South Carolina Slip and Fall Blog

Thomas v. Consolidated Stores/Big Lots

Case Name: Thomas v. Consolidated Stores/Big Lots

Short Cite:  1993 U.S. App. LEXIS 14648

Case History:  The United States District Court for the District of South Carolina  granted summary judgement to the defendant.  Plaintiff appealed (this case) and the appellate court affirmed the lower courts’ decision.

Type of Premises Liability:  Slip and Fall; Foreign Substance; Created by Store

Pro-Plaintiff or Defendant:  Pro-Defendant

Cases Citing this Case:  None

Cases Cited in this Case:  Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28 (4th Cir. 1987); Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)); Dennis v. Wal-Mart Stores, Inc., 392 S.E.2d 810, 810-11 (S.C. App. 1990); Gillespie v. Wal-Mart Stores, Inc., 394 S.E.2d 24, 24-25 (S.C. 1990)

Case Holding:  Because no material of fact existed that could overrule the defendant’s motion for summary judgement, the appellate court affirmed the decision.

Thoughts About the Case: 

Case Text:

PRIOR HISTORY: Appeal from the United States District Court for the District of South Carolina, at Florence. William B. Traxler, Jr., District Judge. (CA-91-2689-4)

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff shopper sought review of an order of the United States District Court for the District of South Carolina, at Florence, which granted summary judgment in favor of defendant store in the shopper's personal injury action.

OVERVIEW: The shopper was in the store when she slipped on some bird seed that was scattered on the aisle floor. After she fell, the shopper noticed an open bucket or canister of bird seed at the end of the aisle near the door to the employees' lounge. She did not observe employees in the area until after she fell and an employee arrived to render assistance. The shopper claimed that the store knew or should have known about the bird seed on the floor and failed to remove it. In affirming, the court held that the shopper had failed to present sufficient evidence to overcome a summary judgment motion. The court held that the shopper presented no evidence than an employee left the open bucket or canister by the employee lounge door or that any employees were aware of the open container or the bird seed on the floor. The court held that the fact that the open bucket was near the employee lounge was insufficient to create an inference than an employee created the hazardous condition and there was nothing to link the location of the bucket and the spilled bird seed to an employee.

OUTCOME: The court affirmed the district court's summary judgment in favor of the store.

COUNSEL: Richard G. Dusenbury, DUSENBURY & SNOW, P.A., Florence, South Carolina, for Appellant.

Saunders M. Bridges, Jr., Gena Phillips Ervin, BRIDGES, ORR, MCEACHIN, DERRICK & ERVIN, Florence, South Carolina, for Appellee. JUDGES: Before MURNAGHAN, WILKINS, and NIEMEYER, Circuit Judges. OPINION BY: PER CURIAM OPINIONOPINION

PER CURIAM:

Linda Thomas appeals from the district court's order granting summary judgment in favor of Consolidated Stores/Big Lots ("Big Lots") in Thomas' personal injury action. Because no issue of material fact exists to overcome Big Lots' summary judgment motion, we affirm.

Thomas was shopping in Big Lots' Lake City, South Carolina, store when she slipped on some bird seed that was scattered on the aisle floor. After she fell, Thomas noticed an open bucket or canister of bird seed at the end of the aisle near the door to the employees' lounge. She did not observe employees in the area until after she fell and an employee arrived to render assistance.

Claiming that she sustained serious injuries from her fall, Thomas sued Big Lots on the grounds that it knew or should have known about the bird seed on the floor and failed to remove it. ^* Big Lots filed a motion for summary judgment on the ground that Thomas could not show that Big Lots knew or should have known about the presence of the bird seed or created the hazardous condition and therefore could not recover against the store. After a hearing, the district court granted Big Lots' motion for summary judgment. Thomas timely appealed.

* Thomas filed her complaint in the Court of Common Pleas of Florence County, South Carolina, and then Big Lots removed the action to federal district court.

This Court reviews a grant of summary judgment de novo, applying the same standards employed by the district court. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28 (4th Cir. 1987). Summary judgment is proper [*3] only when it is clear that there is no genuine dispute concerning either the facts material to the controversy 2 or the reasonable inferences to be drawn from those facts. Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). When reviewing a summary judgment motion, the appellate court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). To avoid summary judgment, the evidence must be such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson, 477 U.S. at 248.

