White et al v. Renaissance Hotel Management Company LLC
Filing
75
ORDER denying 56 Motion for Reconsideration Signed by Honorable David C Norton on 1/20/16.(elim, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
KATHERINE WHITE and DEREK
WHITE,
Plaintiffs,
vs.
RENAISSANCE HOTEL
MANAGEMENT COMPANY, LLC,
Defendant.
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No. 2:14-cv-02866-DCN
ORDER
This matter is before the court on defendant Renaissance Hotel Management
Company, LLC’s (“the Hotel”) motion for reconsideration of the court’s August 10, 2015
order (“August 10 Order”) in which the court denied the Hotel’s motion for summary
judgment. For the reasons set forth below, the Hotel’s motion for reconsideration is
denied.
I. BACKGROUND
On August 5, 2011, Katherine White (“Ms. White”) and Derek White (“Mr.
White”) (collectively, “the Whites”) arrived at the Hotel for a two-week business trip.
Ms. White requested a room with a balcony when she made the reservations, but the
Hotel did not have such a room available. K. White Depo. 31:23–25, 32:1–7, 32:21–25.
Upon their adamant request, the Whites were moved into a room with a balcony, Room
309, the following day. K. White Depo. 34:5–9. Ms. White inspected Room 309 and
walked out onto the balcony where she observed a “fairly large . . . patch of green slimy
mold” on the balcony floor. Def.’s Mot. Ex. A, K. White Depo. 35:2–18. When Ms.
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White walked out onto the balcony, she slipped on the mold and called the front desk to
request that the Hotel clean up the mold. K. White Depo. 45:25–46:2. According to Ms.
White, she reported the mold to housekeeping the next day and again later during her
stay, but the Hotel never cleaned up the mold. K. White Depo. 46:9–49:11. During her
stay, Ms. White spent every day on the balcony. Each day, she moved the table on the
balcony over the top of the moldy area and then placed two chairs on the opposite side of
the balcony where she sat in the sun. K. White Depo. 54:7–20, 55:12–25. Ms. White
testified that each day, the housekeepers returned the furniture to its original position. K.
White Depo. 55:22–25.
On August 17, 2011, Ms. White was again sitting on the balcony. She moved the
chair in which she was sitting to the right corner of the balcony near the railing and
situated the second chair in front of her on which to rest her feet. K. White Depo. 63:9–
65:3, 70:8, 72:2. Ms. White also placed the table closer to her chair, partially covering
the mold to provide a place to put her glasses and her book but “also to remind [her] not
to walk there.” K. White Depo. 71:14–20. At 7:00 p.m., Ms. White received a call from
Mr. White. During their conversation, Mr. White heard a crash, and Ms. White became
unresponsive. Mr. White called the Hotel, and when he arrived at the hotel, EMS and
hotel staff were assisting Ms. White as she lay on the balcony floor. Def.’s Mot. Ex. B.,
D. White Depo. 32:25, 34:15. Ms. White remembers talking to her husband while sitting
but does not remember falling or any of the events that unfolded during their
conversation. K. White Depo. 80:25. Ms. White sustained injuries as a result of her fall.
On July 17, 2014, the Whites filed suit against the Hotel in this court on the basis
of diversity jurisdiction. The Whites filed an amended complaint on August 12, 2014,
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substituting the Hotel as the proper defendant. Ms. White alleges that the Hotel was
negligent and reckless in numerous ways, including: (1) failing to properly inspect the
condition of the balcony; (2) allowing mold/algae to grow on the balcony over a
prolonged period of time; (3) failing to properly monitor the condition of the balcony;
(4) failing to clean the balcony after noticing the growth of the mold/algae; (5) failing to
adequately warn invitees that a dangerous condition existed; (6) failing to take proper
precautions to ensure the safety of Ms. White and other invitees; (7) allowing a
dangerous condition to exist with a reckless disregard for the rights and safety of others;
(8) failing to timely correct the dangerous condition within a reasonable time after being
notified; and (9) failing to exercise the degree of care and caution which a reasonable
person would have exercised under the same or similar circumstances. Additionally, Mr.
White brings a loss of consortium claim. Ms. White seeks damages for her medical bills,
physical and mental pain and suffering, permanent physical impairment, and loss of
enjoyment of life.
