Hayes v. Cedar Fair Entertainment Company
Filing
38
ORDER AND OPINION denying 24 Motion for Summary Judgment. Signed by Honorable J Michelle Childs on 1/28/2019.(asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Rhondra Hayes,
)
)
Plaintiff,
)
v.
)
)
Cedar Fair Entertainment Company, d/b/a )
Carowinds,
)
)
Defendant.
)
____________________________________)
Civil Action No.: 0:17-cv-01959-JMC
ORDER AND OPINION
Plaintiff Rhondra Hayes alleges that she fell and suffered serious injuries after stepping
into a depressed section of the parking lot at Carowinds Amusement Park on July 12, 2014.
(ECF No. 1-1 at 3 ¶ 5–¶ at 1.) Hayes further alleges that Defendant Cedar Fair Entertainment
Company (“CFEC”), the owner of Carowinds, failed to maintain adequately safe conditions on
its premises, failed to warn of any safety hazards on its premises, and failed to place warning
signs around hazardous areas. (Id. at 2.)
This matter is before the court on CFEC’s Motion for Summary Judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 24.) Hayes opposes the Motion in its
entirety. (ECF No. 25.) For the reasons set forth below, the court DENIES CFEC’s Motion for
Summary Judgment.
I.
RELEVANT BACKGROUND TO PENDING MOTION
“Carowinds is a 400-acre (160 ha) amusement park, located adjacent to Interstate 77 in
Charlotte, North Carolina.” Carowinds, https://en.wikipedia.org/wiki/Carowinds (last visited
Jan. 24, 2019). “Although having an official North Carolina address, the park is located on the
state line of the Carolinas, with a portion of the park also located in Fort Mill, South Carolina.”
Id.
Hayes visited Carowinds on July 12, 2014. (ECF Nos. 24 at 2, 25 at 2.) Upon arrival, she
backed her vehicle into a parking spot in a lot owned and operated by CFEC. (ECF Nos. 25-1 at
9:4–24, 25-2 at 6:5–8.) Before entering Carowinds, Hayes while near the back of her vehicle
unknowingly stepped into a depression extending from the curb toward the back of her parking
spot, turned her ankle, and fell to the ground. (ECF No. 25-1 at 2:7–10, 3:7–10, 5:2–12.) After
the accident, Hayes walked around the park for awhile, but eventually left to pursue medical care
wherein she was diagnosed with a hairline fracture. (Id. at 5:15–25, 6:3–11.) Thereafter, Hayes
contacted CFEC about the incident and her injuries. (ECF No. 25-2 at 6:13–24.)
Edward Bailey, a safety manager at Carowinds, spoke with Hayes and he looked for the
depression described by Plaintiff. (Id.; see also id. at 7:2–21.) However, Bailey inspected and
photographed the wrong area of the parking lot and failed to take any additional measures to
determine where Hayes was injured, including checking the parking lot’s video surveillance of
the area before records were removed. (Id. at 10:7–12:7.) In addition, in or around November or
December
2014,
Carowinds
demolished
the
parking
lot
without
either
first
measuring/photographing the depression or notifying Hayes or her counsel. (Id.; ECF No. 25-4
at 2:10–21.)
On June 2, 2017, Hayes filed a Complaint against CFEC in the York County (South
Carolina) Court of Common Pleas alleging claims for negligence, negligent hiring, training,
supervision, and retention for her injuries arising out of incident at Carowinds. (ECF No. 1-1.)
CFEC removed the action to this court on July 24, 2017. (ECF No. 1.) After the parties engaged
in discovery, CFEC moved for summary judgment on October 5, 2018. (ECF No. 24.) Hayes
filed a Memorandum in Opposition to CFEC’s Motion for Summary Judgment on October 17,
2018, to which CFEC filed a Reply to Plaintiff’s Opposition to Summary Judgment on October
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24, 2018. (ECF Nos. 25, 28.) On December 4, 2018, the court heard oral argument from the
parties on the instant Motion. (ECF No. 37.)
II.
JURISDICTION
The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1) based on
CFEC’s allegations that there is complete diversity of citizenship between it1 and Hayes, who is
allegedly a citizen of the State of South Carolina. (ECF No. 1 at 1–2 ¶ 4; see also ECF No. 1-1
at 3 ¶¶ 1, 2.) Moreover, the court is satisfied that the amount in controversy exceeds the sum of
Seventy-Five Thousand ($75,000.00) Dollars, exclusive of interest and costs. (ECF Nos. 1 at 2 ¶
9 & 1-1 at 4 ¶ 8.)
III.
A.
