Vol. 8, No. 3, Pg. 38. High Hurdles . . . Proving Duty in Claims Against State Licensing Boards.

• Author: By Jon E. Ozmint and James H. Elliott Jr.

South Carolina Lawyer

1996.

Vol. 8, No. 3, Pg. 38.

High Hurdles . . . Proving Duty in Claims Against State Licensing Boards

38High Hurdles . . . Proving Duty in Claims Against State Licensing BoardsBy Jon E. Ozmint and James H. Elliott Jr.That doctor should have never been licensed." "This contractor should have lost his license years ago." Plaintiffs often desire retribution from licensing authorities that they contend have failed to protect the public. Such a quest must begin with the search for a duty.

The South Carolina Tort Claims Act (Act), S.C. Code Ann. § 15-78-10 et seq., preserves traditional sovereign immunity, except as provided by the Act itself. This law provides that the state and its political subdivisions are only liable for torts within the limitations of the Act in accordance with the principles established therein. S.C. Code Annotated § 1578-20 (Supp. 1995). The Act defines "State" as "the State of South Carolina and any offices, agencies, authorities, departments, commissions, boards . . ." S.C. Code Annotated § 15-78-30 (Supp. 1995).

Therefore, professional and occupational licensing boards, now administered by the Department of Labor, Licensing and Regulation, are protected by the Act. The provisions of the Act that establish limitations and exemptions to liability are to be liberally construed in favor of

40limiting state liability. Furthermore, because liability for acts or omissions under the Act is based on the traditional concept of duty and standard of care, the elements of a tort action must be established in order to succeed in an action brought against a professional occupational licensing board or any other state agency. Summers v. Harrison Construction, 298 S.C. 451, 454, 381 S.E.2d 493, 495 (Ct. App. 1989).

The elements of a negligence action are: (1) a duty of care owed to the plaintiff by the defendant; (2) a breach of that duty of care by a negligent act or omission; and (3) damage to the plaintiff proximately caused by the breach. Id. at 454, 382 S.E.2d at 495.

This article addresses the first element of negligence: an affirmative legal duty. An affirmative legal duty may be created by statute, contract, relationship, status, property interest, or some other special circumstance. Summers, 298 S.C. at 455, 381 S.E.2d at 496; Jensen v. S.C. Dep't of Social Services, 297 S.C. 323, 329, 377 S.E.2d 102, 105 (Ct. App. 1988), aff. 304 S.C. 195, 403 S.E.2d 615 (1991); Rayfield v. S.C. Dep't of Corrections, 297 S.C. 95, 100, 374 S.E.2d 910, 913 (Ct. App. 1988). cert. denied, 298 S.C. 204, 379 S.E.2d 133 (1989). In an action for negligence against a professional occupational licensing board, a plaintiff must prove a duty created by statute.

The statutory scheme that governs a professional occupational licensing board, and may create a duty, is generally known as its "practice act." Logically, regulations are a secondary source to consult when attempting to establish a duty, since violation of a duty created by a regulation may constitute negligence per se. See Norton v. Opening Break of Aiken, Inc., 462 S.E.2d 861, 862 (1995).

However, the Act provides that a governmental entity is not liable for a loss resulting from "adoption, enforcement, or compliance with any law or failure to adopt or enforce any law, whether valid or invalid, including but not limited to, any charter, provision, ordinance, rule, regulation, or written policies. " S.C. Code Ann. § 15-78-60(4). See Adkins v. Varn, 312 S.C. 188, 439 S.E.2d 822 (1993). Accordingly, in claims against licensing boards or other state entities, such a duty must be found in a statute.

To demonstrate that a statute creates a duty of care, a plaintiff must prove that (1) the essential purpose of the statute is to protect against the type of harm suffered by the plaintiff and (2) the individual is a member of the class of persons the statute is intended to protect.

Id. It is not enough to merely show that the defendant neglected some duty imposed by statute and that the plaintiff would not have been injured if the duty had been performed.

Rather, it must be proven that the plaintiff's injury was caused by the exposure to a hazard and that the purpose of the statute was to protect against that hazard. Rayfield, 297 S.C. at 104, 374 S.E.2d at 915. The South Carolina Court of Appeals in Rayfield relied on two cases to illustrate this point: Clifford v. Southern Railway, 87...