Decision & Order from the South Carolina Supreme Court, 9/17/2014

sc-supreme-courtOn Wednesday, 9/17/2014, the South Carolina Supreme Court published an opinion and an order.

In Major v. City of Hartsville, the Court reserved the decision of the South Carolina Court of Appeals and trial court.  Both the trial and appellate courts granted and affirmed the City’s request for a summary judgment.

Major fell and hurt her ankle in an unpaved intersection owned by the City.  At issue was whether the City had notice, either actual or constructive, of the defect and the need to repair it.  The trial and appellate courts concluded that there was no evidence to indicate that the City had notice of the rut that caused Major’s injury nor  the need to repair it.  The South Carolina Supreme Court reversed, holding that “…a genuine issue of material fact exists as to whether respondent should be charged with constructive notice on the basis that the rut existed for such a period of time that respondent, in the use of reasonable care, should have discovered it.”

The Court also issued an order, granting the portion of the South Carolina Bar’s petition that requested the amendment of the Rules of Professional Conduct to conform to the American Bar Association Rules (ABA) of Professional Conduct.  South Carolina Appellate Court Rule 407 was amended to conform to the ABA’s Model Rule 1.6 and 1.17 and comments.

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Decisions from the South Carolina Court of Appeals

sccourtofappealsYesterday the South Carolina Court of Appeals published four opinions.  Court summaries of the opinions can be found here.

In SCDSS v. Massey, the Appeals Court reversed and remanded the Family Court decision.  The case involved a dispute between the parents and the DSS over the permanent custody and location of three children.  In 2010, the mother, Katrina Massey, and the father, Michael Jackson, agreed that DSS could have legal and physical custody of their two children.  This would enable the parents to complete treatment plans.  In 2011, the Family Court approved this agreement without an “affirmative finding of fact of the existence of harm or threat of harm to the minor children.”  Meanwhile another child was born who also became subject to this agreement.  In 2013, the Family Court, at the request of DSS, held a permanency placement hearing.  The parents disagreed, arguing that they wanted and were entitled to a reunification plan.  The parents demanded a merits hearing on removal, arguing that a finding of abuse or neglect had never been made against them.  DSS claimed such a finding was unnecessary prior to a permanency hearing, and the Family Court agreed.  The Appeals Court disagreed, reversing  and chiding Charleston County for its removal actions, noting that it found them “troubling.”  The Court held that the “…statutes covering removal actions apply rather than the statutes governing intervention actions…” in this case.

56 Leinbach Investors v. Magnolia Paradigm involved a contractual dispute between the parties over leased property.  A master reformed the contract between the parties because of a “mutual mistake.”  The parties disagreed and appealed.  The South Carolina Court of Appeals reversed and remanded, in part, holding that Leinbach had breached the lease but that Magnolia failed to “…prove it was entitled to rent abatement under the lease or restitution based on its unjust enrichment claim.”

Stogsdill v. SCDHHS involved an appeal from the Administrative Law Court (ALC.)  Because of a severe birth defect, Stogsdill had “significant physical disabilities” that required extensive aid with normal daily living activities.  Stogsdill was receiving service aid from DDSN in the amount of 69 hours per week.  In 2010, a cap on the number of service hours  available to non-institutionalized individuals was instituted.  In order to maintain this cap, DDSN reduced the number of service hours available to Stogsdill.  He objected and appealed.  The Administrative Law Court held for SCDHHS.    The South Carolina Court of Appeals concluded that while the administrative appeals process did not deny Stogsdill due process, the record lacked sufficient evidence to support the ALC’s conclusion that “…Stogsdill’s risk of institutionalization was merely speculative….”  Thus the Court remanded the decision  for “…consideration of the appropriate services to be provided without the restrictions of the 2010 Waiver.”

Dozier v. American Red Cross involved an appeal of a decision by the  Workers’ Compensation Commission (WCC.)  While working for the American Red Cross (ARC) as a phlebotomist, Dozier was involved in an accident, alleging bilateral carpal tunnel syndrome.  A year later, she filed another workers’ compensation claim, alleging further injuries to her arms, back, neck, etc.  Between 2009 – 2001, the ARC continued to pay Dozier’s benefits and medical expenses.  Dozier insisted that she was permanently disabled but the ARC disagreed and demanded a hearing.  The WCC concluded that Dozier was not permanently disabled so Dozier appealed.  The South Carolina Court of Appeals upheld the WCC, concluding that a “…5% impairment rating does not per se equate to permanent and total disability….”

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September 12, 2014 4th Circuit published opinion

Danser v Stansberry

Danser was severely beaten by a fellow inmate while in an enclosed recreation area. He sued Stansberry and other members of the facility staff seeking damages under Bivens. The district court denied Stansberry’s motion for judgment on qualified immunity grounds as well as those of the corrections officers sued. The panel reversed as to each defendant. It held that the officer who negligently left Danser and the other inmate unsupervised was entitled to immunity as there was no evidence that he knew Danser was a sex offender, no evidence that an existing order to keep Danser separated from a different inmate meant he should be kept away from all inmates or that the officer was required to look at databases of information on Danser and the other inmate. The panel reversed as to Stansberry and another supervisor holding there was no evidence either had anything to do with the decision to put Danser in the area with another inmate or to leave them unsupervised. As supervisors cannot be vicariously liable, immunity applied as a matter of law. The opinion was originally issued in July as an unpublished opinion and the government’s motion to publish was granted today.