LEGAL STANDARD
Motions for Summary Judgment Generally
Summary judgment should be 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). A fact is “material” if proof of its existence or non-existence would affect the
disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248–49 (1986). A genuine question of material fact exists where, after reviewing the record, the
court finds that a reasonable jury could return a verdict for the nonmoving party. Newport News
Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).
In ruling on a motion for summary judgment, a court must view the evidence in the light
most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 12324 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with
mere allegations or denial of the movant’s pleading, but instead must “set forth specific facts”
CFEC is a corporation organized under the laws of Ohio with its principal place of business in
Ohio. (ECF No. 1 at 1–2 ¶ 4.)
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demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Shealy v.
Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). All that is required is that “sufficient evidence
supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’
differing versions of the truth at trial.” Anderson, 477 U.S. at 249.
B.
Premises Liability Negligence Actions Generally
To assert liability based on a negligence claim in South Carolina, a plaintiff must show
that (1) defendant owed a duty of care; (2) defendant breached this duty by a negligent act or
omission; (3) defendant’s breach was the proximate cause of plaintiff’s injuries; and (4) plaintiff
suffered injury or damages. Dorrell v. S.C. DOT, 605 S.E.2d 12, 15 (S.C. 2004) (citation
omitted). “Whether the law recognizes a particular duty is an issue of law to be determined by
the court.” Jackson v. Swordfish Inv., L.L.C., 620 S.E.2d 54, 56 (S.C. 2005) (citation omitted).
A landowner is not required to maintain premises in such condition that no accident could
happen to a patron using them. See Denton v. Winn-Dixie Greenville, Inc., 439 S.E.2d 292, 293
(S.C. 1993). Under South Carolina law, the owner of property owes business visitors or invitees2
“An invitee is a person who enters onto the property of another at the express or implied
invitation of the property owner.” Goode v. St. Stephens United Methodist Church, 494 S.E.2d
827, 831 (S.C. Ct. App. 1997). “Invitees are limited to those persons who enter or remain on
land upon an invitation which carries with it an implied representation, assurance, or
understanding that reasonable care has been used to prepare the premises, and make them safe
for their reception.” Sims, 541 S.E.2d at 862 (citation omitted). The visitor is considered an
invitee especially when he is upon a matter of mutual interest or advantage to the property
owner. Parker v. Stephenson Oil Co., 145 S.E.2d 177, 179 (S.C. 1965); Landry v. Hilton Head
Plantation Prop. Owners Ass’n, Inc., 452 S.E.2d 619, 621 (S.C. Ct. App. 1994). The law
recognizes two types of invitees: the public invitee and the business visitor. Sims, 541 S.E.2d at
862. “A public invitee is one who is invited to enter or remain on the land as a member of the
public for a purpose for which the land is held open to the public.” Goode, 494 S.E.2d at 831. A
business visitor, on the other hand, is an invitee whose purpose for being on the property is
directly or indirectly connected with business dealings with the owner. Id.; see also Parker v.
Stevenson Oil Co., 140 S.E.2d 177, 179 (S.C. 1965) (the term “invitee” in premises liability
cases usually means the same thing as a business visitor and refers to one who enters upon the
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the duty of exercising reasonable and ordinary care for their safety and is liable for any injuries
resulting from a breach of such duty. H.P. Larimore v. Carolina Power & Light, 531 S.E.2d
535, 538 (S.C. Ct. App. 2000) (citing Israel v. Carolina Bar-B-Que, Inc., 356 S.E.2d 123, 128
(S.C. Ct. App. 1987)). The landowner has a duty to warn an invitee only of latent or hidden
dangers of which the landowner is on actual or constructive notice. H.P. Larimore, 531 S.E.2d
at 538 (citing Callander v. Charleston Doughnut Corp., 406 S.E.2d 361, 362-63 (S.C. 1991)).
To recover damages for injuries caused by a dangerous or defective condition on a landowner’s
premises, a plaintiff must show that (1) 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 of the dangerous condition and failed to remedy it.3 Wintersteen v. Food Lion, Inc.,
542 S.E.2d 728, 729 (S.C. 2001) (citing Anderson v. Racetrac Petroleum, Inc., 371 S.E.2d 530
(S.C. 1988)); Pennington v. Zayre Corp., 165 S.E.2d 695 (S.C. 1969); Hunter v. Dixie Home
Stores, 101 S.E.2d 262 (S.C. 1957).
