2019 WL 3349775

United States District Court, S.D. Ohio, Eastern Division.
ROBERT BINGER, Plaintiff,
v.
ALPONT TRANSPORTATION, et al, Defendants – Third-Party Plaintiffs,
v.
SELECT SIRES, INC., Third-Party Defendant.
Case No. 2:17-cv-570
|
07/25/2019

ALGENON L. MARBLEY, United States District Judge

OPINION & ORDER
*1 This matter comes before the Court on Third-Party Defendant Select Sires, Inc.’s Motion for Summary Judgment. (ECF No. 91). This Court heard oral argument on July 23, 2019. For the reasons below, Select Sires’ Motion is GRANTED.

I. BACKGROUND
On June 10, 2016, Plaintiff Robert Binger was a pedestrian on U.S. Route 42 when Defendant Randall E. Miller, driving a tractor trailer, hit him. (ECF No. 19 at ¶8). At the time, Miller was employed by Alpont (here, Defendant/Third-Party Plaintiffs), and Binger was employed by Select Sires (here, Third-Party Defendant). (ECF No. 19 at ¶3). Binger sued Alpont, alleging negligence. In response, Alpont sued Select Sires (ECF No. 20), alleging indemnity/contribution and respondeat superior.

At their campus in Union County, Ohio, Select Sires has facilities on either side of U.S. Route 42. Jeremiah Dingledine, colleague of Plaintiff and employee of Select Sires, left his gloves in the facility across the road from the facility in which he was working that day.1 Because Dingledine was not insured on the company trucks, he asked Binger if Binger would drive him across the road for his gloves. (ECF No. 57 at 22:10-15) (hereafter “Dingledine deposition”). Dingledine got permission from their supervisor, Joel Boysel, and the two men set off. (Dingledine deposition at 21:7-12). Binger drove Dingledine across the road, from the east side of Rt. 42 to the west side. There, Dingledine collected his gloves, and Binger drove them back to the facility on the east side of Rt. 42, where they had started. (Dingledine deposition at 21-25).

The specifics of the subsequent events are disputed, but not materially. At some point on the return trip, from the west side to the east side, the hatch in the pickup fell down and the cargo in the back fell onto Rt. 42. (Dingledine deposition at 24-30). Binger stopped driving and the two men saw that the hatch was down and that the cargo – rollers for trash cans used by Select Sires – had fallen out. (Dingledine deposition at 34:11-23). The 55-gallon drums are used by Select Sires employees to distribute lime. (ECF No. 98, Ex. 1 at 257:8; ECF No. 97, Ex. 1 at 33:4-5; ECF No. 95, Ex. 1 at 64:5). As Dingledine observed in the rearview mirror, Binger got out of the truck and ran back toward Rt. 42 (Dingledine deposition at 34:11-23) where he was hit by Defendant Miller, driving a tractor-trailer in the north-bound lane of Rt. 42. Binger sustained “serious, permanent injuries including but not limited to a sever traumatic brain injury, facial disfigurement and scaring, functional loss of use of both arms and additional injuries [described in ¶16 of the Amended Complaint].” (ECF No. 19 at ¶9). Binger subsequently filed this lawsuit against Alpont, alleging negligence.

*2 Alpont impleaded Select Sires as Third-Party Defendant. (ECF No. 20). This Court earlier issued an Opinion & Order denying Select Sires’ Motion to Dismiss. (ECF No. 104). Now before this Court is Select Sires’ Motion for Summary Judgment. (ECF No. 91). Alpont has filed a memorandum in opposition (ECF No. 99) and Select Sires has filed a reply. (ECF No. 102). This Motion is ripe for review.

At issue is whether Ohio’s workers’ compensation scheme immunizes Select Sires from Alpont’s request for contribution. Select Sires argues that, as a complying employer, it is immune. O. R. C. § 4123.74. Alpont argues that workers’ compensation is a scheme that governs the relationship of employees and their employers and does not speak to the employers’ liability to third-parties. In the alternative, Alpont argues that Sires’ interpretation of the workers’ compensation scheme is unconstitutional as applied to third parties like Alpont.

II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment is appropriate “if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” A fact is deemed material only if it “might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must then present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). The mere possibility of a factual dispute is insufficient to defeat a motion for summary judgment. See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992). Summary judgment is inappropriate, however, “if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251-52). The mere existence of a scintilla of evidence in support of the opposing party’s position will be insufficient to survive the motion; there must be evidence on which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). It is proper to enter summary judgment against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the nonmoving party has “failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof,” the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322 (quoting Anderson, 477 U.S. at 250).

In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013).

III. ANALYSIS

A. Immunity / Contribution
*3 At issue in this case is whether, under Ohio law, a third-party may demand contribution from an employer who is a complying employer under Ohio’s workers’ compensation laws. Generally, such a third-party may not so demand and such an employer would be immune. See e.g., Williams v. Ashland Chemical Co., 52 Ohio App. 2d 81, 89 (1976). This immunity, however, is conditioned on the employees’ actions being in the scope of their employment as that phrase is used in the workers’ compensation context. See e.g. Williams, 52 Ohio App. at 86.

The Ohio Revised Code provides that employers who comply with the workers’ compensation scheme
shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily condition occurring during the period covered by such premium so paid into the state insurance fund, or during the interval the employer is a self-insuring employer, whether or not such injury, occupational disease, bodily condition, or death is compensable under this chapter.
Ohio R.C. § 4123.74. Any determination of contribution or indemnification, as demanded here, requires a two-step inquiry: first, whether the employer is a complying employer within the meaning of O.R.C. § 4321.74; and second, whether the incident in question “arose out of” or was “in the course of” the employment.

To recover in worker’s compensation, an employee must be both “in the course of” her employment and performing a duty that “ari[ses] out of” her employment; the “coverage formula” is in the conjunctive. Fisher v. Mayfield, 49 Ohio St. 3d 275, 277, 551 N.E. 2d. 1271, 1274 (1990). However, the “requirements for immunity are set forth in the disjunctive.” Maynard v. H.A.M Landscaping, Inc., 2006-Ohio-1724 ¶ 20. That is, a “complying employer has immunity when either aspect of the statute is satisfied.” Id.2 Employer immunity includes protection “from actions for indemnification by third parties…who are or may be held liable to the employee for his workplace injury.” Davis v. Consol. Rail Corp., 2 Ohio App. 3d 475, 477, 442 N.E.2d 1310, 1312 (1981).

