THE STATE OF SOUTH CAROLINA In The Court of Appeals

The Estate of Jane Doe 202, by John Doe MM and John Doe HS, each of whom holds power of attorney for Jane Doe, Appellant,

v.

City of North Charleston; Leigh Anne McGowan, individually, Charles Francis Wholleb, individually, and Anthony M. Doxey, individually, Respondents.

Appellate Case No. 2017-002392

Appeal from Charleston County Deadra L. Jefferson, Circuit Court Judge

Opinion No. 5821 Submitted May 15, 2020 – Filed May 19, 2021

AFFIRMED

Gregg E. Meyers, of Mt. Pleasant, for Appellant.

Sandra J. Senn and Christopher Thomas Dorsel, both of Senn Legal, LLC, of Char leston, for Respondents.

HEWITT, J.: This is an appeal from a defe nse verdict in a case about whether police officers violated the civil rights of "Jane Doe," a vulnerable adult. The first
issue is whether the trial court erred in di recting a verdict on Jane Doe's claim that
the officers created the risk Jane Doe woul d be harmed when they arrested Jane Doe's adult daughter and left Jane Doe una ttended in her home. The other issue iswhether the trial court abused its discreti on in handling the jury's second question about the charges for liability under 42 U.S.C. § 1983 (2018).

We affirm. We hold the trial court's grant of a directed verdict was correct, as the evidence did not rise to the level necessary for a claim that the police violated the constitution when they left Jane Doe at her house. On the jury charges, the trial court did not abuse its discretion when it repeated its earlier jury charges on liability and declined to repeat its instructions on damages.

FACTS

Daughter moved into Jane Doe's home in 2012 after it became cl ear Jane Doe was struggling to live alone. In 2013, Jane Do e was diagnosed with Alzheimer's disease
and dementia.

The City of North Charleston Police Depart ment dispatched police officers to Jane Doe's home one night in March 2014 after one of Jane Doe's neighbors reported a potential domestic disturbance. The ne ighbor reported seeing Daughter banging on the door and yelling for Jane Doe. Th e scene supposedly "seemed like a mess."

The first officer to arrive said no one wa s in Jane Doe's yard and no one answered
knocks on the front and back doors. Other things were out of sorts as well: there was a pair of high heel shoes on the ground be side the driver's side door of the vehicle parked in the driveway, the vehicle's inte rior dome light was on, there were wine bottles in the back of the car, and a purse was on the ground in the backyard. The
officer could not recall whether the vehicle' s driver's side door was open, but the officer said the purse appear ed to have fresh blood on it.

Other officers arrived, and they eventual ly determined an exigent entrance was necessary to check on the welfare of th e woman who had reportedly been yelling
outside the house. The officers did not have a warrant.

The officers met Jane Doe wh en they entered the house. They asked Jane Doe if she
needed medical attention. All three officers reported that Jane Doe gave no indication in her response that she was su ffering from dementia, was incapable of caring for herself, or could not be left alone. Jane Doe told the officers that Daughter was upstairs and led them to Daughter's room.

The parties disagree about what happened next. The officers said they found Daughter asleep in her bed but on top of he r covers, fully dressed, and with a largered wine stain down the front of her shirt. They also said Daughter woke up and spoke with the officers, who observed that she was unsteady on her feet and that she
declined medical assistance. They claimed that when th e two male officers left the bedroom to help gather Daughter's belongi ngs, she began screaming at her mother and flailing her arms, and she struck the remaining female officer. For her part, Daughter claimed that a larg e figure woke her up in the middle of the night and flipped her out of the bed. Daughter stated she believed she wa s about to be raped and that she yelled for her mother to "stay out of it" while struggling with the figure.

Daughter was arrested for a ssaulting a police officer. Da ughter claimed the officers refused her request that she be allowed to call someone to look after Jane Doe. The officers disputed this and said they did not recall Daughter ever telling them Jane Doe had dementia, could not be left alone, or could not ca re for herself. Daughter remained in jail overnight.