“The entire basis of an invitor’s liability rests upon his superior knowledge of the danger
that causes the invitee’s injuries. If that superior knowledge is lacking, as when the danger is
obvious, the invitor cannot be held liable.” H.P. Larimore, 531 S.E.2d at 540. A landowner is
not liable for open and obvious dangers unless the landowner “should anticipate the harm despite
such knowledge or obviousness.” Hancock v. Mid-South Management Co., Inc., 673 S.E.2d 801,
premises of another at the express or implied invitation of the occupant, especially when he is
there about a matter of mutual interest or advantage); Hoover v. Broome, 479 S.E.2d 62, 65 (S.C.
Ct. App. 1996) (“Business visitors are considered invitees as long as their purpose for entering
the property is either directly or indirectly connected with the purpose for which the property
owner uses the land.”).
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Constructive notice is an “inference which substitutes for actual notice.” O’Leary-Payne v.
R.R. Hilton Head, II, Inc., 638 S.E.2d 96, 101 (S.C. Ct. App. 2006). Constructive notice is
“imputed to a person whose knowledge of facts is sufficient to put him on inquiry.” Id. at 101
(citing Strother v. Lexington Cnty. Recreation Comm’n, 504 S.E.2d 117, 122 (S.C. 1998)).
Accordingly, a person charged with constructive notice has received facts that, if diligently
pursued, “would lead to other undisclosed facts.” Id.
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803 (S.C. 2009) (citing Callander, 406 S.E.2d at 362).
IV.
A.
ANALYSIS
The Parties’ Arguments
1. CFEC
CFEC argues that it is entitled to summary judgment because it lacked “actual or
constructive notice that the area of the parking lot at issue could be a hazard to guests.” (ECF
No. 24 at 4.) As support for its position, CFEC first cites to Hayes’s testimony that neither she
nor anyone else to her knowledge had ever had an incident or was injured at Carowinds before
the accident at issue in this case. (Id. (citing ECF Nos. 24-2 at 3:7–13, 24-3 at 3:10–15).) CFEC
next cites to Hayes’s testimony that she did not have knowledge of (1) whether CFEC knew
about the condition of the parking spot and failed to fix the issue or (2) how long the area had
been in a depressed condition prior to her incident. (Id. at 4–5 (citing ECF Nos. 24-4 at 3:17–
4:2, 24-5 at 3:20–23).) Based on this testimony, CFEC argues that “[t]here is no evidence as to
how the area of the parking lot” at issue came to be in that condition or that “Carowinds was
aware of it.” (Id. at 5.) CFEC also argues that there is no evidence that any other guests or
Carowinds employees either saw the depression in the parking lot or Hayes’s fall.
(Id.)
Therefore, CFEC argues that Hayes “has failed to present any evidence that the alleged ‘pothole’
was a dangerous condition created by Carowinds, or of which Carowinds had actual or
constructive knowledge.” (Id.)
2. Hayes
Hayes opposes the instant Motion for Summary Judgment arguing that she has proffered
“substantial evidence demonstrating that a genuine issue of material fact exists as to whether
Defendant had actual or constructive notice” of the condition in the parking lot and failed to
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remedy the issue. (Id. at 8.) In this regard, Hayes asserts that the depression in the parking lot
“stemmed from the age of the deteriorating lot and that the defect existed for a sufficiently long
time for Carowinds to have been put on notice.” (Id.) In support of this assertion, Hayes points
to the following summary of the testimony of her expert Bryan Durig and CFEC’s
representatives, Bob Gessell and Edward Bailey:
•
Bob Gessell, Defendant’s representative, testified that some sections of the Carowinds
parking lot dated to 1973, and identified alligatoring (cracking) in the lot as a known
problem;
•
Photographs taken by Edward Bailey of other areas of the Carowinds parking lot, on or
around the date of the incident, show the general state of deterioration in the subject lot
(Ex. 6—Bailey Dep. Ex. 4-7);
•
Bryan Durig, a mechanical engineer that also specializes in analysis, evaluation, and
investigation of standards and code compliance and accident evaluation, issued an expert
report in which he opined that [t]he hole/depression in the parking lot where Ms. Hayes
fell “would have been created over an extended period of time” and “clearly was not
being inspected or maintained in compliance with the Asphalt Institute article . . . .” See,
Ex. 7—Bryan Durig Report, December 24, 2017 at 4.
(ECF No. 25 at 8.) Additionally, Hayes asserts that photographs taken of the depression on July
12, 2014, show that “debris had accumulated inside of the hole.” (Id.) From this evidence,
Hayes argues that “a juror could reasonably conclude that the depression which caused
Plaintiff’s fall developed over a significant period of time, during which Defendant [CFEC] had
ample opportunity to properly inspect and cure the defect.” (Id.) Moreover, Hayes argues that
“Carowinds either knew of the defect and failed to take remedial action, or otherwise did not
discover the defect as a result of its intentional failure to exercise reasonable care concerning its
duties to keep its parking lot in good repair and regularly inspect for defects.” (Id.)
