents contracted with a maintenance company to provide
landscaping services at Wellspring, including the trimming and shaping of shrubs as
needed. Respondents also provided lighting in the common areas and parking lots
of Wellspring.
On the night of September 18, 2008, Wright left choir practice at her nearby
church and returned to Wellspring at approximately 10:00 p.m. Wright parked her
car and began walking toward the ramp that led to her apartment. She testified, "The
pole light in the parking lot was not illuminated and the view of the stairs and
ramp . . . was obscured by darkness and massive shrubbery that was overgrown."
Before Wright could reach her apartment, two armed men appeared from behind the
shrubbery and demanded money. When Wright replied she was not carrying any
cash, the men forced her at gunpoint to drive them to several ATMs to withdraw
money from her account. The men promised Wright they would kill her and told
her, "You will never see home again." One of the men put his hand down the back
of Wright's pants and contemplated "hav[ing] some fun before [killing] her."
Eventually, the men fled Wright's car and escaped. Wright sped away and drove to
her daughter's house where law enforcement interviewed her.
The next day, Wright met with a representative of Wellspring. Wright
testified the first thing she asked the manager was, "Where are these security officers
that are supposed to be walking the beat? I didn't see anybody. There was nobody
there when I needed them. I didn't see one. I've never seen one the whole time I've
lived there." Wright testified the manager shrugged her shoulders and replied, "I'm
sorry." Wright did not spend another night in her apartment at Wellspring and
moved out a few days later. Unfortunately, the two assailants have never been
identified.
There were no courtesy officers at Wellspring on the night Wright was
abducted and robbed in September 2008; the last time a courtesy officer had been
employed at Wellspring was in July 2008. Respondent Karen Campbell, the
property manager at the time of the incident, testified there were periods of time
when there were no courtesy officers because officers would leave Wellspring or
quit the program for various reasons. Although there were no courtesy officers at
the time of the incident, Wellspring continued to publish the security pager number
in its monthly tenant newsletter. Respondents were not sure who, if anyone, would
have answered the security pager when no courtesy officers were employed. There
is no evidence Respondents ever informed Wright and other tenants that the security
program lacked its key ingredient—the participation of security officers.
Wright's security expert, William F. Booth, stated four opinions in his
deposition. First, Booth opined that Wellspring is a unique property because it is an
apartment complex wrapped around a public park. He believed this fact placed an
additional responsibility on Respondents to provide security for its residents, which
was not met. He testified the incident was foreseeable due to the lack of security.
Second, Booth opined that the shrubbery on the property had become overgrown and
provided a hiding place for the individuals who committed the crime. He testified
the incident would have been avoided if the shrubbery had been cut to an appropriate
height. Third, Booth opined the lighting on the property was below industry
standards, and if the lighting had been adequate, the crime would not have occurred.
Fourth, Booth opined that Wellspring represented to its residents that there was
security in place pursuant to the courtesy officer program and that it was reasonable
for residents to have relied on the courtesy officers to patrol the property. He
testified that "had the courtesy officers been there and been patrolling the property
as required that the perpetrators in this crime more likely than not would not have
been in the position to rob and kidnap [Wright]."
Wright brought this action against Respondents for negligence, breach of
implied warranties, and violation of the South Carolina Unfair Trade Practices Act.1
1
S.C. Code Ann. §§ 39-5-10 to -180 (1976 & Supp. 2018).
Wright's negligence claim is the only cause of action relevant to the instant appeal.
Wright alleged Respondents were negligent in failing to protect tenants from third-
party criminal activity by not (1) providing adequate lighting in the common areas,
(2) maintaining the overgrown shrubbery to an appropriate height, and (3) executing
its courtesy officer program in a reasonable manner. Respondents argue they did
not owe Wright a duty to provide security. They further argue that even if they did,
they breached no duty. Finally, they argue that even if they breached a duty owed
to Wright, their alleged negligence was not a proximate cause of any harm sustained
by Wright. The circuit court granted Respondents' motion for summary judgment.
A divided court of appeals affirmed. Wright v. PRG Real Estate Mgmt., Inc.,
413 S.C. 276, 775 S.E.2d 399 (Ct. App. 2015). As to Wright's negligence action,
the majority held Respondents had no duty to protect Wright from third-party
criminal activity. The majority rejected Wright's argument that the relevant facts of
her case created an exception to the general rule that landlords do not have a duty to
provide security services and protect tenants from criminal activity arising from the
(1) particular circumstances, (2) common areas exception, and (3) affirmative acts
exception.
In its discussion of the affirmative acts exception, the majority addressed
Wright's argument that a duty arose from Respondents' (1) hiring courtesy officers
to patrol the premises, (2) providing common area lighting, and (3) trimming the
shrubbery throughout the common area. The majority found the creation of the
courtesy officer program did not impose on Respondents a duty to exercise
reasonable care in providing security at Wellspring; the majority held Respondents'
undertaking to create the courtesy officer program required only that Respondents
maintain the program itself with reasonable care. The majority explained, "Under
the facts of this case, the duty [R]espondents assumed was limited to exercising
reasonable care in maintaining the courtesy officer program, and [there is] no
evidence they failed to exercise reasonable care in fulfilling that duty." Wright, 413
S.C. at 288, 775 S.E.2d at 406. Citing the reasoning in Cramer v. Balcor Property
Management, Inc., 848 F. Supp. 1222 (D.S.C. 1994), the majority found the situation
"indistinguishable" because the "fact that the courtesy officer position was vacant at
the time is a circumstance too attenuated from the kidnapping and robbery of Wright
to establish a duty to provide security." Wright, 413 S.C. at 288, 775 S.E.2d at 406.