The standard under South Carolina law for slip and fall cases is well established:

To recover damages for injuries caused by a dangerous or defective condition on [defendant's] premises,[plaintiff] must show either (1) that the injury was caused by a specific act of the [defendant] which created the dangerous condition; or (2) that the [defendant] had actual or constructive knowledge [*4] of the dangerous condition and failed to remedy it.

Dennis v. Wal-Mart Stores, Inc., 392 S.E.2d 810, 810-11 (S.C. App. 1990) (citations omitted). Under either test, Thomas failed to present sufficient evidence to overcome a summary judgment motion.

Thomas presented no evidence that an employee left the open bucket or canister by the employee lounge door or that any employees were aware of the open container or the bird seed on the floor. Nevertheless, Thomas contends that the following inferences may be drawn from the location of the container by the employee lounge and create a genuine dispute as to material facts: (1) an employee placed the bucket by the lounge or (2) because the bucket was near the lounge, employees knew or should have known about it and the dangerous condition it created, but failed to remedy it.

The fact that the open bucket was near the employee lounge is insufficient to create an inference that an employee created the hazardous condition. There is nothing to link the location of the bucket and the spilled bird seed to an employee.

Thomas presented no evidence from which a reasonable jury could infer that Big Lots knew about the spilled seed and failed to remove it. Furthermore, under South Carolina law, Thomas did not present sufficient evidence from which a reasonable jury could infer that Big Lots should have known about the spilled seed. In South Carolina slip and fall cases, the mere presence of a spilled substance is insufficient to show that a storekeeper should have known about the condition. Constructive knowledge of dangerous conditions can be established "by showing that the foreign substance had been on the floor for a sufficient length of time that the storekeeper would or should have discovered and removed it had the storekeeper used ordinary care." Gillespie v. Wal-Mart Stores, Inc., 394 S.E.2d 24, 24-25 (S.C. 1990). No evidence was presented concerning how long the bird seed had been on the floor. Construing the facts and the reasonable inferences to be drawn from the facts, there is no evidence from which a reasonable jury could infer that the bird seed was on the floor for a sufficient length of time to give Big Lots constructive notice of the spilled bird seed.

For these reasons, we affirm the district court's entry of summary judgment for Big Lots. We grant the parties' Joint Motion to Submit on Briefs and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED

Duety v. Emro Mktg. Co.

Case Name:  Duety v. Emro Mktg. Co.

Short Cite:  1994 U.S. App. LEXIS 29743

Case History:  The United States District Court for the District of South Carolina granted summary judgement to defendant convenience store (39 F.3d 1176, 1994 U.S. App. LEXIS 38052 (4th Cir. S.C. 1994)).  Plaintiff appealed (this case) and the appellate court affirmed the lower courts ruling.

Type of Premises Liability:  Slip and Fall; Foreign Substance; Created by Store

Pro-Plaintiff or Defendant:  Pro-Defendant

Cases Citing this Case:  None

Cases Cited in this Case:  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980); Wimberley v. Winn-Dixie Greenville, Inc., 252 S.C. 117, 165 S.E.2d 627, 628 (1969); Calvert v. House Beautiful Paint & Decorating Ctr., Inc., 443 S.E.2d 398 (1994); Anderson v. Winn-Dixie Greenville, Inc., 257 S.C. 75, 184 S.E.2d 77 (1971); Young v. Meeting Street Piggly Wiggly, 288 S.C. 508, 343 S.E.2d 636 (Ct. App. 1986)

Case Holding: 

On appeal, the court held that the district court properly granted summary judgment to the store. There was no testimony showing that there was water or any other substance on the floor, and the evidence showed that the store had erected a "wet floor" sign. Because the customer conceded that the store had no actual notice of the presence of water on its floor, the customer was required to show that the store had constructive notice, but failed to do so. Even assuming that there was water on the floor, the customer failed to show how long the water had been there, and the mere fact that water was on the floor was insufficient standing alone to charge the store with constructive notice. Further, the store employees took the precaution of erecting a sign due to the rain.