In further support of her position on the issue of notice, Hayes specifies that the following
evidence “strongly suggests that Carowinds employees had reason to visit the area of the parking
lot where Plaintiff fell to maintain nearby landscaped areas and, as such, would have knowledge
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of the subject depression”:
•
Defendant admits that the parking lot where Plaintiff fell was owned and maintained by
Carowinds. Carowinds also handles all landscaping at the park, and the landscaping crew
handles smaller patching jobs in the subject parking lot. (Gessell Dep. at 34);
•
The photograph of the depression taken the day of the incident establishes that the defect
which caused Plaintiff’s fall was adjacent to grassy landscaping, meaning that park
employees visited this area of the lot with regularity for purposes of grooming and
maintaining grass located directly next to the defect;
•
Defendant admits that it had knowledge of at least five other falls stemming from parking
lot defects, yet failed to establish any policies or procedures, written or unwritten, relating
to inspecting the parking lot for trip hazards or defects;
•
Defendant admits that it failed to inspect the condition of the parking lot for defects with
any regularity or on a scheduled basis;
•
Defendant admits that it did not train its employees on how to inspect the parking lot for
defects or what constitutes a defect, and employees notified maintenance of possible
defects at their discretion;
•
Carowinds does not consider industry standards or international codes when determining
defective parking lot conditions;
•
Defendant admits that it was foreseeable that a person would walk through the area of the
parking lot where Plaintiff fell;
•
Defendant admits that the area where Plaintiff fell is a depression and that an uneven
walking surface can cause a customer to lose her balance. (Bailey Dep. at 75, 82);
•
Disturbingly, Defendant’s Manager of Construction and Facilities testified that he would
have left the defect unrepaired even if he was aware of the condition prior to the incident.
•
Defendant authorized the demolition of the area where the incident occurred without first
taking photographs of the location, measuring the area or the depression, or notifying
Plaintiff or her counsel.
(ECF No. 25 at 9.) Based on this evidence, Hayes argues that it is a jury question as to whether
CFEC had actual or constructive notice of the depression in its parking lot prior to her accident.
(Id. at 11.)
Hayes also asserts that CFEC “demolished the parking lot on or around December 2014
without first measuring the site, photographing the site, or notifying [][her] or her counsel that
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the area would be altered.” (Id.) Hayes argues that this evidence “supports an inference that
Defendant [CFEC] knew that it would likely be exposed to legal liability from the incident and
had the area repaved, justifying an inference that Defendant [CFEC]’s failure to retain or
alteration of the evidence was deliberate.” (Id. (citing Hodge v. Wal-Mart Stores, Inc., 360 F.3d
446, 450 (4th Cir. 2004) (finding that “[t]he spoliation of evidence rule allows the drawing of an
adverse inference against a party whose intentional conduct causes not just the destruction of
evidence . . . but also against one who fails to preserve or produce evidence . . ..”)).) Hayes
further argues that this claim qualifies as reasonably foreseeable litigation under the definition of
spoliation in Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008), because “Defendant [CFEC]
was notified of the incident and Ms. Hayes’s injuries on the day of the incident, prepared an
incident report, and received a letter of representation from Hayes’s counsel as early as August
21, 2014.” (ECF No. 25 at 11 (citing ECF No. 25-8).)
Finally, Hayes argues that CFEC destroyed the scene of the incident without preserving
video surveillance footage of the parking lot from the day of the incident. (Id. at 12.) As support
for this claim, Hayes cites to Bailey’s deposition testimony that CFEC “failed to make any effort
whatsoever to review, procure, or preserve video evidence.” (Id.) Accordingly, Hayes contends
that CFEC’s “failure to preserve video evidence of the scene can be viewed as an effort to thwart
the prosecution of this claim.” (Id. at 13.)
3. CFEC
In Reply, CFEC dismisses Durig’s opinion that the alleged area “would have been
created over an extended period of time” because he “never visited the alleged location of the
incident nor spoke[] to any witnesses in the case.” (ECF No. 28 at 1.) Instead, CFEC cites its
own expert, J. Steven Hunt, who visited the location of the alleged incident and found that there
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is “no evidence that Carowinds violated [any standards] either from the photographic evidence
provided, from my interview with Mr. Bailey or my inspection of the scene.” (Id. at 1–2 (citing
ECF No. 28-1 at 6).)
