4:16-cv-02576-BHH Date Filed 10/27/17 Entry Number 43 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
C/A NO.: 4:16-cv-02576-BHH

Jane Doe-3, )
)
Plaintiff, )
) DEFENDANTS HORRY COUNTY
vs. ) AND THE HORRY COUNTY POLICE
) DEPARTMENTS MOTION FOR
Horry County, South Carolina, ) SUMMARY JDUGMENT
Horry County Police Department, )
Troy Allen Large, Saundra Rhodes, )
Scott Rutherford, Thomas Delpercio, )
William Squires, and Dale Buchanan,)
)
Defendants. )
______________________________)

Defendants, Horry County, South Carolina and Horry County Police Department, by and

through their undersigned counsel, respectfully move this court, pursuant to Rule 56 of the

Federal Rules of Civil Procedure, for an Order granting them summary judgment and dismissing

Plaintiffs claims with prejudice.

Defendants Motion for Summary Judgment is further supported by a memorandum of

law filed simultaneously herewith.

Respectfully submitted.

S/SAMUEL F. ARTHUR, III

SAMUEL F. ARTHUR, III
Aiken, Bridges, Elliott, Tyler & Saleeby, P.A.
Federal ID #7070
PO Drawer 1931
Florence, SC 29503
Telephone: 843.669.8787
Fax: 843.664.0097
SFA@AIKENBRIDGES.COM
Florence, South Carolina ATTORNEYS FOR DEFENDANTS
HORRY COUNTY AND HORRY
October 26, 2017. COUNTY POLICE DEPARTMENT

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 4:16-cv-02576-BHH Date Filed 10/27/17 Entry Number 43 Page 2 of 2

CERTIFICATE OF SERVICE
I hereby certify that the DEFENDANTS HORRY COUNTY AND HORRY COUNTY

POLICE DEPARTMENTS MOTION FOR SUMMARY JUDGMENT was filed

electronically on October 26, 2017 and is available for viewing and downloading from the ECF

system. Notice of Electronic Case Filing has been sent automatically to all parties listed in the

Service List in effect on the date of electronic filing, which constitutes service of same and

satisfies the requirements of Fed. R. Civ. P. 5(b)(2)(D). The following parties were served via

ECF:

James B. Moore, III, Esquire

Scott C. Evans, Esquire
Evans Moore, LLC
121 Screven Street
Georgetown, SC 29440

Lisa A Thomas, Esquire

Thompson & Henry, PA
P. O. Box 1740
Conway, SC 29528-1740

Bonnie T. Hunt, Esquire

Hunt Law, LLC
P.O. Box 1845
Goose Creek, SC 29445

S/SAMUEL F. ARTHUR, III

SAMUEL F. ARTHUR, III

(32421)

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 4:16-cv-02576-BHH Date Filed 10/27/17 Entry Number 43-1 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
C/A NO.: 4:16-cv-02576-BHH

Jane Doe-3, )
)
Plaintiff, )
) DEFENDANTS HORRY COUNTY
vs. ) AND THE HORRY COUNTY POLICE
) DEPARTMENTS MEMORANDUM
Horry County, South Carolina, ) IN SUPPORT OF MOTION FOR
Horry County Police Department, ) SUMMARY JUDGMENT
Troy Allen Large, Saundra Rhodes, )
Scott Rutherford, Thomas Delpercio, )
William Squires, and Dale Buchanan,)
)
Defendants. )
______________________________)

Defendants, Horry County, South Carolina and Horry County Police Department, by and

through their undersigned counsel, submit this memorandum of law in support of their motion for

summary judgment filed contemporaneously herewith.

STATEMENT OF THE CASE

This matter arises out of an action filed by Plaintiff Jane Doe-3 against Horry County and

the Horry County Police Department (hereinafter HCPD) and multiple individually named

defendants alleging negligence/gross negligence by Horry County and HCPD related to alleged

actions of former detective, Allen Large, employed by HCPD at the time of some of the alleged

inappropriate conduct at issue and 42 U.S.C. 1983 claims against the individuals. Presently

before the court is Defendants Horry County and HCPDs motion for summary judgment

pursuant to Rule 56 of the Federal Rules of Civil Procedure.

PLAINTIFFS ALLEGATIONS

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Plaintiff filed this action on June 13, 2016. Her Complaint alleges that she reported two

incidents of alleged criminal domestic violence to HCPD in 1996 and 1998 and that former

HCPD Detective, Allen Large, was involved in the investigations of both incidents. Plaintiff

further alleges she then moved away from Horry County after her estranged husband was

convicted of the CDV charges approximately two to three years later. She then alleges she

returned to Horry County in 2003 to provide care for her aging grandmother.

