Stipanovic v. Wal-Mart Stores East LP

Filing 31

ORDER AND OPINION granting 15 Motion for Summary Judgment Signed by Honorable Margaret B Seymour on 7/17/2017.(mdea )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
RICHARD STIPANOVIC,
Plaintiff,
v.

WAL-MART STORES EAST LP,
Defendant.

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Civil Action No.: 0:16-cv-00641-MBS

ORDER AND OPINION

Plaintiff Richard Stipanovic (“Plaintiff”) filed this action on February 29, 2016, alleging
that Defendant Wal-Mart Stores East LP (“Defendant”) negligently maintained its premises at its
store in Indian Land, South Carolina, causing him to suffer injuries.
I. FACTS
A pricing sign was placed near the store entranceway by employees and/or agents of
Defendant on November 5, 2013. A customer leaving Defendant’s store dislodged the sign with
her cart, causing the sign to encroach on the entranceway to the store. A few moments later,
Plaintiff tripped over the sign and suffered physical injuries as the result of his fall.
Defendant filed a motion for summary judgment on November 3, 2016. Plaintiff filed a
response in opposition on March 3, 2017, to which Defendant filed a reply on March 10, 2017.
The court held a hearing on Defendant’s motion for summary judgment on June, 20, 2017.
II. STANDARD OF REVIEW
Pursuant to Federal Rules of Civil Rule 56(a), the court shall grant summary judgment if
the moving party shows that there is no genuine dispute as to any material fact and is entitled to

judgment as a matter of law. The evidence presents a genuine issue of material fact if “a
reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 24, 251-52 (1986). Any inference drawn from the facts should be viewed in the
light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655
(1962). The party seeking summary judgment bears the initial burden of demonstrating to the
court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S 317-23
(1986). Once the movant has made this showing, the non-moving party must demonstrate
specific, material facts that give rise to a genuine issue. Id. at 324. A “mere scintilla” of
evidence is insufficient to overcome the summary judgment motion. Anderson v. Liberty Lobby,
477 U.S. 242, 252 (1986).
III. DISCUSSION
To prove negligence in a slip and fall case, the plaintiff must show either that the
defendant or defendant’s agents either created a hazardous condition or had notice of it.
Anderson v. Racetrac Petroleum, Inc., 371 S.E.2d 530, 531 (S.C. 1988). Plaintiff asserts in
response to Defendant’s motion for summary judgment that Defendant created the allegedly
dangerous condition. Plaintiff alleges that by simply placing the insecure and/or improperly
secured sign in close proximity to the “heavily-trafficked” store entrance, it was “reasonably
foreseeable” that the sign “could be moved into the store’s entranceway by the foreseeable,
regular, and expected movements of Defendant’s customers.”

ECF No. 26, 3. The question

becomes, then, whether the unsecured pricing sign was indeed dangerous and created a
hazardous condition.
“A merchant is not an insurer of the safety of his customers, but rather owes them the
duty to exercise ordinary care to keep the premises in a reasonably safe condition.” Cook v.
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Food Lion, 491 S.E.2d 690, 691 (S.C. Ct. App. 1997). The finding of dangerousness is based on
the evidence in the record and the showing that the defendant was aware of the tendency of a
dangerous condition to exist. Id.
In Cook v. Food Lion, the plaintiff tripped on a wrinkled floor mat near the exit of the
store. Cook, 491 S.E.2d at 691. The court held that the defendant had created a dangerous
condition by placing a wrinkled floor mat near the exit of the store, because several employees
testified that the mats were often wrinkled or crumpled. Id. at 691-92. The Cook court’s finding
of dangerousness was based on evidence showing that the mats were often in a dangerous
wrinkled state. Id.
Conversely, in Sellers v. JC Penney, the plaintiff tripped on a torn rug at the entrance of a
JC Penney store. Civil Action No. 5:10-2568-MBS, 2011 WL 5105470, *1 (D.S.C. Oct. 27,
2011). This court found that the plaintiff failed to produce evidence showing that any store
employee was aware of the tendency of the rug to tear or otherwise become dangerous. Id. at *3.
Accordingly, the evidence in the record did not establish that the defendant had created a
dangerous condition. Id.
In the present case, similar to Sellers, there is no evidence to suggest that the sign was
placed in such a manner as to create an unreasonable risk of harm. The pricing sign was placed
at or near a display of merchandise. There is no evidence the sign was placed in such a way to
impede customers or that Defendant or its employees were aware of the tendency of pricing
signs to become displaced or otherwise become dangerous.
At oral argument, Plaintiff’s counsel referenced, for the first time, a confidential
employee handbook to suggest that Defendant created a dangerous condition by failing to
properly place or properly secure the pricing sign in accordance with its company policy.
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Plaintiff quoted a section on improperly placed or improperly secured merchandise to support its
argument. However, Plaintiff has put forth no evidence showing that the sign was in fact,
improperly placed or improperly secured. Evidence suggests the sign was in its proper place
until another customer’s cart bumped the sign, causing it to become displaced.
IV. CONCLUSION
The court concludes that no reasonable jury could find that Defendant created a
hazardous condition and thus breached a duty to Plaintiff. Defendant’s motion for summary
judgment (ECF No. 15) is granted.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge

Columbia, South Carolina
July 17, 2017

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