Ohio courts have read this immunity provision broadly. In Perry, the Court of Appeals allowed the trial court’s order to stand after the trial court granted a judgment notwithstanding the verdict to the defendant employer who argued that their compliance with the workers’ compensation scheme should overcome an adverse jury verdict. The Perry court explained the principle in broad terms, writing, “[this] section of the Ohio workers’ compensation law provides that an employer who complies with the law is relieved from liability to anyone for damages arising from an injury to an employee sustained in the course of the employee’s employment.” Perry v. S.S. Steel Processing Corp., 40 Ohio. App. 3d 198, 202 (1987). The Perry court continued: “[u]nder Ohio law, a third-party tortfeasor…has no standing to bring an indemnification claim against an employer for damages suffered by an employee in the course of or arising out of his employment where the employer is acting in compliance with the Ohio workers’ compensation law.” Id. See also Williams, 52 Ohio App. at 86 (noting that the legislature enacted the workers’ compensation scheme to “provide against liability of the employer to anyone for damages arising from any injury…of an employee arising out of his employment.”). A complying employer is liable to a third-party for claims arising out of injuries to employees only where there has been express agreement between the two parties as to that liability. Williams, 52 Ohio App. 2d at 89; Davis, 2 Ohio App. 3d at 477.

*4 Taken together, these cases frame the question at bar: was Plaintiff performing a task that “arose out of” his employment or was he “in the course of his employment” such that his employer, Select Sires – undoubtedly a complying employer (ECF No. 34, Ex. 1) – is immune to third-parties who request indemnification or contribution?

This Court concludes that there is no genuine dispute that Select Sires is immune to third-party requests for indemnity or contribution because Plaintiff’s actions meet at least one part of the disjunctive test.

The tasks Plaintiff was performing immediately before the collision were as follows. Plaintiff, with the permission of his supervisor, drove a colleague in his employer’s truck to the edge of his employer’s property. The two of them then crossed the public highway and reentered his employer’s property, where they came to a stop. Plaintiff waited with his employer’s truck while Mr. Dingledine retrieved leather gloves that he wears on the job. The two men then got back into the employer’s truck and drove from one Select Sires facility to another, again crossing the public highway. The collision occurred when Plaintiff ran towards Rt. 42 to retrieve his employer’s property – rollers, for the trash cans that Select Sires employees use to distribute lime on the employer’s property and for the employer’s business – from where they had fallen on the public highway. The collision occurred during working hours while Plaintiff and Mr. Dingledine were “on the clock.” (ECF No. 98, Ex. 1 at 252:13-253-1). The route the two of them took in the truck is a route traced by weekend employees with regularity: because fewer employees work on the weekends, they must travel back and forth more frequently between the two facilities. (ECF No. 97, Ex. 1 at 40:8-22; ECF No. 95, Ex. 1 at 32:19-33:5).

Thus, the two men were using the employer’s property, on the employer’s campus, with the employer’s permission, to better facilitate one employee’s chores. Quite plainly, this compels the conclusion that Plaintiff and Mr. Dingledine were performing a task “in the course of” their employment or that “arose out of” their employment.

This conclusion, that Plaintiff was in the scope of his employment, aligns with other decisions by Ohio courts in similar circumstances. In a case about whether an employee’s injuries were compensable – that is, the narrower standard – one court held that an injury “is compensable if it is sustained by an employee while that employee engages in activity that is consistent with the contract for hire and logically related to the employer’s business.” Ruckman v. Cubby Drilling, Inc., 1998-Ohio-455, 81 Ohio St. 3d 117, 120 (citing Kohlmayer v. Keller (1970), 24 Ohio St. 2d 10, 12). Plaintiff’s actions on June 10, 2016 were “consistent with the contract for hire and logically related to the employer’s business” because he was using company property, company time, and company instrumentalities with the permission of his supervisor to perform a task that would improve the productivity of a colleague. It was also a task performed frequently by Plaintiff’s colleagues.

The fact that the collision took place on a public highway and not on Select Sires property is not material because Ohio courts have found employees to be within the scope of their employment on public property – even where those employees were performing tasks more remote to their “contract for hire” than the tasks Plaintiff was performing here. One such employee was “returning following a lunch break” when she was “injured while crossing a public street that separates her job site from an employer-owned and -controlled parking lot…” Brunney v. Connor, 7 Ohio App. 3d 246, 247 (1982). The Court of Appeals held that Ms. Brunney was “injured in the course of and arising out of her employment.” Id. By contrast, Plaintiff was still on the clock and on duty and going from one of his employer’s facilities to another facility.

*5 Alpont makes a few other arguments that are also unpersuasive. Many of the cases Alpont cites discuss whether an employee qualifies for worker’s compensation – where the employee must prove both prongs – rather than discussing an employer’s immunity, which requires only one of the two prongs. However, the arguments are unavailing for further reasons.

First, Alpont argues that to be in the scope of their employment, an employee must be performing a required duty. (ECF No. 99 at 4). This argument fails for a few reasons. Alpont has not suggested any limiting principle or method to distinguish this fact pattern and, taken to its logical extension, this argument would wipe out the entire system of workers’ compensation. Any accident or incident that occurs because of negligence would necessarily not be in the scope of employment under this definition, because that careless act could never be a required duty. Put another way, if an employee gets her hand stuck in her employer’s machinery, she could never be determined to be in the scope of her employment because it was not a required duty that she get her hand stuck.

But more concretely, this interpretation of the requirements is directly at odds with the case law. To be eligible for compensation – that is, to meet the narrower standard – a employee “need not necessarily be injured in the actual performance of work for his employer.” Sebek v. Cleveland Graphite Bronze Co. (1947), 148 Ohio St. 693. Rather, citing Kohlmayer, supra, the court concluded that the “injury is compensable if it is sustained” during an “activity that is consistent with the contract for hire and logically related to the employer’s business.” Ruckman, supra. If this is so for the stricter and narrower test of determining compensation, it must be so for the broader test of determining employer immunity.

Alpont next argues that the only reason the two men were driving the truck was because it would take a long time for them to get to the other facility on foot. Therefore, Alpont argues, the incident could not have occurred within “close proximity to Plaintiff’s actual employment.” (ECF No. 99 at 6). This argument also fails. Alpont is citing the Lord factors, which help a court determine whether there is a “sufficient causal connection to justify the injured party’s right to participate in the Worker’s Compensation Fund.” Lord v. Daugherty, 66 Ohio St. 441, 444, 423 N.E. 2d 96, 98 (1981). As above, whether an injured employee is owed compensation is a different, narrower standard from the determination of whether an employer is immune to third-parties. Therefore, the Lord test is not on all fours with the question at bar.

