Welsh v. Speedway LLC

Filing 38

ORDER: Defendant's Motion for Summary Judgment [ECF # 28 ] is GRANTED. Plaintiff's Complaint [ECF # 1 -1] is dismissed with prejudice. Signed by the Honorable R Bryan Harwell on 7/6/2017. (hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
RONALD WELSH,

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)
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Plaintiff,
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v.
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SPEEDWAY LLC,
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Defendant.
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____________________________________)

Civil Action No.: 4:16-CV-00129-RBH

ORDER

This matter is before the Court on Defendant’s Motion for Summary Judgment filed May
11, 2017. [ECF #28]. On May 25, 2017, Plaintiff filed a Response in Opposition to Defendant’s
Motion. [ECF #30]. On June 1, 2017, Defendant filed its Reply. [ECF #32]. This Court has
considered all of the filings related to the Motion filed in this case, and this matter is now before
the Court for review.1
Standard of Review
Speedway LLC (“Speedway”) brings this motion as one for summary judgment under Rule
56(c) of the Federal Rules of Civil Procedure. Summary judgment “shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party has
the burden of proving that summary judgment is appropriate. Once the moving party makes the

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Under Local Civil Rule 7.08 (D.S.C.), “hearings on motions may be ordered by the Court in its discretion.
Unless so ordered, motions may be determined without a hearing.” Upon review of the briefs, the Court
finds that a hearing is not necessary.

showing, however, the opposing party must respond to the motion with “specific facts showing
there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
When no genuine issue of any material fact exists, summary judgment is appropriate.
Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn
from the evidence must be viewed in the light most favorable to the non-moving party. Id.
However, “the mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986)).
In this case, Defendant “bears the initial burden of pointing to the absence of a genuine
issue of material fact.” Temkin v. Frederick Cnty. Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If Defendant carries this burden, “the
burden then shifts to the non-moving party to come forward with fact sufficient to create a triable
issue of fact.” Id. at 718–19 (citing Anderson, 477 U.S. at 247–48).
Moreover, “once the moving party has met its burden, the nonmoving party must come
forward with some evidence beyond the mere allegations contained in the pleadings to show there
is a genuine issue for trial.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874–75 (4th Cir. 1992).
The nonmoving party may not rely on beliefs, conjecture, speculation, of conclusory allegations
to defeat a motion for summary judgment. See id; Doyle v. Sentry, Inc., 877 F. Supp. 1002, 1005
(E.D. Va. 1995). Rather, the nonmoving party is required to submit evidence of specific facts by
way of affidavits, depositions, interrogatories, or admissions to demonstrate the existence of a
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genuine and material factual issue for trial. See Fed. R. Civ. P. 56(c), (e); Baber, 977 F.2d at 875
(citing Celotex, 477 U.S. at 324)). The nonmovant’s proof must meet “the substantive evidentiary
standard of proof that would apply at a trial on the merits.” Mitchell v. Data Gen. Corp., 12 F.3d
1310, 1316 (4th Cir. 1993); DeLeon v. St. Joseph Hosp., Inc., 871 F.2d 1229, 1239 n.7 (4th Cir.
1989). The parties have had the opportunity to conduct discovery in this case. This Court will
analyze this Motion under the applicable standard for summary judgment.
Factual Background and Procedural History
This lawsuit was filed on or about December 15, 2015 in the Horry County Court of
Common Pleas, but it was removed to this Court on January 14, 2016. [ECF #1-1]. As alleged
in the Complaint, on or about April 16, 2014, Plaintiff Ronald Welsh was a guest/invitee on
Speedway’s premises. [ECF #1-1, pp. 2-3]. While at the Speedway, Mr. Welsh sustained an injury,
allegedly because he tripped and fell at the gas station due to the length of the gas pump hose,
or otherwise because Speedway created a dangerous condition. [Complaint, ECF #1-1, p. 3]. Mr.
Welsh is now suing Speedway claiming its alleged negligence caused Mr. Welsh to experience
significant injury and undergo pain and suffering. [ECF #1-1, p. 4]. Mr. Welsh seeks actual and
punitive damages for the injuries he alleges to have sustained. [ECF #1-1, p. 5].
Speedway seeks summary judgment on these claims, as Speedway argues that there is no
genuine issue of material fact regarding Speedway’s liability to Mr. Welsh due to the fact that the
fuel dispensing hose was an “open and obvious” danger, Mr. Welsh was aware of the hose when
he tripped over it, and Speedway did not have superior knowledge of any alleged “defect” with
the hose. [ECF #28, p. 1]. Speedway argues that Plaintiff testified in his deposition that he was
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familiar with that particular gas station location. [ECF #28, p. 2].

