Burnett v. Family Kingdom, Inc., Opinion No. 4656 (S.C. App. 3/11/2010)

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Tracy A. Burnett, as Personal Representative of the Estate of Douglas W. Burnett, Deceased, and Tracy A. Burnett, individually, Appellants, v. Family Kingdom, Inc., d/b/a Family Kingdom Amusement Park, Respondent.

Opinion No. 4656.

Court of Appeals of South Carolina.

Heard November 11, 2009.

Filed March 11, 2010

Appeal From Horry County, Kristi Lea Harrington, Circuit Court Judge.

REVERSED

James Stevens, Jr., of Loris, for Appellants.

William Edward Lawson, of Myrtle Beach, for Respondent.

SHORT, J.:

Tracy Burnett (Wife) appeals the trial court's decision granting Family Kingdom, Inc.'s (the Amusement Park) motion for a directed verdict in her negligence action. We reverse.

FACTS

Wife; her husband, Douglas Burnett (Husband); Wife's brother, Clyde Adams; and Adams' friend, Patricia Smith, were vacationing in Myrtle Beach, South Carolina. While there, the party visited the Amusement Park, which operates a go-cart attraction. After purchasing two tickets, Husband and Adams proceeded to get in line to ride the go-carts. Wife testified that while Husband and Adams were waiting in line, three young men came behind them and began acting boisterously. According to Wife, the three young men stated they were going to bump or collide with the go-carts during the upcoming ride. Upon hearing this, Husband warned the young men not to collide with him.

The ride operators put Husband, Adams, and the three young men in the go-carts after they took the tickets from the riders. The operators belted in and gave instructions to the drivers. They were warned not to bump or collide with the other go-carts and not to drive recklessly.

The go-cart ride had a controller box that contained a device with which the ride operators could deactivate the ride. When pressed, the "All Stop" button would stop all of the go-carts. The Amusement Park's manager, Donald Sipes, testified that after the second warning not to bump, the ride operators were required to push the "All Stop" button and stop the ride. Sipes also stated a collision that resulted in a go-cart being turned around required the ride operators to stop the ride.

Before Adams' go-cart reached the first turn of the first lap, one of the three young men hit his go-cart and caused Adams' go-cart to spin around 180 degrees. Subsequent to this collision, for the next few laps the three young men continued to repeatedly bump or collide with Husband and Adams. Wife, Husband, Adams, and Smith repeatedly asked the ride operators for assistance because the three young men were driving in a reckless and dangerous manner. Wife testified that rather than providing help to Adams and Husband, the ride operators encouraged the three young men and cheered them on.

After the second lap, Husband drove his cart off of the track and into the pit area, where his cart was hit from behind by one of the young men's cart. The collision caused the go-cart, with Husband inside, to be lifted off the ground. Shortly thereafter, another young man collided with Husband's go-cart. Only after these collisions did the ride operators press the "All Stop" button to deactivate all the go-carts.

Husband brought a negligence action against the Amusement Park. At the close of Wife's case,¹ the Amusement Park moved for a directed verdict, arguing Wife had failed to prove the Amusement Park acted negligently. The trial court granted the motion. This appeal followed.

STANDARD OF REVIEW

When reviewing a trial court's ruling on a directed verdict motion, this court will reverse if no evidence supports the trial court's decision or the ruling is controlled by an error of law. Enos v. Doe, 380 S.C. 295, 300, 669 S.E.2d 619, 621 (Ct. App. 2008). When reviewing the trial court's decision on a motion for directed verdict, this court must employ the same standard as the trial court by viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Welch v. Epstein, 342 S.C. 279, 299-300, 536 S.E.2d 408, 418-19 (Ct. App. 2000). The trial court must deny a directed verdict motion when the evidence yields more than one inference or its inference is in doubt. Id. When considering a directed verdict motion, neither the trial court nor the appellate court has authority to decide credibility issues or to resolve conflicts in the testimony or evidence. Id.

LAW/ANALYSIS

Wife argues the trial court improperly granted the Amusement Park's motion for a directed verdict in her negligence action. Specifically, Wife contends the trial court erred by holding she failed to show the Amusement Park owed a duty of due care. We agree.