But even assuming, arguendo, that this Court should be concerned with the Lord factors – proximity, degree of control by the employer over the scene of the accident, and the benefit the employer received from the injured employee’s presence – Alpont still misapplies the test. Plaintiff did not cease to be “proximate” to his place of employment merely because the errand would take a stretch of time. Plaintiff and Mr. Dingledine would still be proximate to their employment even if they were walking from one facility to another because their walk would be on Select Sires property except for the brief interval in which they crossed Rt. 42. Indeed, the depositions establish that the weekend crews moved between facilities regularly. (ECF No. 97, Ex. 1 at 40:8-22; ECF No. 95, Ex. 1 at 32:19-33:5). If a person domiciled in the State of Ohio decides to walk across the state, she would still be proximate to her place of citizenship even if the walk would take her several days. The mere fact that the errand would take several minutes does not mean that Mr. Dingledine and Plaintiff were not “proximate” to their place of employment – and again, that assumes this Court should be applying the Lord factors in the first place.

*6 Third, Alpont argues that Plaintiff “must prove that a risk ‘specifically associated’ with his employment caused that pain.” (ECF No. 99 at 7) (citing Dailey v. AutoZone, Inc., 2000 Ohio App. LEXIS 4574 at *7). Again, Dailey is a case about whether an employee may claim worker’s compensation, not a case about whether an employer is immune. But, assuming arguendo that Dailey and similar cases are on point, this argument still fails. Plaintiff’s efforts to retrieve the rollers from Rt. 42 could not “easily have occurred at home, or any other place other than work.” Dailey, at *7. Instead, as detailed above, Plaintiff was driving a company vehicle on company property with his supervisor’s permission, helping a colleague collect a part of the equipment he uses at work. When the rollers – also company property – fell on to the public highway, Plaintiff made an effort to retrieve this property. Unlike the back injury in Dailey or the arm injury in Robinson v. Connor, 1985 Ohio App. LEXIS 8265, which Alpont also cites, Plaintiff could only have found himself in this situation at work.

Finally, Alpont argues that Select Sires has failed to respond to the argument that Select Sires is liable for property damage, increased insurance premiums, attorney’s fees, and other damages enumerated in Count II of Alpont’s Third-Party Complaint. (ECF No. 99 at 3). Therefore, Alpont concludes, Select Sires has waived this argument. This conclusion misreads the Ohio Workers’ Compensation statute. The relevant provision says that complying employers “shall not be liable to respond in damages for any injury…”. O.R.C. § 4123.74 (emphasis added). Alpont’s requests for fees and damages associated with increased premiums or property damages are, quite plainly, a request for Select Sires to “respond in damages for an[ ] injury.” For the reasons above – and as articulated by Select Sires in their brief – Select Sires is immune to such requests. This conclusion accords with recent decisions by other courts in this district. See Mitchell v. Michael Weinig, Inc., 2018 WL 4051826 (S.D. Ohio 2018) at *7 (quoting Hehman v. Maxim Crane Works, 2010 WL 3002383 at *6) (finding that the immunity granted complying employers “extends to attorney fees and costs arising from damages,” and that the complying employer cannot be compelled to pay “costs and attorneys’ fees incurred in bringing [the] third-party claims against [it]”). Accordingly, the argument is not waived – but rather addressed through Select Sires’s argument that it is a complying, and immune, employer – and Alpont’s claim must fail.

For these reasons, the incident occurred while Plaintiff was in the course of his employment or performing a duty that arose out of his employment such that Select Sires is, by statute, immune from Alpont’s requests for indemnity or contribution. As to this Count, Select Sires’s Motion is GRANTED.

B. Employer’s Intentionally Tortious Acts
Alpont’s second count is for respondeat superior, alleging that Select Sires is vicariously liable for the negligence of its employees or agents. As this Court discussed in its Opinion & Order denying Select Sires’s Motion to Dismiss (ECF No. 104), this issue is unnecessarily complicated by the similarity in terminology between the workers’ compensation standards (“scope of employment”) and the tort liability standards (“scope of employment.”). In § III.A, supra, where this Court used the phrase “scope of employment,” it was with reference to the former. And this Court need not continue to complicate the question by using the phrase with reference to the tort standard because Select Sires’s Motion is GRANTED.

Workers’ compensation is not always the only remedy for an employee injured on the job. An employee may also sue their employer in tort. By definition, “an employer’s intentional conduct does not arise out of employment,” and so cannot “bestow upon employers immunity from civil liabilities for their intentional torts and an employee may resort to a civil suit for damages.” Blankenship v. Cincinnati Milacron Chems. Inc., 69 Ohio App. 2d. 608, 613 (1982). In Ohio, an employee seeking to raise such a claim against her employer faces a high barrier, because Ohio “is one of only eight states that have judicially adopted a ‘substantial certainty’ standard for employer intentional torts.” Talik v. Fed. Marine Terminals, Inc., 2008-Ohio-937 at ¶ 32 (citing 6 Larson’s Worker’s Compensation Law (2007) 103-10, Section 103.04). Accordingly, the employee’s claim will fail if she alleges “accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting injury.” Kaminski v. Metal & Wire Prods. Co., 2010-Ohio-1027 at ¶ 100 (quoting Larson’s (2008), Section 103.01).3

*7 Mr. Binger could not, and does not, make such an allegation against his employer. There is nothing in the record to suggest that anyone at Select Sires had as their purpose the intent to inflict injury sufficient to “rob[ ] the injury of accidental character.” Alpont argues that there is “a flood of evidence to the contrary,” tending to suggest there was a deliberate intent to injure. (ECF No. 99 at 10). But then Alpont recites a series of allegations that do not support an accusation of deliberate intent to injure. See e.g. ECF No. 99 at 11 (arguing, “the truck was also maintained at Select Sires and thus, Select Sires had knowledge of the broken tailgate.”). Because Mr. Binger could not maintain a claim against his employer for such an intentional tort, neither may the third-party Alpont maintain such a claim. If Select Sires lacked the intent to injure Mr. Binger or his colleagues, Select Sires certainly lacked the intent to injure Alpont, Mr. Miller, or anyone else happening across Rt. 42 that afternoon. Because there is no genuine dispute, Select Sires’s Motion is granted.