On April 29, 2015, the Hotel filed a motion for summary judgment, arguing that
Ms. White is barred from recovery because the alleged hazardous condition was open and
obvious and Ms. White was on notice of the condition. On June 17, 2015, the Whites
filed a response in opposition to the motion for summary judgment. The Hotel filed a
reply on June 29, 2015. The court held a hearing on the motion for summary judgment
on July 24, 2015. On August 10, 2015, the court issued an order denying the Hotel’s
motion for summary judgment, finding that there was a genuine issue of material fact as
to whether the Hotel anticipated that, despite the open and obvious character of the
hazard, Ms. White would continue to encounter the mold. The Hotel filed the present
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motion for reconsideration on September 4, 2015. The parties filed a consent motion to
stay a ruling on the motion for reconsideration in order for the parties to mediate the
dispute. The parties conducted an unsuccessful mediation on November 13, 2015. The
Whites filed a response in opposition to the motion for reconsideration on November 30,
2015, and on December 16, 2015, the Hotel replied. The motion has been fully briefed
and is now ripe for the courts review.
II. STANDARD
The Hotel moves for reconsideration of the court’s August 10 Order pursuant to
Federal Rule of Civil Procedure 59(e). The Fourth Circuit has recognized three grounds
for amending an earlier judgment under Federal Rule of Civil Procedure 59(e): (1) to
accommodate an intervening change in controlling law; (2) to account for new evidence
not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.
Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). “In general
reconsideration of a judgment after its entry is an extraordinary remedy which should be
used sparingly.” Id. (citation and internal quotation marks omitted). A motion for
reconsideration “is not a license for a losing party’s attorney to get a second bite at the
apple.” Bey v. Shapiro Brown & Alt, LLP, 997 F. Supp. 2d 310, 321 (D. Md. 2014)
(citing Shields v. Shetler, 120 F.R.D. 123, 125–26 (D. Colo. 1988)). While the Hotel
does not assert under which ground it moves to amend the court’s order, the court
assumes it is to correct a clear error of law or prevent manifest injustice.
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III. DISCUSSION
The Hotel’s motion consists of the following three arguments: (1) the court failed
to properly distinguish Hancock v. Mid–South Mgmt. Co., 673 S.E.2d 801, 803 (S.C.
2009), and Padgett v. Colleton County, 679 S.E.2d 533, 537 (S.C. Ct. App. 2009); (2) the
court improperly distinguished Nash v. Marriott Hotel Servs., Inc., No. 7:07-cv-503,
2007 WL 3125315, at *1 (D.S.C. Oct. 23, 2007), from the present case; and (3) the court
overlooked the Hotel’s arguments concerning the applicability of Hackworth v. United
States, 366 F. Supp. 2d 326, 330 (D.S.C. 2005). Although the court finds that the Hotel’s
motion rehashes arguments already made and addressed in the August 10 Order, the court
will address each argument in turn.1
A.
Hancock and Padgett
The Hotel first argues that unlike the plaintiffs in Hancock v. Mid–South Mgmt.
Co., 673 S.E.2d 801, 803 (S.C. 2009),2 and Padgett v. Colleton County, 679 S.E.2d 533,
537 (S.C. Ct. App. 2009),3 Ms. White “appreciated the potential hazard” the mildew
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Because the court’s August 10 Order provides an extensive outline of premises
liability law in South Carolina, including the open and obvious danger rule and the
exception to the rule discussed in Callander, Hancock, Padgett, and Nash, the court will
dispense with a lengthy recitation thereof.
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In Hancock, the South Carolina Supreme Court reversed the lower court’s grant
of summary judgment to a property owner in a premises liability action arising from the
plaintiff’s fall in the defendant’s parking lot. The Supreme Court of South Carolina,
applying Callander and section 343 of the Restatement, held that “taken in a light most
favorable to Petitioner, evidence shows that Respondent knew or should have known that
a dangerous condition existed on its premises and that invitees would have to encounter
this condition.” Hancock, 673 S.E.2d at 803. The court overturned the grant of summary
judgment, holding that “[w]hile a parking lot’s state of disrepair may be considered open
and obvious, a jury could determine that Respondent should have anticipated that such a
condition may cause an invitee to fall and injure themselves.” Id.