According to Plaintiffs Complaint, in January 2015, she was again the victim of criminal

domestic violence at the hands of her then third husband and that Large was assigned to

investigate the 2015 incident. She further alleges that throughout the winter of 2015, Large

coerced the Plaintiffs participation in nude, sexual-fetish catfights.1 Plaintiffs Complaint

further alleges Large engaged in a pattern of unwanted sexual advances towards her and that

she was coerced to participate in numerous sexual encounters against her will.2

Plaintiffs Complaint states one cause of action against Defendants Horry County and

HCPD, alleging negligence/gross negligence by Defendants in the following particulars:

a. In failing to exercise reasonable or slight care to protect Plaintiff from harm at the hands
of its personnel, agents, officers, and/or employees;

b. In failing to exercise reasonable or slight care to properly train and/or supervise its
personnel, agents, officers, and/or employees;

c. In failing to exercise reasonable or slight care to draft and/or institute proper policy and
procedure with regard to the hiring and evaluation of its police officers;

d. In failing to exercise reasonable or slight care to draft and/or institute proper policy and
procedure necessary to ensure that members of the public are safe and protected from
physical abuse and threatening behavior;

e. In failing to exercise reasonable or slight care to draft and/or institute proper policy and
procedure that would lead to the discovery of inappropriate, threatening actions by its
employees and prevent the same from occurring;

1
See Complaint at paragraph 12.
2
See Complaint at paragraph 13.

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f. In failing to exercise reasonable or slight care to make periodic and proper investigations
and take remedial action as might be necessary to prevent inappropriate and/or
threatening actions;

g. In failing to exercise reasonable or slight care to take appropriate time to follow-up,

review and/or check compliance with policy, state law and/or existing orders;

h. In failing to exercise reasonable or slight care to take steps necessary to remove, fire
and/or terminate the services of staff and/or personnel, including Detective Large, when
they had actual and/or constructive notice of his propensities;

i. In failing to exercise reasonable or slight care to properly supervise Detective Large;

j. In failing to exercise reasonable or slight care to provide Plaintiff with proper protection
from abuse (both physical and mental) at the hands of their police officer when it had
notice of their officers propensities towards inappropriate and/or abusive behavior;

k. In conducting themselves in an egregious and arbitrary manner;

l. In threatening, physically assaulting and/or abusing Plaintiff;

m. In breaching their fiduciary duty of trust with regard to Plaintiff;

n. In failing to follow and adhere to the local state and national standards, policies and
procedures including the policies and procedures of the Horry County Police Department;

o. In failing to follow and adhere to the policies and procedures of the Horry County Police
Department regarding threatening behavior;

p. In engaging in a pattern and practice of allowing and/or condoning inappropriate conduct

on behalf of Horry County police officers;

q. In failing to sufficiently monitor and supervise employees of the Horry County Police
Department;

r. In failing to have the appropriate policies and procedures in place to provide adequate
supervision;

s. In failing to exercise even slight care to protect the Plaintiff from harm.3

*****

3
See Complaint at paragraph 19.

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Defendants dispute Plaintiffs allegations and respectfully assert that the only potentially

viable claim for trial against these particular Defendants is Plaintiffs purported claim for

negligent hiring, training, and/or supervision. However, Defendants assert Plaintiff cannot

establish a prima facie claim of negligent hiring, training and/or supervision and any such claims

should be dismissed. In support of these positions, Defendants offer this memorandum of law.

SUMMARY JUDGMENT STANDARD

Summary judgment shall be granted if the moving party shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by citing to

particular parts of materials in the record or by showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of

summary judgment against a party who fails to make a showing sufficient to establish the

existence of an element essential to that partys case. Celotex Corp. v. Catrett, 477 U.S. 317,

322, 106 S.Ct. 2548 (1986).

In deciding whether there is a genuine issue of material fact, the evidence of the non-

moving party is to be believed and all justifiable inferences must be drawn in favor of the non-

moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505. However,

[o]nly disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment. Factual disputes that are irrelevant or

unnecessary will not be counted. Id. at 248.

The moving party has the burden of proving that summary judgment is appropriate. Once

the moving party makes this showing, however, the opposing party may not rest upon mere

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allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set

forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e);

Celotex Corp., 477 U.S. at 322.

DISCUSSION

I. PLAINTIFFS CLAIMS RELATED DIRECTLY TO THE ALLEGED CONDUCT

OF LARGE ARE EXCLUDED BY THE SOUTH CAROLINA TORT CLAIMS
ACT, 15-78-60(17) BECAUSE THE ALLEGED LOSS, IF ANY, OCCURRED AS
THE RESULT OF EMPLOYEE CONDUCT OUTSIDE THE SCOPE OF HIS
OFFICIAL DUTIES AS A LAW ENFORCEMENT OFFICER AND/OR
CONSTITUTED AN INTENT TO HARM OR A CRIME INVOLVING MORAL
TURPITUDE.

Plaintiffs single cause of action must be analyzed under The South Carolina Tort Claims

Act, S.C. Code Ann. 15-78-10, et seq. The Tort Claims Act provides that [t]he State, an

agency, a political subdivision, and a governmental entity are liable for their torts in the same

manner and to the same extent as a private individual under like circumstances, subject to the

limitations upon liability and damages, and exemptions from liability and damages, contained

herein. S.C. Code Ann. 15-78-40.

The Act waives sovereign immunity while also providing specific, enumerated

exceptions limiting the liability of the state and its political subdivisions in certain

circumstances. Wells v. City of Lynchburg, 331 S.C. 296, 302, 501 S.E.2d 746, 749

(Ct.App.1998). More specifically, 15-78-60 provides the list of enumerated exceptions to the

waiver of immunity and 15-78-60(17) states that [t]he governmental entity is not liable for a

loss resulting from: (17) 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.4

4
S.C. Code Ann. 15-78-60 (1976 & Supp.).

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Additionally, 15-78-70 states that the Act serves as the exclusive remedy for any tort

committed by an employee of a governmental entity. S.C. Code 15-78-70(a). Section 15-78-

70(a) further states: [a]n employee of a governmental entity who commits a tort while acting

within the scope of his official duty is not liable therefor except as expressly provided for in

subsection (b). Id. Section 15-78-70(b) provides that this immunity does not extend to an

employees conduct that was not within the scope of his official duties or [which] constituted

actual fraud, actual malice, intent to harm, or a crime involving moral turpitude. Id.