The majority also found Respondents' provision of lighting and maintenance of
shrubbery did not give rise to a duty to provide security. The majority did not
employ section 323 of the Restatement (Second) of Torts (1965) in reaching its
conclusions, nor did the majority address Wright's contention that she was not
advised of the limitations of the security program.
Concurring in part and dissenting in part, then-Judge Lockemy disagreed with
the majority's conclusion that summary judgment should have been granted on
Wright's claim that Respondents were negligent in failing to provide security as
represented to Wright. Applying section 323 of the Restatement (Second) of Torts
(1965), Judge Lockemy concluded Wright presented some evidence that she
expected security and that Respondents undertook the duty to provide it. Judge
Lockemy wrote that by specifically informing Wright that "the complex had 'security
officers' and urging tenants to call the security pager in the event of an emergency,
Wellspring undertook a duty to either provide security at the complex, or to take
affirmative steps to ensure tenants were aware of the limitations of its security
program." Wright, 413 S.C. at 293, 775 S.E.2d at 408 (Lockemy, J., concurring in
part and dissenting in part).
Judge Lockemy also concluded the majority's reliance on Cramer v. Balcor
Property Management, Inc., 848 F. Supp. 1222 (D.S.C. 1994), which applied the
affirmative acts exception, was misplaced. He noted the source of Cramer's
authority for the affirmative acts exception was rooted in section 323. Judge
Lockemy believed the instant situation to be more akin to the "undertaking"
exception and stated "a tenant injured by a third party criminal attack at an apartment
complex may be able to establish a duty owed by a landlord who has undertaken to
provide security pursuant to section 323." Wright, 413 S.C. at 295, 775 S.E.2d at
409-10 (Lockemy, J., concurring in part and dissenting in part). Because Judge
Lockemy found Wright presented evidence establishing a duty under section 323,
he addressed Wright's proximate cause argument and concluded there were genuine
issues of material fact that would allow Wright's negligence claim to survive
summary judgment.
Wright filed a petition for a writ of certiorari with this Court. We granted
Wright a writ of certiorari on the sole question of whether the court of appeals erred
in failing to apply section 323 to Wright's allegation that Respondents voluntarily
assumed a duty to provide security to her.
II. STANDARD OF REVIEW
"The purpose of summary judgment is to expedite disposition of cases which
do not require the services of a fact finder." George v. Fabri, 345 S.C. 440, 452,
548 S.E.2d 868, 874 (2001). "When reviewing a grant of summary judgment,
appellate courts apply the same standard applied by the trial court pursuant to Rule
56(c), SCRCP." Turner v. Milliman, 392 S.C. 116, 121-22, 708 S.E.2d 766, 769
(2011). Rule 56(c), SCRCP, provides a circuit court shall grant summary judgment
"if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and . . . the moving party is entitled to a judgment as a matter of law."
"On summary judgment motion, a court must view the facts in the light most
favorable to the non-moving party." George, 345 S.C. at 452, 548 S.E.2d at 874.
When a circuit court grants summary judgment on a question of law, this Court will
review the ruling de novo. Town of Summerville v. City of N. Charleston, 378 S.C.
107, 109-10, 662 S.E.2d 40, 41 (2008).
III. DISCUSSION
Wright argues the court of appeals erred in failing to apply section 323 of the
Restatement (Second) of Torts to her negligence action. Wright asserts section 323
"stands on its own doctrinal footing and may not be narrowed or ignored when
considering a residential landlord's voluntarily assumed security program."
A. Voluntarily Assumed Duties in South Carolina
In an action alleging negligence, a plaintiff must show (1) the defendant owed
a duty of care to the plaintiff, (2) the defendant breached the duty by a negligent act
or omission, (3) the defendant's breach was an actual and proximate cause of the
plaintiff's injury, and (4) the plaintiff suffered injury or damages. Dorrell v. S.C.
Dep't of Transp., 361 S.C. 312, 318, 605 S.E.2d 12, 15 (2004). "If there is no duty,
then the defendant in a negligence action is entitled to a judgment as a matter of
law." Madison ex rel. Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 135-36, 638 S.E.2d
650, 656 (2006).
"While there is generally no duty to act under the common law, a duty to use
due care may arise where an act is voluntarily undertaken." Vaughan v. Town of
Lyman, 370 S.C. 436, 446, 635 S.E.2d 631, 637 (2006). "The question of whether
such a duty arises in a given case may depend on the existence of particular facts.
Where there are factual issues regarding whether the defendant was in fact a
volunteer, the existence of a duty becomes a mixed question of law and fact to be
resolved by the fact finder." Id. at 446-47, 635 S.E.2d at 637 (quoting Miller v. City
of Camden, 329 S.C. 310, 314, 494 S.E.2d 813, 815 (1997)). Although a landlord
generally has no duty to provide security to protect tenants from criminal acts of
third parties, a landlord who undertakes to provide security measures may be liable
if the undertaking is performed negligently. See Tracy A. Bateman & Susan
Thomas, Annotation, Landlord's Liability for Failure to Protect Tenant from
Criminal Acts of Third Person, 43 A.L.R. 5th 207 (1996). The landlord's duty can
be limited and will apply only to the extent of the landlord's undertaking. Id.The recognition of a voluntarily assumed duty in South Carolina
jurisprudence is rooted in section 323 of the Restatement (Second) of Torts (1965),2
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. State and federal case law in South Carolina have
not been clear as to whether section 323 applies to a landlord's voluntarily assumed
duty to provide security to a tenant.