Speedway also points to

Plaintiff’s admission that he was attempting to step over a gas pump hose when he tripped and
fell. [ECF #28, p. 2].

Specifically, Speedway includes deposition testimony where Plaintiff

acknowledges that he knew the hoses were there, and that his left leg made it over the hose, it
was just his right foot that was caught, causing him to fall. [ECF #28, pp. 3-4]. Finally, included
within Speedway’s brief is a photograph of the pumps showing the location and visibility of the
gas pump hoses. [ECF #28, p. 4]. In response, Plaintiff argues that Defendant has not met the
standard for summary judgment because there are genuine issues of fact related to whether
Defendant created a hazardous condition thereby causing Plaintiff’s injuries. [ECF #30, p. 2].
Discussion
In order for Plaintiff to establish a claim for negligence, he must prove: (1) a duty owed
by Speedway to him; (2) a breach of that duty; (3) proximate causation; and (4) damages. Nash
v. Marriott Hotel Servs., Inc., No. 7:07-503-HMH, 2007 WL 3125315, at *1 (D.S.C. Oct. 23,
2007) (citing Daniel v. Days Inn of Am., Inc., 356 S.E.2d 129, 131, 292 S.C. 291 (S.C. Ct. App.
1987)). Speedway argues that Plaintiff is unable to show there is a genuine issue of material fact
with respect to at least one element of his claim because the gas pump hose that Plaintiff allegedly
tripped over was an “open and obvious” danger of which Plaintiff testified he was aware of,
thereby negating any breach of a duty on the part of Speedway.
Merchants owe customers a duty to exercise ordinary care to keep their premises in a
reasonably safe condition. Nash, 2007 WL 3125315, at *2. South Carolina law provides that the
owner of a property does not owe a duty to use reasonable care to take precautions warning guests
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of open and obvious dangers. Hackworth v. U.S., 366 F. Supp. 2d 326, 330 (D.S.C. Feb. 11,
2005) (citing Neil v. Byrum, 343 S.E.2d 615, 616, 288 S.C. 472 (S.C. 1986)). Dangers are “open
and obvious” when they are reasonably discoverable to the patron. See generally Donovan v. U.S.,
No. 9:05-3217-CWH, 2007 WL 1074951, at *4 (D.S.C. April 5, 2007); see also Hancock v. MidSouth Mgmt Co., Inc., 673 S.E.2d 801, 381 S.C. 326 (2009) (finding that while a parking lot in
a state of disrepair might be an “open and obvious” condition, owner of premises should have
anticipated this to be a hazard); Moore v. Barony House Restaurant, LLC, 674 S.E.2d 500, 382
S.C. 35 (2009) (operating an unlighted golf car at night on a public highway is open and obvious
as a matter of law). The degree of care owed when an open and obvious danger is involved is
commensurate with the circumstances involved, including the possessor’s knowledge of the defect’s
existence and the age and capacity of the invitee. Larimore v. Carolina Power & Light, 531
S.E.2d 535, 539-40, 340 S.C. 438 (S.C. Ct. App. 2000).
In order to establish that Defendant did not owe a duty to Plaintiff, Defendant points to
Mr. Welsh’s deposition testimony, as compared to a recorded statement apparently provided by
Mr. Welsh soon after the incident occurred, to establish that Mr. Welsh was aware of the “open
and obvious” danger of the gas hoses. Defendant believes that the recorded statement indicates that
initially, Plaintiff stated he tripped over the hose for regular gas (a shorter hose than the other two
hoses at the pump station) that was actually distributing gas to his car, but later changed his
testimony to say he tripped over two longer hoses that were not in use. [ECF #28, pp. 2-5]. In
response, Plaintiff disputes the use of Mr. Welsh’s recorded statement, regardless of whether it
reflects any alleged discrepancy in Mr. Welsh’s recollection of the incident, because it was not
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attached to Defendant’s Motion. [ECF #30, p. 4]. Defendant has since filed the actual audio file
of the recorded statement with the Court; however, even without considering the recorded
statement as evidence, this Court finds that Mr. Welsh was aware of the gas hose, which was in
plain view and open and obvious to Plaintiff.
The facts in this case are akin to cases where courts have found a plaintiff could not
recover for injuries sustained due to contact with an open and obvious danger. See Meadows v.
Heritage Church and Missionary Fellowship, Inc. a/k/a PTL, 409 S.E.2d 349, 305 S.C. 375 (S.C.
1991) (finding no duty to warn patron of the danger posed by wet grass near the sidewalk); Nash
v. Marriott Hotel Servs., Inc., No. 7:07-503-HMH, 2007 WL 3125315 (D.S.C. Oct. 23, 2007)
(finding that vomit on the floor near the bathroom of which the plaintiff was aware was an open
and obvious danger necessitating summary judgment for the hotel chain). Mr. Welsh first testified
in his deposition that he had purchased gas or other convenience good items at this particular gas
station approximately ten times prior to the incident. Welsh Dep. 46:7-14 (Oct. 26, 2016).
With respect to the incident in question, Mr. Welsh testified that he pulled up to the gas
pump far enough that his car was even with the first gas pump line and then started the gas
pump. Welsh Dep. 47:18-25. He attempted to walk toward the gas pump to check the amount of
gas he had purchased, and he alleges that his foot got caught up with a hose laying on the ground,
causing him to fall. Welsh Dep. 48:1-7. In fact, Mr. Welsh testified that he “successfully” stepped
over the hose with his left leg, but his right foot got caught. Welsh Dep. 68: 20-25. At the time
