Parker v. Murphy Oil USA Inc et al

Filing 60

ORDER granting 24 Motion for Summary Judgment; denying 38 Motion for Relief Pursuant to Rule 56(d); finding as moot 24 Motion to Strike. Signed by Honorable Donald C Coggins, Jr on 1/31/2019.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
William L. Parker,

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Plaintiff,
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v.
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Murphy Oil USA, Inc.,
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Defendant.
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________________________________ )
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Murphy Oil USA, Inc.,
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Third-Party Plaintiff,
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v.
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Danny Blue,
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Third-Party Defendant
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________________________________ )

Case No. 8:17-cv-02400-DCC

ORDER

This matter is before the Court on Defendant’s Motion for Summary Judgment and
to Strike Plaintiff’s Expert’s Opinions and Supplemental Report and Plaintiff’s Motion for
Relief Pursuant to Federal Rule of Civil Procedure 56(d). ECF Nos. 24, 38, 45. Plaintiff
filed a Response in Opposition the Motion to Strike Plaintiff’s Expert’s Opinions and
Supplemental Report and a Response in Opposition to the Motion for Summary
Judgment; Defendant filed a Reply. ECF Nos. 35, 37, 43. Defendant filed a Response
in Opposition to Plaintiff’s Motion for Relief Pursuant to Federal Rule of Civil Procedure

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56(d). ECF No. 55. A hearing on the Motions was held on November 28, 2018. 1 ECF
No. 53.
BACKGROUND
Plaintiff brought this action alleging negligence, gross negligence, and premises
liability in the Pickens County, South Carolina Court of Common Pleas. Defendant filed
a timely Notice of Removal.
On September 8, 2014, Plaintiff and two companions stopped at Murphy Oil USA,
Inc., gas station in Central, South Carolina to fill up a pontoon boat. ECF Nos. 1-1 at 3;
24-2 at 12. Danny Blue, Plaintiff’s brother-in-law, began dispensing gas by engaging the
“hold open” latch so that the fuel would dispense automatically. ECF Nos. 24-2 at 13; 243 at 7–8. Plaintiff realized that gasoline was overflowing onto the ground, creating an
approximately six-foot puddle, so he returned the nozzle to the pump. Id. at 14. He
retrieved some paper towels from approximately five feet away, walked back to dry off
the boat, and then threw the paper towels away. Id. He returned to the pump and
retrieved the receipt; when he turned to hand it to Blue, he slipped and broke his ankle.
Id. at 14–15. Plaintiff contends that there was an existing oil stain on the concrete that
mixed with the gasoline and created a slippery surface. Id. at 15; ECF No. 1-1 at 4.

Plaintiff’s counsel produced three additional cases during the hearing in support
of his Motion that had not been previously cited. Defendant’s counsel filed a Reply to
these cases on November 29, 2018. ECF No. 55. The Court has considered the
additional cases and the Reply in its ruling.
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APPLICABLE LAW
Summary Judgment Standard
Rule 56 states, as to a party who has moved for summary judgment, “[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 nonmoving 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

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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:
(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 non-movant, 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.
South Carolina Law
A federal court exercising diversity jurisdiction applies state substantive law.
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996) (citations omitted). It is
undisputed that the substantive law of the State of South Carolina applies to this matter.
In South Carolina, “[s]torekeeper 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
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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
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.
DISCUSSION
Plaintiff contends that he slipped on an oil stain, 2 approximately two feet in
diameter, that was under the gas spill.

ECF No. 1-1 at 4. Defendant concedes that,

During their deposition, Plaintiff and Blue clarified that neither of them knew what
substance had caused the discoloration. ECF Nos. 24-2 at 15; 24-3 at 10.
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pursuant to the summary judgment standard, the Court must assume that the
discoloration was present for purposes of deciding this Motion.
Even assuming that the discolored spot existed, there is no allegation that
Defendant created the discolored spot on the concrete or that it had actual notice of it.
Accordingly, the Court turns to whether Defendant had constructive notice. Constructive
notice is established by proffering 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, there is no evidence with respect to how long the discoloration existed before
Plaintiff’s fall. Chris Jarek, the manager of the gas station at the time of the incident,
stated that he inspected the premises approximately 30–40 minutes3 before Plaintiff’s fall
and did not see any oil stains on the ground near where Plaintiff’s fell. ECF No. 24-4 at
13.