It is well-settled in South Carolina that a landlord generally does not owe an
affirmative duty to a tenant to provide security in and around leased premises to
protect the tenant from the criminal activity of third parties. See Cramer v. Balcor
Prop. Mgmt., Inc., 312 S.C. 440, 444, 441 S.E.2d 317, 319 (1994) (Cramer I). In
2
See, e.g., Roundtree Villas Ass'n, Inc. v. 4701 Kings Corp., 282 S.C. 415, 423, 321
S.E.2d 46, 51 (1984) (holding a common law duty of care arose under section 323
when a lender undertook to market condominium units and to repair defects in those
units); Sherer v. James, 290 S.C. 404, 407-08, 351 S.E.2d 148, 150 (1986) ("Section
323(a) simply establishes a duty on one who undertakes to render services for the
protection of another to use due care to avoid increasing the risk of harm. We agree
with this rationale." (internal citation omitted)); Madison ex rel. Bryant, 371 S.C. at
136-37, 638 S.E.2d at 657 (recognizing a private treatment center may owe a duty
to a patient under section 323); Doe 2 v. Citadel, 421 S.C. 140, 146-47, 805 S.E.2d
578, 581-82 (Ct. App. 2017) (applying section 323 in analyzing whether the
defendant established a duty of care to the plaintiff when it voluntarily undertook to
investigate claims of sexual abuse).
Cramer I, we explained that although South Carolina law does not impose a duty on
a landlord to provide security to protect a tenant from the criminal acts of third
parties, a plaintiff is not precluded from asserting a claim under a general negligence
principle. Id. at 443 n.1, 441 S.E.2d at 319 n.1.
In Cooke v. Allstate Management Corp., the United States District Court for
the District of South Carolina enumerated four exceptions to the general rule: (1) the
affirmative acts exception, (2) the concealed danger exception, (3) the common area
exception, and (4) the undertaking exception. 741 F. Supp. 1205, 1209 (D.S.C.
1990). In Cooke, the plaintiff tenant brought a negligence action against her landlord
seeking to recover damages after she was assaulted by an intruder who gained access
to her second-floor apartment. She claimed the intruder gained access to her
apartment by using a ladder that was negligently left on the premises by her landlord.
Id. at 1206. The district court disagreed with the tenant's argument that the
undertaking exception applied because of an inadequate lock and advice she
received from the landlord regarding safety. In addressing the affirmative acts
exception, the district court quoted Crowley v. Spivey, 285 S.C. 397, 406, 329 S.E.2d
774, 780 (Ct. App. 1985), for the proposition that "one who assumes to act, even
though under no obligation to do so, may become subject to the duty to act with due
care." Cooke, 741 F. Supp. at 1209-10. Because there was a factual issue as to
whether the ladder was used by the intruder to enter tenant's apartment, and because
there was some evidence the ladder was left unsecured by the landlord, the district
court denied the landlord's motion for summary judgment pursuant to the affirmative
acts exception. Id. at 1210. The district court did not directly cite section 323.
In Cramer v. Balcor Property Management, Inc. (Cramer II), the United
States District Court for the District of South Carolina applied this Court's answer to
a certified question in Cramer I to a plaintiff tenant's wrongful death action alleging
negligence on behalf of the landlord after the deceased was murdered in her
apartment. 848 F. Supp. 1222 (D.S.C. 1994). Although this Court ruled in Cramer
I that there was no general duty under South Carolina law for the landlord to provide
security, the district court addressed the affirmative acts exception and the
undertaking exception. The district court defined the affirmative acts exception by
quoting Crowley—"one who assumes to act, even though under no obligation to do
so, may become subject to the duty to act with due care." Cramer II, 848 F. Supp.
at 1224. The district court noted:
[Plaintiff] argues that by initially hiring a "courtesy
officer" to patrol the grounds and then terminating that
officer without replacing him, [landlord] breached this
duty. [Plaintiff] misapprehends the scope of the
affirmative acts exception. The exception envisions a
situation where the act of the landlord leads directly to the
injury complained of. The cases which fit this exception
are those where there is a stronger connection between the
act and the injury, such as where a landlord leaves an
apartment door unlocked and a third party enters.
Id. In addressing the undertaking exception, the district court stated that "if a
landlord undertakes to make repairs, they must be performed with due care." Id.The court found the landlord did not undertake to install any additional security
devices on the apartment's sliding glass door; therefore, the landlord was not
negligent. The court noted, "In order to fall within the undertaking exception, the
defendant must undertake to do something." Id. at 1225. Because plaintiff's claim
of negligence did not fit into any exception, the court granted the landlord's motion
for summary judgment. There was no direct citation to section 323 by the district
court.