of the incident, he was hopping on his left leg and his foot came loose, and he fell. Welsh Dep.
69: 1-8. Mr. Welsh also testified that he was aware the hoses were at the gas pump, but he did
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not pay much attention to them. Welsh Dep. 57:20-21. Plaintiff also testified in his deposition that
when he fell he was “trying to step over the hoses on the ground,” and he “did not want to walk
on” the hoses on the ground, so instead, he tried stepping over them. Welsh Dep. 68:6-11. Finally,
when asked if he saw the hoses, he testified, “I knew the hoses were there, yeah.” Welsh Dep.
68: 11. Based upon Plaintiff’s deposition testimony, it is apparent to this Court that Plaintiff
observed the hoses, stood in front of the hoses, and admitted to stepping over one of the hoses
in order to try and shut off the pump. In other words, the gas pumps were in plain view and
reasonably discoverable to Plaintiff; indeed, Plaintiff was using one of the gas pump hoses at the
time he fell and sustained injury.
Plaintiff argues that the general rule that a merchant does not owe a duty to its customers
to protect from open and obvious dangers has been modified to the extent an owner anticipates
an invitee might nevertheless encounter a condition or be distracted. In an effort to avoid summary
judgment, Plaintiff relies upon Callander v. Charleston Doughnut Corp., 406 S.E.2d 361, 362-63,
305 S.C. 123 (S.C. 1991), a case where the Supreme Court of South Carolina concluded a jury
question existed as to whether a store, with knowledge of a missing piece on a store stool top,
should have anticipated harm to patrons after an elderly man backed up to a stool top that was
missing its round seat top. Plaintiff is correct that the open and obvious danger rule has an
exception where the premises owner should reasonably anticipate that invitee may be distracted
or will not discover a danger. Hackworth v. U.S., 366 F. Supp. 2d 326, 330 (D.S.C. Feb. 11,
2005). However, Plaintiff does not provide any evidence, testimonial or otherwise, that Plaintiff
was distracted or that Defendant should have anticipated that Plaintiff might have been distracted
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while pumping gas, nor is there evidence that the harm should have been reasonably anticipated
by Defendant, unlike in Callander, 406 S.E.2d at 362-63. Moreover, Plaintiff alleges that unlike
“foreign substance” premises liability cases cited by Defendant to support its motion, Plaintiff
argues Speedway created the hazard, thus notice of the condition is presumed, and therefore
Speedway breached the duty of cared owed to Plaintiff. [ECF #30, pp. 6-7].
In order to establish that Speedway created this hazard, Plaintiff provides the expert report
of Dr. Durig, a mechanical and metallurgical engineer who opined that the longer dispensing gas
hoses located at the pump where Plaintiff fell created a fall hazard. [ECF #30, p. 7]. Notably,
however, Dr. Durig did not review Plaintiff’s deposition testimony prior to making his findings
and conclusions, wherein Plaintiff testifies that not only has he been to that gas station several
times, but he was aware of the hoses and stepped over the hoses. [ECF #31, p. 1]. Furthermore,
Dr. Durig notes within his report that the NFPA 30A Motor Fuel Dispensing Facilities and Repair
Garages Section 6.5.1 provides that hoses should not exceed 18 feet in length, and the two longer
hoses in question did NOT exceed that length. [ECF #31, p. 6].
Dr. Durig simply points to two other codes (the International Property Maintenance Code
and the ASTM F1637) discussing safe practices wherein both indicate “sidewalks” and “walkways”
shall be kept “free from hazardous conditions” or maintain “safe walking conditions” to conclude
the hoses were a trip hazard. [ECF #31, p. 7]. Here, Plaintiff fell in a small area located between
a gas pump and his car, thus this Court questions whether this is the type of area contemplated
by these code sections. Regardless, even assuming Dr. Durig’s limited report established a breach
of a standard, Dr. Durig’s report does not alter the analysis with respect to the fact that not only
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were the hoses “open and obvious” and in plain view, but that Plaintiff was actually aware of
their presence and attempted to step over them just prior to his accident. Finally, the cases cited
by Plaintiff regarding unreasonable hazardous conditions created by proprietors are distinguishable
from this case because evidence provided in those cases suggested that the defendants were told
of the dangerous conditions and/or advised to remove those conditions.2 Plaintiff does not argue
that Defendant was aware of an alleged dangerous condition in this case, and indeed their own
expert acknowledges the gas hoses did not exceed the requisite length. The undisputed facts show
that if there was a danger, it was recognized by Plaintiff and it was in plain view and open and
obvious. More than a mere scintilla of evidence is required to withstand a motion for summary
judgment in federal court. See Stone v. Liberty Mutual Ins. Co., 105 F.3d 188, 190-91 (1997)
(explaining that a party cannot create a genuine issue of material fact through mere speculation
or the building of inferences, and citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986) for the conclusion that “the mere existence of a scintilla of evidence” will not suffice; there
must be evidence on which a reasonable jury could find for the plaintiff). Summary judgment is
appropriate in this case as a matter of law.

