Robert Humphrey, Jr. v. Day & Zimmermann International

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:12-cv-01458-TMC Copies to all parties and the district court/agency. [999503397].. [14-1108]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1108

ROBERT WAYNE HUMPHREY, JR.; CRYSTAL MARIE HUMPHREY,
Plaintiffs - Appellants,
v.
DAY & ZIMMERMANN INTERNATIONAL INC.,
Defendant - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:12-cv-01458-TMC)

Submitted:

September 30, 2014

Decided:

January 2, 2015

Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Blake A. Hewitt, John S. Nichols, BLUESTEIN, NICHOLS, THOMPSON &
DELGADO, Columbia, South Carolina; Gary W. Poliakoff, POLIAKOFF
& ASSOCIATES, P.A., Spartanburg, South Carolina, for Appellants.
Daniel B. White, Stephanie G. Flynn, GALLIVAN, WHITE & BOYD,
P.A., Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert

Humphrey

(“Humphrey”)

and

his

wife

Crystal

Humphrey (collectively “Plaintiffs”) appeal the district court’s
order

granting

International
claims.

summary

judgment

(“Defendant”)

on

for

&

Zimmermann

state-law

their

Day

negligence

Finding no error, we affirm.
We review de novo a district court’s grant of summary

judgment,

viewing

the

facts

and

drawing

all

reasonable

inferences in the light most favorable to the non-moving party.
Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013).

Summary

judgment is properly granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”

Fed. R. Civ. P.

56(a).
In
jurisdiction,
dispute.
To

light
South

of

the

Carolina

district
substantive

court’s
law

diversity

governs

this

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938).

establish

a

claim

for

negligence

in

South

Carolina,

a

plaintiff must show that: (1) defendants owed him a duty of
care; (2) defendants breached this duty by a negligent act or
omission;

(3)

defendants’

breach

was

the

proximate

their injuries; and (4) he suffered injury or damages.
v. S.C. Dep’t of Transp., 605 S.E.2d 12, 15 (S.C. 2004).

2

cause

of

Dorrell

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South Carolina has adopted the doctrine of comparative
negligence in assessing damages in tort actions.

See Nelson v.

Concrete Supply Co., 399 S.E.2d 783 (S.C. 1991).

A plaintiff’s

recovery is reduced by the percentage of fault proportioned to
the plaintiff, as long as the plaintiff’s fault is “not greater
than” that of the defendant.
“[c]omparison

of

a

See id. at 784.

plaintiff’s

negligence

While ordinarily

with

that

of

the

defendant is a question of fact for the jury to decide,” Creech
v. S.C. Wildlife & Marine Res. Dep’t, 491 S.E.2d 571, 575 n.1
(S.C. 1997), summary judgment is appropriate where “the sole
reasonable inference which may be drawn from the evidence is
that the plaintiff’s negligence exceeded fifty percent.”

Bloom

v. Ravoira, 529 S.E.2d 710, 713 (S.C. 2000) (citing Creech, 491
S.E.2d at 575).
Plaintiffs

argue

that

comparison

of

Humphrey’s

negligence to Defendant’s negligence is a question properly left
to the jury in this case.

We disagree.

Despite his knowledge

of the hazards of the chemical in question, Humphrey failed to
ensure

that

he

used

his

protective

equipment

properly

repairing the pipe damaged by Defendant’s negligence.
protective

jumpsuit

was

covered

in

the

chemical

while

After his
during

the

repair work, Humphrey continued his work and exposed himself to
the chemical when he broke the seal on his face mask after
condensation

appeared,

rather

than
3

replace

the

mask

with

a

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properly

fitted

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one.

On

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these

facts,

the

district

court

properly concluded that the only reasonable inference from the
evidence

here

was

that

Humphrey’s

negligence

exceeded

Defendant’s as a matter of law.
Accordingly, we affirm the district court’s order.
dispense

with

oral

argument

because

the

facts

and

We

legal

contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED

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