In Goode v. St. Stephens United Methodist Church, a social guest of a tenant
at an apartment complex was assaulted by third persons while at the complex and
sued the landlord for negligence in failing to provide security. 329 S.C. 433, 494
S.E.2d 827 (Ct. App. 1997). The guest alleged a duty was created because the
landlord undertook to render security services on the premises. In support of his
argument, the plaintiff relied upon both the common law undertaking exception and
section 323. The court of appeals addressed this argument as the "Duty Created by
Undertaking." Id. at 444, 494 S.E.2d at 832. The court of appeals found (1) the
security measures undertaken by the landlord (repairing locks, securing windows,
informing tenants of criminal acts occurring in the complex, and routinely inspecting
the complex) were for the residents of the complex and not the general public, (2)
there was no evidence the security measures were performed with less than due care,
and (3) there was no evidence any reliance on security by the tenants caused the
plaintiff to be assaulted. Id. at 444-45, 494 S.E.2d at 833. Therefore, the court of
appeals held there was no basis for liability to the non-tenant plaintiff under either
the common law rule or section 323.
In Wright's brief before the court of appeals, she acknowledged, "South
Carolina case law is not clear as to how the 'affirmative acts' exception differs from
the 'undertaking exception.'" Nevertheless, Wright maintained that section 323 gave
rise to her negligence cause of action. The court of appeals analyzed Wright's
negligence cause of action under the affirmative acts exception without mention of
section 323. We disagree with the court of appeals' approach and find Wright's
negligence cause of action invokes the undertaking exception—making section 323
applicable.
The affirmative acts exception is limited to situations where the landlord's
direct action increases a tenant's risk of harm from criminal activities. Examples of
such direct action may include a landlord giving out a master key to someone who
should not have one, a landlord leaving an apartment door or window unlocked, or
a landlord failing to secure a ladder that is used by a criminal to commit a crime.
Such affirmative acts by the landlord may impose liability for criminal acts of third
parties. On the other hand, the voluntary undertaking exception invokes section 323
and may be applicable when a landlord's actions are more attenuated. See
Restatement (Second) of Torts § 323 (1965) ("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."). Section 323 is the standard in South Carolina when analyzing
voluntarily assumed duties. The concept of the undertaking exception is not limited
to a landlord's undertaking to make repairs. Insofar as Cooke or Cramer II can be
read to provide this limitation, we clarify the law in South Carolina. Here, Wright's
argument that Respondents were negligent in failing to provide security invokes the
undertaking exception.
B. Analysis of Wright's Negligence Claim
Wright argues the court of appeals erred in affirming the circuit court's grant
of summary judgment to Respondents on her claim that Respondents were negligent
in failing to provide security. We agree and hold that under the facts of this case,
summary judgment should not have been granted.3
3
The court of appeals correctly found summary judgment was appropriate in the
limited context of Respondents' actions involving the lighting and shrubbery at
Wellspring. These actions do not give rise to a duty to provide security. The court
of appeals correctly ruled:
We find neither the provision of lighting nor the trimming
of shrubbery around the parking areas and apartment
buildings, even if done in part for the purpose of making
the premises more secure, gives rise to a duty to provide
1. Duty
As noted above, "While there is generally no duty to act under the common
law, a duty to use due care may arise where an act is voluntarily undertaken."
Vaughan, 370 S.C. at 446, 635 S.E.2d at 637. "The question of whether such a duty
arises in a given case may depend on the existence of particular facts. Where there
are factual issues regarding whether the defendant was in fact a volunteer, the
existence of a duty becomes a mixed question of law and fact to be resolved by the
fact finder." Id. at 446-47, 635 S.E.2d at 637 (quoting Miller, 329 S.C. at 314, 494
S.E.2d at 815). A landlord generally has no duty to provide security to protect
tenants from criminal acts of third parties, but a landlord who voluntarily undertakes
to provide security measures may be liable if he negligently performs the
undertaking. See Tracy A. Bateman & Susan Thomas, Annotation, Landlord's
Liability for Failure to Protect Tenant from Criminal Acts of Third Person, 43
A.L.R. 5th 207 (1996). The landlord's duty can be limited and will apply only to the
extent of the undertaking. Id.Wright acknowledges the general rule that a landlord does not have a duty to
provide security for their tenants; however, Wright asserts Respondents voluntarily
undertook such a duty. She asserts her claim meets all of the section 323
requirements: (1) Respondents voluntarily undertook to provide services to her; (2)
Respondents should have recognized those services as necessary for her safety; (3)
security. It is inconceivable that any apartment developer
would not install lighting and shrubbery around the
parking areas and apartment buildings of a complex. The
installation of lighting and maintenance of shrubbery serve
multiple purposes in addition to increasing security—such
as preventing accidental injury and improving aesthetics.
If the law recognized these activities as "undertakings"
sufficient to impose on developers and apartment
managers a duty of reasonable care to provide security
services, the rule of Cramer I would be swallowed by
the . . . exception.
Wright, 413 S.C. at 289, 775 S.E.2d at 406. We simply cannot find the existence of
such a duty under the facts of this case. See Madison ex rel. Bryant, 371 S.C. at 135-
36, 638 S.E.2d at 656 ("If there is no duty, then the defendant in a negligence action
is entitled to a judgment as a matter of law.").
