Fish v. CVS Pharmacy Inc.

Filing 56

OPINION AND ORDER denying 42 MOTION for Summary Judgment. Signed by Honorable Cameron McGowan Currie on 3/27/2017. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Marci Fish,

C/A No. 3:16-cv-00099-CMC
Plaintiff,

v.

Opinion and Order Denying
Motion for Summary Judgment

CVS Pharmacy, Inc. and A-Team Services,
Inc.,
Defendants.

Through this action, Plaintiff, Marci Fish (“Plaintiff”), seeks damages from CVS
Pharmacy, Inc. (“CVS”) for injuries suffered when she fell over sandbags stacked outside the
entrance of a CVS store. 1 The matter is before the court on CVS’s motion for summary judgment,
which relies on the open and obvious nature of the stacked sandbags. For reasons set forth below,
the motion for summary judgment is denied.
STANDARD

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). It is well established that summary judgment should be granted “only when it is clear that
there is no dispute concerning either the facts of the controversy or the inferences to be drawn from
those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). The
party moving for summary judgment has the burden of showing the absence of a genuine issue of
material fact, and the court must view the evidence before it and the inferences to be drawn

1

Defendant A-Team Services, Inc. was dismissed without prejudice on February 15, 2017. See
ECF No. 44 (stipulation of dismissal).

therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962).
Rule 56(c)(1) provides as follows:
(1) A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers or other
materials; or
(b) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
FACTS
On October 5, 2015, Plaintiff visited the CVS store on Hardscrabble Road in Columbia,
South Carolina. Jarrod Washington dep. at 22, 23 (noting incident occurred on Monday October
5, 2015); see also Plaintiff dep at 35 (stating accident happened after the flood). Two days prior
to Plaintiff’s visit, sandbags were delivered to the CVS as a precautionary measure to avoid
damage from heavy rains and anticipated flooding in the area. Washington dep. at 21-22 (stating
sandbags were delivered on Saturday morning as precautionary measure); see also ECF No. 50-2
(“Record of Climatological Observations” reflecting rainfall in Columbia area of 1.48 inches on
October 3, 2015, 8.78 inches on October 4, 2015, 5.05 inches on October 5, 2015, and .40 inches
on October 6, 2016).
The sandbags were placed in front of the customer entrance at night and moved to the sides
of the door when the store was opened. Cathy Lizotte dep. at 31-33 (CVS employee explaining
sandbags had to be moved in order to open the doors, describing bags as being placed to the sides
2

of the door when the store was open, and indicating she may have moved the bags if she had to
open or close the store, though she does not recall); Washington dep. at 29-30, 48 (stating sandbags
were to the sides of the door, “not blocking the door directly” so he believed “they were fine where
they were”); Amy Cox dep. at 41 (CVS employee explaining bags were stacked on top of each
other against the wall “a good 3-4 inches away from [the] doors on both sides” of the entrance);
see also Plaintiff dep. at 37-38 (describing accordion door at angled entrance). Though no flooding
was occurring within the immediate area of the CVS at the time of Plaintiff’s visit, the back room
of the CVS had been flooded and it was not clear that all risk of flooding had passed. Washington
dep. at 23, 48 (stating store was not actively flooding at the time of Plaintiff’s fall), 64-65 (stating
he “didn’t know if the rain was going to stop or keep going” and sandbags were kept near where
they would be needed because, at 50 pounds each, they were not easy to move); 73 (stating he
understood from customers that there was “flooding within a half-mile of the store”);74-75 (stating
stock room in back of store flooded prior to the incident). The bags were made of clear plastic
with large red and green writing. Washington dep. at 45 (addressing weight and difficulty of one
person moving); ECF No. 50-1 (Reply Ex. 1, photograph). 2

2

Plaintiff identified the sandbags depicted in this photograph as the sandbags that caused her fall,
though she could not say whether they were depicted as they were stacked at the time of her fall.
Plaintiff dep. at 40, 60. Other witnesses testified that, while the photograph depicts the sandbags
that were present, it does not depict the manner of stacking at the time of Plaintiff’s fall. See
Washington dep. at 27, 47 (identifying photograph as one he took of the sandbags, but stating he
did not believe it was on the day of the incident); Cox dep. 42-43 (stating photograph showed
sandbags that were present but did not show how they were positioned at time of Plaintiff’s fall
“[b]ecause they’re all stacked on top of each other,” rather than two on each side of the door);
compare Plaintiff dep. at 39 (referring to a stack of three sandbags on each side of the door), with
ECF No. 50-1 (showing a stack of four or five sandbags).