C. Constitutionality
Alpont also argues that the workers’ compensation system is unconstitutional as applied. Workers’ compensation is a bargained-for exchange, where the employer and the employee both surrender certain rights in exchange for certain privileges. Alpont argues that this system is unconstitutional as applied to third parties because third parties are not privy to this quid pro quo bargain.

Ohio courts have repeatedly found the employer immunity provision of the workers’ compensation system to be constitutional, under both the Ohio and United States Constitutions. See e.g. Davis, 2 Ohio App. at 476; Williams, 52 Ohio App. at 86. When this Court sits in diversity, as it does here, it sits as an Ohio court, applying Ohio’s law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). This Court is constrained to act as “only another court of the State.” Guar. Tr. Co. v. York, 326 U.S. 99, 108 (1945). Following these other courts, and lacking any reason not to, this Court declines to find the employer immunity provision to be unconstitutional.

Alpont cites decisions by state courts in Florida and Minnesota for the proposition that the workers’ compensation scheme is unconstitutional as applied to third parties. (ECF No. 99 at 17). Alpont indicates that these state courts found the immunity provision to be unconstitutional because it violated the third-party plaintiff’s right to access courts and to equal protection. See Carson v. Smogard, 215 N.W. 2d. 615 (Minn. 1974); Sunspan Eng’r Constr. Co. v. Spring-Lock Scafolding Co., 310 So.2d 4 (Fla. 1975). Alpont argues that because those state court decisions were based on both the United States and the state Constitutions, this Court could conclude that Ohio’s immunity provision similarly violates the United States Constitution. Ordinarily, this Court would not find decisions by courts in other states interpreting their state constitutions to be especially persuasive, to say nothing of precedential. In addition, as a threshold matter, this Court would first be required to discern similarities between the Ohio workers’ compensation scheme and immunity provision and the schemes in Florida and Minnesota which those courts reviewed. Discerning the nuances of those schemes and their similarities, or differences, to the Ohio program is beyond the purview of this Court, especially when – as here – this Court sits in diversity.

This Court is constrained to follow the lead of Ohio courts on this question. Alpont cites no authority to indicate that Ohio courts have any doubt about the constitutionality of the workers’ compensation scheme or the immunity provision. Indeed, to the contrary, the cases indicate that courts routinely give the immunity provision an expansive reading. Acting “only another court of the State,” this Court therefore declines to find the scheme unconstitutional as applied to third parties.

IV. CONCLUSION
For the foregoing reasons, and because there is no genuine dispute of material fact, Third-Party Defendant Select Sires’s Motion for Summary Judgment is GRANTED.

*8 IT IS SO ORDERED.
s/Algenon L. Marbley

ALGENON L. MARBLEY

United States District Judge

Dated: July 25, 2019
All Citations
Slip Copy, 2019 WL 3349775

Footnotes

1
The depositions use the proper names of the two Select Sires facilities (Kellgren and Hecker). However, the depositions also frequently describe “(indicating)” on the part of the deponent. See e.g. ECF No. 75 (Dingledine deposition) at 14:15-15:25 (“Q: What goes on over here? A: This is the Kellgren facility. (Indicating). Q. Okay. A: This is the Hecker facility. (Indicating).”). As a result, this Court could infer which facility is which from the context, but this Court was not presented with the complete and detailed map of the premises that was apparently put together during the depositions. As a result, and for simplicity, this Court will instead describe the buildings by the relative positions they occupy.
The incident in question occurred in the north-bound lane of Rt. 42 which runs between the two Select Sires facilities. When Dingledine requested to retrieve his gloves, he and Plaintiff were in the facility on the east side of Rt. 42 – that is, the facility adjacent to the north-bound lane. The gloves were in the facility on the west side of Rt. 42 – that is, the facility adjacent to the south-bound lane. The two men took the truck from the east side to the west, and then crossed back to the east, and the collision occurred in the north-bound lane as they crossed back to the east.

2
The difference between the conjunctive standard and the disjunctive standard means there is a gap where the employee is determined not to be eligible for compensation (because she cannot meet both elements) but the employer is nevertheless determined to be immune (because it meets one of the two elements). A determination that the employee is not eligible for compensation does not preclude the employer’s immunity, in a further indication of how broadly courts read the statute to provide immunity to qualifying employers. See Saunder v. Holzer Hosp. Found., 2008-Ohio-1032 ¶ 14.

3
Larson’s goes on to reason that even if the alleged conduct “includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering employees to perform an extremely dangerous job, wilfully [sic] failing to furnish a safe place to work, wilfully [sic] violating a safety statute, failing to protect employees from crime, refusing to respond to an employee’s medical needs and restrictions, or withholding information about worksite hazards, the conduct still falls short of actual intention to injure that robs the injury of accidental character.” (quoted in Kaminski ¶ 100, n. 16).

2019 WL 3309167

Court of Appeals of South Carolina.
Price OULLA and Bonnie Oulla, Appellants,
v.
Lisa VELAZQUES; Harbison Community Association, Inc.; Cody Sox; and Patten Seed Company d/b/a Super-Sod; Defendants,
Of which Patten Seed Company d/b/a Super-Sod is the Respondent.
Appellate Case No. 2017-000052
|
Opinion No. 5668
|
Heard June 5, 2019
|
Filed July 24, 2019
Appeal From Orangeburg County, R. Knox McMahon, Circuit Court Judge, James B. Jackson, Jr., Circuit Court Judge
Attorneys and Law Firms
William E. Applegate, IV, David Breault Lail, and Christopher James Bryant, all of Yarborough Applegate, LLC, of Charleston, for Appellants.
Charles H. Williams, of Williams & Williams, of Orangeburg; and Edward Raymond Moore, III, Wesley Brian Sawyer, and Rogers Edward Harrell, III, all of Murphy & Grantland, PA, of Columbia; for Respondent.
Opinion

THOMAS, J.:

*1 In this civil action arising from an automobile accident, Price Oulla and Bonnie Oulla (collectively, the Oullas) appeal the circuit court’s order granting Patten Seed Company’s d/b/a Super-Sod (Super-Sod) motion for summary judgment. On appeal, the Oullas argue the circuit court erred in finding (1) the loader of a vehicle did not owe a duty under section 56-5-4100 of the South Carolina Code (2018) to ensure the load did not escape the vehicle and (2) the loader of a vehicle that travelled on a public highway did not owe a common-law duty to third-party drivers on public highways to ensure the load did not escape the vehicle. Further, the Oullas argue the circuit court erred in denying their motion to amend their complaint. We affirm.

