Opinion
Civil Action 9:21-3587-RMG
02-16-2022
Walter Curry and Cheryl Curry, Plaintiffs, v. Omni Hotels Management Corporation d/b/a Omni Hilton Head Oceanfront Resort, Atlantic Resort Managers, Inc. f/k/a Mariner's Inn Associates, Inc. d/b/a Omni Hilton Head Oceanfront Resort, Jane Doe 1-10, Theo Schofield, and Jeff Gibson Defendants.
ORDER AND OPINION
Richard M. Gergel United States District Judge
This matter is before the Court upon Defendant Omni Hotels Management Corporation's (“Defendant Omni”) partial 12(b)(6) motion to dismiss the amended complaint for failure to state a claim (Dkt. No. 24) and Defendant Theo Schofield's (“Defendant Schofield”) 12(b)(6) motion to dismiss the amended complaint for failure to state a claim. (Dkt. No. 25). For the reasons stated below, the motions are denied.
I. Background
Plaintiffs bring two causes of action for negligence and loss of consortium against Defendants arising out of an incident that occurred on the premises of Defendant Omni located at 23 Ocean Lane, Hilton Head, South Carolina. (Dkt. No. 17 at ¶ 12). Plaintiffs allege that while guests of the hotel, an employee of Defendant Omni placed a pitcher of scalding hot water onto an unsteady table without properly securing the pitcher with a tight-fitting lid. (Id.). Plaintiffs allege the unsteady table wobbled and caused the pitcher and scalding hot water to spill into Plaintiff Walter Curry's lap. (Id.). Plaintiffs allege that Plaintiff Walter Curry sustained second degree burns to his groin area because of the spill. (Id.).
The negligence claim is divided into several subparts. (Id. at ¶ 21). Plaintiffs allege theories of respondent superior liability against Defendants along with direct-liability theories of negligent hiring/retention and supervision/training against Defendants. (Id.). Plaintiff Cheryl Curry brings a loss of consortium claim. Plaintiffs seek compensatory and punitive damages. (Id. at ¶ 28).
Defendant Omni filed a partial 12(b)(6) motion to dismiss Plaintiffs' negligent hiring/retention; negligent supervision/training; and punitive damages claims. (Dkt. No. 24). Defendant Schofield filed a 12(b)(6) motion to dismiss to dismiss Plaintiffs' negligence; negligent hiring/retention; negligent supervision/training; loss of consortium; and punitive damages claims. (Dkt. No. 25). Plaintiffs filed a response in opposition to the motions. (Dkt. No. 37). Defendants filed a reply. (Dkt. No. 38). The matters are ripe for the Court's review.
II. Legal Standard
A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted "challenges the legal sufficiency of a complaint." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) ("A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."). To be legally sufficient a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
A Rule 12(b)(6) motion should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support her claim and would entitle her to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6) motion, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999); Mylan Labs., Inc., 7 F.3d at 1134. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
III. Discussion
A. Negligent Supervision/Training
Defendants Omni and Schofield seek to dismiss Plaintiffs' negligent supervision/training claims. Defendants argue that the amended complaint fails to state a claim for negligent supervision/training because there is no allegation Defendants had notice of prior, similar negligent conduct attributable to an Omni employee. (Dkt. Nos. 24 at 1; 25 at 1).
The Supreme Court of South Carolina has articulated a standard for a plaintiff to assert a negligent supervision claim based upon intentional and unintentional conduct. Holcombe v. Helena Chem. Co., 238 F.Supp.3d 767, 772 (D.S.C. 2017). Whether intentional conduct is an element turns on whether an employee is acting within or outside of his scope of employment. Intentional conduct is not required where an employee “cause[s] the harm while acting within the scope of his employment.” Id. In such cases, an employer may be liable for negligent supervision when an employee is: (1) upon the premises of the employer, or used a chattel of the employer, (2) the employer knew or had reason to know that he has the ability to control his employee, and (3) the employer knew or should have known of the necessity and opportunity for exercising such control. Callum v. CVS Health Corp., 137 F.Supp.3d 817, 860 (D.S.C. 2015) (citing Degenhart v. Knights of Columbus, 420 S.E.2d 495, 496 (S.C. 1992)). Whether the claim is one of a negligent failure to supervise or instead involves improper training, the key question is “whether the employer knew or should have known of the danger the employee posed to others.” Id. (quoting Snowden v. United Rentals (N. Am.) Inc., No. 2:14-cv-2740-PMD, 2015 WL 5554337, at * 8 n.6 (D.S.C. Sept. 21, 2015) (noting the foreseeability requirement applies to pure negligent supervision claims and negligent hiring claims); see also Doe v. Octopharma Plasma, Inc., 2015 U.S. Dist. LEXIS 70958, at * 7 (D.S.C. June 2, 2015); Hoskins v. King, 676 F.Supp.2d 441, 448 (D.S.C. 2009).
