UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES F. BAUER,
Plaintiff-Appellant,

v.                                                                       No. 95-1995

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Beaufort.
Cameron McGowan Currie, District Judge.
(CA-94-118-9-22)

Submitted: April 9, 1996

Decided: May 22, 1996

Before MURNAGHAN, HAMILTON, and LUTTIG,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

James B. Richardson, Jr., SVALINA, RICHARDSON & SMITH,
Columbia, South Carolina, Samuel S. Svalina, SVALINA, RICH-
ARDSON & SMITH, Beaufort, South Carolina, for Appellant.
J. Preston Strom, Jr., United States Attorney, John H. Douglas, Assis-
tant United States Attorney, Charleston, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A vehicle driven by Lance Corporal John A. Carlin, an off-duty
Marine, collided head-on with the vehicle of James F. Bauer, causing
personal injury to Bauer. The accident was caused by Carlin's intoxi-
cation and occurred in the state of South Carolina. Carlin obtained
alcoholic beverages with his military identification card ("MIC")
which erroneously showed him to be age twenty-one; his true age was
twenty. It is unclear how the erroneous MIC was created.

Bauer filed a complaint under the Federal Tort Claims Act
("FTCA"), 28 U.S.C.A. § 1346(b) (West 1993), 28 U.S.C. § 2671
(1988), alleging that his injuries were the direct and proximate cause
of the Government's negligent issuance of Carlin's inaccurate MIC.
After a hearing, the district court granted the Government's motion
for summary judgment, finding that the Government owed no duty of
care to Bauer. Bauer appeals.

Summary judgment is appropriate when there is no genuine issue
of material fact that could lead a trier of fact to find for the non-
moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48
(1986). We review the district court's decision to grant summary
judgment de novo. Higgins v. E.I. DuPont de Nemours & Co., 863
F.2d 1162, 1167 (4th Cir. 1988).

The FTCA is a limited congressional waiver of sovereign immu-
nity for injury or loss caused by the negligent or wrongful act of a
Government employee acting within the scope of his employment,
such that if United States were a private person it would be liable to
the claimant under the law of the place where the act occurred. 28
U.S.C.A. § 1346(b), (d) (West 1993); United States v. Kubrick, 444
U.S. 111, 117-18 (1979); Harris v. United States , 718 F.2d 654, 656
(4th Cir. 1983).

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In South Carolina a cause of action for negligence requires the
existence of a duty on the part of the defendant to protect the plaintiff,
failure of the defendant to discharge that duty, and injury to the plain-
tiff resulting from the defendant's failure to perform. South Carolina
State Ports Auth. v. Booz-Allen & Hamilton, Inc., 346 S.E.2d 324,
325 (S.C. 1986). To show that the Government owed Bauer a duty
created by a statute, Bauer must show both that the essential purpose
of the statute is to protect persons from the kind of harm he has suf-
fered and that he is member of the class of persons the statute is
intended to protect. Rayfield v. South Carolina Dep't of Corrections,
374 S.E.2d 910, 914-15 (S.C. Ct. App. 1988).

Bauer relies upon two South Carolina statutes to form the basis of
the Government's duty to prevent injury to him: S.C. Code Ann. § 61-
13-287 (Law Co-op. 1990), which prohibits the transfer of alcoholic
beverages to persons below age twenty-one, and S.C. Code Ann.
§ 61-9-50 (Law Co-op. 1990), which prohibits a minor from using
false information to purchase alcohol. Neither statute's essential pur-
pose is to redress the problem of negligently issued identification,
however. Further, Bauer has failed to show the Government owed
him a common law duty. See generally Rayfield , 374 S.E.2d at 913
(ordinarily the common law imposes no duty on a person to act; an
affirmative legal duty is only created by statute, contract, relationship,
property interest, or other special circumstance). Because Bauer can-
not meet the duty element needed to prevail in a negligence action,
we affirm the district court's order granting summary judgment for
the Government.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the material before the court and
argument would not aid the decisional process.

AFFIRMED

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