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See Baker v. Toys-R-Us, Inc., 133 F.3d 913 (4th Cir. 1998) (affirming a trial court award to a plaintiff and
finding a store created the hazard causing the plaintiff’s injuries who was injured after coming in contact
with trim pieces at floor level that dislodged from the rest of the stand); Henderson v. St. Francis
Community Hosp., 399 S.E.2d 767, 303 S.C. 177 (S.C. 1990) (reversing summary judgment where
plaintiff slipped on sweet gum tree balls that were around the parking lot of a hospital because the hospital
had been warned that the debris created unsafe conditions and the hospital maintenance did not regularly
keep the parking lot clear of the debris); Cook v. Food Lion, Inc., 491 S.E.2d 690, 691, 328 S.C. 324
(1997) (finding an issue of fact whether mats placed down by a grocery store created a dangerous
condition because testimony provided suggested the mats often bunched or wrinkled and were specifically
placed on the floor by the store).

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Conclusion
The Court has thoroughly reviewed the entire record, including all pleadings and exhibits
filed in this case. For the reasons stated above, Defendant’s Motion for Summary Judgment [ECF
#28] is GRANTED. Plaintiff’s Complaint [ECF #1-1] is dismissed with prejudice.
IT IS SO ORDERED.

Florence, South Carolina
July 6, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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