Voeltz v. Bridge Charleston Investments E LLC et al

Filing 181

ORDER AND OPINION granting in part and denying in part 148 Defendant Elevator Services of Charleston Inc's Motion for Summary Judgment. Elevator Services of Charleston, Inc.'s Motion is GRANTED as to the cause of action for strict liability. Elevator Services of Charleston, Inc.'s Motion is DENIED as to all other claims. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 2/26/2019.(sshe, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Corinne Voeltz,
Plaintiff,
V.

Bridge Charleston Investments E, LLC,
et al.,
Defendants.
Bridge Charleston Investments E, LLC,
et al.,
Third-Party Plaintiffs,
v.
Waupaca Elevator Company, Inc.,
et al.,
Third-Party Defendants.

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Civil Action No. 2:16-cv-2971-RMG

ORDER AND OPINION

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This matter is before the Court on Defendant Elevator Services of Charleston, Inc.' s
("ESC") motion for summary judgment (Dkt. No. 148). For the reasons set forth below, the Court
grants in part and denies in part Defendant ESC' s motion.

I.

Background
On April 4, 2015, Plaintiff Corinne Voeltz rented a condominium at 113 East Arctic

Avenue, Unit C in Folly Beach, South Carolina (the "property"). (Dkt. No. 148-2 at 8 - 9.) On
April 4, 2015, Plaintiff was on the first floor (one floor up from the ground floor) of the property
and opened an access door to the elevator. (Id. at 22 - 23, 34.) Plaintiff then stepped through the
door and fell down the elevator shaft because the elevator was not at the floor. (Id.) The elevator
was manufactured by Defendant Waupaca Elevator Company, Inc. and was purchased and

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installed in 2008 and 2009 by Defendant Colson Electric & Elevators, Inc. ("Colson"). (Dkt. Nos.
121-5 ; 121-6 at 3.) At the time, Defendant Easterlin was the general contractor. (Dkt. No. 121-3
at 3 -4.) Defendant JEM Development, LLC was the owner and developer of the property. (Dkt.
No. 121-3 at 5; 121-8.) The property was later sold and, at the time of the incident, the property
was owned by Defendant Bridge Charleston Investments E, LLC ("Bridge Charleston") and
managed by Defendant Luxury Simplified Retreats ("Luxury Simplified"). (Dkt. Nos. 94-1 at 7;
121-8; 121-9at3-4.)
Prior Plaintiff's fall , ESC serviced the elevator one time during a multi-day repair from
May 8, 2014, to May 13, 2014. (Dkt. No. 148-12 at 211148-13 at 17.) ESC was called by Folly' s
Best Rentals, the prior managers of the property, because the elevator was not working, meaning
there was no movement of the elevator car. (Dkt. No. 148-12 at 30.) The repair work was
performed by S. Anderson Chestnut, the owner of ESC, with the help of an employee. (Id. at 12;
Dkt. No. 148-13 at 3.) During the service call, ESC replaced the ground floor electro-mechanic
interlock ("EMI"), a device that makes sure that the door stays locked when the elevator is
operating, installed a new wire harness and installed a new tape reader, a device which ensured
that the elevator knew which floor it was on. (Dkt. No. 148-13 at 4 - 14.) After repairing the
components, ESC checked to make sure that the elevator was running properly to each floor, that
the "doors worked properly" and that the "safety circuit" was intact. (Id. at 16.) It is undisputed
that after ESC serviced the elevator in May 2014, Defendant Coastal Elevators & Lifts, LLC,
performed service on the elevator twice, once on July 28, 2014, and again on October 30, 2014.
(Dkt. No. 148-11 at 13 - 15.) The service performed by Coastal included repairs to the elevator' s
ground floor EMI, and repairs on the first floor EMI because the door was able to open even when
the elevator was not present on the first floor. (Dkt. No. 148-7 at 2; 148-11 at 15)

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Plaintiff brought claims against Defendant Coastal for negligence, strict liability and
breach of warranty.

(Dkt. No. 33.) Defendants Bridge Charleston Investments and Luxury

Simplified additionally brought a cross-claim against ESC for negligence. (Dkt. No. 41.) ESC
moves for summary judgment on all claims. (Dkt. No. 148.) Plaintiff Voeltz and Defendants
Bridge Charleston and Luxury Simplified oppose the motion. (Dkt. Nos. 172, 173.)

II.