Jane Doe stayed in the home by herself unt il her brother came to check on her around lunchtime the next day, shortly after learning about the situation. He said that Jane
Doe was "a wreck" but he was able to calm her down after fifteen or thirty minutes. After that, he left Jane Doe at the house so he could get Daughter out of jail. When Daughter returned home she discovered Jane Doe had been wearing a soiled diaper
for some time.

The police came to the residence again two days later, after an unattended Jane Doe had a neighbor call police to report a suspici ous vehicle in Jane Doe's driveway. The responding officer determined the vehicle was actually Daughter's vehicle. Once Jane Doe's family returned to the home, EMS was called and Jane Doe was transported to the hospital.

Jane Doe was initially taken to the hospital because she had increasing levels of confusion from being left alone on multiple occasions over a forty-eight hour period. While at the hospital, Jane Doe was also diagnosed with a urinary tract infection, and she stayed in the hospital for approximately two weeks.

Litigation, Trial, and Directed Verdict

Jane Doe brought this lawsuit against th e City of North Charleston and the three officers involved in Daughter's arrest. Her complaint alleged elev en different causes
of action.Three claims went to trial: deprivation of civil rights by North Charleston; invasion of privacy against North Charleston; and deprivation of civil rights by the responding officers. The civil rights claims were brought pursuant to 42 U.S.C. § 1983.

A key dispute at trial was whether the o fficers knew or should have known Jane Doe
had diminished mental abilities and was unable to care for herself. Jane Doe's doctor testified the officers likely would not have recognized that Jane Doe had dementia unless they had been told. There was conflicting evidence on the point: as already noted, the officers disputed Daughter's testim ony that she insisted she be allowed to
contact someone to look after Jane Doe. A recording of the police dispatcher's conversation captured the dispatcher mentio ning over the radio that Jane Doe had dementia. Still, the officer testified she did not hear the dispatcher mention dementia, explaining she ma y have been focused on a ssessing the scene at that
moment rather than the radio.

At the close of all the evidence, the tria l court directed a ve rdict on Jane Doe's "state-created danger" theory of liability. The court gave several reasons for its ruling, including that the officers could no t be responsible for a danger (Jane Doe's dementia) that already existed. Jane Doe's claims against North Charleston proceeded to the jury, as di d Jane Doe's claims that th e individual officers violated her civil rights by making a warrantless entry into her home.

Jury Charges

The trial court gave the following charge on nominal damages during the lengthy jury instructions:

Ladies and gentlemen[,] if you re turn a verdict for the plaintiff on a section 1983 claim but the plaintiff has failed to prove actual or compensatory damages for her claim[,] then you must award nominal damages of one do llar for that claim.

A person whose federal rights we re violated is entitled to a recognition of that violation even if he or she suffered no actual injury. Nominal damages such as one dollar are designed to acknowledge the depr[i]vation of a federal right even where you find no actual injury occurred.Later, at the jury's request, the trial c ourt gave a second inst ruction covering the
elements of each cause of action. The court re-administered the entire section 1983 charge, including all of th e charges on damages.

The jury submitted two additional notes to the trial court. The re levant part of the
final note stated: "For there to be a viola tion of a civil right, 4th Amendment, the plaintiff must demonstrate through the preponderance of the evidence to be bodily harm or injury or ment al i.e. damages[?]"

The trial court believed the jury was conf using damages as an element of liability under section 1983, insisting it was convinced the jury wa s asking whether Jane Doe needed to prove bodily harm. After discu ssion, the court decided to reinstruct the jury on the elements of a section 1983 cl aim, and not the various damages the jury could award for a valid claim, to avoid furt her confusion. Jane Doe asked the court to reinstruct the jury on nominal damages, but the court declined. The court said it would reinstruct the jury on damages if the jury as ked to be reinstructed on damages.

The jury returned a verdict in favor of No rth Charleston and the officers. The trial
court denied Jane Doe's motion for a new trial. This appeal followed.

ISSUES

1. Did the trial court err by granting a direct ed verdict on the "s tate-created danger" portion of Jane Doe's civil rights claims?