Wright suffered from physical harm because Respondents failed to exercise
reasonable care in their undertaking; and (4) either Respondents' failure increased
the risk of harm to Wright or Wright suffered harm because of her reliance upon the
undertaking. As noted above, Respondents concede a former Wellspring manager
told Wright in broad terms "that there are security officers" and that Wright had that
expectation when she moved in. The monthly tenant newsletter announced
"[s]ecurity is also [a] very top priority with us," and there is no evidence to suggest
Respondents notified Wright or any other tenants of the actual limitations of the
courtesy officer program.
The majority at the court of appeals analyzed the question of the existence of
a duty solely within the limited parameters of the courtesy officer program,
specifically noting the relatively limited time of patrols per officer per day and the
occasional lack of courtesy officers. The court of appeals based its holding on what
it perceived as a narrow undertaking and did not consider the uncontroverted
evidence that Wright had no knowledge of the limitations of the courtesy officer
program. The court of appeals concluded, "Under the facts of this case, the duty
[R]espondents assumed was limited to exercising reasonable care in maintaining the
courtesy officer program, and [there is] no evidence they failed to exercise
reasonable care in fulfilling that duty." Wright, 413 S.C. at 288, 775 S.E.2d at 406.
The court of appeals' focus was too narrow. Respondents recite numerous
limitations upon the program in their brief, but Wright had absolutely no knowledge
of these limitations. The limited scope of the courtesy officer program analyzed by
the court of appeals and described in Respondents' brief was known only to
Wellspring and its employees.
Since Wright had no knowledge of the true limitations upon the program, we
must examine the question of the existence of a duty of care with a focus upon the
undertaking as it was described to Wright. At first glance, it would appear that
subsections 323(a) and (b) encompass not only the assumption of a duty but also the
issues of breach and proximate cause. However, in Sherer v. James,4 we quoted
with approval the following from the Appellate Court of Illinois in Curry v. Summer:
"Section 323(a) simply establishes a duty on one who undertakes to render services
for the protection of another to use due care to avoid increasing the risk of harm."
483 N.E.2d 711, 717 (Ill. App. Ct. 1985). In Sherer, we concluded section 323(a)
"applies only to duty and not proximate cause." 290 S.C. at 408, 351 S.E.2d at 150.
Likewise, subsection (b) applies only to duty and not proximate cause.
4
290 S.C. 404, 407-08, 351 S.E.2d 148, 150 (1986).
Therefore, in order for a duty of care to arise under section 323(a) or (b),
Wright must establish that (a) Respondents' failure to exercise due care in
performing the undertaking increased the risk of harm to Wright or that (b) Wright
suffered harm because of her reliance upon the undertaking.
We conclude there are questions of fact that a jury must resolve to ascertain
whether a duty of care arose in this case. See Vaughan, 370 S.C. at 446-47, 635
S.E.2d at 637. As Respondents point out, there is evidence in the record that Wright
chose Wellspring as her place of residence not because of security concerns, but
because it was close to her place of employment and was recommended by fellow
church-goers. However, the record also contains Wright's testimony that she chose
Wellspring because "there were security officers on duty. So I felt like it would be
a safe place." Respondents also point out that when Wright confronted the
Wellspring representative the day after the incident, Wright exclaimed that she had
not seen any security on the premises since she moved in five years prior. Thus,
Respondents contend any reliance Wright may have placed upon the presence of
security had completely dissipated by the time she was attacked. Respondents will
certainly be free to introduce this and any other evidence relevant to the question of
the existence of a duty, but in the end, the jury must resolve genuine issues of
material fact.
The dissent insists we have taken the common existence of a security officer
program and morphed that limited undertaking into "a sweeping duty to protect
tenants from the unforeseen criminal acts of third parties." The dissent further claims
our decision "disincentivizes apartment complexes from offering a security officer
program at all." We respectfully disagree with both contentions. First, we again
note that the court of appeals mistakenly confined its analysis to the limited
undertaking of the courtesy officer program, while there is evidence that a broader
undertaking was described to Wright. As we have emphasized, the question of the
existence of a duty under section 323(a) or (b) should not be analyzed with an eye
solely upon the more limited undertaking urged by Respondents, especially when
the parameters of that limited undertaking were known only to complex employees.
Second, we are not recognizing a duty that is not already recognized by section 323.
We have emphasized that under Cramer I, a landlord generally does not owe an
affirmative duty to a tenant to provide security in and around leased premises to
protect the tenant from the criminal activity of third parties. That is still undoubtedly
the law in South Carolina. In holding as we do on the existence of a duty under the
narrow facts of this case, we have simply given form to the application of section
323(a) or (b) to a set of facts that may, in the view of the factfinder, warrant such an
application. That is hardly a sweeping approach, and our holding is no less sweeping
than the content of section 323 itself. There is no authority for the proposition that
section 323 does not and cannot apply to an apartment complex that voluntarily
undertakes to provide security to residents. Third, to the dissent's contention that
our holding will disincentivize apartment complexes from offering security officer
programs at all, our holding does nothing of the sort. If anything, our holding should
incentivize the apartment complex that has voluntarily undertaken to offer security
officer programs to recognize it has undertaken a duty to administer the programs
with due care. The complex would have the right to impose limitations upon the
program or even discontinue the program; however, the complex would be
incentivized to simply let its tenants know.
