Unpublished Opinion No. 2003-UP-437
Submitted April 18, 2003 – Filed June 25, 2003

PER CURIAM: Shirley Jones, personal representative of the estate of Christopher Maurice Jones, brought this action seeking damages from the Denmark Police Department (Department) relating to the death of her son. The trial court granted the Department’s motion for summary judgment. Jones appeals. We affirm.

On June 26, 1999, Christopher Jones and his girlfriend, Kenyatta White, had a physical altercation. Sometime after the altercation, Kenyatta spoke with Officer Ronald Carnegie and informed him that Christopher had assaulted her and she wished to press charges against him. While Kenyatta and Carnegie were speaking, Kenyatta noticed Christopher walking in the Piggly Wiggly across the street. Kenyatta and Carnegie crossed the street to speak with Christopher. Christopher informed the officer that Kenyatta and he had gotten into a fight earlier that evening and that Kenyatta had hit him in the head with a bottle. The officer observed that Kenyatta had some blood on her hand and that Christopher had a slight bump on his head. The officer informed the parties that since they both were alleging that the other had assaulted them, he would have to arrest both parties if they wished to press charges. Kenyatta and Christopher both indicated that they did not wish to press charges against each other.

The officer observed that both Kenyatta and Christopher appeared to have been drinking. The officer noted in his report that Christopher’s speech was somewhat slurred and that he staggered when he walked. The officer told Kenyatta and Christopher to go their separate ways, and the officer observed Christopher leaving first and Kenyatta leaving a short while later. Sometime later that evening Christopher was struck by a train.

Shirley Jones brought an action as the personal representative of Christopher’s estate, seeking damages based on wrongful death and a survival action. Following a hearing, the trial judge granted summary judgment to the Department finding the public duty doctrine negated Jones’s causes of action. This appeal followed.

Jones argues that the trial court erred in granting summary judgment to the Department. Jones contends that her claims are not barred by the public duty doctrine, arguing the trial court erred in finding that no duty of care was owed to Christopher. Jones further argues the trial court erred in finding no duty was created by the actions taken by Officer Carnegie.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). When determining whether any triable issue of fact exists, the evidence and all inferences, which can reasonably be drawn from it, must be viewed in the light most favorable to the nonmoving party. Faile v. S.C. Dep’t of Juvenile Justice, 350 S.C. 315, 324, 566 S.E.2d 536, 540 (2002). If triable issues exist, those issues must be submitted to the jury. Young v. S.C. Dep’t of Corrections, 333 S.C. 714, 718, 511 S.E.2d 413, 415 (Ct. App. 1999). Even where no dispute as to evidentiary facts exists, but only as to the conclusions or inferences to be drawn from them, summary judgment should not be granted. Hall v. Fedor, 349 S.C. 169, 173-74, 561 S.E.2d 654, 656 (Ct. App. 2002).

To prevail in a negligence action, a plaintiff must demonstrate: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach. Tanner v. Florence Co. Treasurer, 336 S.C. 552, 562, 521 S.E.2d 153, 158 (1999). An essential element in a negligence cause of action is the existence of a legal duty of care owed by the defendant to the plaintiff. Wyatt v. Fowler, 326 S.C. 97, 101, 484 S.E.2d 590, 592 (1997). Without such a duty, there can be no actionable negligence. Rogers v. South Carolina Dep’t of Parole and Cmty. Corrs., 320 S.C. 253, 255, 464 S.E.2d 330, 332 (1995). The court must determine, as a matter of law, whether the law recognizes a particular duty. Steinke v. South Carolina Dep’t of Labor, Licensing and Regulation, 336 S.C. 373, 387, 520 S.E.2d 142, 149 (1999).

Under South Carolina’s public duty doctrine, an action for negligence based upon an alleged violation of a statute cannot be maintained if the statute was enacted for a purpose other than preventing the injury of which complaint is made. Arthurs v. Aiken Co., 338 S.C. 253, 262, 525 S.E.2d 542, 547 (Ct. App. 1999). An exception to the general rule of non-liability exists when a duty is owed to specific individuals rather than the public only. Id at 264, 525 S.E.2d at 548. An affirmative legal duty may be created by statute, contract relationship, status, property interest, or some other special circumstance. Jensen v. Anderson County Dep’t of Soc. Servs., 304 S.C. 195, 199, 403 S.E.2d 615, 617 (1991).

A police officer, acting in his or her official capacity, owes a duty to the public at large rather than to any particular individual. Wyatt, supra. To determine if a police officer is under a special duty to an individual, the court looks to the statute and the facts of the particular case. “A plaintiff may prevail against a public duty defense if the statute not only concerns the duties of a public office, but also has the essential purpose of protecting identifiable individuals from a particular kind of harm. In such cases, the statute creates a special duty which may give rise to a negligence suit against an officer for failure to perform his duties properly.” See Rayfield v. S.C. Dep’t of Corrs., 297 S.C. 95, 106, 374 S.E.2d 910, 916. The burden is on the Plaintiff to establish that her decedent was owed a duty of care. Id.

Initially, Jones contends that the Denmark police owed a duty of care to Christopher pursuant to Denmark ordinance, sec. 9-2-3, which addresses disorderly conduct and drunkenness. The ordinance provides that:

Jones argues the Denmark ordinance contemplates the particular kind of harm suffered by Christopher in this case, and Carnegie, as a police officer, had a duty to enforce this ordinance. Therefore, Jones contends, the Department, and more specifically Officer Carnegie, owed a special or private duty to Christopher.

We agree with the trial court that Jones failed to establish that the Denmark ordinance mandated an arrest or created a duty of care to an individual rather than to the public at large. A clear reading of the Denmark ordinance shows that the ordinance was created to protect the public from exposure to drunken behavior, not to protect the drunken individual from injuries to himself.

Jones alternatively argues that if no duty was created under the ordinance, that Officer Carnegie, by his action of talking with Kenyatta and Christopher, undertook a duty to Christopher, and that by failing to take Christopher into custody, Carnegie breached that duty. Jones cites Russell v. City of Columbia, 305 S.C. 86, 406 S.E.2d 338 (1991), for the proposition that once a police officer takes control of a situation and preempts individuals already attempting to aid an obviously injured and intoxicated decedent, the officer incurred a duty to follow through and finish what was begun.

We find that Russell is not applicable to this case. We agree with the trial court that Jones has failed to present any evidence of an undertaking by the officer. In addition, this case is distinguishable from Russell in that there is no evidence that Christopher was severely injured, or that any individual was prevented from offering him aid.

Based on the foregoing, the trial judge’s decision to grant the Department’s motion for summary judgment is