CFEC also asserts that the testimony Hayes provides from its witnesses does not establish
actual or constructive notice of a hazard on the premises. (Id. at 2.) In support of this assertion,
CFEC focuses on the fact that Bailey’s testimony regarding his awareness of previous reports of
trip and falls in the parking lot spans his entire 26-year employment at Carowinds, resulting in
approximately 0.2 trips, slips and/or falls in the Carowinds parking lot per year since he has been
employed there. (Id. (citing ECF No. 28-2 at 3–4).) CFEC also claims that Gessell’s testimony
regarding “alligatoring” or cracking in some areas of the parking lot does not concern the
specific area of the parking lot where Hayes alleges her incident occurred because she does not
complain about alligatoring or cracking in this case. (Id. at 2–3.)
Finally, CFEC claims that it did not purposefully alter evidence. (Id. at 3.) CFEC
defends its actions of failing to preserve the video surveillance footage by arguing (1) Bailey
received a call to Carowinds regarding Hayes’s incident within a week of the incident, not on the
day of, and (2) CFEC did not learn that the area where Bailey had inspected and photographed
was not the area of the alleged incident until three years after the incident occurred. (Id.) By
that time, the video surveillance recording had been written over, and the area reviewed by
footage would have been the area Bailey inspected, which turned out to be incorrect. (Id. (citing
ECF No. 28-4 at 3–4).)
Therefore, CFEC argues that “at the time of renovation and
reconstruction of the parking lot in late 2014, Carowinds had no reason to believe that it was
destroying evidence as they had never been able to locate the ‘pothole’ later described in the
Plaintiff’s Complaint.” (Id. at 4.)
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B.
The Court’s Review
As the basis for its Motion for Summary Judgment, CFEC argues that it did not have
either actual or constructive knowledge of the depression in its parking lot and failed to remedy
it. Upon review of Hayes’s evidentiary response to CFEC’s argument, the court observes that
there does not appear to be any dispute regarding (1) whether the depression that created the
dangerous condition was caused by a specific act of CFEC or (2) its actual knowledge of the
depression. As to Hayes’s attempt to demonstrate constructive knowledge, the court observes
that “[c]onstructive notice may be established where a defect has ‘existed for so long that the
defendant is presumed to have seen the dangerous condition, or to have been negligent in failing
to see [it].’” Gardner v. United States, 896 F. Supp. 89, 93 (N.D.N.Y. 1995) (quoting Velsini v.
Cadmus, 152 F.R.D. 442, 447 (N.D.N.Y. 1994)); see also Wimberly v. Winn-Dixie Greenville,
Inc., 165 S.E.2d 627, 630 (S.C. 1969) (explaining that constructive notice asks “whether there
was evidence from which the jury might reasonably infer that the defendant, by the exercise of
reasonable diligence, should have known of” the danger that harmed the plaintiff). In the report
of Hayes’s expert, Durig concluded that the area of the parking lot where Hayes fell was not
level and such uneven surface “would have been created over an extended period of time.” (ECF
No. 25-7 at 3, 4.) Durig’s conclusions are substantiated by Bailey’s testimony that the area
where Hayes fell contained a discernible depression and should/would have been inspected “for
trip hazards or surface defects or disrepair in the six months prior to the incident.” (ECF No. 252 at 18:11–19:10, 20:1–11.) Upon consideration of the aforementioned evidence, the court finds
that it sufficiently raises a genuine issue of material fact as to whether the depression in the area
where Hayes fell existed for a sufficient length of time prior to the accident to permit CFEC to
11
have constructive knowledge of the dangerous condition.4 See Fickling v. City of Charleston,
643 S.E.2d 110, 116–17 (S.C. Ct. App. 2007) (holding that the City of Charleston had
constructive notice of a hole in a sidewalk because there were numerous city personnel in the
area who could have seen the hole, the hole had been there for a while, the city had a policy to
deal with defects in the sidewalks, and problems with sidewalks were frequent). Therefore, the
court must deny CFEC’s Motion.
V.
CONCLUSION
Upon careful consideration of the entire record and the parties’ arguments, the court
hereby DENIES Cedar Fair Entertainment Company’s Motion for Summary Judgment. (ECF
No. 24.)
IT IS SO ORDERED.
United States District Judge
January 28, 2019
Columbia, South Carolina
The court notes that CFEC’s Motion for Summary Judgment is entirely based on the alleged
lack of its actual or constructive notice of the depression. Upon its review Hayes’s evidentiary
support for her claims, the court does not perceive any reason sua sponte to not allow the case to
proceed to trial.
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