To close on this point, we hold that under the narrow facts of this case, a jury
must resolve the unique factual questions pertinent to the existence of a duty under
section 323. Specifically, a jury must determine (a) whether any failure by
Respondents to exercise due care in performing the undertaking increased the risk
of harm to Wright or (b) whether any harm suffered by Wright arose from her
reliance upon Respondents' undertaking. If the jury answers "No" to both questions,
Wright's cause of action fails. If the jury answers "Yes" to either question, the jury
must proceed to the issues of breach and proximate cause.
2. Breach and Proximate Cause
In the summary judgment setting, we consider the evidence of a breach of
duty in the light most favorable to the non-moving party and must determine whether
the evidence and all reasonable inferences to be derived from the evidence create a
genuine issue of material fact. Here, there is evidence that would allow a jury to
reasonably conclude Respondents failed to use due care in carrying out any duty
owed under subsections 323(a) or (b). When she visited Wellspring before signing
a lease, Wright was informed by an apartment manager there were security officers
on duty. There was no security at all at the time of the incident, and there had been
no security for two months prior to the incident. A jury could conclude Respondents
failed to exercise due care in having security officers available, or at least negligently
failed to notify apartment tenants of the absence of officers and the true limitations
of the courtesy officer program.
Should the jury determine Respondents breached a voluntarily undertaken
duty, we conclude there would be a jury issue as to whether such a breach was a
proximate cause of any damages sustained by Wright. "Negligence is not actionable
unless it is a proximate cause of the injury." Bishop v. S.C. Dep't of Mental Health,
331 S.C. 79, 88, 502 S.E.2d 78, 83 (1998). "Proximate cause requires proof of both
causation in fact and legal cause." Id. "Causation in fact is proved by establishing
the injury would not have occurred 'but for' the defendant's negligence." Id. "Legal
cause is proved by establishing foreseeability." Id. at 88-89, 502 S.E.2d at 83.
"The general rule of law is that when, between negligence and the occurrence
of an injury, there intervenes a willful, malicious, and criminal act of a third person
producing the injury, but that such was not intended by the negligent person and
could not have been foreseen by him, the causal chain between the negligence and
the accident is broken." Stone v. Bethea, 251 S.C. 157, 162, 161 S.E.2d 171, 173-
74 (1968). "It is generally for the jury to determine whether the defendant's
negligence was a concurring proximate cause of the plaintiff's injuries. Only when
the evidence is susceptible of only one inference does proximate cause become a
matter of law for the court." Bishop, 331 S.C. at 89, 502 S.E.2d at 83 (citation
omitted).
Of course, Wright argues that Respondents' negligence proximately caused
her losses. She presented documentary evidence and expert testimony in her attempt
to illustrate Respondents' conduct was a direct and proximate cause of her damages.
Wright contends the intervening criminal acts of her attackers do not absolve
Respondents of liability under South Carolina law. Although the existence of
proximate cause indeed may hang by a slender thread, it hangs nonetheless, and we
conclude the question should be resolved by a jury.
Legal cause is established by showing foreseeability. Here, Wright presented
evidence that Respondents' negligence in operating the security program was the
legal cause of her injuries. A third-party criminal act cannot be deemed completely
unforeseeable as a matter of law when the alleged breach was Respondents' failure
to properly administer a program that guarded against these very happenings. See
Cody P. v. Bank of America, N.A., 395 S.C. 611, 622-23, 720 S.E.2d 473, 479 (Ct.
App. 2011) (relying in part on the defendant's policies and procedures that were
"designed to avoid fraud and loss situations" to find an injury by fraud was
foreseeable). Additionally, Wright's security expert Booth opined that Wright's
injuries were foreseeable based upon an analysis of other crimes at Wellspring,
including other crimes in the Wellspring parking lot. For example, between 2007
and the first nine months of 2008, Booth documented fifteen parking lot offenses at
Wellspring. Booth testified that in the same parking lot where Wright was abducted,
there had been an attempted home invasion and an attempted burglary within the
previous two years. There had also been a series of vehicle-related crimes over the
same time frame that Booth referred to as "precursor crimes"—incidents that likely
would have included crimes against a person had the car's owner been present.
While Respondents presented evidence indicating the attack was not foreseeable, the
evidence as a whole yields more than one inference as to foreseeability. 5 See Oliver
v. S.C. Dep't of Highways & Pub. Transp., 309 S.C. 313, 317, 422 S.E.2d 128, 131
(1992) ("[L]egal cause is ordinarily a question of fact for the jury. Only when the
evidence is susceptible to only one inference does it become a matter of law for the
court.").
Cause-in-fact is proved by establishing a plaintiff's injuries would not have
occurred "but for" a defendant's negligence. There is evidence in the record that
Respondents' negligence was a cause-in-fact of Wright's injuries. Since there was
no operational security program, there were no officers patrolling Wellspring at all
during the two months leading up to the incident. Booth calculated that even under
the limited parameters of the courtesy officer program, a courtesy officer would have
been able to patrol Wellspring's premises five to six times during a two hour period.
Booth stated that "had the courtesy officers been there and had been patrolling the
property as required that the perpetrators in this crime more likely than not would
not have been in the position to rob and kidnap [Wright]." Wright was never told
there were no courtesy officers on the property, and there is a reasonable inference
to be derived from the evidence that having this knowledge would have affected her
actions on the night of the incident. As noted above, the day after the attack, Wright
exclaimed to the apartment manager that she had not seen a security officer during
the entire five years she lived at Wellspring. While this statement is evidence
Wright's actions were not affected by her assumption that security was present, the
evidence as a whole would allow a jury to conclude Wright has established the
existence of cause-in-fact.