Thoughts About the Case:

Case Text:

PROCEDURAL POSTURE: Appellant customer sought review of a judgment of the United States District Court for the District of South Carolina, at Beaufort, which granted summary judgment to appellee convenience store in the customer's personal injury action for injuries sustained in a slip and fall at the store.

OVERVIEW: The customer slipped and fell when she entered the convenience store. She claimed that the store negligently failed to keep the floor in a safe, dry condition and that it failed to adequately warn her of the danger. The district court granted summary judgment to the store on the basis that the store had not been negligent under South Carolina law. On appeal, the court held that the district court properly granted summary judgment to the store. There was no testimony showing that there was water or any other substance on the floor, and the evidence showed that the store had erected a "wet floor" sign. Because the customer conceded that the store had no actual notice of the presence of water on its floor, the customer was required to show that the store had constructive notice, but failed to do so. Even assuming that there was water on the floor, the customer failed to show how long the water had been there, and the mere fact that water was on the floor was insufficient standing alone to charge the store with constructive notice. Further, the store employees took the precaution of erecting the sign due to the rain.

OUTCOME: The court affirmed the judgment of the district court that granted summary judgment to the store.

COUNSEL: Daniel E. Henderson, PETERS, MURDAUGH, PARKER, ELTZROTH & DETRICK, P.A., Ridgeland, South Carolina, for Appellant.

G. Richardson Wieters, John W. Minor, Jr., HUGHES & WIETERS, P.A., Hilton Head Island, South Carolina, for Appellee. JUDGES: Before WILKINSON and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge. OPINION BY: PER CURIAM

OPINION

PER CURIAM:

Barbara L. Duety appeals from the district court's order granting summary judgment to Emro Marketing Company (Emro) in her personal injury suit. Duety slipped and fell when she entered one of the Defendant's Starvin Marvin convenience stores in Hardeeville, South Carolina. She sued, claiming that Emro negligently failed to keep the floor in a safe, dry condition and that it failed to adequately warn her of the danger.

The facts as presented by Duety were as follows. On November 2, 1989, Duety, her husband, and her parents, were travelling by car from Florida to North Carolina. They stopped at a Starvin Marvin convenience store in Hardeeville, South Carolina, to get gas and to use the restroom. Duety, the second to enter the store, slipped and fell because she "hit a wet floor." However, none of the parties could remember seeing any water on the floor. Duety's mother stated that she did not see any water on the floor; rather she"assumed that it was [wet]" because her daughter fell. She did see a small sign but could not recall what it said. Duety's mother also stated that she saw an employee mopping the floor in the back of the store. Her father did not recall seeing anyone mopping the floor but he did remember seeing a wet floor sign. Duety claimed that she did not see the warning sign, although she did not dispute that it was present. She also stated that there was nothing obstructing her view of the sign, she was just not looking in that direction.

Although there was some dispute as to whether it was raining at the time Duety arrived at the store, Duety and her family all stated that it had been raining on and off during their drive shortly before they arrived at the store. It was also undisputed that there were two safety mats (each measuring three feet by five feet) located immediately inside the doors to the store. One of the two Emro employees on duty the day of the accident stated that no one else had fallen or complained about the floor being slippery prior to Duety's fall. She also stated that it was the store's policy to put up the"Wet Floor" sign whenever the floor was mopped or if it was raining outside and that it was up the day of the accident because of rain. On this evidence, the district court granted summary judgment to Emro, finding that under South Carolina law, Emro had not been negligent. Duety appeals.

Summary judgment is only appropriate where the record taken as a whole would not allow a rational trier of fact to find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All facts and reasonable inferences must be viewed in the light most favorable to the nonmovant. Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). With this standard in mind, we find that the district court properly granted summary judgment to Emro.