Legal Standard
To prevail on a motion for summary judgment, the movant must demonstrate that there is

no genuine issue of any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The party seeking summary judgment has the burden of identifying
the portions of the "pleadings, depositions, answers to interrogatories, any admissions on file,
together with the affidavits, if any, which show there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The Court will construe all inferences and ambiguities against the
movant and in favor of the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The existence of a mere scintilla of evidence in support of the non-moving party's position is
insufficient to withstand a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 4 77
U.S. 242, 252 (1986). However, an issue of material fact is genuine ifthe evidence is such that a
reasonable jury could return a verdict in favor of the non-movant. Id. at 257.
"When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts." Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "In the language of the Rule,
the nonmoving party must come forward with 'specific facts showing that there is a genuine issue
for trial."' Id. at 587. "Where the record taken as a whole could not lead a rational trier of fact to

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find for the non-moving party, there is no ' genuine issue for trial."' Id. (quoting First Nat 'l Bank
ofAriz. v. Cities Serv. Co., 391 U.S. 253 , 289 (1968)).

III.

Discussion

To make out an action for negligence, a plaintiff must show that "(1) defendant owes a
duty of care to the plaintiff, (2) defendant breached the duty by a negligent act or omission, (3)
defendant's breach was the actual and proximate cause of the plaintiffs injury, and (4) plaintiff
suffered an injury or damages." Steinke v. S.C. Dep't of Labor, Licensing & Regulation, 336 S.C.
373 , 387 (1999). ESC argues extensively that as it was only hired to return the elevator to operating
condition, it therefore did not have a duty to repair the issues with the first floor EMI. (Dkt. No.
148-1 at 24.) However, it is well settled that if one enters into a service contract, the party has a
duty to perform that service reasonably. As the Supreme Court of South Carolina recognized, "[i]f
one has entered into the performance of a contract and omits to do some act which it is his duty to
do, such may constitute an act of misfeasance or improper performance." Edward's of Byrnes
Downs v. Charleston Sheet Metal Co., 253 S.C. 537, 542, 172 S.E.2d 120, 122 (1970). The Court

went on to explain that "if he does enter upon the service, negligent performance may result from
omitting to do what ought to be done as well as performing his duties in an improper manner." Id.
citing Williams v. Wise, 255 Ala. 322, 51 So. 2d 1 (1951). Furthermore, as is well settled, where

"an act is voluntarily undertaken, the actor assumes a duty to use due care." Byerly v. Connor, 307
S.C. 441 , 445 , 415 S.E.2d 796, 799 (1992).
The duty here arose from the service contract itself. As described by Chestnut, ESC was
not contacted merely to repair the ground floor EMI and the tape reader, but instead were hired to
insure that the elevator in general began operating again. (Dkt. No. 148-12 at 30.) Therefore,
while ESC ' s duty did not extend to maintaining the elevator, the duty did include ensuring that the
elevator was operating properly at the time of repairs. Further, ESC 's owner also described
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checking that each door worked properly on each floor as part of the repairs, and therefore ESC
also undertook a duty to ensure that the doors were operating properly. (Dkt. No. 148-13 at 16,
30.) This duty covers not only the owner of the property but also to the plaintiff as a foreseeable
third party. See Edward's ofByrnes Downs v. Charleston Sheet Metal Co., 253 S.C. 537, 542, 172
S.E.2d 120, 122 (1970) (finding duty from subcontractor to plaintiff, a third-party leaser since
" [t]he liability of defendant to plaintiff exists independently of contract and rests upon the common
law duty to exercise due care to avoid injury or damage to others.").
There is a dispute of material fact regarding whether ESC breached these duties and
whether its breach caused Plaintiffs injuries. Regarding ESC ' s duty to exercise due care when it
checked the first floor elevator door, neither party has introduced evidence regarding whether the
EMI lock was broken at the time ESC checked the first floor door in May 2014. Furthermore,
there is evidence, which ESC disputes, that another component of the EMI, the keeper, was
improperly aligned at the time ESC checked the first elevator floor door in May 2014. (Dkt. No.
172-2 at 4.) Finally, regardless of the EMI on the first floor door, Plaintiffs expert John W.
Koshak opined that the "tape reader" could "output incorrect information leading to the unlocking
of the wrong landing" and therefore there is also a dispute in the record regarding whether the
elevator tape reader, serviced by ESC, ultimately contributed to the elevator not being on the first
floor when the Plaintiff fell on April 4, 2015 . (Dkt. No. 148-16 at 16.) Therefore, there is a dispute
regarding whether ESC breached its duty, and whether that breach caused Plaintiffs injuries.
ESC notes that Defendant Coastal serviced the elevator in October 2014 and argues that
this constituted a superseding intervening cause. However, " [a] third party's intervening acts of
negligence . .. do not break the causal chain if the acts are foreseeable. " Small v. Pioneer Mach. ,