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In Padgett, an individual brought a premises liability action against Colleton
County after falling in a hole on the premises of the county courthouse. After
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presented. Def.’s Mot. 2. Therefore, the Hotel argues that the court failed to properly
distinguish Hancock and Padgett from this case. However, the Hotel fails to cite any case
law in which a court in a premises liability action holds that the Callander4 exception
applies, but that the claim is barred because there is evidence that the plaintiff appreciated
the risk. Further, as stated in the August 10 Order, the court finds this argument more
appropriate for a determination on the affirmative defenses of assumption of risk and
comparative negligence. See August 10 Order, 9 (“Rather than act as a bar to recovery at
the summary judgment stage, Ms. White’s continued use of the balcony despite her
knowledge of the mold and its slippery condition should be evaluated for purposes of
comparative negligence.”).
Under the comparative negligence standard, “a plaintiff in a negligence action
may recover damages if his or her negligence is not greater than that of the defendant.”
Nelson v. Concrete Supply Co., 399 S.E.2d 783, 784 (S.C. 1991). “A defense based on
the doctrine of assumption of risk requires a showing that the plaintiff (1) has knowledge
of the facts constituting the dangerous condition; (2) knew that the condition was
discovering that the back door was locked, the plaintiff took a “well-worn path on the
grounds that had been made by other visitors to the Courthouse” rather than the sidewalk.
Id. at 535. The plaintiff fell in an eight-inch deep hole along the path. Id. Recognizing
the aforementioned case law, the South Carolina Court of Appeals overturned the trial
court’s directed verdict, finding that the evidence presented by the plaintiff created a
reasonable inference that Colleton County “should have anticipated that individuals using
the services at the Courthouse could be harmed by the ongoing landscape operations.”
Id. at 537.
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In Callander v. Charleston Doughnut Corp., 406 S.E.2d 361 (S.C. 1991), the
South Carolina Supreme Court expressly adopted the Restatement (Second) of Torts
section 343(A) (1965), which provides that “[a] possessor of land is not liable to his
invitees for physical harm caused to them by any activity or condition on the land whose
danger is known or obvious to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness.” Id. at 362 (emphasis added).
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dangerous; (3) appreciated the nature and extent of the danger; and (4) voluntarily
exposed herself to the danger. Creighton v. Coligny Plaza Ltd. P’ship, 512 S.E.2d 510,
519 (S.C. Ct. App. 1998) (citing Pryor v. Northwest Apartments, Ltd., 469 S.E.2d 630
(S.C. Ct. App. 1996)). “The determination of respective degrees of negligence
attributable to the plaintiff and the defendant presents a question of fact for the jury, at
least where conflicting inferences may be drawn.” Berberich v. Jack, 709 S.E.2d 607,
611 (S.C. 2011) (quoting Hurd v. Williamsburg Cty., 611 S.E.2d 488, 492 (S.C. 2005).
Similarly, the defense of assumption of risk “ordinarily present[s] [a] question[] of fact to
be determined by a jury and only rarely become[s] [a] question[] of law for the court to
determine.” Id. (citing Small v. Pioneer Mach., Inc., 450 S.E.2d 609 (S.C. Ct. App.
1994); Singletary v. S.C. Dep’t of Educ., 447 S.E.2d 231 (S.C. Ct. App. 1994)) (emphasis
added).
There is a genuine issue of material fact as to whether Ms. White assumed the risk
or was comparatively negligent. Ms. White testified that she placed the table over the
mold each day to avoid stepping on it, but that the housekeepers continued to return the
furniture to its original position. K. White Depo. 54:7–20, 55:12–25. On the day she fell,
Ms. White placed the table over the mold to “remind [her] not to walk there.” K. White
Depo. 71:14–20. Ms. White further testified that she does not remember falling or any of
the events that unfolded while she was on the phone with her husband. K. White Depo.
80:25. Therefore, the court finds that there is sufficient evidence to create a question of
fact as to whether Ms. White was comparatively negligent in the slip and fall. The court
properly applied Padgett and Hancock. As such, this argument fails.
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B.
Nash
The Hotel next argues that the court improperly distinguished Nash. Def.’s Mot.