The duty owed by a merchant in South Carolina is to exercise ordinary care to keep his premises in a reasonably safe condition. Wimberley v. Winn-Dixie Greenville, Inc., 252 S.C. 117, 165 S.E.2d 627, 628 (S.C. 1969) ("It has long been settled in South Carolina . . . that one who operates a store is not an insurer of the safety of its customers, the duty owed them is rather the duty of exercising ordinary care to keep parts of the store as are ordinarily used by customers in a reasonably safe condition."). A customer who seeks to recover for injuries sustained in a fall caused by a foreign substance on a storekeeper's floor must prove the storekeeper had actual or constructive notice the foreign substance was on the floor. Calvert v. House Beautiful Paint & Decorating Ctr., Inc., 443 S.E.2d 398 (S.C. 1994); Duety conceded that Emro had no actual notice of the presence of water on its floor.

Constructive notice may be proved by showing that a foreign substance had been on the floor sufficiently long that the storekeeper should have discovered it. Wimberley, 165 S.E.2d at 629. [*5] Here there was no testimony from anyone that there was even water on the floor. Even assuming there was, however, Duety failed to show how long the water had been there. Id. at 629 ("The jury should not be permitted to speculate that [the foreign substance] was on the floor for such a length of time as to infer that defendant was negligent in failing to detect and remove it.") The mere fact that the substance was on the floor is insufficient standing alone to charge the storekeeper with negligence. Anderson v. Winn-Dixie Greenville, Inc., 257 S.C. 75, 184 S.E.2d 77 (S.C. 1971). Therefore, Duety failed to show that Emro had constructive notice of any water on the floor.

The district court judge based his decision on Young v. Meeting Street Piggly Wiggly, 288 S.C. 508, 343 S.E.2d 636 (S.C. Ct. App. 1986). In that case, the plaintiff had slipped and fallen on water near the store's entrance. It had been raining heavily all day and employees had been mopping every five to ten minutes. Two yellow mop buckets with "Wet Floor" printed on their sides, and two safety mats were placed at the [*6] store's entrance. The South Carolina Court of Appeals held that on this evidence the trial court had committed reversible error by allowing the case to go to the jury because Piggly Wiggly had taken reasonable steps to remove excess water from its entrance. Here, Emro's employees took the same precautions except that they had not mopped the floor because they did not see any water.

Therefore, we affirm the district court's order granting summary judgment to Emro. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED

Rodgers v. Food Lion, Inc.

Case Name:  Rodgers v. Food Lion, Inc.

Short Cite:  1996 U.S. App. LEXIS 30257

Case History:  The United States District Court for the Eastern District of Virginia found for plaintiff (103 F.3d 119, 1996 U.S. App. LEXIS 36456 (4th Cir. Va. 1996)).  Defendant appealed (this case) and the appellate court reversed and remanded.

Type of Premises Liability:  Slip and Fall; Foreign Substance; Created by Store

Pro-Plaintiff or Defendant:  Pro-Defendant

Cases Citing this Case:  Sandow-Pajewski v. Busch Entertainment Corp., 55 F. Supp. 2d 422, 1999 U.S. Dist. LEXIS 16029 (E.D. Va. 1999)

Cases Cited in this Case:  Colonial Stores, Inc. v. Pulley, 203 Va. 535, 125 S.E.2d 188, 190 (1962); Memco Stores, Inc. v. Yeatman, 232 Va. 50, 348 S.E.2d 228, 231 (1986); Winn-Dixie Stores, Inc. v. Parker, 240 Va. 180, 396 S.E.2d 649 (Va. 1990); Thomason v. Great Atlantic & Pacific Tea Co., 413 F.2d 51, 52 (4th Cir. 1969); Thomason. Winn-Dixie, 240 Va. 180, 396 S.E.2d 649

Case Holding:  “We hold the district court erred in denying Food Lion's motions for a directed verdict, and reverse and vacate the district court's judgment.  Because Rodgers failed to show that Food Lion placed the foreign substance on the floor or knew, or in the exercise of reasonable care should have known, of its presence and failed to remove it, Food Lion was entitled to a directed verdict. For the foregoing reasons the judgment appealed from is reversed, the jury award vacated, and judgment entered favoring Food Lion, Inc.”

