Sherer v. James, 351 S.E.2d 148 (S.C. 1986). · Go Syfert
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Sherer v. James, 351 S.E.2d 148 (S.C. 1986). Cases Citing This Book View Copy Cite
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cited 3× by 2 distinct cases, 2013–2015 · 2 courts · …at common law, when there is no duty to act but an act is voluntarily undertaken, the actor assumes a duty to use due care. at p. 150 ✓
116 citation events (38 in the last 25 years) across 12 distinct courts.
Strongest positive: Midland Mortgage Corp. v. Wells Fargo Bank, N.A. (scd, 2013-02-25)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Midland Mortgage Corp. v. Wells Fargo Bank, N.A. (2×) also: Cited as authority (quoted)
D.S.C. · 2013 · quote attribution · 2 verbatim quotes · confidence high
at common law, when there is no duty to act but an act is voluntarily undertaken, the actor assumes a duty to use due care.
examined Cited as authority (quoted) Wright v. PRG Real Estate Mgmt., Inc. (4×) also: Cited "see"
S.C. · 2019 · signal: see · quote attribution · 2 verbatim quotes · confidence high
therefore, we hold that even if section 323(a) does apply in a medical malpractice case, it applies only to duty and not proximate cause.
examined Cited as authority (rule) Wright v. PRG Real Estate Management, Inc. (5×) also: Cited "see"
S.C. Ct. App. · 2015 · signal: cf. · confidence medium
Cf. Skerer v. James, 290 S.C. 404, 406 , 351 S.E.2d 148, 150 (1986) (holding one who does act, even though under no obligation to do so, becomes obligated to act with reasonable care).
discussed Cited as authority (rule) Johnson v. Robert E. Lee Academy, Inc.
S.C. Ct. App. · 2012 · confidence medium
Bryant v. Babcock Ctr., Inc., 371 S.C. 123, 136 , 638 S.E.2d 650, 657 (2006) (recognizing a duty may arise under section 323); Russell v. City of Columbia, 305 S.C. 86, 89-90 , 406 S.E.2d 338, 340 (1991) (relying in part on section 323 to find duty may exist between volunteer defendant and plaintiff); Sherer v. James, 290 S.C. 404, 407-08 , 351 S.E.2d 148, 150 (1986) (internal citation omitted) (" ‘Section 323(a) simply establishes a duty on one who undertakes to render services for the protection of another to use due care to avoid increasing the risk of harm.' We agree with this rationale.…
discussed Cited as authority (rule) Madison Ex Rel. Bryant v. Babcock Center (2×)
S.C. · 2006 · confidence medium
Sherer v. James, 290 S.C. 404, 406 , 351 S.E.2d 148, 150 (1986); Round-tree Villas Assn. v. 4701 Kings Corp., 282 S.C. 415, 423 , 321 S.E.2d 46, 50-51 (1984); Miller, 317 S.C. at 33-34 , 451 S.E.2d at 404 .
discussed Cited as authority (rule) Madison v. Babcock Center, Inc.
S.C. · 2006 · confidence medium
Sherer v. James, 290 S.C. 404, 406 , 351 S.E.2d 148, 150 (1986); Roundtree Villas Assn. v. 4701 Kings Corp., 282 S.C. 415, 423 , 321 S.E.2d 46, 50-51 (1984); Miller, 317 S.C. at 33-34 , 451 S.E.2d at 404 .
discussed Cited as authority (rule) Wright v. St. Mary's Medical Center of Evansville, Inc.
S.D. Ind. · 1999 · confidence medium
Bldg., Inc., 445 So.2d 1015, 1019 (Fla.1984) ("We cannot approve the substitution of such an obvious inequity for a perceived one.”); Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47 , 830 P.2d 1185, 1190 (1992) (rejecting the loss of chance doctrine and holding that "the 'substantial factor’ standard of proof for proximate causation strikes a fair balance between the claimant and the defense”); Cornfeldt v. Tongen, 295 N.W.2d 638, 640 (Minn.1980) (“[T]o avoid a directed verdict a plaintiff must introduce expert medical testimony that it was more probable than not that the deat…
examined Cited as authority (rule) Jones v. Owings (3×) also: Cited "see"
S.C. · 1995 · confidence medium
Sherer v. James, 290 S.C. 404, 407 , 351 S.E. (2d) 148, 150 (1986).
discussed Cited as authority (rule) Andersen v. Brigham Young University
D. Utah · 1995 · confidence medium
In Sharer v. James, 290 S.C. 404 , 351 S.E.2d 148, 150 (1986), the South Carolina Supreme Court criticized Hamil and observed that section 323(a) of the Restatement (Second) of Torts acts merely to establish a duty on one who undertakes to provide services and should not be read to apply to proximate cause. 4 .
examined Cited as authority (rule) Kramer v. Lewisville Memorial Hospital (6×) also: Cited "see"
Tex. · 1993 · confidence medium
Ctr., 320 Md. 776 , 580 A.2d 206, 215 (1990); Ladner v. Campbell, 515 So.2d 882, 888-89 (Miss.1987); Clayton v. Thompson, 475 So.2d 439, 445 (Miss.1985); Pillsbury-Flood v. Portsmouth Hosp., 128 N.H. 299 , 512 A.2d 1126 (1986); Cooper v. Sisters of Charity, Inc., 27 Ohio St.2d 242 , 272 N.E.2d 97, 103 (1971); Sherer v. James, 290 S.C. 404 , 351 S.E.2d 148, 150-51 (1986); see also Alfonso v. Lund, 783 F.2d 958 (10th Cir.1986) (New Mexico law); Bromme v. Pavitt, 5 Cal.App.4th 1487 , 7 Cal.Rptr.2d 608, 613-18 (1992); Dumas v. Cooney, 235 Cal.App.3d 1593 , 1 Cal.Rptr.2d 584 (1991); Morgenroth v. P…