2. Did the trial court err in declining to re-charge the jury on nominal damages?

STATE-CREATED DANGER

Jane Doe argues the trial cour t erred in directing a verdict on her claim that officers violated her civil rights when they arrested Daughter, removed Daughter from the house, and left Jane Doe home by herself. She claims the officers knew or should
have known Jane Doe suffere d from dementia and that the officers' actions unconstitutionally created a danger or increased the risk Jane Doe would be harmed.

The state-created danger doctrine arises from a line of U.S. Supreme Court cases finding that the government does not ha ve a duty to protect people from privately-inflicted ha rm. A key case is DeShaney v. Winnebago County Department of Social Services , where the guardian of a young ch ild alleged a child protection agency failed to respond to multiple child abuse complaints over an extended timeperiod and should have prevented a father from severely beating his son. 489 U.S. 189, 191–94 (1989). DeShaney is commonly understood to turn on the reasoning that the constitution does not require the gove rnment to affirmatively protect citizens from private harms. Erwin Chemerinsky, The State-Created Danger Doctrine , 23 Touro L. Rev. 1, 2–3 (2007). Instead, the government has limited responsibility for a citizen's safety and well- being if the government takes a person into custody or when "the government is responsible for creating the danger." Id. at 3 (citing DeShaney , 489 U.S. at 199–200).

After DeShaney , courts around the country devel oped numerous "tests" for liability under the state-created danger doctrine. See, e.g., Jones v. Reynolds , 438 F.3d 685, 690 (6th Cir. 2006); Hart v. City of Little Rock , 432 F.3d 801, 805 (8th Cir. 2005); Mark v. Borough of Hatboro , 51 F.3d 1137, 1152 (3d Cir. 1995). These cases tend to have tragic facts because recovering agai nst the government requires a plaintiff to carry a heavy burden. Pursuant to DeShaney and its progeny, there is no due process violation unless a plaintiff shows a state ac tor engaged in reckless behavior or acted
with deliberate indifference. See Daniels v. Williams , 474 U.S. 327 (1986);
Davidson v. Cannon , 474 U.S. 344 (1986). Negligen ce and gross negligence are
insufficient. See Daniels , 474 U.S. at 327.

This court previously employed the Fourth Circuit's formulation that due process does not require the government to affirma tively protect its citizen's rights; due process is a negative prohibition designed to protect people from the State rather than requiring the State to act. See Pack v. Associated Marine Insts., Inc. , 362 S.C. 239, 248–49, 608 S.E.2d 134, 139– 140 (Ct. App. 2004) (quoting Pinder v. Johnson

, 54 F.3d 1169, 1174 (4th Cir. 1995)). More recently, the Fourth Circuit explained a plaintiff must show "that the state actor created or increased the risk of private danger, and did so directly through affirma tive acts, not merely through inaction or
omission." Doe v. Rosa , 795 F.3d 429, 439 (4th Cir. 2015). 1

Here, the trial court based its directed verdic t, at least in part, on the fact that there
was no evidence the officers' actions allowe d a third party to harm Jane Doe. Although some jurisdictions require a thir d party "bad actor" to establish liability

1 Pinder reads DeShaney to require a "special relati onship" between the state actor and the plaintiff. Pinder , 54 F.3d at 1174–75. Doe appears to take a different view and says that "[w]hen the state itself creates the dangerous situation that resulted in a victim's injury, the absence of a custodial relationship may not be dispositive." 795 F.3d at 438 (quoting Pinder, 54 F.3d at 1177).under the state-created danger doctrine, we were unable to find any precedent from
South Carolina or the Fourth Circu it establishing this requirement.

Still, we find the trial court appropriatel y granted the police officers a directed
verdict. See Rule 220, SCACR ("The appellate court may affi rm any ruling, order, decision or judgment upon any ground(s) appear ing in the Record on Appeal."). The police did not take Jane Doe into custody , place any restraints on her freedom, or assume the responsibility of caring for her. At best, the testimony shows the officers may have been negligent or grossly negligent, for when th e facts are viewed in Jane Doe's favor, the absolute mo st someone can say is that officers were told, either by Daughter or by the dispatcher, Jane Doe ha d dementia before they left Jane Doe
home alone.