Plaintiff testified that he saw the discoloration when he was on the ground

immediately after his fall; however, he did not did not touch the discolored spot and had
no idea how long it had been there. ECF No. 24-2 at 15. When asked whether there was
a wet oil slick or a stain on the concrete that looked dry, Blue replied, “There was a stain
on the concrete.” ECF No. 24-3 at 10. He affirmed that there was no wet oil slick on the
ground and that he did not know how long the discoloration had been there. Id.

The Court notes that Plaintiff disputes Jarek’s testimony regarding the timing of
his inspection. ECF No. 37 at 10. He contends that Jarek was mistaken as to the time
of Plaintiff’s fall; accordingly, a jury could conclude that he was mistaken as to the time of
his inspection. Id. However, Plaintiff fails to provide any support for his assertions beyond
his own speculation. This is insufficient to create a genuine issue of material fact.
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Thus, there is no evidence in the record that the spot existed for any period of time
such that it should have been discovered or removed by Defendant; the testimony is
insufficient to create a genuine issue of material fact with respect to whether Defendant
had constructive notice of the discolored spot and summary judgment is appropriate. 4
See Thomas v. Consol. States/Big Lots, 394 S.E.2d 24, 25 (S.C. 1990) (“In South
Carolina slip and fall cases, the mere presence of a spilled substance is insufficient to
show that a storekeeper should have known about the condition.”); Nolan v. Seawatch
Plantation Master Ass’n, Inc., C/A No. 4:10-cv-00501-RBH, 2011 WL 5878137, at *4
(D.S.C. Nov. 23, 2011) (granting summary judgment where the plaintiff slipped and fell in
a puddle of water because there was “no evidence in the record to establish that
Defendant created the hazardous condition, or had actual or constructive notice of the
water”).
Plaintiff’s Motion Pursuant to Rule 56(d)
Plaintiff alleges Defendant engaged in spoliation of evidence in his Response in
Opposition to the Motion for Summary Judgment and as the basis for his Motion pursuant

In his Response in Opposition to the Motion for Summary Judgment, Plaintiff
states that he is pursuing two claims for relief pursuant to South Carolina’s “foreign
substance” analysis and South Carolina’s “dangerous condition” analysis. ECF No. 37 at
8. This Court has stated that premises owners are not required “to take actions to prevent
or minimize the foreseeable risk of a foreign substance ending up on its floor, but [the
law] only imposes a duty upon them when they place the substance on the floor or have
actual or constructive notice that it is there.” Hackworth v. United States, 366 F. Supp.
2d 326, 329 (D.S.C. 2005). The Court agrees that this holding essentially restates the
“foreign substance” standard. As explained above, this Court finds that Plaintiff has failed
to establish the requisite notice to survive summary judgment. Accordingly, the Court
need not address each claim separately.
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to Federal Rule of Civil Procedure 56(d). ECF Nos. 37, 38. However, his 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 a discolored spot on the concrete, not whether Defendant had notice
of spot. As previously stated, the Court assumes that the spot was present for purposes
of summary judgment.

Thus, Plaintiff’s Motion Pursuant to Federal Rule of Civil

Procedure 56(d) is denied. 5
CONCLUSION
Accordingly, Defendant’s Motion for Summary Judgment [24] is GRANTED,
Plaintiff’s Motion pursuant to Federal Rule of Civil Procedure 56(d) [38] is DENIED, and
Defendant’s Motion to Strike Plaintiff’s Expert Opinions and Supplemental Report [24] is
FOUND as MOOT.
IT IS SO ORDERED.
s/Donald C. Coggins, Jr.
United States District Judge

January 31, 2019
Spartanburg, South Carolina

Because the Court is granting summary judgment, it need not address the
admissibility of expert opinions.
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