discussed Cited "see" Florida Auto Auction of Orlando, Inc. v. United States (2×)
4th Cir. · 1996 · signal: see · confidence high
Restatement (Second) of Torts § 323 (1993); see Sherer v. James, 290 S.C. 404 , 351 S.E.2d 148 , 150 n. 3 (1986).
discussed Cited "see" Florida Auto Auction of Orlando, Incorporated, D/B/A Lakeland Auto Auction, as Successor in Interest to the Claims of Lakeland Auto Auction, Incorporated Florida Auto Auction of Orlando, Incorporated, D/B/A Imperial Auto Auction of Orlando, Incorporated, as Successor in Interest to the Claims of Florida Auction Services Corporation, D/B/A Imperial Auto Auction of Orlando Centennial Casualty Company, as Subrogee of Claims of Adt Automotive, Incorporated, Formerly Doing Business as West Palm Beach Auto Auction, Incorporated Florida Auto Auction of Orlando, Incorporated Centennial Casualty Company, as Subrogee of the Claims of Adt Automotive, Incorporated, Formerly Doing Business as Orange County Auto Auction, Incorporated, Now Known as Greater Orlando Auto Auction v. United States of America, Florida Auto Auction of Orlando, Incorporated, D/B/A Lakeland Auto Auction, as Successor in Interest to the Claims of Lakeland Auto Auction, Incorporated Florida Auto Auction of Orlando, Incorporated, D/B/A Imperial Auto Auction of Orlando, Incorporated, as Successor in Interest to the Claims of Florida Auction Services Corporation, D/B/A Imperial Auto Auction of Orlando Centennial Casualty Company, as Subrogee of Claims of Adt Automotive, Incorporated, Formerly Doing Business as West Palm Beach Auto Auction, Incorporated Florida Auto Auction of Orlando, Incorporated Centennial Casualty Company, as Subrogee of Claims of Adt Automotive, Incorporated, Formerly Doing Business as Orange County Auto Auction, Incorporated, Now Known as Greater Orlando Auto Auction v. United States (2×)
4th Cir. · 1996 · signal: see · confidence high
As the Government points out, South Carolina courts have adopted the "Good Samaritan" provision of the Second Restatement of Torts, which states: 21 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 ... the harm is suffered because of the other's reliance upon the undertaking. 22 Restatement (Second) of Torts Sec. 323 (1993); see Sh…
discussed Cited "see" Rabb v. Orkin Exterminating Co., Inc. (2×)
D.S.C. · 1987 · signal: see · confidence high
See Sherer v. James, 290 S.C. 404 , 351 S.E.2d 148 (1986); Cross v. Concrete Materials, 236 S.C. 440 , 114 S.E.2d 828, 829 (1960); Lorick v. South Carolina Electric & Gas Co., 245 S.C. 513 , 141 S.E.2d 662, 668 (1965); Mack v. Branch No. 12 Post Exchange, 207 S.C. 258 , 35 S.E.2d 838, 843 (1945). 1 Ignoring this settled law, the plaintiffs in their motion for a new trial cite the opinion of Waffen v. United States Dept. of Health & Human Services, 799 F.2d 911 (4th Cir.1986) as support for their claim that the evidence of their alleged increased risk of disease should not have been excluded ev…
discussed Cited "see, e.g." Sessions v. Withers (2×)
S.C. Ct. App. · 1997 · signal: see also · confidence low
Johnson v. Dailey, 318 S.C. 318 , 457 S.E.2d 613 (1995); see also Clark v. Ross, 284 S.C. 543 , 328 S.E.2d 91 (Ct.App.1985) (decided under former Circuit Court Rule 89(b), which was largely identical to Rule 37(c), SCRCP), abrogated in part on other grounds, Sherer v. James, 290 S.C. 404 , 351 S.E.2d 148 (1986).
discussed Cited "see, e.g." Miller v. City of Camden (2×)
S.C. Ct. App. · 1994 · signal: see also · confidence low
See also Sherer v. James, 290 S.C. 404 , 351 S.E. (2d) 148 (1986) (recognizing analogous § 323(a) of the Restatement (Second) of Torts establishes a duty on one who undertakes to render services for protection of another to use due care to avoid increasing the risk of harm).
examined Cited "see, e.g." Mayhue v. Sparkman (4×)
Ind. Ct. App. · 1994 · signal: see, e.g. · confidence low
See, e.g., Sherer v. James (1986), 290 S.C. 404 , 351 S.E.2d 148 ; Curry v. Summer (1985), 136 Ill.App.3d 468 , 91 Ill.Dec. 365 , 483 N.E.2d 711 , appeal denied (1986); see generally Lisa Per-rochet, Sandra J.
discussed Cited "see, e.g." Ehlinger v. Sipes (2×)
Wis. · 1990 · signal: see also · confidence low
See, Perdue, 28 South Texas Law Review at 51 n.85; see also Sherer, 351 S.E.2d at 150-51 ; Curry, 483 N.E.2d at 717 .
Retrieving the full opinion text from the archive…
John H. SHERER, as Administrator of the Estate of Scott Middleton Sherer, Respondent
v.
Charles A. JAMES, M.D., Petitioner
22628.
Supreme Court of South Carolina.
Nov 17, 1986.
351 S.E.2d 148
1986 S.C. LEXIS 459
Charles E. Carpenter, Jr., and Donald V. Richardson, III, of Richardson, Plowden, Grier & Howser, Columbia, for petitioner., 0. Fayrell Furr, Jr., and Charles E. Henshaw, Jr., Columbia, for respondent.
Ness, Gregory, Harwell, Chandler, Finney.
Cited by 41 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 75%
Citer courts: Supreme Court of South Carolina (2) · D. South Carolina (1)
Ness, Chief Justice:

We granted certiorari to review the decision of the Court of Appeals reported at 286 S. C. 304, 334 S. E. (2d) 283 (Ct. App. 1985). We reverse and reinstate the jury verdict in favor of petitioner James.

On a Wednesday evening, twelve-year-old Scott Sherer [1] developed abdominal pain after playing basketball. Scott’s mother telephoned James, Scott’s pediatrician, who attributed the pain to a pulled muscle and prescribed aspirin. Later that night, Scott’s mother again telephoned James because Scott was nauseated and his pain had not diminished. James prescribed paregoric. Thursday morning, James called Scott’s mother to inquire as to Scott’s condition, which was unchanged. On Friday morning, one of Scott’s testicles appeared swollen. Scott’s mother took him to James’ office, where James discovered torsion of Scott’s testicle. James referred Scott to a urologist who surgically removed the testicle that day.

Scott brought suit against James, alleging negligence in the delay in diagnosing Scott’s condition. At trial, an expert testified that, had the torsion been diagnosed Wednesday night, there would have been better than fifty percent chance of saving the testicle. Scott requested a jury charge which read:

[*406] One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of another’s person ... is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if his failure to exercise such care increases the risk of such harm.

The trial judge denied the request, finding his general charge “covered it.” After extended deliberations, during which the jury requested additional instructions several times, a verdict was returned in favor of James. Scott appealed, raising four issues.

The Court of Appeals reversed and remanded for a new trial. It held the requested charge was “a correct principle of law” and was embraced by the pleadings and proof. Scott had argued, and the Court of Appeals held, that the requested charge was critical to the issue of proximate cause in a medical malpractice case. The court reasoned that the failure to give the requested charge was prejudicial because causation was the “critical issue in the case.” 334 S. E. (2d) at 285. In its order on rehearing, the Court of Appeals suggested the charge was a factor in defining a physician’s standard of care rather than proximate cause. We granted certiorari to address this novel issue. [2]

The requested charge is taken essentially verbatim from RESTATEMENT [SECOND] OF TORTS Section 323(a) (1965). Traditionally, this section of the Restatement was read to define the scope of a defendant’s duty to rescue. Cf., Slater v. Illinois Central R.R. Company, 209 F. 480 (M.D. Tenn. 1911). At common law, when there is no duty to act but an act is voluntarily undertaken, the actor assumes a duty to use due care. See, e.g., Roundtree Villas Association, Inc. v. 1701 Kings Corporation, 282 S. C. 415, 321 S. E. (2d) 46 (1984).