Nothing suggests the North Charleston offi cers knew a high probability of harm
would follow their actions. There is no evidence the police had any reason to think
Jane Doe was at risk of harming herself. Indeed, the circumstances and scene suggested Jane Doe had been home alone before Daughter came home intoxicated. The police had no reason to think Jane Doe was incapable of summoning help if she encountered any danger. It is undisputed that Jane Doe responded to the officers' questions and told them where to find Daughter.

We note that, as mentioned above, our anal ysis is controlled by the fact that negligence and gross negligence are insuffi cient to move forward on a claim that police action was so wanton that it amounts to a violation of due process. For these reasons, we affirm the trial court's gr ant of directed verdict on Jane Doe's "state-created danger" theory of liability.

JURY INSTRUCTION

Jane Doe also argues the trial court's re fusal to re-charge the jury on nominal damages was misleading and "distorted" the standard for liability under section

1983.

The standard of review on this issue is wei ghted heavily in favor of affirming. "An appellate court will not revers e the trial court's decision re garding jury instructions
unless the trial court a bused its discretion." State v. Lemire , 406 S.C. 558, 565, 753 S.E.2d 247, 251 (Ct. App. 2013) (quoting Clark v. Cantrell , 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000)). Also, "[w]hen the jury requests additional charges, it is sufficient for the [trial] court to charge onl y the parts of the initial charge which are necessary to answer th e jury's request." The Winthrop Univ. Trs. for the State v.Pickens Roofing & Sheet Metals, Inc. , 418 S.C. 142, 165, 791 S.E.2d 152, 164 (Ct. App. 2016) (quoting Rauch v. Zayas , 284 S.C. 594, 597, 327 S.E.2d 377, 378 (Ct. App. 1985)). "Its failure to charge in great er detail is not error if the details were fully covered in the original charge." Id. (quoting Rauch , 284 S.C. at 597, 327 S.E.2d at 378).

We cannot say the trial court abused its di scretion when it perceived the jury to be confusing the various types of available damages with the elements of a successful 1983 claim. The "injury" in a section 1983 case is the violation of the plaintiff's rights. See Clark v. Link , 855 F.2d 156, 161 (4th Cir. 198 8) (elements are that the
defendant acted under color of stat e law and deprived plaintiff of a federally-protected right). To this e nd, the threshold question for liability was whether the circumstances justified the o fficers' warrantless entry into Jane Doe's
home.

The jury's question was an awkwardly worded and confusing one: "For there to be a violation of a civil right, 4th Amendment, the plaintiff must demonstrate through the preponderance of the evidence to be bodily harm or injury or mental i.e. damages[?]" The trial court interpreted the question as asking whether there had to be bodily harm for there to be a legal "injury," and the court believed this indicated the jury was confusing the concepts of an injury and damage s. The court was convinced that the jury did not need to h ear the entire charge on section 1983 a third time and the best way to answer the jury 's question was to repeat the charges on "liability" the court had given twice before.

The trial court could just as well have re ached the conclusion the jury was asking about damages and not liability. There is much force and appeal to the reasoning in the dissent. Still, given that we believe both views of the jury's question are possible,
we believe the trial court did not abuse its discretion.

Again, we note precedent's instructions that it is sufficient for the trial court to re-charge only that which is necessary to answer the jury's question and that failing to re-charge in greater detail is not necessa ry when the original charge fully covered
the details. See Winthrop Univ. Trs. , 418 S.C. at 165, 791 S.E.2d at 164 ("When the jury requests additional charges, it is suffici ent for the [trial] cour t to charge only the parts of the initial charge which are necessary to answer the jury's request." (quoting
Rauch , 284 S.C. at 597, 327 S.E.2d at 378)); id. ("[The trial court's] failure to charge in greater detail is not error if the details were fully covered in the original charge." (quoting Rauch , 284 S.C. at 597, 327 S.E.2d at 378)). Jane Doe's arguments on appeal do not challenge the sufficiency of the jury instructions on nominal damages,but merely that they were not given for a th ird time, which precedent states is not an

error.