FACTS/PROCEDURAL HISTORY
In July 2014, Harbison Community Association (Harbison) ordered two pallets of sod from Super-Sod for a landscaping project. On July 22, 2014, Harbison sent two employees—Cody Sox and Corey Branham—to pick up the sod from Super-Sod’s location in Orangeburg. Sox and Branham drove a Harbison maintenance truck with a double-axle flatbed trailer from Columbia to Orangeburg to get the sod. They arrived at Super-Sod’s location, completed the purchase, and drove to the sod loading site.

Prior to loading the pallets onto the trailer, Melvin Kearse, a Super-Sod employee working at the loading area, wrapped the sod using plastic wrap. Sox directed Kearse to load the pallets onto the flatbed trailer with one pallet placed in front of the double-axle and the other pallet behind it. Using a forklift, Kearse loaded the pallets onto the trailer as directed. Sox and Branham inspected the trailer, checked the hitch, ensured the load was balanced, and confirmed the trailer bed was clean and free of debris. Although Sox intended to bring straps to tie down the pallets, he and Branham forgot to bring them. Sox asked if Super-Sod had any straps they could use, but he was told Super-Sod did not have any. Sox then decided to leave Super-Sod’s property and drive back to Columbia without tying down or otherwise securing the pallets.

Sox and Branham drove for a short period of time without incident before taking a cloverleaf onramp to westbound Interstate 26 (I-26). Sox successfully exited the onramp and merged into the right-hand lane of the interstate highway. However, shortly after merging onto the highway, a blue tractor-trailer veered into Sox’s lane, forcing him to take evasive action. Sox swerved into the shoulder of the interstate to avoid the tractor-trailer. Sox felt the flatbed trailer sway and decided to pull over onto the side of the interstate. When he stopped, Sox noticed the plastic wrap on one of the pallets had torn and approximately half of a pallet of sod had fallen off the back of the trailer. Although none of the sod struck any vehicles, much of it fell into the right-hand lane and forced traffic to the left-hand lane.

Sox called 911 and the operator dispatched a fire engine and a fire truck. When fire department personnel arrived at the scene, they blocked the right-hand lane of traffic while they removed the sod from the roadway. After they removed the sod, the firemen moved the fire truck off to the side of the road and reopened the right-hand lane for travel. Shortly afterward, fire department personnel received reports of an accident where traffic was still backed up. Price Oulla had been driving west on I-26 and had come to a stop due to the traffic congestion in the area. After Oulla stopped, Lisa Velazques drove into the back of his vehicle at a high rate of speed, causing injuries and damage to both vehicles.

*2 On December 31, 2014, the Oullas filed a complaint for negligence against Velazques, Harbison, Sox, and Super-Sod. On May 5, 2016, Super-Sod filed a motion for summary judgment, arguing it did not owe a duty of care to the Oullas and even if it did owe a duty, its conduct did not proximately cause the accident. Approximately thirty minutes prior to the hearing on Super-Sod’s motion for summary judgment on June 29, 2016, the Oullas filed a motion to amend their complaint pursuant to Rule 15, SCRCP. The proposed amended complaint included a reference to section 56-5-4100 as a basis for the Oullas’ claim that Super-Sod owed them a duty of care and added a cause of action for breach of an implied warranty of merchantability. The Oullas argued against Super-Sod’s motion but did not notify the circuit court they filed the motion to amend, move for a continuance, or object to the summary judgment hearing proceeding as scheduled.

At the hearing, the Oullas argued section 56-5-4100 imposed a legal duty on Super-Sod to secure its customers’ vehicles and trailers and that duty extended to members of the traveling public. Additionally, the Oullas argued Super-Sod owed them a duty of care under common law principles. Super-Sod argued it had no legal duty to the Oullas under the statute or otherwise and its conduct was not the proximate cause of the Oullas’ injuries. The circuit court granted Super-Sod’s motion for summary judgment, finding Super-Sod did not owe the Oullas a duty of care under section 56-5-4100 or the common law, and even if it did, Super-Sod’s conduct was not the proximate cause of the accident.

The Oullas filed a motion to reconsider under Rule 59(e), SCRCP, which the circuit court denied. The Oullas filed a notice of appeal. While the appeal was pending, the Oullas filed a motion for relief from judgment pursuant to Rule 60(b), SCRCP. In their motion, the Oullas argued the circuit court failed to rule on their motion to amend their complaint. Further, the Oullas argued that although their motion was made pursuant to Rule 60(b), it should be considered under the more lenient standard of Rule 15.

The circuit court denied the Oullas’ motion for relief from judgment, finding the Oullas failed to show any mistake, inadvertence, or excusable neglect sufficient to award relief under Rule 60(b). Further, the circuit court stated that even if the motion was considered under the more lenient standard of Rule 15, the Oullas’ motion would still fail because adding the claim for breach of warranty of merchantability would unfairly prejudice Super-Sod and the amendment alleging a duty of care under section 56-5-4100 would be futile in light of the circuit court’s prior grant of summary judgment on that issue. This appeal followed.

LAW/ANALYSIS

I. Motion to Amend the Complaint
The Oullas argue the circuit court abused its discretion by denying their motion to amend under Rule 60(b) because the circuit court should have considered their motion to amend under Rule 15 instead of Rule 60(b). We disagree.

A denial of a motion to amend under Rule 15 or a motion under Rule 60(b) is within the sound discretion of the circuit court. See Bowman v. Bowman, 357 S.C. 146, 151, 591 S.E.2d 654, 656 (Ct. App. 2004) (holding a Rule 60(b) motion is subject to abuse of discretion review); Sullivan v. Hawker Beechcraft Corp., 397 S.C. 143, 153, 723 S.E.2d 835, 840 (Ct. App. 2012) (holding a Rule 15 motion is subject to abuse of discretion review). Because both motions are subject to the sound discretion of the circuit court, they “will rarely be disturbed on appeal. The [circuit court’s] finding will not be overturned without an abuse of discretion or unless manifest injustice has occurred.” Sullivan, 397 S.C. at 153, 723 S.E.2d at 840 (quoting Berry v. McLeod, 328 S.C. 435, 450, 492 S.E.2d 794, 802 (Ct. App. 1997)). “An abuse of discretion occurs when the [circuit court]’s ruling is based upon an error of law or, when based upon factual conclusions, is without evidentiary support.” Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987).

