McAvoy v. Dolgencorp LLC et al
ORDER AND OPINION denying 20 Defendant's Motion to Dismiss Signed by Honorable Richard M Gergel on 6/9/2017.(sshe, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Dolgencorp, LLC, & Gator
Northridge Partners, LLP,
Civil Action No.9: 17-cv-754-RMG
ORDER AND OPINION
This matter is before the Court on Defendant Gator Northridge Partners, LLP's ("GNP")
motion to dismiss Defendant Dolgencorp, LLC's ("Dolgencorp") cross-claims under Rule
12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 20.) For the reasons set forth below,
the Court denies the motion.
This case arises out of an alleged slip and fall incident that occurred at a Dollar General
store on Hilton Head Island, South Carolina on June 25,2015. (Dkt. No.8 at 2.) Plaintiff Ryan
McAvoy claims that he was injured at the Dollar General Store when his foot went into a hole in
the floor of a store aisle. (Dkt. No.8 at 2.) Plaintiff alleges that the property is owned by and/or
under the control of Defendants Dolgencorp and GNP. (Dkt. No.8 at 1-2.) Plaintiff asserts that
the negligence of GNP, as lessor of the property, and Dolgencorp, as lessee and operator of the
store, caused his injuries. (Dkt. No.8 at 2-4.)
In its answer to Plaintiffs amended complaint, Dolgencorp asserts three cross-claims
against GNP: (1) contractual indemnification; (2) equitable indemnification; and (3)
contribution. (Dkt. No. 11 at 10-12.) GNP has moved to dismiss all three cross-claims for failure
to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 20.)
A. Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if
the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the
legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits
of the claim, or the applicability of defenses. . .. Our inquiry then is limited to whether the
allegations constitute 'a short and plain statement of the claim showing that the pleader is
entitled to relief.'"
Republican Party of N C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)
(quotation marks and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to
"assume the truth of all facts alleged in the complaint and the existence of any fact that can be
proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. JD. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000). While the Court must accept the facts in a light most
favorable to the non-moving party, it "need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments." !d.
To survive a motion to dismiss, the complaint must state "enough facts to state a claim to
relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although the requirement of plausibility does not impose a probability requirement at this stage,
the complaint must show more than a "sheer possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the
pleading "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id.
B. Contractual and Equitable Indemnification
Indemnity is a form of compensation in which one party is liable to another party for
"loss or damage the second party incurs to a third party." Campbell v. Beacon Mfg. Co., 438
S.E.2d 271, 272 (S.C. Ct. App. 1993). "A right of indemnity may arise by contract ... or by
operation of law as a matter of equity." Id.
Contractual indemnity "will be construed in
accordance with the rules of contracts generally." Id. (citing Fed Pac. Elec. v. Carolina Prod.
Enters., 378 S.E.2d 56 (S.C. Ct. App. 1989)). To sustain a claim for equitable indemnification, a
party must established the "existence of some special relationship between the parties" Rhett v.
Gray, 736 S.E.2d 873, 884 (S.C. Ct. App. 2012) (quoting Toomer v. Norfolk S. Ry. Co., 544
S.E.2d 634, 637 (S.C. Ct. App. 2001)). Such a relationship exists when a "party's negligence or
breach of contract is directed at the non-faulting party and the non-faulting party incurs attorney
fees and costs in defending itself against the other's conduct." Id. (quoting Town of Winnsboro v.
Wiedeman-Singleton, Inc., 414 S.E.2d 118, 121 (S.C. 1992)).
In South Carolina, "[ w]here two or more persons become jointly or severally liable in tort
for the same injury to person or property ... there is a right of contribution among them." S.C.
Code Ann. § 15-38-20(A); see also Vermeer Carolina's, Inc., v.
Wood/Chuck Chipper Corp,
518 S.E.2d 301,309 (S.c. Ct. App. 1999).
In its answer to Plaintiff's amended complaint, Dolgencorp asserts three cross-claims
against GNP: (1) contractual indemnification; (2) equitable indemnification; and (3)
contribution. (Dkt. No. 11 at 10-12.)
To support these claims, Dolgencorp alleges that
"Defendant and Gator Northridge contracted for the renovation, remodel, and/or lease of certain
real property for the operation of a retail store. . .. [and] because of the actions, inactions and/or
omissions of this Defendant and/or Gator Northridge and/or their agents, servants and/or
employees, Plaintiff has suffered damages." (Dkt. No. 11 at 10.) Dolgencorp further alleges that
GNP has a special relationship with Dolgencorp and a "common law right of full legal and
equitable indemnity ... because Defendant is exposed to liability in this case ... [as a result of
the] primary wrongful acts and/or omissions of Gator Northridge." (Dkt. No. 11 at 11-12.)
Finally, Dolgencorp alleges that, [i]n the event that this Defendant is found liable ... any such
liability was joint and concurring with the liability of Gator Northridge and this Defendant is
entitled to contribution, in whole or in part, from Gator Northridge." (Id.)
GNP argues that this Court should dismiss Dolgencorp's cross-claims because (1) it had
no duty to maintain the premises that were under Dolgencorp's control during its tenancy; and
(2) Dolgencorp failed to allege facts that plausibly raise its claims for equitable and contractual
indemnification and contribution. (Dkt. No. 20-1.) It is well-settled law that a landlord has no
duty to maintain premises that are under the control of a tenant in South Carolina absent an
agreement to the contrary between the parties. See Creighton v. Coligny Plaza Ltd P'ship, 514
S.E.2d 510,519 (S.C. Ct. App. 1998) (citing Sheppard v. Nienow, 173 S.E.2d 343, 344-45 (S.C.
1970) (explaining that a landlord has no duty to keep the leased premises in repair, absent "a
valid contract on the part of the lessor to do so"». In this case, GNP, as lessor, entered into a
contractual agreement in which it agreed to maintain the exterior and structural aspects of the
premises. The agreement provides that:
Lessor shall maintain at its cost and expense in good condition and shall perform
all necessary maintenance, repair, and replacement to the exterior of the Demised
Premises including, but not limited to, the roof, all paved areas, foundation,
structural floors, exterior and load-bearing walls, all exterior utility lines and
pipes, and all other structural portions of the building during the term of this
(Dkt. No. 24 at 4; Dkt. No. 19-1 at 5.)
GNP contends that Dolgencorp's cross-claims lack sufficient detail to state a plausible
claim for relief. (Dkt. No. 20-1 at 5.) However, Dolgencorp's amended answer alleges facts
sufficient to state plausible claims for relief against GNP for contractual indemnification,
equitable indemnification, and contribution. (Dkt. No. 11 at 10-12.) See Twombly, 550 U.S. at
570. Dolgencorp's answer references its contract with GNP and the provisions of that contract
which require GNP to maintain exterior and structural aspects of the premises, including
structural floors. These facts are sufficient to support Dolgencorp's cross-claims against GNP
because it is plausible that GNP's failure to maintain the structural floors caused Plaintiffs
alleged injury. See Iqbal, 556 U.S. at 678.
For the foregoing reasons, Defendant's motion to dismiss (Dkt. No. 20) is DENIED.
AND IT IS SO ORDERED.
United States Distnc
Charleston, South Carolina
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