The District of South Carolina has explained that negligent training is merely a specific negligent supervision theory by another name. Holcombe v. Helena Chem. Co., 238 F.Supp. at 772.
In addition, this court has stated that when there is no dispute an employee was acting within the scope of employment, a different standard for a negligent supervision claim applies. “A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(a) in giving improper or ambiguous orders of in failing to make proper regulations; or
(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others;
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.Colleton v. Charleston Water Sys., 255 F.Supp.3d 362, 372 (D.S.C. 2016) (citing Restatement (Second) of Agency § 213) (explaining that no South Carolina case has adopted or declined to adopt this particular section of the Restatement (Second) of Agency); Adams v. 3D Sys., Inc., Case No. 0:19-cv-00663-JMC-KDW, 2019 WL 8754875, at 7-8 (D.S.C. Nov. 29, 2019) (explaining that in the context of negligent supervision of an employee by a co-employee, the employer's potential liability more appropriately is considered under the Restatement (Second) of Agency § 213).
In this case, Plaintiffs allege the incident occurred while they were guests at the Omni. (Id. at ¶ 12). Plaintiffs allege Defendant Omni was responsible for the ownership, operation, supervision, management, maintenance, control and/or safety of the Omni. (Id. at ¶ 3). Plaintiffs allege Defendant Schofield was the General Manager of the Omni and exercised significant control over the premises and hotel employees. (Id. at ¶ 7). Plaintiffs allege that Defendants by and through their employees, were in control of determining the temperature of the hot water before serving it to Plaintiffs at the unsteady table. (Dkt. No. 17 at ¶ 12). Plaintiffs allege Defendants were aware and created the dangerous conditions on the premises. (Id. at ¶ 13). In a footnote, Plaintiffs cite to Deruyver et al v. Omni La Costa Resort & Spa, LLC et al., No. 3:17-cv-00516-H-AGS as support for the allegation that Defendants had notice of prior instances of beverages being heated to an unreasonably high temperature and being served in defective containers that resulted in spills and injuries to a customer at an Omni hotel. (Id. at ¶ 15, fn 1.) Plaintiffs allege Defendants failed to properly supervise employees so as to warn invitees of latent and dangerous conditions on the premises or to alleviate such conditions. (Id. at ¶ 21). Plaintiffs allege Defendants allowed the employees to utilize equipment which Defendants knew or should have known could cause products served to become unreasonably dangerous. (Dkt. No. 17 at ¶ 21). Viewing the amended complaint in a light most favorable to Plaintiffs and viewing all well-plead factual allegations as true, the Court finds that Plaintiffs state plausible claims for negligent supervision/training against Defendants Omni and Schofield.
B. Negligent Hiring/Retention
Defendant Omni and Defendant Schofield seek to dismiss Plaintiffs' negligent hiring/retention claims for the same reason Defendants move to dismiss Plaintiffs' negligent supervision/training claims. (Dkt. Nos. 24-1 at 8; 25-1 at 10). (Dkt. Nos. 24-1 at 5; 7).
“Negligent hiring and negligent retention are distinct theories of recovery separate from negligent supervision. Doe v. ATC, Inc., 624 S.E.2d 447, 450 (S.C. Ct. App. 2005). “In circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public.” Holcombe, 238 F.Supp.3d at 770 (citing James v. Kelly Trucking Co., 661 S.E.2d 329, 330 (2008)).
“To state a claim for negligent retention, a plaintiff must allege the employer had knowledge of its employee's habit of prior wrongdoings, and despite the foreseeability of harm to third parties, the employer failed to terminate the offending employee before he caused the plaintiff harm.” Callum, 137 F.Supp.3d at 860. “The standard is . . . whether the employer knew the offending employee was in the habit of misconducting [himself] in a manner dangerous to others.” Id. “Accordingly, many courts have recognized that a plaintiff must demonstrate some propensity, proclivity, or course of conduct sufficient to put the employer on notice of the possible danger to third parties.” Id.