In this case, Plaintiffs allegations of coercive behavior and unwanted sexual advances

are obviously claims that, if true, relate to conduct that is clearly outside the scope of Larges

official duties as a law enforcement officer, constitute an intent to harm and/or crimes of moral

turpitude. Large admitted in his deposition that his contact he had with Plaintiff from late 2014

through his termination at the end of July 2015 was outside the course and scope of his

employment.5 Furthermore, Plaintiff alleges in her Complaint that Larges pattern of abusive

behavior resulted in his termination and that Large is the subject of a pending SLED

investigation and Attorney General Investigation.6

For these reasons, any claims related to the actual intentional conduct of Large are barred

by the South Carolina Tort Claims Act and Defendants are entitled to summary judgment in

connection therewith.

5
See excerpts of deposition of Troy Allen Large, pp. 232-244, attached as Exhibit A.
6
See Complaint at paragraph 15.

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II. PLAINTIFFS CLAIMS RELATED TO HIRING, TRAINING, RETENTION,

AND/OR SUPERVISION STATE A SINGLE CLAIM AND ANY TRIAL OF
SUCH CLAIM SHOULD RELATE SPECIFICALLY TO THE HIRING,
TRAINING, RETENTION, AND/OR SUPERVISION OF LARGE AND ONLY
LARGE.

Defendants acknowledge that in South Carolina, an employer can be independently liable

in tort for situations in which an employer knew or should have known that its employment of a

specific person created an undue risk of harm to the public. James v. Kelly Trucking Co., 661

S.E.2d 329, 330 (S.C. 2008) (citing Restatement (Second) of Torts 317 (1965)). [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. Id. This theory rests on the employers direct

negligence. See id. In adopting the Second Restatement, the South Carolina Supreme Court has

found that the following four-part test is used when determining whether an employer may be

liable for negligent supervision if an employee intentionally harms another:

(i) [the employee] is upon the premises in possession of the [employer] or upon
which the [employee] is privileged to enter only as his [employee], or
(ii) [the employee] is using a chattel of [the employer], and
(iii) [the employer] knows or has reason to know that he has the ability to control
his [employee], and
(iv) [the employer] knows or should know of the necessity and opportunity for
exercising such control.

Degenhart v. Knights of Columbus, 420 S.E.2d 495, 496 (S.C. 1992).

Negligent training and negligent supervision are not separate torts in South Carolina.

Gainey v. Kingston Plantation, No. 4:06-3373-RBH, 2008 WL 706916, at *7 n.4 (D.S.C. Mar.

14, 2008) (It does not appear that South Carolina recognizes a claim for negligent training

separate and apart from one for negligent supervision.). In other words, a plaintiff must use the

same test, as cited above, to demonstrate a cause of action for either negligent supervision or

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negligent training. See James, 661 S.E.2d at 330 (2008) (Just as an employee can act to cause

anothers injury in a tortious manner, so can an employer be independently liable in tort. 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.) (emphasis added).

Here, Defendants assert that Plaintiff does not possess any admissible relevant evidence

establishing knowledge of these Defendants of specific prior improper conduct by Large similar

to that alleged in Plaintiffs Complaint that was known by these Defendants prior to allegations

asserted by Jane Doe 2 in July 2015 and the results of the investigation of Jane Doe-2s claims

of inappropriate conduct by Large that led to his termination at the end of July 2015. Moreover,

the allegations in Plaintiffs Complaint concerning policies, procedures, and protocols are not

enough to withstand summary judgment on Plaintiffs common law negligent supervision cause

of action. The same is true for Plaintiffs allegations of negligent training. No evidence

demonstrates that these Defendants were put on notice prior to July 2015 that Allen Large

presented an undue risk of harm to the public. Such evidence would include but is not limited to

his criminal history, work history, or other possible ill behaviors or attributes.

When addressing a negligent supervision cause of action, no South Carolina court has

held that evidence of poor policies and protocol are enough to demonstrate negligent supervision.

Similarly, a demonstration of a lack of a particular training opportunity has not been deemed

evidence that would support a claim of negligent training. See Gilco v. Logan Cnty. Comn, No.

2:11-0032, 2012 WL 3580056, at *7 (S.D.W. Va. Aug. 17, 2012) (citing City of Canton, Ohio v.