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September 10, 2014 South Carolina Court of Appeals published opinions

56 Leinbach Investors, LLC v Magnolia Paradigm, Inc.

56 leased property to magnolia for use as a parking lot. 56 later leased part of the same property for the erection of cell tower. Magnolia reduced the rent it paid by the amount received by 56 for the cell tower lease. 56 sued Magnolia for breach and Magnolia countersued. The master in equity ruled 56 breached the lease, that there was mutual mistake as to whether the wooded area used for the tower was included in the lease and thus Magnolia was entitled to a rent reduction. The panel affirmed in part, reversed in part and remanded. It held the lease unambiguously stated the whole lot including the wooded area was included in the lease. The panel held that 56 breached the lease by doing the tower lease. It held there was no mutual mistake at the time of the signing of the lese as to what was being leased though there appears to have been a unilateral mistake years alter by 56 as to which adjoining properties the tower site was on. Thus, there was no basis to reform the lease to reduce rent. The panel held there was no evidence in the record to support any damage award greater than nominal damages to Magnolia given the lack of any plans to develop the wooded area for more parking spaces. The panel finally rejected Magnolia’s unjust enrichment claim holding there was binding contract here and in any event 56 undertook the tower lease for the befit of 56 not Magnolia. The case as remanded for calculation of damages.

Stogsdill v South Carolina Department of Health and Human Services

Stogsdill challenged the reduction in services ordered by Department pursuant to a new Medicaid waiver agreement with the federal government. The administrative law judge affirmed the reduction. The panel affirmed in part and reversed and remanded in part. It held that he state was not required to memorialize the terms of the waiver agreement in state regulations the agreement itself is binding law that controls even when state regulations are opposed to the terms. The panel affirmed on a due process argument noting Department inexcusably failed to provide adequate notice, but, because Stogsdill participated in the review process, there no prejudice. It reversed on the issue of risk of institutionalization holding there was evidence to support Stogsdill’s claim that, due to his significant physical disabilities, he would have to be institutionalized to receive the needed level of care and this stated a claim under the Americans with Disabilities Act. Finally, the panel held that Department’s budget defense for the reductions of services failed as a matter of law and as there was no other defense presented Stogsdill prevails on this issue. The case was remanded for determination of the proper level of services to be provided Stogsdill.


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September 10, 2014 South Carolina Supreme Court published opinion

State v Adams

Police attached a GPS device on Adams car. He was pulled over for traffic violations at the request of the officers who attached the device and drugs were found on Adam’s person. He moved to suppress which was denied. The Court of Appeals held the attachment of the device was unconstitutional, but, the observed traffic violations were an intervening cause and affirmed. The Court reversed and remanded. It held that because the traffic stop was initiated because of the GPS device, the causal link between the unconstitutional attachment and traffic stop was not broken. It noted that holding otherwise would effectively end 4th Amendment protections in these circumstances. The Court also held there was no good faith exception available because no United States Supreme Court case, 4th Circuit case or South Carolina case authorized attachment of GPS devices without a warrant and in fact South Carolina Code 17-30-140 requires prior authorization before a device is attached. The Court rejected the State’s ignorance defense noting ignorance of a law on the books for six years is no excuse for failing to follow it and that principle applies to both criminal suspects and those who investigate them.


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Updated Lexis Advance Debuts Today

updatedlexisadvanceThe new updated Lexis Advance page debuted this morning.  It is less cluttered,  and the product appears easier to navigate.

At the home page, there is a Google type search toolbar with a word wheel.  Alerts, folders and history are immediately available on the home page too.  Search results entered in the search bar can be filtered by jurisdiction, category (case, statute, regulation), and practice area and topic.  You can also continue to do an advanced search, using terms and connectors, using the Advanced Search FilterShepardizing is an available option after a document is retrieved or by keying in “shep:” plus a citation on the search toolbar.

At the top left hand corner of the screen is a tab that allows you to locate Public Records, Litigation Profile, Practice Advisor, Get & Print, Verdicts & Settlement, and old  Adjacent to it is another tab that allows you to browse by sources or topics.

The re-design does make it easier to navigate .  From my perspective, there are still some kinks to be worked out.  As an example, I found locating Law 360 impossible.  I assume the product will continue to be tweaked so keep checking.

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Upcoming Events on Monday, September 8th


index_photoOn Monday, September 8th, the library will hold its first Briefings series of the semester.  Please join us at either noon or 5:15 in classroom Mary 101A/B to discover what other research resources are available in addition to Google and WestlawNext.  Pizza will be provided.  Sign up via the sign-up sheets on TWEN under Charleston School of Law-All.  See you Monday!

newlexisadvanceLexis Advance is releasing its new makeover as well on Monday, September 8th.  A Google type search bar with the word wheel appears on the new home page.  The Table of Contents for statutory provisions and other resources has been tweaked as have the Alerts, Case Footnotes, Shepard’s, Mobile, and Citation features.  Check out the Lexis Advance video here.  A Before & After Guide, highlighting the new features, is available here.

Stop by the library next week!

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