2–3. In Nash v. Marriott Hotel Servs., Inc., No. 7:07-cv-503, 2007 WL 3125315, at *1
(D.S.C. Oct. 23, 2007), the plaintiff was walking out of a restroom when he slipped and
fell on a substance, believed to be vomit, in front of the restroom door. Id. On his way
into the restroom, the plaintiff saw the substance and walked around it to enter the
restroom, but upon exiting, apparently forgot that the substance was on the floor. Id. A
witness testified that she notified three waitresses that there was vomit on the floor
outside the men’s restroom and that one of the waitresses said that she would advise the
front desk. Id. at *2. The court granted summary judgment for the defendant land owner,
finding that the danger was open and obvious and concluding that the plaintiff’s “failure
to remember that the substance was on the floor and inattentiveness upon exiting the
restroom do not create a genuine issue of material fact in this case.” Id. at *3.
In the August 10 Order, the court stated that following:
The court finds the present case distinguishable from Nash. Although the
plaintiff in Nash was also aware of the hazard and provided testimony that
a witness notified three waitresses of the substance on the floor, in the
present case, Ms. White herself notified the front desk and the Hotel staff
on numerous occasions. In fact, when viewed in the light most favorable
to the Whites, the record reflects that Ms. White first notified the Hotel of
the hazard and asked that it be cleaned up more than ten days prior to the
accident.
August 10 Order, 7. The court did not commit a clear error of law by distinguishing
Nash. “The degree of care owed with regard to an open and obvious danger is
commensurate with the circumstances involved, including the possessor’s prior
knowledge of the defect’s existence and the age and capacity of the invitee.” Hackworth
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v. United States, 366 F. Supp. 2d 326, 330 (D.S.C. 2005) (emphasis added). Weighing
the circumstances involved, there is sufficient evidence from which a reasonable jury
could discern that the Hotel owed Ms. White a heightened degree of care than the hotel in
Nash because the Hotel was aware of the danger ten days prior to the accident, while the
hotel in Nash was notified of the danger shortly before the accident. See Nash, 2007 WL
3125315, at *2–3. Therefore, this argument also fails.
C.
Hackworth
Lastly, the Hotel argues that the court overlooked its arguments concerning
Hackworth v. United States, 366 F. Supp. 2d 326, 330 (D.S.C. 2005). Def.’s Mot. 3. In
Hackworth, the plaintiff went to the Mini-Mart after several days of raining. Id. at 328.
On her way into the store, she recalled “jumping puddles.” Id. The plaintiff alleged that
as soon as she stepped inside the Mini-Mart off the rubber mat, she slipped and fell. Id.
The court recognized that the plaintiff had warning that there could be a puddle in the
entrance because she had been jumping puddles and that she testified that she had been
looking down in an attempt to be careful. Id. at 330. The court held that “given [the
plaintiff’s] knowledge of the rainy conditions, the close attention [the plaintiff] sa[id] she
was paying to the floor, and the fact that a three-foot wide puddle could not be entirely
obstructed by overhead lights, the [defendant] had no duty to warn.” Id. at 331.
This case is easily distinguishable from Hackworth because there was absolutely
no evidence in Hackworth that the Mini-Mart, unlike the Hotel, was aware of the puddle,
much less aware of the puddle for ten days but refused to do anything to clean it up
despite continuous requests to do so. Further, although the court in Hackworth
recognized the exception set forth in Callander, the court did not discuss the expeption or
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its applicability to the circumstances. As thoroughly discussed in the August 10 Order,
Ms. White testified that she notified the Hotel of the mold on the balcony, including
housekeepers and the front desk, on numerous occasions. K. White Depo. 46:9-49:11.
She also testified that she chose the Hotel because of its balcony and specifically
requested a room with a balcony when booking the trip. K. White Depo. 33:12, 31:23–
25, 32:1–7. While the Hotel argues that Ms. White’s knowledge of the harm precludes
her from recovery, by the same token, a reasonable jury could find that the Hotel
“anticipate[d] that [Ms. White] w[ould] nevertheless encounter the condition” based on
its knowledge of the mold. Callander, 406 S.E.2d at 362. Therefore, this argument also
fails.
The court holds that the findings contained in the court’s August 10 Order were
not clear error. Similarly, the order need not be altered to prevent manifest injustice. In
short, this is not a situation in which the extraordinary relief provided in Rule 59(e)
would be appropriate.
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IV. CONCLUSION
For the reasons set forth above, defendant’s motion for reconsideration is
DENIED.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
January 20, 2016
Charleston, South Carolina
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