Walker v. DDR Corp et al

Filing 103

ORDER denying 63 Motion in Limine. Signed by Honorable J Michelle Childs on 1/9/2019.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Sharon Walker,
Plaintiff,
v.
DDR Corp., BRE DDR Harbison Court
LLC, Joe Doe No. 1, John Doe No. 2,
John Doe Company No. 1, Joe Doe
Company No. 2, Joe Doe Company No. 3,
Defendants.
BRE DDR Harbison Court LLC,
Third-Party Plaintiff,
v.
Coffelt Consolidated Holdings Inc., d/b/a
Elite Sweeping Service,
Third-Party Defendant.

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Civil Action No.: 3:17-cv-01586-JMC
ORDER

This matter is before the court for review of DDR Corp. and BRE DDR Harbison Court
LLC’s (collectively, “Defendants”) Motion in Limine to Prevent Reference to the IPMC (ECF No.
63). Defendants’ Motion was filed on August 31, 2018, and Plaintiff Sharon Walker (“Plaintiff”)
responded in opposition on September 11, 2018. (ECF Nos. 63, 72.) For the reasons stated herein,
the court DENIES Defendants’ Motion in Limine to Prevent Reference to the IPMC (ECF No.
63).
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 19, 2014, Plaintiff used a parking lot, owned, maintained, and managed by

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Defendants, in Columbia, South Carolina. (ECF No. 1-2 at 4 ¶ 10.) While using the parking lot,
Plaintiff, allegedly, stepped into a hole between a water meter lid and the parking lot’s surface.
(Id.) Plaintiff maintains that she “fell violently to the ground and sustained serious injuries to her
right knee.” (Id. at 4 ¶ 11.) The parking lot was repaved after Plaintiff’s accident, but before she
filed the instant lawsuit. (ECF Nos. 43, 55.) After filing her Complaint in the Richland County
Court of Common Pleas on May 9, 2017, Defendants removed the case to the United States District
Court for the District of South Carolina on June 16, 2017. (ECF Nos. 1, 1-1.) Plaintiff’s action is
brought under the South Carolina laws of negligence. (ECF No. 1-1.)
On January 4, 2019, the court excluded Dr. Bryan Durig (“Dr. Durig”) from providing
expert testimony pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993). (ECF No. 96.) Dr. Durig was prepared to opine that
Defendants’ actions were in violation of the International Property Maintenance Code (“IPMC”)
and American Society for Testing and Materials (“ASTM”). (ECF No. 55-3 at 7–8.) However,
prior to the court’s ruling pertaining to Dr. Durig, Defendants filed the instant Motion on August
31, 2018, arguing that Dr. Durig and “any other witnesses” should “be prohibited from citing to
the IPMC as applicable to the premises at Harbison Court.” 1 (ECF No. 63 at 2.) Defendants
maintain that the IPMC is a “permissive code” and, therefore, unenforceable unless a local
jurisdiction has adopted it. (Id. at 2–3.) Defendants submit that Lexington County, South Carolina,
has not adopted the IPMC, thereby rendering the IPMC inapplicable. (Id.) Plaintiff, on the other
hand, contends that testimony regarding the IPMC is relevant and admissible because, under South

