Background
Jack Kelly sued Roger Cox and three businesses Cox owned — Cox Millwork & Supply Inc., Waterside Drive Boat Ramp, LLC, and Cox Properties, LLC — following an alleged altercation. Kelly brought multiple claims against Cox and the businesses, including respondeat superior liability, negligence per se under South Carolina’s HIV-exposure statute (S.C. Code Ann. § 44-29-145), negligence per se under the mental injury definition in S.C. Code Ann. § 63-7-20(17), negligent retention and supervision, and intentional infliction of emotional distress (IIED)/outrage. The Horry County Circuit Court granted summary judgment in favor of all respondents and denied Kelly’s motion for reconsideration. Kelly appealed, arguing substantial discovery remained outstanding and that at least a “scintilla” of evidence supported each claim.
The Court’s Holding
Affirmed. The Court of Appeals upheld summary judgment on each claim and on the denial of the reconsideration motion.
Respondeat Superior: Kelly and Cox’s wife, Dawn Sarte Cox, both acknowledged at deposition that although Cox owned the three respondent businesses, he was not acting on behalf of any of them when he allegedly committed the tortious acts. Because respondeat superior liability requires the tortious acts to have occurred within the scope of the employee’s employment, and because Cox’s own conduct occurred outside that scope, the businesses were not liable.
Negligence Per Se — HIV Statute (§ 44-29-145): Section 44-29-145 makes it unlawful for a person knowingly infected with HIV to knowingly engage in conduct that could expose others to the virus — including unprotected sex, prostitution, or sharing needles. Kelly and Dawn both admitted at deposition they had no evidence Cox was infected with HIV. Without evidence of infection, the statute had no application, and the claim failed as a matter of law.
Negligence Per Se — Mental Injury Statute (§ 63-7-20(17)): Section 63-7-20(17) defines “mental injury” in the context of the Children’s Code as “an injury to the intellectual, emotional, or psychological capacity or functioning of a child.” The court held no private right of action is created by a definitional provision; the claim failed as a matter of law regardless of further discovery.
Negligent Retention and Supervision: For negligent supervision, the plaintiff must establish an employer-employee relationship between the tortfeasor and the business defendant. Cox was the owner of all three businesses, not an employee — and a principal cannot “supervise” himself. The claim therefore failed to satisfy an essential element as a matter of law.
IIED/Outrage: The damages element of an IIED claim requires that the plaintiff’s emotional distress be “severe” such that “no reasonable person could be expected to endure it.” Bass v. S.C. Dep’t of Soc. Servs., 414 S.C. 558 (2015). Kelly’s damages fell far short of that threshold. Personal property allegedly damaged (a car, shoes, and a toothbrush) was replaced by his parents. He did not miss work and did not lose his college scholarship. Counseling sessions he attended while in college were covered by his tuition. He did not see a psychiatrist or psychologist and was not prescribed medication for emotional distress. These “ordinary symptoms” were insufficient to create a jury issue on the severity of emotional distress required for outrage.
Key Takeaways
- Respondeat superior liability requires proof that the employee’s tortious act occurred within the scope of employment. Where both the plaintiff and the tortfeasor’s spouse admit at deposition that the act was entirely personal and not on the business’s behalf, the claim fails regardless of whether the tortfeasor also owns the business.
- A business owner who commits a tort as an individual — not acting within the scope of any employment relationship — cannot be subjected to respondeat superior liability against the businesses he owns. A business and its sole owner are distinct legal entities, and the owner’s personal conduct does not automatically become the business’s conduct.
- South Carolina’s HIV-exposure statute, section 44-29-145, requires proof that the defendant was knowingly infected with HIV. Without evidence of infection, the negligence per se theory based on this statute fails at summary judgment regardless of how much additional discovery is claimed to be outstanding.
- IIED/outrage requires severe emotional distress that no reasonable person could be expected to endure. Ordinary consequences of an unpleasant incident — periodic counseling covered by a college tuition plan, no missed work, no medical treatment, no medication — are insufficient to create a jury question on the damages element even when the defendant’s conduct may have been wrongful.
Why It Matters
Kelly v. Cox illustrates several ways civil claims arising from personal altercations commonly fail at the summary judgment stage in South Carolina. The opinion offers a useful compendium of the essential elements and evidentiary requirements for respondeat superior, HIV-exposure negligence per se, negligent supervision, and IIED — each analyzed under the same summary judgment standard requiring the nonmoving party to identify specific facts raising a genuine dispute, not merely a “scintilla” of evidence.
For practitioners advising clients who sue business owners for personal misconduct, the decision underscores the importance of early evidentiary development to support each theory before the summary judgment window closes. Claims that extend liability to the owner’s businesses require concrete evidence the owner was acting in a business capacity — not merely that he also happens to run companies. And IIED claims demand documented, serious injury: medical treatment, lost income, or impaired functioning — not the ordinary distress that any unpleasant confrontation causes.