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Harris, 489 U.S. 378, 390 (1989)) ([T]he Supreme Court has counseled that the fact that a

particular [employee] may be unsatisfactorily trained will not alone suffice to fasten liability on

the [government entity].). Rather, courts have examined specific evidence regarding an

employees history, behaviors, or pattern of behavior when examining causes of action for

negligent supervision or negligent training. See e.g., Doe v. Bishop of Charleston, 754 S.E.2d

494, 500 (S.C. 2014), rehg denied (Mar. 6, 2014) (This rule has been applied to find an

employer liable for negligent supervision when the employee sexually assaulted a minor and the

employer had some notice of the employees prior inappropriate sexual behavior with another

minor.); Bank of New York v. Sumter Cnty., 691 S.E.2d 473, 478 (S.C. 2010) (affirming

summary judgment where there was no evidence that the South Carolina Judicial Department

knew or should have known employees posed an undue risk of harm to the public.); Rickborn

v. Liberty Life Ins. Co., 468 S.E.2d 292 (S.C. 1996) (holding life insurer could be held liable for

negligent supervision of agent who it knew had mishandled applications in past); Kase v. Ebert,

707 S.E.2d 456, 459 (S.C. Ct. App. 2011) (examining employees poor driving record,

insubordinate behavior, marital difficulties and resulting financial problems, and prior erratic

behavior before holding that employer was not liable under negligent supervision and retention

causes of action); Doe v. ATC, Inc., 624 S.E.2d 447, 451 (S.C. Ct. App. 2005) (incident of prior

misconduct by an employee (of which the employer knew or should have known) must have

sufficient nexus to the ultimate harm); Charleston, S.C. Registry for Golf & Tourism, Inc. v.

Young Clement Rivers & Tisdale, LLP, 598 S.E.2d 717, 723 (S.C. Ct. App. 2004) (affirming

summary dismissal of negligent supervision claim where the elements necessary to prove

negligent supervision of an employee acting outside of the scope of his employment [were] not

present in the record and specifically finding that employees performance reviews contained in

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the record did not support cause of action for negligent supervision); Moore by Moore v.

Berkeley Cnty. Sch. Dist., 486 S.E.2d 9, 13 (S.C. Ct. App. 1997) (Absent some evidence

indicating notice to the District of [employees] inappropriate sexual proclivities, there is no

basis to conclude the District knew or should have known of the necessity for supervising her

conduct outside the classroom.).

Based on the prevailing case law in South Carolina, some evidence relating specifically

to the employee regarding prior incidents of similar improper conduct that could put the

employer on notice that the employer has reason to control or train its employee must be present

in a case concerning an employers direct negligence and incidents of prior misconduct relied

upon to support such a claim must have sufficient nexus to the ultimate harm. Here, no such

evidence has been produced and Defendants respectfully assert that no qualifying evidence shall

be forthcoming.

For these reasons, Defendants assert they are clearly entitled to summary judgment to the

extent Plaintiff claims that any improper conduct of any other employees of HCPD and/or Horry

County are sufficient to establish any claims of negligent hiring, training, retention, or training of

Large for purposes of this litigation. Furthermore, Defendants assert that Plaintiffs anticipated

reliance upon an unsubstantiated and uncorroborated 2003 letter from Larges father-in-law to

various HCPD command staff regarding Larges relationship with his wife (daughter of the

author of the letter) is inadmissible hearsay, insufficient to establish the existence of similar prior

improper conduct as a fact, and does not establish a sufficient nexus to the alleged ultimate harm

to support a viable claim of negligent supervision.7 Likewise, should Plaintiff seek to rely upon

the unproven allegations of Jane Doe 1, levied against Large following her arrest in 2014 on

7
Defendants will more fully respond to this issue in the event Plaintiff chooses to assert that said evidence is
sufficient to establish notice.

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drug charges to which she pled guilty, Defendants assert that said allegations were investigated

and determined to be unfounded. Thus, Defendants assert that such evidence is also insufficient

to establish the existence of similar prior improper conduct as a fact, nor does it establish a

sufficient nexus to the alleged ultimate harm to support a viable claim of negligent supervision.8

Therefore, Defendants are entitled to summary judgment as to any perceived claims of negligent

hiring, training, and/or supervision.

III. PLAINTIFFS REMAINING CLAIMS FOR NEGLIGENCE/GROSS

NEGLIGENCE AGAINST HORRY COUNTY AND THE HORRY COUNTY
POLICE DEPARTMENT ARE BARRED BY THE PUBLIC DUTY RULE.

One of the essential elements in a negligence action is a duty of care owed by the

defendant to the plaintiff. Bishop v. South Carolina Dept of Mental Health, 331 S.C. 79, 502

S.E.2d 78 (1998). The court must determine, as a matter of law, whether a duty exists. Ellis v.

Niles, 324 S.C. 223, 479 S.E.2d 47 (1996). A plaintiffs failure to establish that a defendant

owed him a duty of care is fatal to his claim. South Carolina State Ports Authority v. Booz-Allen

& Hamilton, Inc., 289 S.C. 373, 346 S.E.2d 324 (1986).

An affirmative legal duty to act may be created by statute, contract, relationship, status,

property interest, or some other special circumstance. Arthurs v. Aiken County, 346 S.C. 97,

103, 551 S.E.2d 579, 582 (2001). When a plaintiff relies on a statute as creating the duty, a

doctrine referred to as the public duty rule becomes applicable. Id. There is long standing

precedent in South Carolina which holds that there is no viable cause of action by an individual

against a municipality for non-performance of a public duty. Black v. City of Columbia, 19 S.C.

412, 421 (1883). See also Rayfield v. S.C. Dept. Of Corrections, 297 S.C. 95, 374 S.E.2d 910

(Ct App. 1988), cert. denied 298 S.C. 204, 379 S.E.2d 133 (1989).