Negligent hiring cases “generally turn on two fundamental elements- knowledge of the employer and foreseeability of harm to third parties.” Holcombe, 238 F.Supp.3d at 770; see also Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 538 (D.S.C. 2014) (“[t]he issue of an employer's knowledge concerns the employer's awareness that the employment of a specific individual created a risk of harm to the public.”). The South Carolina Court of Appeals explained that these two elements:
“are not necessarily mutually exclusive, as a fact bearing on one element may also impact resolution of the other element. From a practical standpoint, these elements are analyzed in terms of the number and nature of prior acts of wrongdoing by the employee, and the nexus or similarity between the prior acts and the ultimate harm caused. Such factual considerations- especially questions related to proximate cause inherent in the concept of foreseeability -will ordinarily be determined by the factfinder, and not as a matter of law. Nevertheless, the court should dispose of the matter on a dispositive motion when no reasonable factfinder could find the risk foreseeable or the employer's conduct to have fallen below the acceptable standard.”Doe v. ATC, Inc., 624 S.E.2d 447, 450 (S.C. Ct. App. 2005).
Defendants argue the amended complaint fails to state a plausible claim of negligent hiring/retention because Plaintiffs do not allege that Defendants were aware of a specific employees' propensity for misconduct. A single isolated incident of prior misconduct (of which the employer knew or should have known) may support a negligent retention claim, provided the prior misconduct has a sufficient nexus to the ultimate harm. Doe, 624 S.E.2d at 207. Plaintiffs maintain the allegations concerning Defendants' knowledge of prior incidents where beverages were heated to an unreasonably high temperature and were served in defective containers that resulted in injury to an Omni customer, demonstrates that Defendants had knowledge of employees' prior misconduct. (Dkt. Nos. 17 at ¶¶ 15-16; 37 at 6-7). Whether there is a sufficient nexus between the alleged prior incident of misconduct and the alleged harm, goes to the merits of the claim and may be adjudicated after discovery and on a full record. Viewing the amended complaint in a light most favorable to Plaintiffs and viewing all well-plead factual allegations as true, the Court finds that Plaintiffs state a plausible claim for negligent hiring/retention against Defendants Omni and Schofield.
C. Punitive Damages
Defendant Omni and Defendant Schofield move to dismiss Plaintiffs' punitive damages claim. (Dkt. No. 25-1 at 11-12). Under South Carolina law, in order to receive an award of punitive damages, the plaintiff has the burden of proving by clear and convincing evidence the defendant's misconduct was willful, wanton, or with reckless disregard for the plaintiff's rights. S.C. Code Ann. § 15-33-135 (2004); Mishoe v. QHG of Lake City, Inc., 621 S.E.2d 363, 201 (S.C. Ct. App. 2005). A conscious failure to exercise due care constitutes willfulness. Welch v. Epstein, 536 S.E.2d 408, 419 (S.C.t Ct. App. 2000). When evidence exists that suggests a defendant is aware of a dangerous condition and does not take action to minimize or avoid the danger, sufficient evidence exists to create a jury issue as to whether there is clear and convincing evidence of willfulness. See McGee v. Bruce Hosp. Sys., 468 S.E.2d 633, 637 (1996). The issue of punitive damages must be submitted to the jury if more than one reasonable inference can be drawn from the evidence as to whether the defendant's behavior was reckless, willful, or wanton. Welch, 526 S.E.2d at 419.
Plaintiffs allege that Defendants were aware of and created the dangerous conditions on the premises. (Dkt. No. 17 at ¶¶ 12-13). Plaintiffs allege Defendants failed to take precautions to warn or prevent the Plaintiffs from encountering the dangerous conditions (Id. at ¶ 14) and that Defendants had notice of prior incidents of beverages being heated to unreasonably high temperatures. (Id. at ¶ 15) and hot beverages being served in defective containers. (Id. at ¶ 16). The amended complaint alleges Defendants were grossly negligent, reckless, willful, and wanton, resulting in injuries to the Plaintiffs. (Id. at ¶ 20-21). Viewing the allegations in the amended complaint in a light most favorable to Plaintiffs and taking the allegations as true, the Court finds that Plaintiffs sufficiently plead a claim for punitive damages.
D. Negligence
Defendant Schofield moves to dismiss Plaintiffs' negligence claim to the extent Plaintiffs assert a premises liability claim against him. (Dkt. No. 25-1 at 5-7).