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Defendants claim that the court’s exclusion of Dr. Bryan Durig (“Dr. Durig”) is dispositive of
the issues within the instant Motion. (ECF No. 63 at 1 n.1.) However, Defendants’ Motion does
not only relate to Dr. Durig because they request that “any other witnesses” be “prohibited” from
testifying about the International Property Maintenance Code (“IPMC”), which is far broader in
scope and extends beyond Dr. Durig. (See id. at 2.)
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Carolina law, “industry safety standards [are] relevant to establishing the standard of care in a
negligence case.” (ECF No. 72 at 3 (citing Elledge v. Richland/Lexington Sch. Dist. Five, 573
S.E.2d 789 (S.C. 2002)).) While Plaintiff concedes that the IPMC does not have the force of law,
she argues that “evidence of industry standards and guidelines, even if not adopted, [are] highly
probative on the issue of the property owner’s duty of care.” (Id. at 4 (citing Elledge, 573 S.E.2d
at 793–94).).
The court heard oral arguments from Plaintiff and Defendants on December 5, 2018. (ECF
No. 90.) During the hearing, Defendants continued to argue for the exclusion of references to the
IPMC, while Plaintiff maintained that precedent from the South Carolina Supreme Court requires
that the IPMC be considered. (Id.) This issue has been extensively briefed by the parties and is
now ready for the court’s review. See generally McCollum v. Jacoby Trucking & Delivery, LLC,
C/A No. 8:17-cv-01244-DCC, 2018 WL 827187, at *1 (D.S.C. Feb. 12, 2018); Peter B. v.
Buscemi, C/A No. 6:10-767-TMC, 2017 WL 4457775, at *1 (D.S.C. July 28, 2017); Henderson v.
Allstate Ins. Co., C/A No. 7:15–2383–TMC, 2017 WL 2954951, at *1 (D.S.C. Mar. 28, 2017).
II. LEGAL STANDARD
“Questions of trial management are quintessentially the province of the district courts.”
United States v. Smith, 452 F.3d 323, 332 (4th Cir. 2006). “The purpose of a motion in limine is
to allow a court to rule on evidentiary issues in advance of trial in order to avoid delay, ensure an
even-handed and expeditious trial, and focus the issues the jury will consider.” United States v.
Verges, No. 1:13cr222 (JCC), 2014 WL 559573, at *2 (E.D. Va. Feb. 12, 2014). When ruling upon
a motion in limine, a federal district court exercises “wide discretion.” United States v. Aramony,
88 F.3d 1369, 1377 (4th Cir. 1996) (quoting United States v. Heyward, 729 F.2d 297, 301 n.2 (4th
Cir. 1984)). Nevertheless, a motion in limine “should be granted only when the evidence is clearly

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inadmissible on all potential grounds.” Verges, 2014 WL 559573, at *3. See also Fulton v. Nisbet,
C/A No. 2:15-4355-RMG, 2018 WL 565265, at *1 (D.S.C. Jan. 25, 2018).
III. DISCUSSION
Under South Carolina law, 2 in order to prevail in a negligence action, a plaintiff must show
the following: “(1) the defendant owes a duty of care to the plaintiff, (2) the defendant breached
the duty by a negligent act or omission, (3) the defendant’s breach was the actual and proximate
cause of the plaintiff’s injury, and (4) the plaintiff suffered injury or damages.” Madison ex rel.
Bryant v. Babcock Ctr., Inc., 638 S.E.2d 650, 656 (S.C. 2006). See generally Fowler v. Hunter,
697 S.E.2d 531, 534 (S.C. 2010) (“To establish a cause of action in negligence, a plaintiff must
prove the following three elements: (1) a duty of care owed by defendant to plaintiff; (2) breach
of that duty by a negligent act or omission; and (3) damages proximately resulting from the breach
of duty.” (citing Bloom v. Ravoira, 529 S.E.2d 710, 712 (S.C. 2000))). Generally, “[t]he owner of
property owes to an invitee or business visitor the duty of exercising reasonable or ordinary care
for his safety, and is liable for injuries resulting from the breach of such duty.” Sims v. Giles, 541
S.E.2d 857, 863 (S.C. Ct. App. 2001). South Carolina courts have held that the existence of a legal
duty is a question of law for a court, not a jury. See Doe v. Greenville Cty. Sch. Dist., 651 S.E.2d
305, 309 (S.C. 2007); Doe v. Batson, 548 S.E.2d 854, 857 (S.C. 2001); Nelson v. Piggly Wiggly
Cent., Inc., 701 S.E.2d 776, 779 (S.C. Ct. App. 2010). When determining whether a legal duty

