Taylor et al v. Lowe's Home Centers LLC

Filing 43

OPINION AND ORDER granting 22 Motion for Summary Judgment. Signed by Honorable Donald C Coggins, Jr on 3/22/2018.(abuc)

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Entry Number 43

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Nancy M. Taylor and James Taylor,

)
)
Plaintiffs,
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v.
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Lowe’s Home Centers, LLC,
)
)
Defendant.
)
____________________________________)

C/A No. 7:16-cv-03316-DCC

OPINION AND ORDER

This matter comes before the Court upon Defendant’s Motion for Summary Judgment,
ECF No. 22. Plaintiffs filed a Response in Opposition,1 ECF No. 29, and Defendant filed a Reply,
ECF No. 30. The Court heard argument on the Motion on February 15, 2018. ECF No. 41.
Therefore, the Motion is ripe for review.
BACKGROUND
On September 26, 2015, Plaintiffs arrived at Defendant’s store in Spartanburg, South
Carolina just before 4:00 p.m. When Plaintiffs arrived, the weather was clear, although it had
rained earlier in the day. Plaintiff James Taylor let Plaintiff Nancy Taylor out of the vehicle so
that she could do her shopping while he waited in the car. When Plaintiff Nancy Taylor walked
into the store, she took a shopping cart; a short time later, she stopped in an aisle, bent over to look
at goods on a shelf, and fell. Defendant’s employees found her shortly thereafter and conducted
an investigation of the fall.

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Plaintiffs later filed an Amended Response in Opposition with deposition excerpts from their
expert witness. ECF No. 40. Although Plaintiffs did not request leave to file this Amended
Response, the Court has considered the filing in its review of Defendant’s Motion.
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Plaintiffs filed a Complaint against Defendant in the Court of Common Pleas for
Spartanburg County, South Carolina, alleging that Plaintiff Nancy M. Taylor “slipped on water
that had been allowed to pool on the floor [of Defendant’s premises] and fell to the ground, hitting
her head and causing her numerous injuries.” ECF No. 1-1 at 6. Defendant removed the case to
this Court. ECF No. 1. Thereafter, Defendant filed a Motion for Summary Judgment, in which it
claimed there are no genuine issues of material fact as to whether Defendant created a dangerous
condition or had actual or constructive notice of a dangerous condition. ECF No. 22. Plaintiffs
filed a Response, in which they contend that Defendant’s premises had a history of roof leaks,
which necessitated repairs on numerous occasions. ECF No. 29 at 1. Therefore, according to
Plaintiffs, Defendant had constructive notice of the dangerous condition on its premises and are
liable for Plaintiffs’ injuries. Id. Additionally, Plaintiffs state that Defendant failed to preserve
evidence about the slip and fall and should thus be deemed to have spoliated evidence in the case.
ECF No. 29 at 4–5.

In reply, Defendant claims that “Plaintiffs present no evidence that

demonstrates that [Defendant] had any reason to know there would be a puddle of water where
[Plaintiff Nancy Taylor] fell.” ECF No. 30 at 3. Defendant further argues that the issue of
spoliation only goes to the existence of a dangerous condition and is unrelated to whether
Defendant had actual or constructive notice of the alleged dangerous condition. Id. at 4–6.
SUMMARY JUDGMENT STANDARD
One of the principal purposes of summary judgment “is to isolate and dispose of factually
unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). It is “not a
disfavored procedural shortcut,” but is instead the “principal tool by which factually insufficient
claims or defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327. To that end, “Rule 56 states

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“[t]he court shall grant summary judgment 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). A fact is “material” if proof of its existence or non-existence would affect disposition of
the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An
issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return
a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been
raised, the court must construe all inferences and ambiguities against the movant and in favor of
the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the
court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the movant has made this threshold demonstration, the non-moving party, to survive
the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at
324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to
a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support
of the non-movant’s position is insufficient to withstand the summary judgment motion.
Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are
insufficient to preclude granting the summary judgment motion. Ross v. Commc’ns Satellite
Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). “Only
disputes over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will
not be counted.” Anderson, 477 U.S. at 248.
Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
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(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), 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). Accordingly, when Rule 56(c) has shifted the burden of proof to the nonmovant, he must produce existence of a factual dispute on every element essential to his action
that he bears the burden of adducing at a trial on the merits.
DISCUSSION
“Storekeeper liability is founded upon the duty of care a possessor of land owes to an
invitee.” Wintersteen v. Food Lion, Inc., 542 S.E.2d 728, 730 (S.C. 2001). “A merchant is not an
insurer of the safety of his customers, but rather owes them the duty to exercise ordinary care to
keep the premises in a reasonably safe condition.” Cook v. Food Lion, Inc., 491 S.E.2d 690, 691
(S.C. Ct. App. 1997). “[M]erchants are not required to continuously inspect their floors for foreign
substances.” Legette v. Piggly Wiggly, Inc., 629 S.E.2d 375, 377 (S.C. Ct. App. 2006).
“To recover damages for injuries caused by a foreign substance on a merchant’s premises,
‘the plaintiff must demonstrate either that the substance was placed there by the defendant or its
agents, or that the defendant had actual or constructive notice the substance was on the floor at the
time of the slip and fall.’” Massey v. Wal-Mart Stores E., L.P., No. 4:09-cv-01694-RBH, 2010
WL 3786056, at *3 (D.S.C. Sept. 22, 2010) (quoting Wintersteen v. Food Lion, Inc., 542 S.E.2d
728, 729–30 (S.C. 2001). “The customer can establish the storekeeper’s constructive knowledge
of the dangerous condition by showing that the foreign substance had been on the floor for a
sufficient length of time that the storekeeper would or should have discovered and removed it had