We conclude Wright presented a genuine issue of material fact that
Respondents' negligence, if any, in operating the security program was a proximate
cause of her damages. 6
IV. CONCLUSION
We hold the court of appeals erred in affirming the circuit court's grant of
summary judgment in favor of Respondents. In this case, the question of the
existence of a duty involves, in part, genuine issues of material fact that must be
resolved by a jury. Also, there are genuine issues of material fact as to whether
5
For example, Respondents provided the testimony of two law enforcement officers
who were familiar with the area surrounding Wellspring and characterized the crime
rate as "average."
6
Of course, Wright will have the burden of proving her damages as well.
Respondents breached any duty owed and as to whether any damages sustained by
Wright were a proximate cause of such breach. Therefore, we REVERSE the court
of appeals and remand the matter to the circuit court for further proceedings
consistent with this opinion.
BEATTY, C.J., HEARN, J., and Acting Justice Edgar W. Dickson, concur.
KITTREDGE, J., dissenting in a separate opinion.
JUSTICE KITTREDGE: Today, the majority takes the common existence of an
apartment complex's security officer program and morphs that limited undertaking
into a sweeping duty to protect tenants from the unforeseen criminal acts of third
parties. Especially troubling is what I view as the majority giving Petitioner a pass
on the element of proximate cause. While Section 323 of the Restatement
(Second) of Torts (1965) may serve as the basis for imposing a limited duty on
Respondents, I respectfully dissent because Petitioner has failed as a matter of law
to present evidence sufficient to create a question of fact concerning proximate
cause. I would affirm the court of appeals in result. Wright v. PRG Real Estate
Mgmt., Inc., 413 S.C. 276, 775 S.E.2d 399 (Ct. App. 2015).
First, I take no exception to the principle that one who undertakes a duty is liable
for physical harm resulting from the failure to exercise reasonable care in the
performance of the undertaking. The majority correctly rejects Petitioner's "failure
to trim shrubbery" and "inadequate lighting" theories. That leaves Petitioner with
the alleged "negligent" security officer program. Apartment complexes routinely
utilize these so-called security officer programs, in which law enforcement officers
serve as courtesy officers and provide a "police presence" at the complex in
exchange for free or reduced rent.
"Under South Carolina law[,] a landlord does not owe a duty to a tenant to provide
security in and around a leased premises to protect the tenant from criminal activity
of third parties." Cramer v. Balcor Prop. Mgmt., Inc. (Cramer I), 312 S.C. 440,
443, 441 S.E.2d 317, 318 (1994) ("Absent agreement, the landlord cannot be
expected to protect [his tenants] against the wiles of felonry . . . . The criminal can
be expected anywhere, any time, and has been a risk of life for a long time."
(quoting Cooke v. Allstate Mgmt. Corp., 741 F. Supp. 1205, 1213 (D.S.C. 1990))).
However, a tenant may sue his landlord for the failure to protect him from crimes
committed by third parties when the landlord voluntarily assumes a duty to protect
the tenant and the landlord's negligence in carrying out that duty proximately
causes the loss. See id. at 443 n.1, 441 S.E.2d at 319 n.1; Cooke, 741 F. Supp. at1209 n.1 (citation omitted); see also id. at 1209–14 (discussing four exceptions to
the general "no duty" rule, including the affirmative acts exception, concealed
danger exception, common area exception, and undertaking exception).
This is consistent with section 323 of the Restatement (Second) of Torts, 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.
Petitioner, through her expert witness and otherwise, has relied primarily on
subpart (b)—"reliance upon the undertaking"—to impose a duty on Respondents
with respect to the security officer program. However, the record is devoid of any
evidence of reliance by Petitioner. As the majority correctly points out, when
Petitioner confronted Respondents' representative the day after her ordeal, she
"exclaimed that she had not seen any security on the premises since she moved in
five years prior." (Emphasis added). I cannot fathom how, after not seeing any
evidence of a security officer for five years, Petitioner could have possibly relied
on the existence of a security officer program. 7 The absence of reliance evidence
would seem to preclude section 323 as the source of Respondents' broad duty to
prevent crime at the apartment complex.
Nevertheless, assuming the existence of a duty, I would find Petitioner's claim fails
as a matter of law due to the absence of evidence creating a genuine issue of
material fact concerning proximate cause. "Proximate cause requires proof of: (1)
causation-in-fact, and (2) legal cause." Baggerly v. CSX Transp., Inc., 370 S.C.
362, 369, 635 S.E.2d 97, 101 (2006). "Causation-in-fact is proved by establishing
the injury would not have occurred 'but for' the defendant's negligence, and legal
cause is proved by establishing foreseeability." Id. (stating foreseeability is
determined by looking at the natural and probable consequences of the defendant's
acts or omissions). I find that, under the undisputed facts, Petitioner can satisfy
7
Similarly, when Petitioner previously had problems at the complex with a young
person going door-to-door and selling magazine subscriptions, she directly called
the sheriff's office rather than the courtesy officer number. While Petitioner may
have factored the security officer program into her decision to move to the
complex five years before the incident, it seems her reliance on that program—
even for minor things like discouraging nuisance solicitations—was nonexistent
five years later, at the time in question.
neither of these requirements. 8
First, as framed by the majority, Respondents' breach of duty was that they did not
employ a security officer at the time of the robbery, nor did they "notify apartment
tenants of the absence of officers and the true limitations of the courtesy officer
program." Even viewing the evidence in the light most favorable to Petitioner,
there is no proof whatsoever that Petitioner would not have suffered her injuries
but-for Respondents' alleged failures. For example, Petitioner did not actually call
the security pager number and fail to get a response. Nor did Petitioner produce
any evidence that, had Respondents currently employed a courtesy officer, the
officer would have (1) been on patrol at the time or (2) prevented or stopped the
robbery.