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As decided by the court’s Order and Opinion from January 4, 2019, this court possesses diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a). (ECF No. 90.) Because the court sits in diversity
jurisdiction, it must apply the substantive law of the state in which it sits, which is South Carolina.
See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). See generally Johnson v. Hugo’s Skateway,
974 F.2d 1408, 1416 (4th Cir. 1992) (“The principles of [Erie] require a federal court in a diversity
case to respect and enforce state-created rights in a manner such that litigation of state-based rights
in federal court does not yield results materially different from those attained in the state
courts. . . . Generally, then, federal courts applying state-created law are still to conduct those trials
under federally established rules of procedure.”).
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exists in a negligence case, the South Carolina Supreme Court has held that “evidence of industry
safety standards is relevant to establishing the standard of care in a negligence case.” Elledge, 573
S.E.2d at 793. Most recently, the South Carolina Supreme Court opined as follows: “In a given
case, a court may establish and define the standard of care by looking to common law, statutes,
administrative regulations, industry standards, or a defendant’s own policies and guidelines.”
Roddey v. Wal-Mart Stores E., LP, 784 S.E.2d 670, 675 (S.C. 2016) (emphasis added) (citation
omitted). See generally Madison ex rel. Bryant, 638 S.E.2d at 659; Kennedy v. Columbia Lumber
& Mfg. Co., Inc., 384 S.E.2d 730, 738 (S.C. 1989).
Plaintiff’s reliance upon Elledge presents a complex, thornier issue that neither party
adequately confronts. (ECF No. 63 at 2–3; ECF No. 72 at 3–5.) In Elledge, the South Carolina
Supreme Court held that industry safety standards were relevant and admissible under the South
Carolina Rules of Evidence. 573 S.E.2d at 792–95. Typically, given that this court sits in diversity
jurisdiction, the Federal Rules of Evidence, not the South Carolina Rules of Evidence, apply
because they are validly enacted procedural rules and govern in diversity cases. See Hottle v. Beech
Aircraft Corp., 47 F.3d 106, 109 (4th Cir. 1995); Scott v. Sears, Roebuck & Co., 789 F.2d 1052,
1054 (4th Cir. 1986). However, despite the Federal Rules of Evidence normally applying in
diversity cases, the United States Court of Appeals for the Fourth Circuit has cautioned that there
are instances in which the Federal Rules of Evidence may “encroach upon a [s]tate’s substantive
law.” Hottle, 47 F.3d at 110. In other words, “there are circumstances in which a question of
admissibility of evidence is so intertwined with a state substantive rule that the state rule . . . will
be followed in order to give full effect to the state’s substantive policy.” Id. (quoting DiAntonio v.
Northampton-Accomack Mem’l Hosp., 628 F.2d 287, 291 (4th Cir. 1980)). See, e.g., In re C.R.
Bard, Inc., MDL No. 2187, Pelvic Repair Sys. Prods. Liab. Litig., 810 F.3d 913, 919 n.1 (4th Cir.

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2016) (“Only where a state evidentiary rule is ‘bound up’ with substantive policy will it control
over the federal rule.” (quoting Hottle, 47 F.3d at 110)); Creekmore v. Maryview Hosp., 662 F.3d
686, 690–93 (4th Cir. 2011) (holding that expert testimony was required under state law in a
medical malpractice case, and, regardless of federal law, a district court properly admitted an
expert witness as mandated under state court precedent); Banko v. Cont’l Motors Corp., 373 F.2d
314, 316 (4th Cir. 1966) (applying a federal evidentiary rule when state substantive law was not
implicated).
South Carolina law clearly allows industry standards to play an important role when
formulating a party’s standard of care in a negligence case. See Roddey, 784 S.E.2d at 675 (“In a
given case, a court may establish and define the standard of care by looking to common law,
statutes, administrative regulations, industry standards, or a defendant’s own policies and
guidelines.” (citation omitted)); Madison ex rel. Bryant, 638 S.E.2d at 659 (“The standard of care
in a given case may be established and defined by the common law, statutes, administrative
regulations, industry standards, or a defendant’s own policies and guidelines.” (citations omitted));
Elledge, 573 S.E.2d at 793 (“[T]he general rule is that evidence of industry safety standards is
relevant to establishing the standard of care in a negligence case.” (citations omitted)). Most
importantly, the South Carolina Supreme Court does not require a party to explicitly adopt industry
standards in order for them to be relevant and admissible in a negligence case. See Elledge, 573
S.E.2d at 792–93 (“We agree . . . that the trial court was under ‘the mistaken belief that the [d]istrict
must have adopted these national protocols before such evidence was admissible.’” (quoting
Elledge v. Richland/Lexington Sch. Dist. Five, 534 S.E.2d 289, 291 (S.C. Ct. App. 2000))).
Additionally, although the court is tasked with determining a party’s legal duty, the jury, as the
fact-finder, is tasked with determining whether that duty, which may incorporate industry