Thoughts About the Case:

Case Text:

PROCEDURAL POSTURE: Defendant grocery store sought review of a judgment from the United States District Court for the Eastern District of Virginia, entered in favor of plaintiff claimant, in her action for personal injuries sustained when she slipped in a puddle of water while shopping at the grocery store.OVERVIEW: The claimant was injured when she slipped in a puddle of water while shopping at the grocery store. The claimant brought an action for personal injuries against the grocery store. The trial court entered judgment for the claimant. The court reversed the judgment and remanded the case for entry of judgment for the grocery store, holding that because the claimant failed to show that grocery store placed the foreign substance on the floor or knew, or in the exercise of reasonable care should have known, of its presence and failed to remove it, the grocery store was entitled to a directed verdict.OUTCOME: The court reversed the judgment and remanded the case for entry of judgment in favor of the grocery store.CORE TERMS: food, floor, display, ice, crushed, customer, counter, directed verdict, slipped, bean, store employee, constructive notice, snap bean, missed, puddle, store owner, dangerous condition, standard of care, slip-and-fall, finished, mopping, mopped, shopping, evening, pooled, beside

COUNSEL: ARGUED: Lisa Ann Bertini, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Norfolk, Virginia, for Appellant.

Melvin J. Radin, Norfolk, Virginia, for Appellee.

ON BRIEF: Robert W. McFarland, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Norfolk, Virginia; Charles G. Meyer, III, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia, for Appellant. JUDGES: Before RUSSELL and MICHAEL, Circuit Judges, and NORTON, United States District Judge for the District of South Carolina, sitting by designation. OPINIONOPINION

PER CURIAM:

Amanda R. Rodgers injured herself when she slipped in a puddle of water while shopping at a store owned by Food Lion Inc. ("Food Lion"). A jury found Food Lion liable and awarded Rodgers $ 31,205.62 in damages. Food Lion appeals the district court's award and denial of Food Lion's motion for a directed verdict. We hold the district court erred in denying Food Lion's motions for a directed verdict, and reverse and vacate the district court's judgment.

I.

While shopping at a Food Lion store, Rodgers slipped in a puddle of water, which she contends had pooled in the vicinity of a produce display counter containing crushed ice. While she neither saw nor was aware of the water before she slipped, she speculated that the water resulted from ice chips dropping to the floor and melting when produce was removed from the display. Jack Mills, an assistant manager who was on duty when Rodgers fell, testified that on previous occasions he had seen crushed ice fall on the floor outside the display case, but that it was usually mopped up before it melted. He further testified that he saw a store employee spot-mop the floor beside the display counter approximately one-half hour before Rodgers' fall.

No store employee testified to having seen crushed ice fall from the display counter to the floor on the evening of Rodgers' mishap. But Billy Smith, a grocery clerk who was not on duty the evening of Rodgers' fall, testified that he had previously seen crushed ice fall to the floor beside the display counter as customers [*3] removed melons or other items from the display counter.

Rodgers filed a personal injury action in the Circuit Court for the City of Suffolk, Virginia. Food Lion removed the case to the United States District Court for the Eastern District of Virginia, which conducted a jury trial. At the conclusion of Rodgers' case, Food Lion moved for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure. The district court denied the motion. At the conclusion of Food Lion's evidence, Food Lion renewed its motion for a directed verdict. Again, the district court denied Food Lion's motion.

The jury returned a verdict for Rodgers in the amount of $ 31,205.62, plus interest. Food Lion moved to set aside the verdict. The district court denied its motion. Food Lion appealed, arguing that it did not have actual or constructive notice of the dangerous condition causing Rodgers to slip and fall.

II.

In Virginia, the standard of care applicable to slip-and-fall cases is well-settled:

The [store owner] owes the [customer] the duty to exercise ordinary care toward her as its invitee upon its premises. In carrying out this duty it was required to have the premises in [*4] a reasonably safe condition for her visit; to remove, within a reasonable time, foreign objects from its floors, which it may have placed there or which it knew, or should have known, that other persons have placed there; to warn the [customer] of the unsafe condition if it was unknown to her, but was, or should have been, known to the[store owner].