CONCLUSION

For the foregoing reasons, the trial court's judgment is

AFFIRMED. 2

LOCKEMY, C.J., concurs.

GEATHERS, J., dissenting: I respectfully depart fr om the well-written decision reached by the majority. The jury submitte d a question seeking to determine whether the plaintiff was required to show an actual injury in order to establish a violation of her civil rights for purposes of her section 1983 claim. 3 To respond to this question, it was necessary to repeat the initial nom inal damages charge, which included the language quoted below, because the essence of this charge is the idea that a plaintiff does not have to incur a traditional injury to successfully prosecute a 1983 claim:

[I]f you return a verdict for th e plaintiff on a section 1983 claim but the plaintiff has failed to prove actual or compensatory damages for he r claim then you must award nominal damages of one dollar for that claim.

A person whose federal ri ghts were violated is entitled to a recognition of that violation even if he or she suffered no actual injury . Nominal damages such as one dollar are designed to acknowle dge the depr[i]vation of a federal right even where you find no actual injury
occurred.

(emphasis added). In other words, the viol ation of a right is itself considered an injury. See Uzuegbunam v. Preczewski , 141 S. Ct. 792, 802 (2021) ("Because 'every violation [of a right] imports damage,' nomi nal damages can redre ss [the plaintiff's] injury even if he cannot or chooses not to quantify that harm in economic terms." (second alteration added) (citation omitted) (quoting Webb v. Portland Mfg. Co. , 29

2 We decide this case wit hout oral argument pursuan t to Rule 215, SCACR.

3 Accompanying this question was the jury's request to obtain a copy of the language in section 1983, which the circuit court denied.F. Cas. 506, 509 (C.C.D. Me. 1838) (No. 17,322))). In the absence of this key language, the circuit court's re-charge on th e claim's general el ements, especially proximate cause, likely confused the jury or gave the jury the impression that a traditional injury is required.

I am not suggesting that the circuit court always has to repeat a charge in its entirety when responding to a jury's questi on. However, in the instant matter, the court included the nominal damages langua ge in the first two charges on the requirements for a section 1983 claim and omitted the nominal da mages language in the third and final charge in response to the jury's question concerning an actual injury. Under these circumstances, I beli eve the omission of this key language de

emphasized it or removed it from the jury's consideration when, in fact, it was the only language that would ha ve directly responded to the jury's question. See Winthrop Univ. Trs. for the State v. Pickens Roofing & Sheet Metals, Inc. , 418 S.C. 142, 165, 791 S.E.2d 152, 164 (C t. App. 2016) ("When the jury requests additional charges, it is sufficient for the court to charge only the parts of the initial charge [that] are necessary to answer the jury's request ." (emphasis added) (quoting Rauch

v. Zayas , 284 S.C. 594, 597, 327 S.E.2d 377, 378 (Ct. App. 1985)).

In sum, the denial of counsel's reque st to re-charge the jury on nominal damages was based on the er roneous conclusions that (1) the nominal damages charge was unnecessary to respond to the ju ry's question and (2) a re-charge on the claim's general elements, in the absence of the nominal damage s language, would be more responsive. See id. Because the circuit court's ruling was based on errors of law, I would reverse and remand for a new trial. See First Union Nat. Bank v. First Citizens Bank & Tr. Co. of S.C. , 346 S.C. 462, 466, 551 S.E. 2d 301, 303 (Ct. App. 2001) ("An abuse of discretion can occur wh ere the trial court's ruling is based on an error of law."); see also Zabinski v. Bright Acres Assocs. , 346 S.C. 580, 601, 553 S.E.2d 110, 121 (2001) ("An abuse of disc retion occurs where the trial court is controlled by an error of law or where th e trial court's order is based on factual conclusions without evidentiary support.").