Inc. , 316 S.C. 4 79, 491 (Ct. App. 1994). Furthermore, the issue of superseding intervening cause

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is normally a question of fact for a jury to determine. See Id. at 615. ("The defenses of contributory
negligence and assumption of risk ordinarily present questions of fact for the jury and only rarely
become questions of law for the court to determine. The same thing may be said of the defense of
intervening third-party negligence.") (citation omitted). To the extent ESC acted negligently in
failing to repair the first floor EMI, it was foreseeable that another party would do so as well.
Furthermore, the Parties did not present any evidence regarding Coastal servicing the tape reader
in July or October 2014, and therefore regardless of any intervening cause regarding the first floor
EMI, Plaintiff's negligence claim survives summary judgment. 1
Finally, ESC alleges that the Plaintiff is "not asserting" claims for strict liability or breach
of warranty against ESC. (Dkt. No. 148 at 11.) However, the Court cannot find any indication
that those claims were dismissed, and instead the Complaint expressly lists those claims as against
"All Defendants." (Dkt. No. 33 at 11 - 12.) ESC, as a company that services elevators, was hired
here to provide a service rather than a product, and therefore cannot be liable for strict products
liability. See S.C. Code Ann.§ 15-73-10; In re Breast Implant Prod. Liab. Litig., 331 S.C. 540,
546 (1998) (holding health care providers were not "sellers" as the breast implant procedure,
though it included a breast implant, was primarily a "service and not a product."). Similarly, the
express warranty, implied warranty of merchantability and implied warranty of fitness for a
particular purpose, do not apply to "contracts which are purely for services" and therefore do not
apply to ESC. Id. at 553. Further, as ESC did not sell the property, the warranty of habitability

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ESC's motion does not address Bridge Charleston and Luxury Simplified's causes of action for

negligence or indemnity. (Dkt. No. 41.) For the same reasons as above, the cause of action for

negligence survives summary judgment. The action for indemnity survives as well, as Bridge
Charleston and Luxury Simplified asserted that ESC was liable for Plaintiff's damages, Bridge
Charleston was not responsible for the liability, and Plaintiff suffered damages. Id.; Vermeer
Carolina's, Inc. v. Wood/Chuck Chipper Corp., 336 S.C. 53, 63 (Ct. App. 1999).

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does not apply to ESC. See Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 344 (1989)
("the warranty of habitability arises or springs from the sale of the home."). However, the warranty
of workmanlike service applies to one who "failed to perform its work in a careful, diligent and
workmanlike manner." Magnolia N Prop. Owners' Ass'n, Inc. v. Heritage Communities, Inc.,
397 S.C. 348, 369 (Ct. App. 2012). This extends not only to builders, but also to companies hired
to perform repairs. See Martin v. A. Celli Nonwovens Spa, No. 7:14-CV-03508-GRA, 2014 WL
5488423, at *4 (D.S.C. Oct. 29, 2014) (noting warranty applied where "defendant was a dealership
performing repairs on a truck, not a builder constructing a house.") citing Hutson v. Cummins

Carolinas, Inc., 280 S.C. 552 (Ct. App. 1984). 2 Therefore, for the same reasons discussed above
regarding the tape reader and first floor EMI, the cause of action for the implied warranty of
workmanlike service survives summary judgment.
IV.

Conclusion

For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
Elevator Services of Charleston, Inc.' s Motion for Summary Judgment (Dkt. No. 148). Elevator
Services of Charleston, Inc.' s Motion is GRANTED as to the cause of action for strict liability.
Elevator Services of Charleston, Inc.' s Motion is DENIED as to all other claims.
AND IT IS SO ORDERED.

United States District Court Judge
Februaryl..l.q 2019
Charleston, South Carolina
2

This is distinct from claims for breach of warranty for workmanlike service alleged specifically

against builders, where the South Carolina Supreme Court has indicated that the cause of action is
limited to purchasers and subsequent purchasers. See Smith v. Breedlove, 377 S.C. 415, 422, 661
S.E.2d 67, 71 (2008) ("a subsequent purchaser may sue a professional builder on the implied
warranty of workmanlike service .... ") (emphasis added).

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