In order to succeed in a negligence cause of action, the plaintiff must establish (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 the actual and proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury or damages. Moore v. Weinberg, 373 S.C. 209, 220-21, 644 S.E.2d 740, 746 (Ct. App. 2007). A crucial element in a cause of action for negligence is the existence of a legal duty of care owed by the defendant to the plaintiff. Absent a duty, there is no actionable negligence. Id.

The question of negligence is a mixed question of law and fact. Id. First, the court must resolve, as a matter of law, whether the law recognizes a particular duty. Id. If the court determines there is no duty, the defendant is entitled to a judgment as a matter of law. Id. However, if a duty does exist, the jury then determines whether a breach of the duty that resulted in damages occurred. Id. Thus, we must first determine if the Amusement Park owed a duty to Husband.

At common law, a person ordinarily has no duty to protect another from a harm inflicted by a third party. Burns v. S.C. Comm'n for the Blind, 323 S.C. 77, 79, 448 S.E.2d 589, 590-91 (Ct. App. 1994). Usually, a person incurs no liability for failure to take steps to benefit others or protect them from harm not created by his or her own wrongful conduct. Id. However, an affirmative legal duty can be created by a statute, among other things, and thus, the statute can be a source of a duty owed in a negligence case. Id.

The existence of such a statutorily imposed duty is determined by applying a two-prong test. Id. Both of the following elements must be satisfied to find a statute imposes a duty sufficient to support a cause of action in negligence. Id. First, it must be established that the essential purpose of the statute is to protect the plaintiff from the kind of harm suffered. Id. Second, the plaintiff must be a constituent of the class of persons the statute seeks to protect. Id.

As to the first element, the South Carolina Amusement Rides Safety Code (the Act) was passed to prevent injuries to visitors and employees at amusement parks and fairs. S.C. Code Ann. §§ 41-18-20 et seq. (Supp. 2008); see Steinke v. S.C. Dep't of Labor, Licensing & Regulation, 336 S.C. 373, 391, 520 S.E.2d 142, 151 (1999) ("The Act's purpose is to prevent injuries to visitors and employees at amusement parks and fairs."). Section 41-18-20(A) of the South Carolina Code (Supp. 2008), entitled "Legislative intent," states, "The purpose of this chapter is to guard against personal injuries in the . . . use of amusement devices at . . . amusement parks to persons employed at or attending . . . amusement parks. . . ."² Subsection (B) of this section states, "It is the intent of this chapter that amusement devices must be . . . maintained, and operated so as to prevent injuries." § 41-18-20(B).

The first element is satisfied because the purpose of the Act is to prevent personal injuries that result from the use of amusement devices. In the present case, Husband was visiting the Amusement Park and suffered the type of personal injury the Act seeks to avoid as a result of the use of the go-cart ride.

As to the second element, that the plaintiff must be a constituent of the class of persons the statute seeks to protect, section 41-18-20 states the purpose of the Act is to guard against personal injuries to persons attending amusement parks. This section also states, "[t]he purpose of this chapter is to . . . ensure to the injured party the possibility of financial recovery as against the owner of the carnival, fair, or amusement park where the injury occurred." Id. Husband qualifies because he was attending the Amusement Park at the time of the injury. Additionally, the statue allows Husband as an injured party to seek financial retribution against the owner of the Amusement Park.

Wife meets both elements for establishing a statutorily imposed duty. Thus, the Act creates an affirmative legal duty on part of the Amusement Park, and the trial court erred in concluding Wife failed to show a duty existed.

The Amusement Park argues there are three additional grounds on which to affirm the trial court. The Amusement Park contends (1) the trial court found that even if there was a duty, it did not breach this duty; (2) there was no proximate cause; and (3) Husband's negligence outweighed any negligence on its part. We disagree.

As to the first contention, as explained above, the question of negligence is a mixed question of law and fact. Moore, 373 S.C. at 221, 644 S.E.2d at 746. If a duty does exist, the jury then determines whether a breach of the duty that resulted in damages occurred. Id. Thus, the Amusement Park's argument that it did not breach a duty fails because that determination rests with the jury.

Amusement Park's argument that it did not proximately cause Husband's injuries also fails. Only on the rarest occasion should the trial court determine the issue of proximate cause as a matter of law. Bailey v. Segars, 346 S.C. 359, 367, 550 S.E.2d 910, 914 (Ct. App. 2001) ("Ordinarily, the question of proximate cause is one of fact for the jury. The trial court's sole function regarding the issue is to...