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standards, has been breached. See McVey v. Whittington, 151 S.E.2d 92, 96 (S.C. 1966); Moore v.
Weinberg, 644 S.E.2d 740, 746 (S.C. Ct. App. 2007); Miller v. City of Camden, 451 S.E.2d 401,
403 (S.C. Ct. App. 1994). Based upon the rich precedent from South Carolina courts, the
admissibility of industry standards are intertwined with the substantive law of a negligence case,
including for defining the relevant legal duty and jury’s decision of whether a breach of that duty
occurred. See Roddey, 784 S.E.2d at 675; Madison ex rel. Bryant, 638 S.E.2d at 65; Elledge, 573
S.E.2d at 793. In order to give “full effect” of South Carolina’s substantive policy of considering
industry standards within negligence cases, the court holds that references to the IPMC, which are
relevant industry standards in this case, are admissible because they are “interwined” with the
substantive law of South Carolina. 3 Hottle, 47 F.3d at 110.
Defendants submit that the IPMC is a “permissive code” and is not applicable to this case
because Lexington County, South Carolina, has declined to adopt it. (ECF No. 63 at 2.) In support
of their argument, Defendants rely upon Kauffman v. Park Place Hosp. Grp., C/A No. 2:09–1399–
MBS, 2011 WL 1335832, at *2 (D.S.C. Apr. 7, 2011), aff’d, 468 F. App’x 220, 222 (4th Cir.
2012). 4 (Id. at 2–3.) However, Kauffman is clearly distinguishable from the instant dispute for
several reasons. In Kauffman, there were two different building codes at issue, and two parties
disputed which building code was applicable when defining the appropriate standard of care. 2011
WL 1335832, at *4. The Kauffman court held that the applicable code was the one adopted by the

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The South Carolina Supreme Court stressed that industry standards do not have “the force of
law,” but are “illustrative evidence of safety practices or rules generally prevailing in the industry.”
Elledge v. Richland/Lexington Sch. Dist. Five, 573 S.E.2d 789, 793 (S.C. 2002) (quoting
McComish v. DeSoi, 200 A.2d 116, 121 (1964)).
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Defendants have suggested that Kauffman is “unequivocal and binding.” (ECF No. 63 at 3.)
Defendants are misguided in regard to Kauffman’s precedential force upon the court. In Kauffman,
the United States Court of Appeals for the Fourth Circuit reiterated that unpublished opinions are
not binding precedent upon federal district courts. 468 F. App’x 220, 221 (4th Cir. 2012). Because
Kauffman is an unpublished decision from the Fourth Circuit, it is not binding upon the court. Id.
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local jurisdiction, not the code that the jurisdiction declined to adopt. Id. The Kauffman court was
chiefly concerned with choosing the correct code to follow, and its decision did not turn on
prohibiting witnesses from citing to or referencing either code. Id. at *3–4. Moreover, unlike the
questions implicated before this court, since the parties agreed that a code was applicable, the
Kauffman court was not tasked with deciding if a code is relevant to defining the standard of care
or finding a breach of a legal duty under South Carolina law. Id. For these reasons, the court finds
Kauffman inapposite because it did not directly answer the nuanced issue addressed by the court
today. Id. For these reasons, taken together, the court does not find Defendants’ argument availing
and in harmony with Fourth Circuit precedent.
IV. CONCLUSION
After a careful examination of Defendants’ Motion in Limine to Prevent Reference to the
IPMC (ECF No. 63), Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion (ECF
No. 72), and the parties’ arguments at the hearing, the court DENIES Defendants’ Motion in
Limine to Prevent Reference to the IPMC (ECF No. 63).
IT IS SO ORDERED.

United States District Judge

January 9, 2019
Columbia, South Carolina

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