The application of Section 323(a) as a standard of proof for causation originated in Hamil v. Bashline, 224 Pa. Super. 407, 307 A. (2d) (1973). There, the[*407] Pennsylvania Superior Court held that when proof of a causal connection cannot meet the common law standard, a medical malpractice plaintiff must rely on Section 323, which allows the issue of proximate cause to reach the jury on a showing of increased risk. 307 A. (2d) at 62. The Hamil rule reduces the burden of proof to which a medical malpractice plaintiff is held at the directed verdict stage. In South Carolina, a medical malpractice plaintiff who relies upon expert testimony must introduce evidence that the defendant’s negligence most probably resulted in the injuries alleged. Armstrong v. Wetland, 267 S. C. 12, 225 S. E. (2d) 851 (1976). A directed verdict for the defendant is appropriate where there is no evidence from which a jury could reasonably infer the defendant’s negligence was a proximate cause of the plaintiff’s injuries. Hanselmann v. McCardle, 275 S. C. 46, 267 S. E. (2d) 531 (1980).

The Hamil theory permits a plaintiff to reach the jury by introducing evidence that the defendant’s negligence increased the risk of a particular harm. It eliminates the stricter burden of showing the defendant’s negligence most probably caused the harm. Once past the directed verdict stage, the jury’s standard for determining proximate cause is unaffected by the Hamil theory. Increased Risk of Harm: A New Standard of Evidence of Causation in Medical Malpractice Cases, 65 Boston Univ. L. Review 275 (1985).

The Hamil theory has been embraced in a number of jurisdictions as a factor in determining proximate cause in medical malpractice cases. See, e.g., Aasheim v. Humberger, 695 P. (2d) 824 (Mont. 1985); Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash. (2d) 609, 664 P. (2d) 474 (1983); Thornton v. CAMC, ETC., 305 S. E. (2d) 316 (W. Va. 1983); Hernandez v. Clinica Pasteur, Inc., 293 So. (2d) 747 (Fla. Dist. Ct. App. 1974), overruled, Gooding v. University Hospital Building, Inc. 445 So. (2d) 1015 (Fla. 1984), and cases cited therein.

Other jurisdictions have construed Section 323(a) as relating to the element of duty rather than proximate cause. “Section 323(a) simply establishes a duty on one who undertakes to render services for the protection of another to use due care to avoid increasing the risk of harm.” Curry v. Summer, 136 Ill. App. 468, 91 Ill. Dec. 365,[*408] 371, 483 N. E. (2d) 711, 717 (1985). We agree with this rationale. Therefore, we hold that even if Section 323(a) does apply in a medical malpractice case, it applies only to duty and not proximate cause. [3]

In its decision in this case and in Clark v. Boss, supra, the Court of Appeals adopted the Ramil charge as it relates to proximate cause. In light of our holding that Section 323(a) prescribes a duty of care and is not related to the issue of proximate cause, the Court of Appeals’ ruling is in error. Moreover, even if Section 323(a) could be construed as relating to proximate cause, we are unwilling to relax the plaintiff’s burden of proof in a medical malpractice case. See Hanselmann v. McCardle, supra. A defendant physician is entitled to put the medical malpractice plaintiff to proof equally as stringent as that required of plaintiffs in other negligence actions.

We express no opinion on the propriety of a charge based on Section 323(a) as it relates,to physician’s duty of care. That issue was not decided by the Court of Appeals, and is therefore not before us on certiorari.

Because it reversed on this issue, the Court of Appeals did not reach the remaining exceptions raised by respondent on direct appeal. While remand to the Court of Appeals would be appropriate, Boardman v. Lovett Enterprises, Inc., 287 S. C. 303, 338 S. E. (2d) 323 (1985), we have considered the remaining issues and find them to be without merit. The decision of the Court of Appeals is reversed and the jury verdict is reinstated.

Reversed.

Gregory, Harwell, Chandler and Finney, JJ., concur.
1

Scott died pending disposition of his appeal in the Court of Appeals. At oral argument, counsel for the parties agreed Scott’s death was unrelated to the injuries which are the subject of this action.

2

The Court of Appeals first endorsed the “increased risk of harm” charge in Clark v. Ross, 284 S. C. 543, 328 S. E. (2d) 91 (Ct. App. 1985). Neither party sought certiorari in that case. This is our first opportunity to address the propriety of this charge in South Carolina.

3

Our Court of Appeals is among those courts which has recognized Section 323 as defining a defendant’s duty to use due care. Winburn v. Insurance Company of North America, 287 S. C. 435, 339 S. E. (2d) 142 (Ct. App. 1985).