3

Plaintiff “distinctly remember[s] seeing [sandbags stacked] on the [far] side of the door as
she entered. Id. at 38. She did not “recall seeing [sandbags] on the closer side.” Id.; see also id.
at 40 (“I don’t remember seeing them on [the closer] side of the door as I walked in. . . . I just think
I didn’t notice.”). Based on her observations after she fell, Plaintiff “believe[s] there were three
[sandbags] on each side” of the door. Id. at 39. 3 Plaintiff concedes nothing prevented her from
seeing the sandbags. Id. at 49.
When Plaintiff exited the store, she turned sharply to the right to avoid the possibility of
running into anyone who might be coming from that direction. Id. at 40, 42, 55 (describing exit
as a blind corner). When she did so, she tripped over the stack of sandbags she had not previously
observed (on her right as exiting). Id. at 40. After Plaintiff fell, the store manager, Washington,
“came out and the first thing he did is he said let me move these sandbags. I don’t want anybody
else to trip.” Plaintiff dep. at 60.

When asked whether the bags had moved when she tripped

over them, Plaintiff conceded she did not know. Plaintiff dep. at 66- 67. Washington testified he
believed Plaintiff’s fall moved one of the bags which he “stood [] back up and . . . put . . . closer
to the wall.” Washington dep. at 32.
Two CVS employees expressed at least some doubt whether the sandbags should have been
left by the door. See Cox dep. at 44; Lizotte dep. at 38-39, 42). For example, when asked whether
the bags should have been left by the door, Cox initially stated “No, I don’t think so[.]” Similarly,
in response to a hypothetical question, Lizotte agreed sandbags “should not be left outside the

3

CVS employees testified there were two bags on each side of the door, for a total of four bags.
Cox dep. at 41; Lizotte dep. at 34; see also ECF No. 50-1 (photograph of four to five bags). For
purposes of this order, the court accepts Plaintiff’s recollection of the number of bags as correct.

4

entry way” if “there was no longer a threat of th[e] store flooding[.]” Lizotte dep. at 38. While
both witnesses’ responses were qualified, they present some evidence store employees understood
the sandbags posed a risk of harm. 4
Plaintiff suffered injuries as a result of the fall, including exacerbating a preexisting injury
to her arm that ultimately led to surgery and related complications. Id. at 50, 65-66; Richard Fish
(“Mr. Fish”) dep. at 23 (testifying Plaintiff “felt that [the injury to] her arm was significantly
exacerbated” by the fall but did not realize the extent of the injury so did not seek medical attention
until the Friday following the fall); Washington dep at 25 (reciting Plaintiff’s contemporaneous
description of her injuries).
DISCUSSION
A merchant is not an insurer of its customers’ safety, but does owe customers a “duty to
exercise ordinary care to keep the premises in a reasonably safe condition.” Denton v. Winn-Dixie
Greenville, Inc., 439 S.E.2d 292, 293 (S.C. Ct. App. 1993). To recover for injury caused by a
foreign substance or object, a customer must show the merchant either placed the substance or
object where it caused the injury or was on constructive or actual notice of the substance or object.
Wintersteen v. Food Lion, Inc., 542 S.E.2d 728, 729-30 (S.C. 2001) (upholding rule even though

4

See Cox dep. at 44 (stating she wasn’t sure whether more rain was forecast); Lizotte dep. at . 38,
40-43 ((1) stating, on direct examination, whether bags should be removed “[d]epends if it’s before
or after the flood,” and she did not recall whether there was still a risk of flooding, (2) agreeing,
on cross-examination, it was appropriate to leave the sandbags in place if there was still a chance
of flooding, (3) indicating, on re-examination, sandbags should have remained near doors if there
was still a chance of flooding but agreeing they “probably” should have been removed if “it was
no longer raining and there were not waters close by”; (4) indicating, on re-cross-examination, that
the flooding around October 5, 2015, was unusual, they did not know how severe it would be or
when flooding would end, and it was appropriate to take precautions if any risk of flooding
remained).
5