8
Defendants will more fully respond to this issue in the event Plaintiff chooses to assert that said evidence is
sufficient to establish notice.

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The public duty rule provides that in general, public officials cannot be held liable to

individuals for the discharge of public duties because the duty is owed to the public at large

rather than to any one individual. Jensen v. Anderson County Dept of Social Services, 304 S.C.

195, 403 S.E.2d 615 (1991). Most statutes that create or define the duties of a public office

create no duty of care towards an individual member of the public. Morris v. Anderson County,

349 S.C. 607, 612, 564 S.E.2d 649, 652 (2002). Furthermore, [t]he public duty rule presumes

statutes which create or define the duties of a public office have the essential purpose of

providing for the structure and operation of government or for securing the general welfare and

safety of the public. Such statutes create no duty of care toward individual members of the

public. Wells v. City of Lynchburg, 331 S.C. 296, 308, 501 S.E.2d 746, 752 (Ct.App.1998).

However, courts will recognize a special duty exception to the public duty rule if the

plaintiff can establish that the defendant owed him a special duty of care. Bellamy v. Brown, 305

S.C. 291, 408 S.E.2d 219 (1991). A special duty can be created by statute or some other special

circumstance. Wells, 331 S.C. at 306, 501 S.E.2d at 752. To establish that a statute creates a

special duty, the plaintiff must demonstrate six elements:

(1) an essential purpose of the statute is to protect against a particular kind of

harm;
(2) the statute, either directly or indirectly, imposes on a specific public officer a
duty to guard against or not to cause the harm;
(3) the class of persons the statute intends to protect is identifiable before the fact;
(4) the plaintiff is a person within the protected class;
(5) the public officer knows or has reason to know of the likelihood of harm to
members of the class if he fails to do his duty; and
(6) the officer is given sufficient authority to act in the circumstances or he
undertakes to act in the exercise of his office.

Washington v. Lexington County Jail, 337 S.C. 400, 406-07, 523 S.E.2d 204, 207 (Ct.App.1999)
(citing Tanner v. Florence County Treasurer, 336 S.C. 552, 562, 521 S.E.2d 153, 158 (1999)).

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In this case, Plaintiffs allegations of negligence in the Complaint at paragraph 12 appear

to assert the existence of multiple duties owed by Defendants to Plaintiff to:

a. protect the Plaintiff from harm at the hands of its personnel, agents, officers,
and/or employees;

b. properly train and/or supervise its personnel, agents, officers, and/or employees;

c. draft and/or institute proper policy and procedure with regard to the hiring and
evaluation of its police officers;

d. draft and/or institute proper policy and procedure necessary to ensure that
members of the public are safe and protected from physical abuse and threatening
behavior;

e. draft and/or institute proper policy and procedure that would lead to the
discovery of inappropriate threatening actions by its employees and prevent the
same from occurring;

f. make periodic and proper investigations and take remedial action as might be
necessary to prevent inappropriate and/or threatening actions;

g. take appropriate time to follow-up, review and/or check compliance with policy,
state law and/or existing orders;

h. take steps necessary to remove, fire and/or terminate the services of staff and/or
personnel, including Detective Large, when they had actual and/or constructive
notice of his propensities;

i. to exercise reasonable or slight care to properly supervise Detective Large;

j. to exercise reasonable care to provide Plaintiff with proper protection from abuse
(both physical and mental) at the hands of their police officer when it had notice
of their officers propensities towards inappropriate and/or abusive behavior;

k. to conduct themselves in a manner that is not egregious and arbitrary;

l. to not threaten, physically assault and/or abuse the Plaintiff;

m. to observe a fiduciary duty of trust with regard to Plaintiff;

n. to follow and adhere to the local state and national standards, policies and
procedures including the policies and procedures of the Horry County Police
Department;

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o. to follow and adhere to the policies and procedures of the Horry County Police
Department regarding threatening behavior;

p. to not engage in a pattern and practice of allowing and/or condoning

inappropriate conduct on behalf of Horry County police officers;

q. to sufficiently monitor and supervise employees of the Horry County Police

Department;

r. to have the appropriate policies and procedures in place to provide adequate

supervision;

s. to exercise slight care to protect the Plaintiff from harm.9

Curiously, however, Plaintiff offers no legal authority tending to support the existence of

such duties. Essentially, Plaintiff presumes the existence of such duties. However, as set forth

above, unless Plaintiff can establish the existence of a special duty of care created by statute or

some other special circumstance, Plaintiffs allegations of general duties owed by these

Defendants are not sufficient to establish a duty owed to her individually and all allegations that

may be interpreted as such are therefore inappropriate and barred by the public duty rule.

As stated above, the Tort Claims Act clearly bars any claims related to the allegations

stated at subparagraphs (a) and (l) of paragraph 19 to the extent the alleged loss was the result of

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). Paragraphs (b), (c), (q), and (r) relate to training and supervision of HCPD employees,

including Large, and are addressed in section II above.

The remaining subparagraphs - (d) through (k), (m) through (p), and (s) assert the

existence of numerous general duties that, if they exist at all, can only be described as duties to

the public as a whole, rather than any specific duty owed by Defendants to Plaintiff. The

common law generally does not impose a duty on a person to act. An affirmative legal duty
9
See Complaint at paragraph 19.