“An affirmative legal duty to act exists only if created by statute, contract, relationship, status, property interest, or some other special circumstance.” Benjamin v. Wal-Mart Stores, Inc., 413 F.Supp.2d 652, 655 (D.S.C. 2006). “Generally, there is no common law duty to act . . . Thus, a person usually incurs no liability when he fails to take steps to protect others from harm not created by his own wrongful conduct.” Id. In South Carolina, “a party who operates a premises but is neither an owner nor a lessee may also have a duty of reasonable care with respect to an allegedly dangerous condition.” Id. “Such liability depends upon control, rather than ownership, of the premises. Id. In considering whether an individual has exercised such control of the premises so as to impose a duty to reasonably inspect the premises, a court will generally consider the individual's power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee the management of the property.” Id.
A legal duty cannot be imposed merely by a defendants' status as a manager. Cook v. Wal-Mart Stores, Inc., 2018 U.S. Dist. LEXIS 4206 (D.S.C. Jan. 10, 2018); Benjamin, 413 F.Supp.2d at 656. “To hold otherwise would expose lower management and hourly employees to burdensome personal liability every time an individual is injured within a store.” Cook, 2018 U.S. Dist. LEXIS 4206, at * 10-11; Benjamin, 413 F.Supp.2d at 656. The court must evaluate the particular allegations made against employee-defendants in order to determine the level of control exercised by the employee. It does not mean that a lower-level employee or assistant manager cannot be potentially liable in the appropriate case. Cook, 2018 U.S. Dist. LEXIS 4206, at * 10-11.
In this case, Plaintiffs allege Defendant Schofield was the General Manager of the Omni and exercised “significant control and direction over the premises and hotel employees.” (Dkt. No. 17 at ¶8). Plaintiffs allege he was responsible for the “overall hotel and patrons and further had the duty to reasonably inspect, repair, replace, direct, superintend, restrict, regulate, govern, administer, and oversee the safety of the premises and warn customers.” (Id.). Plaintiffs allege Defendants were in control of determining the water temperature and its placement on their table and therefore, created, or were aware of a dangerous condition on the premises. (Id. at ¶ 13). Plaintiffs allege Defendants “had notice of prior instances of beverages being heated to unreasonably high temperatures . . . [and] being served in defective containers.” (Id. at ¶¶ 15-16). Plaintiffs allege these similar incidents resulted in the same type of injuries allegedly sustained by Plaintiff Walter Curry. (Id.). Upon a review of the allegations in the complaint in a light most favorable to Plaintiffs and taking the allegations as true, the Court finds Plaintiffs sufficiently plead a negligence claim based on premises liability against Defendant Schofield.
E. Loss of Consortium
Defendant Schofield moves to dismiss Plaintiffs' loss of consortium claim. (Dkt. No. 25-1 at 11). Defendant Schofield argues that Plaintiff Cheryl Curry's loss of consortium claim fails because it is based on the same conduct as Plaintiffs' claims for negligence, which Defendant Schofield argues fails to plausible allege tortious conduct by Defendant Schofield. (Dkt. No. 25-1 at 11).
Under South Carolina law, a loss of consortium claim is not derivative, but is a distinct, independent cause of action. Barnette v. Adams Bros. Logging, Inc., 586 S.E.2d 572, 576 n. 4 (2003). However, there must be some intentional or tortious conduct for a loss of consortium claim to stand. Williams v. Lancaster Cnty. Sch. Dist., 631 S.E.2d 286, 307 (S.C. Ct. App. 2006) (citing S.C. Code Ann § 15-75-20 (2005)). Under South Carolina law, “[a]ny person may maintain an action for damages arising from an intentional or tortious violation of the right to the companionship, aid, society, and services of his or her spouse.” S.C. Code Ann. § 15-75-20.
The court determined Plaintiffs allege actionable negligence, negligent supervision/training, and negligent hiring/retention claims against Defendant Omni and Defendant Schofield. Thus, Plaintiff Cheryl Curry's loss of consortium claim survives dismissal as well.
IV. Conclusion
For the reasons stated above, Defendant Omni Hotels Management Corporation's partial 12(b)(6) motion to dismiss Plaintiffs' amended complaint is DENIED. (Dkt. No. 24). Defendant Theo Schofield's 12(b)(6) motion to dismiss Plaintiffs' amended complaint is DENIED. (Dkt. No. 25).
AND IT IS SO ORDERED.