A word to the wise South Carolina Associations to Beware of “Undertakings” (NC Associations Should Pay Attention Too)
Wright v. PRG Real Estate Management 219 S.C. LEXIS 17 2019 WL1273060 (2019) reversing 413 S.C. 276 775 S.E. 2d. 399, 2015 S.C. (2015)
When Denise Wright inquired about possibly renting an apartment in the Wellspring apartment complex, she was told by the Wellspring manager that “the complex had ‘security officers’” and tenants were urged to use the “security pager number” published in its monthly tenant newsletter in the event of any emergency. Based in part on these assurances, Ms. Wright signed her lease and made Wellspring her home. In fact, Wellspring did not employ security officers. Instead, it only had a “courtesy officer program” in place that allowed residents affiliated with law enforcement to receive reduced rent in exchange for their service as “courtesy officers” for the apartment complex. Ms. Wright was not told that the provision of “security” by Wellspring was limited to the confines of its courtesy officer program. Under that program, there were periods of time (sometimes quite long) when there was no “courtesy officer” in the community.
In 2008, Ms. Wright was abducted and robbed at gunpoint by two unknown assailants in a common area of the apartment complex. The assailants forced her to withdraw money from several ATMs and threatened to kill her. One of the men put his hand down the back of Wright’s pants and contemplated “having some fun before killing her.” The men fled in Wright’s car and were never found.
The next day when Wright met with a representative of the Wellspring apartment complex, the first thing she asked the manager was “Where are the security officers that are supposed to be walking the beat? I didn’t see anybody. There was nobody there when I needed them. I didn’t see one. I’ve never seen one the whole time I’ve lived there.” In response, the manager shrugged her shoulders and replied “I’m sorry.” Ms. Wright never spent another night in her apartment at Wellspring and moved out a few days later. The two assailants were never found.
Wright filed a lawsuit seeking damages from Wellspring based on the fact it had not provided security as promised. Wellspring responded that they did not owe Wright any duty to provide security. A divided Court of Appeals sided with Wellspring and dismissed Ms. Wright’s claims. Ms. Wright filed a petition with the South Carolina Supreme Court asking that they review the Court of Appeals’ decision. The Supreme Court granted the petition and reversed the Court of Appeals.
Undertakings – Voluntarily Assumed Duties in South Carolina
The Supreme Court recognized that it has long been the law in South Carolina that a landlord generally has no duty to provide security to protect tenants from criminal acts of third parties. However, while there is generally no duty to act under common law, a duty to use due care may arise where an act is voluntarily undertaken. The court held that recognition of voluntarily assumed duties in South Carolina jurisprudence is rooted in Section 323 of the Restatement (2nd) of Torts (1965) which provides:
One who undertakes, gratuitously or for consideration, to render services to another for which he should recognize as necessary for the protection of the other person or things is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance on the undertaking.
Under Section 323, a voluntary undertaking does not create a duty of care unless (a) the undertaker’s failure to exercise reasonable care in performing the undertaking increased the risk of harm to the plaintiff, or (b) the plaintiff suffered harm because he or she relied on the undertaking. In this case, the Supreme Court found that there was evidence to support Ms. Wright’s claim that Wellspring had, by its affirmative representations, undertaken to provide security beyond simply maintaining its “courtesy officer” program. Holding that Section 323 is the standard in South Carolina when analyzing voluntarily assumed duties, the court held that there was evidence of actions and representations by Wellspring that might place it within the undertaking exception to the general rule that the landlord has no duty to provide security.
The Word to the Wise
As our world seems to be becoming a scarier place in which to live, particularly in urban areas, condominium and community associations are more frequently asking us whether they can and should use assessments to provide security protections when their governing documents do not make them in any way responsible for providing such protections or services. While there are no South Carolina cases that discuss the duties of condominium and planned community associations to provide security for residents like there are for landlords, we believe that the South Carolina appellate courts, if presented with the question, would hold that association do not owe an affirmative duty to members, residents and occupants to provide security in and around the community and its common areas. HOWEVER, based on the court’s reasoning in this case and its specific holding that “Section 323 is the standard in South Carolina when analyzing voluntary assumed duties,” we believe that associations who voluntarily undertake to provide safety and security may well be found to have “undertaken” a duty and responsibility that neither the law nor their governing documents imposed.
Associations that voluntarily undertake to provide services for the protection of owners and occupants must realize that they may be held legally liable for any harm that results from its failure to exercise reasonable care in performing the undertaking if that failure either increases the risk of harm suffered or harm is suffered because an owner or occupant relied on the undertaking. A word to the wise is (or at least should be) sufficient!
Please contact Timothy G. Sellers if you have any questions about this post.