merchant’s installation of self-serve drink machine with ice dispenser increased likelihood of water
on floor). There is no issue of notice in this case because CVS was responsible for placement of
the sandbags.
Even if the object itself is placed by the merchant, the merchant cannot be held liable if the
customer, exercising “reasonable care for his own safety” would likely expect and see the object.
Denton, 439 S.E.2d. 294 (holding merchant was entitled to judgment as a matter of law where
customer fell over a six to eight inch high divider used to corral grocery carts in parking lot despite
customer’s claim she was distracted by an oncoming vehicle); see also Larimore v. Carolina
Power & Light, 531 S.E.2d 535, 539 (S.C. Ct. App. 2000) (“A landowner generally does not owe
a duty to warn others of open and obvious conditions on the property.”). The basis for imposing
liability on an invitor (here a merchant) is the invitor’s “superior knowledge of the danger[.]”
Larimore 531 S.E.2d at 540. “If that superior knowledge is lacking, as when the danger is obvious,
the invitor cannot be held liable.” Id. (quoting Breeden v. Hardy Corp., 562 So. 2d 159, 160 (Ala.
1990)). “[T]he degree of care required . . . is commensurate with the circumstances involved,
including the age and capacity of the invitee.” Id. at 539-40 (finding homeowner was not liable
for open and obvious condition which caused contractor’s injury).
South Carolina recognizes an exception to the general rule that there is no duty to warn of
an obvious danger where “the [land]owner should anticipate that the invitee will nevertheless
encounter the condition, or that the invitee is likely to be distracted.” Callander v. Charleston
Doughnut Corp., 406 S.E.2d 362, 362 (S.C. 1991) (requiring jury instruction on exception where
restaurant patron was injured when he tried to sit on a barstool with a missing top and manager
admitted (1) the top was missing for over two months, (2) he could not explain why a warning sign
that had been present was removed, and (3) many of the “regular customers were senior citizens
6

who customarily backed up to the stools in order to sit down”). Callander expressly adopts
Restatement (Second) of Torts § 343(A), which provides a possessor of land “is not liable to his
invitees for physical harm caused to them by any . . . condition on the land whose danger is known
or obvious to them, unless the possessor should anticipate the harm despite such knowledge or
obviousness.” Restatement (Second) of Torts § 343(A) (1965) (emphasis added).
Two subsequent decisions of the South Carolina Supreme Court provide guidance as to the
reach of this exception. In Meadows v. Heritage Village Church, 409 S.E.2d 349 (S.C. 1991), the
court considered a claim by a hotel patron who slipped on wet grass when walking from the parking
lot to the hotel. The court held the exception did not apply because the evidence did not support a
finding the hotel “could reasonably have foreseen that [the patron] would choose to try to cross
the wet grass instead of using one of the other ways back to the hotel.” Meadows, 409 S.E.2d at
351. The court reached the opposite result in Creech v. S.C. Wildlife and Marine Resources Dept.,
491 S.E.2d 571 (S.C. 1997), a case involving a ten-foot fall from a dock where there was a safety
rail on only one side of the dock and Creech fell from the other side. The court found the
circumstances were more akin to those in Callander than Meadows because there “was ample
evidence [the defendant] had been warned the lack of safety rails could present a danger to people
fishing from the dock and could expose [the defendant] to potential liability.” Creech, 491 S.E.2d
at 575.
While Plaintiff may face an uphill battle at trial, the court finds genuine issues of material
fact preclude summary judgment. A jury might, for example, find the condition of the bags

7

immediately after Plaintiff’s fall evidences their condition prior to her fall. 5 Coupled with
Washington’s statement to Plaintiff, this evidence may support a finding the hazard posed by the
sandbags either was not open and obvious to a customer leaving the store or that CVS was on
notice of the risk of harm despite the obviousness of the hazard. Cox and Lizette’s testimony could
support the same conclusions. Thus, there is evidence from which a jury could either find the risk
posed by the sandbags was not open and obvious to a customer leaving the store or CVS was on
notice of a risk of harm despite the obviousness. 6
CONCLUSION
For reasons explained above, CVS’s motion for summary judgment is denied.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
March 27, 2017

5

Given the weight and nature of sandbags, a jury might conclude they would not likely have
moved as a result of Plaintiff’s fall.

6

It is of some note the sandbags were well below eye level, according to Plaintiff were around a
“blind corner” from the perspective of a customer leaving the store, and apparently were not
marked with orange cones or other eye-catching devices.
8