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exists only if created by statute, contract, relationship, status, property interest, or some other

special circumstance. Wells, 331 S.C. at 307, 501 S.E.2d at 752. Here, Plaintiff has not alleged a

legal duty was created by statute, contract, relationship, status, property interest or special

circumstance. Any duty owed to the Plaintiff was a duty to the public as a whole, not to private

citizens. Therefore, Defendants are entitled to summary judgment as to the remaining

allegations set forth in the Complaint.

CONCLUSION

For the reasons set forth above, Plaintiffs alleged claims are barred by the South

Carolina Tort Claims Act, fail due to insufficient evidence of negligent supervision, and are

precluded by the well settled common law public duty rule recognized by the appellate courts of

South Carolina. Therefore, judgment as a matter of law should be ordered in favor of

Defendants Horry County and the Horry County Police Department.

Respectfully submitted.
S/SAMUEL F. ARTHUR, III
SAMUEL F. ARTHUR, III
Aiken, Bridges, Elliott, Tyler & Saleeby, P.A.
Federal ID #7070
PO Drawer 1931
Florence, SC 29503
Telephone: 843.669.8787
Fax: 843.664.0097
SFA@AIKENBRIDGES.COM
Florence, South Carolina ATTORNEYS FOR DEFENDANTS
HORRY COUNTY AND HORRY
October 26, 2017. COUNTY POLICE DEPARTMENT

15
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CERTIFICATE OF SERVICE
I hereby certify that the DEFENDANTS HORRY COUNTY AND HORRY COUNTY

POLICE DEPARTMENTS MEMORANDUM IN SUPPORT OF MOTION FOR

SUMMARY JUDGMENT was filed electronically on October 26, 2017 and is available for

viewing and downloading from the ECF system. Notice of Electronic Case Filing has been sent

automatically to all parties listed in the Service List in effect on the date of electronic filing,

which constitutes service of same and satisfies the requirements of Fed. R. Civ. P. 5(b)(2)(D).

The following parties were served via ECF:

James B. Moore, III, Esquire

Scott C. Evans, Esquire
Evans Moore, LLC
121 Screven Street
Georgetown, SC 29440

Lisa A Thomas, Esquire

Thompson & Henry, PA
P. O. Box 1740
Conway, SC 29528-1740

Bonnie T. Hunt, Esquire

Hunt Law, LLC
P.O. Box 1845
Goose Creek, SC 29445

S/SAMUEL F. ARTHUR, III

SAMUEL F. ARTHUR, III

(32421)

16
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Troy Allen Large Page 1

Doe vs. Horry County, et al. 3/2/2016

State of South Carolina

County of Horry

Jane Doe, 2 015 - CP-2 6 - 0 89 08

)
Plaintiff ,
)
v . ) Video Deposition

Horry County and Horry ) of

County Police )
Department , Troy Allen Large
)
Defendants . )
)
)

Date : March 2, 2016

Time : 10 : 07 a.m.

Location: Evans Moore, LLC

121 Screven Street, Georgetown, South Carolina

Reported by
Sandra J. Ayers

EXHIBIT
'3
3
o
3

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1 told, basically, what statements, you know, that

2 I ' ve said. I I brought Matt Darrah up, from the

3 time I met her to the time I called her and told

4 her it was over with.

5 Q What I want to know is: Were you to to your

6 recollection, were you placed on suspension

7 following Jane Doe 2's complaint, but prior to your

8 termination?

9 A No. No. That was just a opening -- I was

10 suspended because I yelled at two citizens, and

11 that was with pay and pending reinstatement. When

12 I went to EAP and passed the psychological return-

13 to-duty test.

14 Q Okay. Jane Doe 3, that's been referred to as

15 "Cindy"

16 A Yeah. I guess, yeah.

17 Q -- did you have any contact with her in 2014?

18 A I don ' t think so . I I know last year, I did.

19 Like I said, I got a message from her mom, lives in

20 Windjammer Village, that Cindy needed some -- some

21 help, and and, so, I called, made contact. I

22 did go to Dunkin' Donuts with her, have coffee and

23 donuts . I suggested three county attorneys for

24 divorce, and -- and then we started talking after

25 that .

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1 Q Okay. When was that? When did you -- when did you

3 A It was

4 Q -- get the message from Mama from the Windjammer?

5 A I have no I know it was in 2014.

6 Q Do you still have it?

7 A No. But it should be on my -- my phone records.

8 Well, no. I mean, it -- when you get there, to the

9 point where we're chatting back and forth, and -

10 and all, that's about the time we started

11 communicating on a regular basis. So, well, there

12 it ' s if you got the phone records, it'll tell

13 you when .

14 Q Well , do you know a phone number I should look at?

15 A No.

16 Q Okay.

17 A I mean, it's all there. It -- you know, should be

18 into evidence in this case, because, you know, that

19 that ' s they -- the Horry County police

20 downloaded my cell phone, and ever since I had that

21 cell phone, it's got every transmission, cell

22 phone, incoming/out coming call.