Colonial Stores, Inc. v. Pulley, 203 Va. 535, 125 S.E.2d 188, 190 (1962). Under this standard of care, the plaintiff need not prove that the defendant had actual notice of a hazardous object on its floor in time to remove it; it is sufficient for the plaintiff to prove constructive notice. Memco Stores, Inc. v. Yeatman, 232 Va. 50, 348 S.E.2d 228, 231 (1986).

If an ordinarily prudent person, given the facts and circumstances [the defendant] knew or should have known, could have foreseen the risk of danger resulting from such circumstances, the [defendant] had a duty to exercise reasonable care to avoid the genesis of the danger.

Id.

In applying this standard to the facts before us, we find that Winn-Dixie Stores, Inc. v. Parker, 240 Va. 180, 396 S.E.2d 649 (Va. 1990), directs our legal determination. In Winn-Dixie, the plaintiff [*5] slipped on a snap bean on the floor in the produce section of the store. Nobody saw or knew how the snap bean got onto the floor. Furthermore, a store employee testified that he had dry-mopped the floor shortly before the accident. The Supreme Court of Virginia held that the store was not liable. The court explained:

Nothing in the record even suggests that anyone connected with Winn-Dixie placed the bean on the floor, and it is not "obvious" from any evidence in the case that[the employee] missed the bean when he mopped through the produce section. Nor could the jury have inferred that [the employee] must have missed the bean simply because it was present on the floor when [the plaintiff] fell. To countenance such an inference would ignore the likelihood that the bean found its way to the spot where [the plaintiff] fell as the result of some action taken by another customer after [the employee] finished mopping the produce section.

Id. at 651. ^*

* In Winn-Dixie, the Supreme Court of Virginia also eliminated the "method of display" theory of proving constructive knowledge in a slip-and-fall case. In Thomason v. Great Atlantic & Pacific Tea Co., 413 F.2d 51, 52 (4th Cir. 1969), we held that a plaintiff need not establish precisely how items of food got onto a store floor. Instead, we concluded that it is enough to show that the store's method of display made it likely that the object would fall on the floor. Under our holding, a store is liable if "it is reasonably foreseeable that a dangerous condition is created by, or may arise from, the means use to exhibit commodities for sale." Id. The Supreme Court of Virginia expressly overruled Thomason. Winn-Dixie, 240 Va. 180 at 183, 396 S.E.2d 649 at 651 n.3.

[*6] Rodgers' case is indistinguishable from Winn-Dixie. The record lacks any indication that Food Lion personnel placed the crushed ice on the floor. And there is nothing in the record to suggest that when the employee spot-mopped the floor around the display one half hour before Rodgers' fall, he missed the crushed ice. The record reflects Rodgers' failure to meet her burden of establishing that Food Lion had either actual or constructive notice of the pooled water and failed to remove it. Like the snap bean in Winn-Dixie , the puddle could have been the result of some action taken by another customer after the employee finished mopping the produce section.

Because Rodgers failed to show that Food Lion placed the foreign substance on the floor or knew, or in the exercise of reasonable care should have known, of its presence and failed to remove it, Food Lion was entitled to a directed verdict. For the foregoing reasons the judgment appealed from is reversed, the jury award vacated, and judgment entered favoring Food Lion, Inc.

REVERSED AND REMANDED

Shain v. Leiserv, Inc.

Case Name:  Shain v. Leiserv, Inc.

Short Cite:  328 S.C. 524, 493 S.E.2d 111, (Ct. App. 1997)

Case History:  Trial court granted summary judgment to defendant. The Court of Appeals (this court) affirmed the summary judgment. 

Type of Premises Liability:  Slip and Fall at bowling alley with wax on the floor.

Pro-Plaintiff or Pro-Defendant:  Pro-Defendant

Cases Citing this Case:  Cummins Atl., Inc. v. Sonny's Camp-N-Travel Mart, Inc.