The majority places importance on the opinion of Petitioner's security expert,
William Booth, who opined that (1) had Respondents employed a security officer,
that officer could have patrolled the complex five to six times in his requisite two-
hour shift, i.e., completed a circuit around the complex approximately every twenty
to twenty-four minutes for two hours per day; and (2) "had the courtesy officers
been there and [] been patrolling the property as required that the perpetrators in
this crime more likely than not would not have been in the position to rob and
kidnap" Petitioner. Booth's desire for an optimal security program in no way
establishes a genuine issue of material fact as to causation-in-fact because it does
not specify whether the required two-hour patrol always occurred during the same
time of day as the time of the robbery. The majority speculates that, had Petitioner
known there were no security officers present, "there is a reasonable inference to
be derived from the evidence that having this knowledge would have affected her
actions on the night of the incident." Such a conclusion is conjecture, at best,
particularly given the fact that Petitioner had not seen a single security officer in
the five years she lived at the complex. 9 Accordingly, I would find the connection
8
Petitioner may not look to Section 323 to rescue her on the issue of proximate
cause. This is because this Court has previously held section 323 applies only to
duty, at least for medical malpractice claims. See Sherer v. James, 290 S.C. 404,
408, 351 S.E.2d 148, 150 (1986) ("Therefore, we hold that even if section 323(a)
does apply in a medical malpractice case, it applies only to duty and not proximate
cause.").
9
In fact, the majority's speculation seemingly relies on subpart (b) of section
323—"reliance upon the undertaking"—as a crutch to help show Petitioner
presented evidence of proximate cause, which is expressly contrary to our previous
statement in Sherer that section 323 encompasses only duty, not proximate cause.
between Respondents' alleged breach of duty and Petitioner's injuries is so
attenuated that, as a matter of law, there is no genuine issue of material fact
regarding causation-in-fact.
Likewise, viewing the evidence in the light most favorable to Petitioner, I would
find there is no evidence this robbery was foreseeable. In fact, the evidence points
to the lack of foreseeability. Law enforcement officers testified the crime rate in
the apartment complex was "average." See Cramer I, 312 S.C. at 443, 441 S.E.2d
at 318 ("Absent agreement, the landlord cannot be expected to protect [his tenants]
against the wiles of felonry any more than the society can always protect them
upon the common streets and highways leading to their residence or indeed in their
home itself. . . . The criminal can be expected anywhere, any time, and has been a
risk of life for a long time." (emphasis added) (citation omitted)). There is no
suggestion Respondents knew the risk of injury to the complex's tenants was
higher than the risk to the public at large. See Cody P. v. Bank of Am., N.A., 395
S.C. 611, 621, 720 S.E.2d 473, 478 (Ct. App. 2011) ("Foreseeability is determined
from the defendant's perspective at the time of the negligent act allegedly causing
the plaintiff's injury."). 10
See Sherer, 290 S.C. at 408, 351 S.E.2d at 150 (determining section 323(a) applies
only to duty and not proximate cause).
10
See also, e.g., Stone v. Bethea, 251 S.C. 157, 164, 161 S.E.2d 171, 174–75
(1968) (affirming the grant of a directed verdict based on the absence of proximate
cause as a matter of law because, inter alia, the intervening criminal act occurred
in a low-crime area where it was unforeseeable the crime would occur); Jeffords v.
Lesesne, 343 S.C. 656, 664–65, 541 S.E.2d 847, 851 (Ct. App. 2000) (finding the
issue of proximate cause presented a jury issue in the case of injuries resulting
from a bar fight because, inter alia, (1) the place in which the injuries occurred was
a high-crime area; (2) the character of the event during which the injuries occurred
involved heavy alcohol consumption and was targeted to "attract[] bystanders who
were within this [high-crime] area," and (3) in "[p]erhaps the most compelling"
piece of evidence, the allegedly-negligent bar staff were specifically aware the
attacker was heavily intoxicated and acting obnoxious and aggressive for several
minutes prior to the assault); Goode v. St. Stephens United Methodist Church, 329
S.C. 433, 448, 494 S.E.2d 827, 835 (Ct. App. 1997) (affirming the grant of
summary judgment to the allegedly negligent landlord because, despite providing
limited security patrols in the apartment complex, the landlord had no notice the
attack on the plaintiff was going to occur, and therefore had no reason to foresee
that a breach of any alleged duties to protect the complex's tenants and guests
The majority acknowledges "the existence of proximate cause indeed may hang by
a slender thread." I do not find even a thread of evidence to save Petitioner's claim
against Respondents. In addition, I am concerned the majority's decision
disincentivizes apartment complexes from offering a security officer program at
all. I dissent.
would have the natural and probable consequence of resulting in an intentional
attack on the plaintiff by third parties).