23 Q Right. Have you seen those records?

24 A No .

25 Q Do you know what cell phone -- well, let me ask you

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1 this: The mama, from -- at the Windjammer Village,

2 did she contact you by e-mail or cell phone --

3 A She contacted me

4 Q or text?

5 A on -- by calling the county police line.

6 Q Okay. Do you remember her name?

7 A No.

8 Q Do you remember the phone number that you --

9 A No .

10 Q -- communicated to Cindy with?

11 A It whatever' s on that phone. Like I said, I

12 I deleted it. I me and her, like I said, had

13 developed a friendship. We joked a lot. I

14 listened to a lot -- lot of things that she was

15 going through. The last time she text me was right

16 before Christmas -- might' ve been Christmas Eve --

17 her daughter got arrested for domestic violence.

18 She sent me matter of fact, it should be on my

19 cell phone, because well, it is. She sent me a

20 a -- a picture of her daughter as her mug shot.

21 And then I had my heart attack, and I was I was

22 at MUSC for over a month in the hospital . So when

23 I got out, I text her that I got out, asked -- told

24 her I hope she's doing well, and let me know if she

25 needs anything or something like -- to that effect.

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1 And I hadn't heard from her again, so I never

2 you know, again, I don't it it 1 s not like I

3 have to stay in touch with -- with any of the

4 people that I deal with or that I consider

5 acquaintances or friends, whatever you want to call

6 them .

7 Q Do you - - without without stating what it is on

8 the record do you know what her last name is?

9 A It was (name redacted)

10 MR. MOORE: (To the deponent) Hey.

11 A I 'm sorry.

12 MR. ARTHUR: Well, I mean, I

13 MR. MOORE: We can

14 MR. ARTHUR: Let's get off the record a

15 second .

16 (Off the record from 2:58 p.m. until

17 2:58 p.m.)

18 THE EXAMINATION BY MR. ARTHUR CONTINUES.

19 MR. ARTHUR: So with that said, I am happy to

20 instruct the court reporter to strike the last

21 statement made, by Mr. Large, that was a name.

22 THE COURT REPORTER: (To Mr. Arthur) Yes,

23 sir .

24 MR. ARTHUR: Is that fair?

25 MR. MOORE: Yeah. Absolutely.

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1 MR. ARTHUR: Okay.

2 MR. MOORE: And I'll give you the --

3 MR. ARTHUR: All right.

4 MR . MOORE : -- the names of everybody.

5 Q Okay . Do you know if Jane Doe 3 has filed any kind

6 of complaint against you with the Horry County

7 Police Department?

8 A No. Not that I know of . I mean, I would be

9 shocked because, like I said, the the text

10 messages and her communication are all basically

11 talking about issues that are going on, flirting --

12 yeah, flirting back and forth, but about real

13 problems and giving her encouragement or --

14 Q Have you

15 A -- having her --

16 Q Sorry. Go ahead.

17 A You know, but stuff like that. I mean, like I

18 said, nothing, you know -- nothing to -- to where I

19 would assume that that she would have any anger

20 towards me .

21 Q Have you saved any of those communications?

22 A They would - -

23 Q Do you personally have any of those communications?

24 A No, no. I don ' t . They -- they would all be on the

25 county phone .

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1 Q Well, now, you talked about communicating with her

2 before your heart attack and after your heart

3 attack, right?

4 A Yeah .

5 Q And and that happened after your termination,

6 correct?

7 A Yeah, yeah.

8 Q So she would have been communicating with you on a

9 personal phone?

10 A Yeah . She called -- you know, she called me, and I

11 called her some.

12 Q Right. Do you still have that phone?

13 A Yeah .

14 Q Okay. Have you destroyed any of those records on

15 that phone?

16 A No. I don't destroy anything.

17 Q Okay .

18 A I don't know how to.

19 Q All right. I'm going to ask you, on the record, to

20 preserve that phone and whatever information is on

21 that phone in case it ' s needed in connection with

22 any further litigation involving --

23 A Okay.

24 Q -- you or her or anybody.

25 Do you have any reason to believe that anyone

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1 at the Horry County Police Department had any

2 knowledge of any involvement that you had with any

3 girl-on-girl fighting, before Jane Doe 2 made her

4 complaint and her allegation?

5 MR. MOORE: Objection to form.

6 A No . They wouldn't know about it, because, like I

7 said, if y'all have any fetishes or things that you

8 do, you don't discuss it with your co-workers. You

9 know, you just you know, you can just it ' s

10 something that I like, and, like I said, I just

11 kept it to myself. And, like I said, I was

12 involved with -- you know, like I said, telling

13 people that were wanted to do it that there's an

14 opportunity to do it and make good money and -- and

15 do it . And then I was also involved with it as far

16 as women setting up their own matches and -- and

17 and watching it.

18 Q Now, when you were doing these things, did you give

19 any consideration to whether or not your activities

20 in that regard would be compliant with Horry County

21 Police Department policies?

22 A I I -- I really didn't think about it because,

23 like I said, you know, you got police officers that

24 drink too much. You got police officers that have

25 affairs . You got police officers that do all kinds

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1 of things that may be swingers, you know, that had

2 nothing to do with -- with Horry County. I did it

3 on my own t ime . I did it the only thing bad is

4 the some of the communications that I used, used

5 the county cell phone for personal use. That 1 s a

6 violation of policy, because you're not it it

7 says what it says, you ain't supposed to make calls

8 to the wife and tell them you're going to be late.