*3 Under Rule 15(a), SCRCP:
A party may amend his pleading once as a matter of course at any time before or within 30 days after a responsive pleading is served or, if the pleading is one to which no responsive pleading is required and the action has not been placed upon the trial roster, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires and does not prejudice any other party.
However, pursuant to Rule 60(b), SCRCP:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
….
“In determining whether to grant relief under Rule 60(b)(1), the court must consider the following factors: ‘(1) the promptness with which relief is sought; (2) the reasons for the failure to act promptly; (3) the existence of a meritorious defense; and (4) the prejudice to the other party.’ ” Rouvet v. Rouvet, 388 S.C. 301, 309, 696 S.E.2d 204, 208 (Ct. App. 2010) (quoting Mictronics, Inc. v. S.C. Dep’t of Revenue, 345 S.C. 506, 510–11, 548 S.E.2d 223, 226 (Ct. App. 2001)).

No published South Carolina opinion states whether a post-judgment motion to amend should be considered using the standards of Rule 15 or Rule 60(b). However, South Carolina rules are similar to the federal rules. According to the commenters on the federal rules:
Although Rule 15(a)(2) [of the Federal Rules of Civil Procedure] vests the [trial court] with virtually unlimited discretion to allow amendments by stating that leave to amend may be granted when “justice so requires,” there is a question concerning the extent of this power once a judgment has been entered or an appeal has been taken. Most courts faced with the problem have held that once a judgment is entered the filing of an amendment cannot be allowed until the judgment is set aside or vacated under Rule 59 or Rule 60. The party may move to alter or amend the judgment within 28 days after its entry under Rule 59(e) or, if the motion is made after that 28-day period has expired, it must be made under the provisions in Rule 60(b) for relief from a judgment or order. This approach appears sound. To hold otherwise would enable the liberal amendment policy of Rule 15(a) to be employed in a way that is contrary to the philosophy favoring finality of judgments and the expeditious termination of litigation. Furthermore, the drafters of the rules included Rules 59(e) and 60(b) specifically to provide a mechanism for those situations in which relief must be obtained after judgment and the broad amendment policy of Rule 15(a) should not be construed in a manner that would render those provisions meaningless.
6 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1489 (3d ed. 2010) (footnotes omitted). The majority of federal courts and courts in other jurisdictions agree with this view and have held that if a party seeks to amend a complaint after judgment, the party must first satisfy the more stringent Rule 59(e) or 60 standard before the court will evaluate the proposed amendment under the more liberal Rule 15 standard to amend complaints.1 However, a minority of courts, including the Fourth Circuit Court of Appeals, have held courts considering whether to grant a motion to amend after the entry of a final judgment should apply the more lenient standard of Rule 15 and not the standards of Rule 59 or 60.2

*4 Initially, we find the majority view applying Rule 60(b)’s more stringent standard before allowing a postjudgment motion to amend to be considered under Rule 15 favorable for the same reasons listed in section 1489 of Federal Practice & Procedure. See Wright and Miller, supra, § 1489 (stating the practice of requiring a movant’s postjudgment motion to amend to meet the standards of Rule 60(b) before considering the motion under Rule 15 favors finality of judgments, expeditious termination of litigation, and prevents the standards of Rule 60(b) from being rendered meaningless by Rule 15).

Turning to the present case, we find the circuit court did not abuse its discretion in denying the Oullas’ motion to amend their complaint. See Sullivan, 397 S.C. at 153, 723 S.E.2d at 840 (“The [circuit court’s] finding will not be overturned without an abuse of discretion or unless manifest injustice has occurred.” (quoting Berry, 328 S.C. at 450, 492 S.E.2d at 802)). The circuit court found the Oullas failed to establish any mistake, inadvertence, surprise, or excusable neglect sufficient to grant their motion for relief under Rule 60(b)(1). Specifically, the circuit court found the Oullas failed to properly raise the issue of the pending motion to amend to the circuit court before it ruled on Super-Sod’s motion for summary judgment. We agree.

Although the Oullas filed their motion to amend with the clerk of court on the day of the hearing on Super-Sod’s motion for summary judgment, they failed to bring it to the circuit court’s attention until well after the circuit court filed its order granting Super-Sod’s motion for summary judgment. Additionally, in their motion to amend, the Oullas failed to point to any reason for their failure to bring this to the circuit court’s attention and relied on the circuit court’s lack of action on their motion as a ground for mistake, inadvertence, surprise, or excusable neglect. Further, the circuit court found the proposed amended complaint, specifically the claim for breach of warranty, would prejudice Super-Sod due to the lack of timeliness in raising the claim. We find the Oullas’ failure to promptly bring the motion to amend to the circuit court’s attention, lack of an explanation why they failed to bring this to the circuit court’s attention, and the potential prejudice the late amendment of their complaint would cause Super-Sod are all factors the circuit court considered in deciding to deny the Oullas’ motion. See Fontaine, 291 S.C. at 538, 354 S.E.2d at 566 (“An abuse of discretion occurs when the [circuit court]’s ruling is based upon an error of law or, when based upon factual conclusions, is without evidentiary support.”); Rouvet, 388 S.C. at 309, 696 S.E.2d at 208 (“In determining whether to grant relief under Rule 60(b)(1), the court must consider the following factors: ‘(1) the promptness with which relief is sought; (2) the reasons for the failure to act promptly; (3) the existence of a meritorious defense; and (4) the prejudice to the other party.’ ” (quoting Microtronics, Inc., 345 S.C. at 510–11, 548 S.E.2d at 226)). Accordingly, we find the circuit court did not abuse its discretion in denying the Oullas’ motion pursuant to Rule 60(b).

II. Duty of a Loader

A. Standard of Review
“When reviewing a grant of summary judgment, the appellate court applies the same standard applied by the [circuit] court pursuant to Rule 56(c), SCRCP.” Hansson v. Scalise Builders of S.C., 374 S.C. 352, 354, 650 S.E.2d 68, 70 (2007). “Summary judgment is appropriate when ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. at 354–55, 650 S.E.2d at 70 (quoting Rule 56(c), SCRCP). “When determining if any triable issues of fact exist, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party.” Id. at 355, 650 S.E.2d at 70.