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the storekeeper used ordinary care.” Gillespie v. Wal-Mart Stores, Inc., 394 S.E.2d 24, 24–25
(S.C. Ct. App. 1990). “However, the length of time that the foreign substance has been on the
floor is not a determination that can be left to speculation.” Massey, 2010 WL 3786056, at *3.
As an initial matter, the Court finds that there is a genuine issue of material fact regarding
the existence of a puddle of water on Defendant’s premises. Plaintiff James Taylor testified at his
deposition that he saw a large puddle of water on the ground when he found his wife after her fall.
ECF Nos. 29-1 at 18–19. The question then becomes whether there is evidence that Defendant
put the foreign substance on the floor or whether it had actual or constructive notice of the foreign
substance’s existence. There is no allegation by Plaintiffs that Defendant put the substance on the
floor, nor is there an allegation that Defendant had actual notice of its existence. Thus, the only
question for the Court is whether Plaintiffs have offered evidence of constructive notice.
To demonstrate constructive notice, a plaintiff must “proffer evidence to show how long
the water had been on the floor prior to [p]laintiff’s fall.” Massey, 2010 WL 3786056, at *4.
Alternatively, a plaintiff may offer evidence that a dangerous condition has existed for such a
period of time that a storekeeper in the use of reasonable care should have discovered the condition.
Major v. City of Hartsville, 763 S.E.2d 348, 350 (S.C. 2014). Here, Plaintiffs have submitted no
evidence to establish the amount of time that the water had been on the floor prior to the fall.
Rather, Plaintiffs claim that the Court should infer that Defendant’s roof was leaking in the spot
where Plaintiff Nancy Taylor fell simply because Defendant’s premises had a history of roof leaks.
ECF No. 40 at 7–8. Specifically, Plaintiffs suggest that “given the array of duct work, lighting,
metal work, crane cables, etc… along the ceiling, the jury could find, correctly, with common
knowledge, that water could run along any of those constructs from the point the rain water
infiltrated the roof material until it fell to the floor.” Id. at 8. These mere allegations without more,

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however, are not enough to preclude summary judgment. See Dash v. Mayweather, 713 F.3d 303,
311 (4th Cir. 2013) (“Although the court must draw all justifiable inferences in favor of the
nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere
speculation, the building of one inference upon another, or the mere existence of a scintilla of
evidence.”).
Plaintiffs’ expert, James Steven Hunt, even acknowledged at his deposition that there was
no evidence of the roof leaking in the spot where Plaintiff Nancy Taylor fell. ECF No. 40-1 at 18.
In fact, Mr. Hunt testified that, “[w]hat we don’t know is whether or not the – especially on single
ply roofs, whether [water] got under the roofing and traveled, because we had 16 hours of rain that
day.” Id. at 17. This testimony is insufficient to create a genuine issue of material fact as to
Defendant’s constructive notice of the water on the floor, as Plaintiffs have not offered any
evidence that the puddle was caused by a leaking roof. See, e.g., Henderson v. St. Francis Cmty.
Hosp., 399 S.E.2d 767 (S.C. 1990) (finding evidence of constructive notice when plaintiff slipped
on accumulated sweet gum balls in a parking lot when defendant “was specifically advised to
remove the trees because they produced debris which created a nuisance and maintenance
problem”).
Finally, Plaintiffs’ allegations of spoliation of evidence do not alter the Court’s conclusion
that summary judgment is appropriate because Plaintiff’s request for an adverse inference relates
only to the issue of whether there was water on the floor, not whether Defendant had notice of
water on the floor.

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CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
s/Donald C. Coggins, Jr.
United States District Judge
March 22, 2018
Spartanburg, South Carolina

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