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Docket Number

2259

Attorney(S)

Ronald W. Hazzard, Myrtle Beach, for appellant. Vance J. Bettis, Columbia, for respondent Myrtle Beach Police Department.

Judges

GOOLSBY, Judge:

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Smart Summary

Case Summary: Kent Gause v. Jane Doe and Myrtle Beach Police Department

Factual and Procedural Background

Kent Gause, an officer with the Myrtle Beach Police Department (MBPD), sued MBPD and "Jane Doe" alleging slander, unlawful termination of employment, negligence, and outrage (and slander and outrage against Jane Doe). On February 6, 1993, Jane Doe reported that a black male MBPD officer sexually assaulted her in his patrol car after she accepted a ride; she was intoxicated. The next day she viewed a photo lineup containing Gause's picture but did not identify him. Two days later, an MBPD agent allegedly suggested Doe go to a hospital where Gause was visiting a patient to attempt identification; Doe then identified Gause. MBPD terminated Gause's employment on March 25, 1993. He was later criminally charged based on Doe's allegations, but the grand jury returned a "No Bill." The trial court granted MBPD's motion to dismiss Gause's claims against MBPD. Gause appealed. The Court of Appeals of South Carolina affirmed.

Legal Issues Presented

Whether the South Carolina Tort Claims Act (SCTCA) bars Gause's slander claim against the MBPD.
Whether the SCTCA bars Gause's negligence claim against the MBPD.

Arguments of the Parties

Appellant's Arguments

Gause contended the trial court erred in holding the SCTCA bars his slander claim against MBPD.
Gause alleged MBPD was negligent by failing to adequately investigate Doe's allegations, assuming his guilt solely from those allegations, and failing to reevaluate his termination after the grand jury returned a "No Bill."

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sanders v. Prince, 304 S.C. 236, 403 S.E.2d 640 (1991)	Defamation of a public official requires proof of actual malice.	Cited to establish that a public-official plaintiff must prove the defendant acted with actual malice for a slander claim.
New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964)	Defines actual malice as knowledge of falsity or reckless disregard of truth.	Used to describe the actual-malice standard plaintiff must meet in a defamation action involving a public official.
Botchie v. O'Dowd, ___ S.C. ___, 432 S.E.2d 458 (1993)	Authority for treating certain law-enforcement employees as public officials for defamation purposes.	Cited (with McClain) to show the parties do not dispute Gause is a public official for his slander claim.
McClain v. Arnold, 275 S.C. 282, 270 S.E.2d 124 (1980)	Police officers are public officials for defamation purposes.	Cited to support the characterization of Gause as a public official.
South Carolina State Ports Auth. v. Booz-Allen Hamilton, Inc., 289 S.C. 373, 346 S.E.2d 324 (1986)	Statement of elements required to prove negligence in South Carolina.	Used to list the four elements Gause must prove for his negligence claim.
Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E.2d 167 (1977)	Related authority for negligence principles.	Cited in conjunction with other cases to state negligence elements and standards.
Winburn v. Insurance Co. of N. Am., 287 S.C. 435, 339 S.E.2d 142 (Ct.App. 1985)	Related authority for negligence principles.	Cited as part of the authorities stating the negligence elements and that a claim fails if an element is absent.
Small v. Springs Indus., Inc., 300 S.C. 481, 388 S.E.2d 808 (1990)	Authority that an at-will employee generally may be terminated at any time and that such status affects certain tort claims against employers.	Cited to support the conclusion that Gause's status as an at-will employee precluded the duty element of his negligence claim.

Court's Reasoning and Analysis

The court analyzed the slander claim under the South Carolina Tort Claims Act (SCTCA), noting the SCTCA limits tort liability of governmental entities and specifically excludes liability for losses resulting from employee conduct that constitutes actual malice. The court treated MBPD as a governmental entity under the SCTCA. Because Gause is a public official for purposes of his slander claim, the court applied the actual-malice standard (citing Sanders v. Prince and New York Times Co. v. Sullivan)—actual malice meaning knowledge of falsity or reckless disregard of truth—and concluded the SCTCA's exclusion for actual malice bars Gause's slander claim against MBPD.

For negligence, the court recited the four-element test for negligence (duty, breach, injury, proximate cause) citing South Carolina authorities. The court found Gause failed the duty element because his complaint alleged he was an at-will employee (a concession he made at the motion hearing), and at-will status meant he could be terminated at any time irrespective of the alleged investigative failures. Consequently, the negligence claim failed and dismissal was proper. The court also noted the appellate court may affirm on any ground appearing in the record.

Holding and Implications

Affirmed.

Holding: The Court of Appeals affirmed the trial court's grant of MBPD's motion to dismiss as to Gause's slander and negligence claims against MBPD. The SCTCA bars Gause's slander claim because recovery would require proof of actual malice, which the SCTCA excludes from governmental liability. Gause's negligence claim fails because he did not allege a duty as an at-will employee.

