In The Court of Appeals

Jon Smart, Diana Smart and Richard Smart,        Appellants,


Roy Gullick, Jr.;  State of South Carolina (Department of Juvenile Justice),        Defendants,

Of Whom/ORoy Gullick, Jr., is the        Respondent.

Appeal From Greenville County
John W. Kittredge, Circuit Court Judge

Unpublished Opinion No. 2003-UP-387
Submitted March 26, 2003 – Filed June 5, 2003   


Theo W. Mitchell, of Greenville; for Appellants.

Andrew Lindemann, Esquire; William Davidson, of Columbia; for Respondent.

PER CURIAM:  Richard Smart (Richard) and his parents (collectively the Smarts) appeal the circuit court’s grant of a 12(b)(6) motion to dismiss in favor of Department of Juvenile Justice (DJJ)  Employee, Roy Gullick, Jr. on their allegations Gullick acted negligently by assigning Richard to the Marine Institute.  The Smarts insist in their appeal Gullick acted outside the scope of his official duty in making the assignment and therefore does not enjoy immunity from personal liability under the South Carolina Tort Claims Act, S.C. Code Ann. § 15-78-70 (1976 as amended). 


On November 5, 1998, Richard pled guilty to second-degree burglary.  The family court committed him to the custody of the DJJ and recommended that the DJJ provide drug treatment and counseling to address his glue huffing addiction.  Further, the family court recommended the Marine Institute as a consideration for possible placement. During the guilty plea proceeding, Richard’s mother informed the court that her son had club feet and this physical limitation might prevent him from participating in the Marine Institute Program.  Roy Gullick, Jr., an employee and agent of the DJJ, assisted in assigning Richard to the Marine Institute. On August 12, 1999, while engaged at a Marine Institute work site, Richard murdered a truck driver and stole his vehicle. Pursuant to a plea bargain, Richard was sentenced to life without parole for the murder of the driver and grand larceny. 

On August 20, 2001, the Smarts filed a complaint in the circuit court against Gullick and the DJJ alleging Gullick was negligent in pursuing the recommendation for possible placement at the Marine Institute. Gullick made a 12(b)(6) motion to dismiss arguing he was immune from liability under the South Carolina Tort Claims Act, S.C. Code Ann. § 15-78-10 et. seq. (1976 as amended).  Gullick contended he was at all times acting within the course and scope of his official duties as an employee of the DJJ.   The circuit court granted Gullick’s 12(b)(6) motion to dismiss. [1]   The circuit court noted the complaint only alleged negligence.  The court found “such allegations clearly render Agent Gullick immune under the Tort Claims Act.”


Generally, a ruling on a motion to dismiss under Rule 12(b)(6), SCRCP, must be based solely on the allegations contained in the complaint.  Baird v. Charleston County, 333 S.C. 519, 527, 511 S.E.2d 69, 73 (1999).  “Viewing the evidence in favor of the plaintiff, the motion must be granted if facts alleged in the complaint and inferences reasonably deducible therefrom do not entitle the plaintiff to relief on any theory of the case.”  Jarrell v. Petoseed Co., 331 S.C. 207, 209, 500 S.E.2d 793, 794 (Ct. App. 1998).


The Smarts contend the circuit court erred in granting Gullick’s 12(b)(6) motion to dismiss arguing their pleadings stated facts sufficient to constitute a cause of action.  We disagree.

Pursuant to the Tort Claims Act, an employee of a governmental entity who commits a tort while acting within the scope of his official duty is generally immune from suit.  § 15-78-70(a) and (b).  Instead, a person seeking to file a tort claim against a governmental entity must "name as a party defendant only the agency or political subdivision for which the employee was acting."  § 15-78-70(c).  Tatum v. Medical University of South Carolina, 346 S.C. 194, 198, 552 S.E.2d 18, 20-21 (S.C. 2001). 

The DJJ is a governmental agency subject to the provisions of the Tort Claims Act.  Accordingly, an employee of the DJJ is immune from suit for alleged negligence committed in the course of employment. Accordingly, Gullick would be denied employee immunity only if he acted outside the scope of his official duties or his actions constituted fraud, malice, an intent to harm, or a crime of moral turpitude.  Antley v. Shepard, 340 S.C. 541, 553, 532 S.E.2d 294, 299 (Ct. App. 2000).

The Smarts made no allegations in their complaint that Gullick ever acted outside of the scope of his official duties.  To the contrary, the complaint consistently referred to Gullick in his official capacity as an “ the agent, employee and assign of the D.J.J.” (Emphasis added)  The only causes of action are for negligence. The compliant makes no mention of any conduct which could constitute fraud, malice, an intent to harm, or a crime of moral turpitude.  Accordingly, the general cloak of immunity provided by the Tort Claims Act shields Gullick from any liability that may have arisen out of his alleged negligence and renders the Smarts’ complaint meritless. [2]   The order of the circuit court granting a motion to dismiss under 12(b)(6) is,



[1] Both parties submitted affidavits to support their positions. However, the court ultimately determined that material outside of the pleadings should not be considered.

[2] We note that the Smarts included in the Record on Appeal affidavits and a partial transcript from a prior family court proceeding. Mindful of our standard of review and consistent with the proceeding below we decline to extend our review to these additional materials.