*5 “To prevail on a theory of negligence, the plaintiff must establish three elements: (1) that defendant owed a plaintiff a duty of care; (2) that by some act or omission, defendant breached that duty; and (3) that as a proximate result of the breach, the plaintiff suffered damage.” Staples v. Duell, 329 S.C. 503, 506, 494 S.E.2d 639, 641 (Ct. App. 1997). As an initial matter, “[t]he court must determine, as a matter of law, whether the law recognizes a particular duty. If there is no duty, then the defendant in a negligence action is entitled to a judgment as a matter of law.” Simmons v. Tuomey Reg’l Med. Ctr., 341 S.C. 32, 39, 533 S.E.2d 312, 316 (2000). “Whether the law recognizes a particular duty is an issue of law to be determined by the court.” Ellis v. Niles, 324 S.C. 223, 227, 479 S.E.2d 47, 49 (1996). “An affirmative legal duty exists only if created by statute, contract, relationship, status, property interest, or some other special circumstance.” Hendricks v. Clemson Univ., 353 S.C. 449, 456, 578 S.E.2d 711, 714 (2003). “Determining the proper interpretation of a statute is a question of law, and [the appellate court] reviews questions of law de novo.” Town of Summerville v. City of N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008).

B. Statutory Duty
The Oullas argue the circuit court erred in granting Super-Sod’s motion for summary judgment because section 56-5-4100 imposes a duty on the loader of a vehicle to secure a load of a vehicle traveling on public roads. The Oullas rely on the language of subsection (C), which they assert requires the loader of the vehicle to comply with the other provisions of 56-5-4100 and therefore, imposes a duty on the loader of a vehicle to ensure the load is secure. We disagree.

Under section 56-5-4100 of the South Carolina Code (2018):
(A) No vehicle may be driven or moved on any public highway unless the vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking, or otherwise escaping from the vehicle, except that sand, salt, or other chemicals may be dropped for the purpose of securing traction, and water or other substance may be sprinkled on a roadway in the cleaning or maintaining of the roadway by the public authority having jurisdiction.
(B) Trucks, trailers, or other vehicles when loaded with rock, gravel, stone, or other similar substances which could blow, leak, sift, or drop must not be driven or moved on any highway unless the height of the load against all four walls does not extend above a horizontal line six inches below their tops when loaded at the loading point; or, if the load is not level, unless the height of the sides of the load against all four walls does not extend above a horizontal line six inches below their tops, and the highest point of the load does not extend above their tops, when loaded at the loading point; or, if not so loaded, unless the load is securely covered by tarpaulin or some other suitable covering; or unless it is otherwise constructed so as to prevent any of its load from dropping, sifting, leaking, blowing, or otherwise escaping from the vehicle. This subsection also includes the transportation of garbage or waste materials to locations for refuse in this State.
(C) The loader of the vehicle and the driver of the vehicle, in addition to complying with the other provisions of this section, shall sweep or otherwise remove any loose gravel or similar material from the running boards, fenders, bumpers, or other similar exterior portions of the vehicle before it is moved on a public highway.
Additionally, South Carolina law provides that “No person shall operate on any highway any vehicle with any load unless such load and any covering thereon is securely fastened so as to prevent such covering or load from becoming loose, detached[,] or in any manner a hazard to other users of the highway.” S.C. Code Ann. § 56-5-4110 (2018).

*6 “The primary rule of statutory construction is to ascertain and give effect to the intent of the General Assembly.” Beaufort Cty. v. S.C. State Election Comm’n, 395 S.C. 366, 371, 718 S.E.2d 432, 435 (2011). “[Our supreme court] has held that a statute shall not be construed by concentrating on an isolated phrase.” Id. “[I]t is well settled that statutes dealing with the same subject matter are in pari materia and must be construed together, if possible, to produce a single, harmonious result.” Id. “When the language of a statute is plain, unambiguous, and conveys a clear and definite meaning, the application of standard rules of statutory interpretation is unwarranted.” Tilley v. Pacesetter Corp., 355 S.C. 361, 373, 585 S.E.2d 292, 298 (2003) (quoting State v. Benjamin, 341 S.C. 160, 163, 533 S.E.2d 606, 607 (Ct. App. 2000)). “In such circumstances, [the appellate c]ourt simply lacks the authority to look for or impose another meaning and may not resort to subtle or forced construction in an attempt to limit or expand a statute’s scope.” Id. (quoting Benjamin, 341 S.C. at 163, 533 S.E.2d at 607).

We find the circuit court did not err in granting Super-Sod’s motion for summary judgment because section 56-5-4100 does not impose a duty on the loader of a vehicle to ensure the load on the vehicle is secure. See Hansson, 374 S.C. at 354–55, 650 S.E.2d at 70 (“Summary judgment is appropriate when ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” (quoting Rule 56(c), SCRCP)); Ellis, 324 S.C. at 227, 479 S.E.2d at 49 (“Whether the law recognizes a particular duty is an issue of law to be determined by the court.”). We find section 56-5-4100 only places a duty on the operator of a vehicle not to drive or move a vehicle on a public highway unless the vehicle is constructed or loaded in a way to prevent its load from escaping the vehicle. The statute states: “No vehicle may be driven or moved on any public highway unless the vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking or otherwise escaping from the vehicle.” § 56-5-4100(A) (emphasis added). Additionally, subsection (B) also includes language prohibiting “trucks, trailers, or other vehicles” from being “driven or moved on any public highway” when loaded unless they are in compliance with certain safety regulations. § 56-5-4100(B) (emphasis added). Further, the next section in the Code requires that an operator must make sure the load is secured: “No person shall operate on any highway any vehicle with any load unless such load and any covering thereon is securely fastened so as to prevent such covering or load from becoming loose, detached or in any manner a hazard to other users of the highway.” § 56-5-4110 (emphasis added). We find these statutes and subsections, when read together, indicate the Legislature intended only to place a duty on the operator of a vehicle to refrain from driving or moving a vehicle on a public highway unless the load is secured. See Beaufort Cty., 395 S.C. at 371, 718 S.E.2d at 435 (“The primary rule of statutory construction is to ascertain and give effect to the intent of the General Assembly.”); id. (“[I]t is well settled that statutes dealing with the same subject matter are in pari materia and must be construed together, if possible, to produce a single, harmonious result.”). Interpreting section 56-5-4100(C) as imposing a duty on the loader of the vehicle to ensure the load is secured, other than clearing the vehicle of debris as mandated by the subsection, would result in a forced construction that would improperly expand the statute’s scope. See § 56-5-4100(C) (“The loader of the vehicle and the driver of the vehicle, in addition to complying with the other provisions of this section, shall sweep or otherwise remove any loose [debris from various] exterior portions of the vehicle before it is moved on a public highway.”); Tilley, 355 S.C. at 373, 585 S.E.2d at 298 (“In such circumstances, [the appellate c]ourt simply lacks the authority to look for or impose another meaning and may not resort to subtle or forced construction in an attempt to limit or expand a statute’s scope.” (quoting Benjamin, 341 S.C. at 163, 533 S.E.2d at 607)). Accordingly, we find section 56-5-4100 does not impose a duty on the loader of a vehicle to ensure the load is secured.