Implications: The direct effect is that Gause's slander and negligence claims against MBPD are dismissed and the trial court's dismissal is affirmed. The opinion does not discuss broader legal implications beyond its effect on these claims.

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Kent Gause, Appellant v. Jane Doe, an indi

GOOLSBY, Judge:

The plaintiff, Kent Gause, appeals the trial court's grant of a motion to dismiss in favor of the defendant, Myrtle Beach Police Department (MBPD). Gause, an officer with the MBPD, alleged causes of action against the MBPD for slander, unlawful termination of employment, negligence, and outrage, and against "Jane Doe" for slander and outrage. The issues on appeal concern whether the South Carolina Tort Claims Act (SCTCA) bars Gause's causes of action for slander and negligence against the MBPD. We affirm.

On February 6, 1993, an unidentified female, Jane Doe, reported to the MBPD that a black male MBPD officer sexually assaulted her in his patrol car after she accepted his offer of a ride. Doe was intoxicated at the time. Doe viewed a photograph lineup that included Gause's picture the next day, but she did not identify Gause as her assailant. Gause alleges an MBPD agent contacted Doe two days later and suggested she go to a hospital where Gause was visiting a patient to see if she could identify Gause as the officer who assaulted her. Doe did so. She identified Gause as her assailant. On March 25, 1993, the MBPD terminated Gause's employment. He was later charged with criminal offenses arising from Doe's allegations. The grand jury, however, returned a "No Bill" on these charges.

Gause argues the trial court erred in holding the SCTCA bars his slander claim against the MBPD. We disagree.

The SCTCA limits the tort liability of "the State, an agency, a political subdivision, and a governmental entity." S.C. Code Ann. § 15-78-40 (Supp. 1993). The MBPD is a governmental entity under the SCTCA. Id. § 15-78-30 (c), (d).

Under the SCTCA, a governmental entity is not liable for a loss that results from "employee conduct outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude." S.C. Code Ann. § 15-78-60 (17) (Supp. 1993) (emphasis added).

In a case involving the defamation of a public official, the plaintiff must prove the defendant acted with actual malice. Sanders v. Prince, 304 S.C. 236, 403 S.E.2d 640 (1991). To meet this standard, the plaintiff must show either that the defendant knew the statement was false or that the defendant made the statement with reckless disregard of its falsity. Id. (citing New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964)).

The parties do not dispute Gause is a public official for the purposes of his slander claim. See Botchie v. O'Dowd, ___ S.C. ___, 432 S.E.2d 458 (1993) (a deputy sheriff was a public official for the purposes of his defamation action against his employer, the sheriff, and was therefore required to prove actual malice); McClain v. Arnold, 275 S.C. 282, 270 S.E.2d 124 (1980) (a police officer is a public official for the purposes of a defamation action).

The SCTCA clearly excludes a governmental entity's liability for an individual's loss stemming from a state employee's conduct that constitutes actual malice. We therefore agree with the trial court that the SCTCA bars Gause's slander claim against the MBPD because Gause must prove the MBPD employee's conduct constituted actual malice in order to recover on this claim.

II.

Gause also argues the trial court erred in holding the SCTCA bars his negligence claim against the MBPD. Again, we disagree.

Gause alleges the MBPD was negligent in that it failed to adequately investigate Doe's allegations, it assumed Gause was guilty based solely on Doe's allegations, and it failed to reevaluate his termination after the grand jury returned a "No Bill" on the charges against him.

To prove his negligence claim, Gause must show: (1) the MBPD owed him a duty to do or not to do any of the things alleged; (2) the MBPD breached this duty; (3) Gause was injured, and; (4) the MBPD's breach of duty proximately caused this injury. South Carolina State Ports Auth, v. Booz-Allen Hamilton, Inc., 289 S.C. 373, 346 S.E.2d 324 (1986); Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E.2d 167 (1977); Winburn v. Insurance Co. of N. Am., 287 S.C. 435, 339 S.E.2d 142 (Ct.App. 1985). A negligence claim is insufficient if one of these elements is absent. Id.

Gause fails to meet the first element of a negligence claim because his complaint does not allege he was anything other than an at-will employee who could be terminated at any time, for any reason, or for no reason at all, irrespective of any inadequate investigations, false assumptions, or failures to reevaluate on the part of the employer. E.g., Small v. Springs Indus., Inc., 300 S.C. 481, 388 S.E.2d 808 (1990).

At the hearing on the MBPD's motion to dismiss, Gause conceded he was an at-will employee.

We therefore hold the trial court properly dismissed Gause's negligence claim.

The appellate court may affirm an order upon any ground appearing in the Record on Appeal. Rule 220(c), SCACR.

Affirmed.

HOWELL, C.J., and SHAW, J., concur.

GAUSE v. DOE