9 It's not official business. So, yeah, I I had

10 conversations with -- with my friends. I ' ve made

11 business phone calls, confirmed doctors

12 appointments. I'm guilty as hell of that. But

13 but no . And, like I said, yeah, I'm embarrassed.

14 I I would rather not know -- anybody know, but

15 there's a lot of other things, like I said, you

16 ain't going to find pornography in my house.

17 Q Uh-huh.

18 A I don't know if it ' s not normal . Most guys like

19 it, but I've just never been one to look at the

20 magazines or watch the movies. Now, I've gone into

21 the adult-entertainment centers as when I was

22 under cover and picked up people for having sex in

23 the the booths and stuff, but and I know

24 about butt plugs and all those things. Like I

25 said, we could get into a bunch of stuff. There ' s

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1 butt plugs, there's all kinds of cock rings,

2 there's cat-fighting, there's threesomes, there's

3 all kinds of things that people do that ' re not

4 something you discuss with your neighbors, your

5 family, your co-workers, and some of it's sick.

6 Those that like child pornography, they're sick.

7 Q You said that -- that Jane Doe 3 sent you a picture

8 of her in the tub?

9 A Yeah. And she sent me pictures that Brandi sent

10 her showing her -- her bruises and stuff.

11 Q When -- when did Jane Doe 3 send you those

12 pictures?

13 A Right after the match, right after we first, you

14 know, started talking again.

15 Q When

16 A She sent me a picture of her, like, in the tub

17 making a bubble bath, looking back.

18 Q When was the fight in -- in Asheville?

19 A I think it I don ' t know . It was in the spring

20 of last year. It was still cold.

21 Q Okay . And when you say "last year," you're

22 referring to 2015?

23 A Yes, sir.

24 Q You have any reason to believe that anyone at the

25 Horry County Police Department knew that you were

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1 involved

2 A Oh

3 Q in

4 A I wasn't on the clock. I didn't use any county

5 equipment . The no . No . Nobody at Horry County

6 police would know. I wouldn't want them to know.

7 Q And why is that?

8 A That's my own personal business. Plus, it was

9 again, whether we agree to disagree, the evidence

10 will show that those two girls agreed to do what

11 they want, that they're friends. Now, what if

12 somebody's saying different nowadays, you go look

13 at the text message. Matter of fact, the girl

14 Brandi was supposed to be having another match the

15 first week of February, and she invited me and

16 Cindy to come up and watch it. I don't know if

17 Cindy went or not . She may have .

18 Q How did she invite you?

19 A She invited us to come up, like, called and stuff

20 and told us about it.

21 Q Called your cell phone?

22 A Called Cindy and told her.

23 Q And, so, how did you find out about it?

24 A She told me about it. She told me that she had met

25 somebody. I said, "Well, you know -- well, you

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1 sure you ' ve "

2 Q Right .

3 A " met "

4 "Yeah. "

5 Q Now, when you say "she," who are you

6 A Brandi .

7 Q -- referring to?

8 A The girl in North Carolina.

9 Q Okay. Did you have any conversation with Cindy

10 about the supposed fight in February of this year,

11 2016?

12 A Yeah . We talked about it, going up to it and

13 everything, and afterwards, we talked about it.

14 Q Going up to?

15 A When we went to Asheville, we talked about it

16 because I'm -- just said, "Look, you know, you

17 don't have to do this. Do it because you want to

18 do . " And I explained to her how it was done. The

19 girls

20 Q Okay. Now

21 A -- the girls decided.

22 Q All right. I understand what you're saying, but my

23 question was about -- you said that Brandi was

24 supposedly going to fight again in February --

25 A Oh

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1 Q of

2 A -- yeah.

3 Q this year, right?

4 A Yeah .

5 Q And you said that she invited you and Cindy --

6 A Uh-huh.

7 Q right? What I want to know is: Did you and

8 Cindy ever talk about that?

9 A Yeah. Uh-huh.

10 Q When?

11 A Did -- right after we were invited.

12 Q Okay . And

13 A Like I said, I stayed in contact with Cindy. It

14 was nothing -- now, they -- now, the obsessive

15 phone calls, there could be a bunch there because

16 we were always calling or texting each other.

17 Q Do you have a phone with you now, where you can

18 give me that phone number?

19 A No. I I deleted it, but it -- she's got the

20 same number that'll be on the county. Sorry .

21 Q When did you delete it?

22 A I deleted it probably a month ago when I never

23 heard from her again --

24 Q Okay .

25 A because there was no need there's no reason

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1 for me to keep it. Obviously, she had moved on. I

2 don't know if she's still living here. I I

3 don't know what happened to her.

4 Q Okay. All right. If you'll give me just a second,

5 I think

6 A No . Take

7 Q 1 1 m about

8 A your

9 Q finished .

10 A time . I'm here for today, tomorrow, the next

11 day, next month. Like I said, whether I'm digging

12 a hole for myself I 1 1 ve this is awesome.

13 I'm enjoying to getting it all off my chest.

14 Q Do you recall the name of the psychologist or

15 psychiatrist that performed the

16 A No, sir. I can ' t even

17 Q evaluation?

18 A I can't it's the county. He lives down here

19 in Georgetown. I matter of fact, I come took

20 the test at one of these nice houses over here.

21 Q I mean, you

22 A And then

23 Q you say it's "the county"?

24 A Yeah .

25 Q The

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