C. Common-Law Duty
*7 The Oullas argue the circuit court erred in granting Super-Sod’s motion for summary judgment because Super-Sod owed them a common-law duty to ensure the load was secured. Specifically, the Oullas contend that because an improperly secured load on a trailer presents a foreseeable risk of harm to other drivers traveling on public highways, Super-Sod owed them a duty to properly secure the load once it undertook the service of wrapping the pallets of sod and loading them onto the Harbison vehicle’s trailer. We disagree.

South Carolina has adopted section 323 of the Restatement (Second) of Torts. See Johnson v. Robert E. Lee Acad., Inc., 401 S.C. 500, 504–05, 737 S.E.2d 512, 514 (Ct. App. 2012). Under that section:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s 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 upon the undertaking.
Restatement (Second) of Torts § 323 (1965). Accordingly, a party may incur liability if that party undertakes an obligation to another. See Johnson, 401 S.C. at 505, 737 S.E.2d at 514.

Section 324A of the Restatement (Second) of Torts (1965) extends liability for those who render services to another to foreseeable third parties. The section states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965). In contrast to section 323, South Carolina has specifically rejected section 324A. See Miller v. City of Camden, 329 S.C. 310, 315 n.2, 494 S.E.2d 813, 815 n.2 (1997) (“We decline to adopt the expanded liability of Restatement 2d of Torts § 324A (1965).”).

“Foreseeability of injury, in the absence of a duty to prevent that injury, is an insufficient basis on which to rest liability.” S.C. State Ports Auth. v. Booz-Allen & Hamilton, Inc., 289 S.C. 373, 376, 346 S.E.2d 324, 325 (1986). “Foreseeability itself does not give rise to a duty.” Id.

We find the circuit court did not err in finding Super-Sod did not owe the Oullas a duty of care under the common law. See Ellis, 324 S.C. at 227, 479 S.E.2d at 49 (“Whether the law recognizes a particular duty is an issue of law to be determined by the court.”). We find Super-Sod did not assume a duty to the Oullas because Kearse merely placed the pallets of sod on the trailer as Sox directed. Holding Super-Sod assumed the duty of ensuring the pallets were properly secured to the trailer by merely placing the pallets on the trailer as its customer directed would extend the concept of duty in tort liability beyond reasonable limits. See Huggins v. Citibank, N.A., 355 S.C. 329, 333, 585 S.E.2d 275, 277 (2003) (“The concept of duty in tort liability will not be extended beyond reasonable limits.”). If Super-Sod assumed a duty, that duty was to Harbison, not to the Oullas or other third parties. See Johnson, 401 S.C. at 505, 737 S.E.2d at 514 (finding a party may incur liability if that party undertakes an obligation to another party and adopting the view of the Restatement (Second) of Torts § 323). Although it was likely foreseeable the pallets of sod were a danger to other drivers, such as the Oullas, if they were not properly secured, our supreme court has rejected the idea that one who undertakes a duty to render services to another should recognize a duty to third persons. See Miller, 329 S.C. at 315 n.2, 494 S.E.2d at 816 n.2 (“We decline to adopt the expanded liability of Restatement 2d of Torts § 324A (1965). This section imposes a duty on ‘one who undertakes … to render services to another which he should recognize as necessary for the protection of a third person’ and requires no actual volunteer relationship between the defendant and the third party.” (quoting Restatement (Second) of Torts § 324A)). We find the mere fact it was foreseeable an unsecured load could be a danger to the Oullas and other drivers is insufficient to impose liability on Super-Sod under the common law. See Booz-Allen & Hamilton, Inc., 289 S.C. at 376, 346 S.E.2d at 325 (“Foreseeability of injury, in the absence of a duty to prevent that injury, is an insufficient basis on which to rest liability.”). Accordingly, we find the circuit court did not err in finding Super-Sod did not owe the Oullas a duty of care under the common law.

*8 Because Super-Sod did not owe the Oullas a duty of care under section 56-5-4100 or under the common law, we find the Oullas failed to allege a duty sufficient to sustain a claim of negligence. See Staples, 329 S.C. at 506, 494 S.E.2d at 641 (“To prevail on a theory of negligence, the plaintiff must establish three elements: (1) that defendant owed a plaintiff a duty of care; (2) that by some act or omission, defendant breached that duty; and (3) that as a proximate result of the breach, the plaintiff suffered damage.”). Accordingly, we find Super-Sod was entitled to judgment as a matter of law. See Hansson, 374 S.C. at 354–55, 650 S.E.2d at 70 (“Summary judgment is appropriate when ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” (quoting Rule 56(c), SCRCP)); Simmons, 341 S.C. at 39, 533 S.E.2d at 316 (“The court must determine, as a matter of law, whether the law recognizes a particular duty. If there is no duty, then the defendant in a negligence action is entitled to a judgment as a matter of law.”). Therefore, we affirm the circuit court’s order granting Super-Sod’s motion for summary judgment.

CONCLUSION
Based on the foregoing, we affirm the circuit court’s orders denying the Oullas’ motion to amend pursuant to Rule 60(b) and granting Super-Sod’s motion for summary judgment.

AFFIRMED.

HUFF and KONDUROS, JJ., concur.
All Citations
— S.E.2d —-, 2019 WL 3309167

Footnotes

1
See Williams v. Citigroup Inc., 659 F.3d 208, 213 (2nd Cir. 2011); The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084, 1087 (10th Cir. 2005); Ahmed v. Dragovich, 297 F.3d 201, 207–08 (3rd Cir. 2002); Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 784 n.13 (7th Cir. 1994); Nextel Spectrum Acquisition Corp. v. Hispanic Info. & Telecomm. Network, Inc., 571 F. Supp. 2d 59, 61 (D.D.C. 2008); Chrisalis Props., Inc. v. Separate Quarters, Inc., 101 N.C.App. 81, 398 S.E.2d 628, 634 (1990); Johnson v. Bollinger, 86 N.C.App. 1, 356 S.E.2d 378, 382 (1987).

2
See Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011); Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006).