Cases Cited in this Case:  City of Colombia v. ACLU, 323 S.C. 384, 475 S.E.2d 747 (1996); Cafe Assoc. v. Gerngross, 305 S.C. 6, 406 S.E.2d 162 (1991); Cook v. Food Lion, Op. No. 2620 (S.C. Ct. App. filed Aug. 11, 1997); Howard v. K-Mart Discount Stores, 293 S.C. 134, 359 S.E.2d 81 (Ct. App. 1987); Smith v. Wal-Mart Stores, Inc., 314 S.C. 248, 442 S.E.2d 606 (1994); Rickborn v. Liberty Life Ins. Co., 321 S.C. 291, 468 S.E.2d 292 (1996); Denton v. Winn-Dixie, 312 S.C. 119, 439 S.E.2d 292 (Ct. App. 1993); Hendrix v. Eastern Distribution Inc., 320 S.C. 218, 464 S.E.2d 112 (1995).

Case Holding:   Shain appeals the grant of summary judgment to Leiserv, Inc., in a slip and fall action. We affirm.  Summary judgment is appropriate when it is clear that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  All reasonable inferences must be considered in the light most favorable to the non-moving party. To prove negligence in a slip and fall case, a plaintiff must show the defendant or defendant's agents either created a hazardous condition or had notice of it. Cook v. Food Lion, Op. No. 2620 (S.C. Ct. App. filed Aug. 11, 1997) (Davis Adv. Sh. No. 25 at 8). Here, because Leiserv or its agents created the condition at issue, namely the slippery surface of the bowling lane in the area beyond the foul line, the key question is whether Shain presented sufficient evidence to create an issue of fact as to whether this condition was indeed hazardous. Such evidence must show Leiserv was negligent either in using the materials to condition the floor or in the manner of application.  To avoid a directed verdict in a slip and fall case, the plaintiff has the burden of presenting evidence from which a reasonable inference can be drawn that the storekeeper was responsible for creating the hazard which caused the . . . . (emphasis added). 

The trial court further held Shain failed to present any testimony regarding the proper amount of conditioner to be applied to a lane.

In response to this determination, Shain argues, it is "not the bowlers' job to know the proper amount of oil the bowling alley should place upon its lanes." Although Shain may be correct that a bowler is not necessarily required to know how much conditioner is to be applied to a bowling lane, he overlooks the fundamental principle that he, as the plaintiff in a negligence case, has the burden of establishing the duty of care owed to him. 

In our view, the fact that the allegedly hazardous condition serves a specific purpose, that of reducing the friction between the bowling ball and the lane surface, only enhances the importance that this burden be met in the present case.

Thoughts About this Case:

Smith v. Wal-Mart

Case Name:  Smith v. Wal-Mart

Cite:  314 S.C. 248, 442 S.E.2d 606 (1994)

Case History:  Trial court directed verdict against the plaintiff. Appellate court affirmed the verdict. The Supreme Court (this case) reversed the directed verdict.

Type of Premises Liability:  Foreign substance on the floor caused by place of business

Pro-Plaintiff or Pro-Defendant:  Pro-Plaintiff

Cases Citing This Case:  Garvin v. Bi-Lo, Inc., Shain v. Leiserv, Inc., Genovese v. Bergeron, Hoover v. Broome, Payton v. Kearse, Sullivan v. Davis,  Singletary v. S.C. Department of Education

Cases Cited in This Case:  Howard v. K-Mart Discount Stores, 293 S.C. 134, 359 S.E.2d 81 (Ct. App. 1987), Wimberley v. Winn-Dixie Greenville, Inc., 252 S.C. 117, 165 S.E.2d 627 (1969 S.C.), Moore v. Levitre, 294 S.C. 453, 365 S.E.2d 730 (1988 S.C.)

Case Holding:  To avoid a directed verdict in a slip and fall case, the plaintiff has the burden of presenting evidence from which a reasonable inference can be drawn that the storekeeper was responsible for creating the hazard which caused the fall or had actual or constructive knowledge of the existence of the hazard. The motion should be denied if the evidence yields more than one inference or if its inferences are in doubt. 

The evidence in this case shows that Smith fell in an area where a Wal-Mart employee was using water and cleaning substances to remove wax buildup from the floor. Viewing the evidence and the inferences which can be drawn from the evidence in the light most favorable to the non-moving party, we find that Smith presented evidence from which a jury might infer that Wal-Mart created a hazardous condition that caused her to fall.

Thoughts About This Case: