United States District Court, D. South Carolina, Charleston Division
DAVID C. NORTON UNITED STATES DISTRICT JUDGE
This matter is before the court on defendant Renaissance Hotel Management Company, LLC’s (“the Hotel”) motion for reconsideration of the court’s August 10, 2015 order (“August 10 Order”) in which the court denied the Hotel’s motion for summary judgment. For the reasons set forth below, the Hotel’s motion for reconsideration is denied.
On August 5, 2011, Katherine White (“Ms. White”) and Derek White (“Mr. White”) (collectively, “the Whites”) arrived at the Hotel for a two-week business trip. Ms. White requested a room with a balcony when she made the reservations, but the Hotel did not have such a room available. K. White Depo. 31:23-25, 32:1-7, 32:21-25. Upon their adamant request, the Whites were moved into a room with a balcony, Room 309, the following day. K. White Depo. 34:5-9. Ms. White inspected Room 309 and walked out onto the balcony where she observed a “fairly large . . . patch of green slimy mold” on the balcony floor. Def.’s Mot. Ex. A, K. White Depo. 35:2-18. When Ms.White walked out onto the balcony, she slipped on the mold and called the front desk to request that the Hotel clean up the mold. K. White Depo. 45:25-46:2. According to Ms. White, she reported the mold to housekeeping the next day and again later during her stay, but the Hotel never cleaned up the mold. K. White Depo. 46:9-49:11. During her stay, Ms. White spent every day on the balcony. Each day, she moved the table on the balcony over the top of the moldy area and then placed two chairs on the opposite side of the balcony where she sat in the sun. K. White Depo. 54:7-20, 55:12-25. Ms. White testified that each day, the housekeepers returned the furniture to its original position. K. White Depo. 55:22-25.
On August 17, 2011, Ms. White was again sitting on the balcony. She moved the chair in which she was sitting to the right corner of the balcony near the railing and situated the second chair in front of her on which to rest her feet. K. White Depo. 63:9- 65:3, 70:8, 72:2. Ms. White also placed the table closer to her chair, partially covering the mold to provide a place to put her glasses and her book but “also to remind [her] not to walk there.” K. White Depo. 71:14-20. At 7:00 p.m., Ms. White received a call from Mr. White. During their conversation, Mr. White heard a crash, and Ms. White became unresponsive. Mr. White called the Hotel, and when he arrived at the hotel, EMS and hotel staff were assisting Ms. White as she lay on the balcony floor. Def.’s Mot. Ex. B., D. White Depo. 32:25, 34:15. Ms. White remembers talking to her husband while sitting but does not remember falling or any of the events that unfolded during their conversation. K. White Depo. 80:25. Ms. White sustained injuries as a result of her fall.
On July 17, 2014, the Whites filed suit against the Hotel in this court on the basis of diversity jurisdiction. The Whites filed an amended complaint on August 12, 2014, substituting the Hotel as the proper defendant. Ms. White alleges that the Hotel was negligent and reckless in numerous ways, including: (1) failing to properly inspect the condition of the balcony; (2) allowing mold/algae to grow on the balcony over a prolonged period of time; (3) failing to properly monitor the condition of the balcony; (4) failing to clean the balcony after noticing the growth of the mold/algae; (5) failing to adequately warn invitees that a dangerous condition existed; (6) failing to take proper precautions to ensure the safety of Ms. White and other invitees; (7) allowing a dangerous condition to exist with a reckless disregard for the rights and safety of others; (8) failing to timely correct the dangerous condition within a reasonable time after being notified; and (9) failing to exercise the degree of care and caution which a reasonable person would have exercised under the same or similar circumstances. Additionally, Mr. White brings a loss of consortium claim. Ms. White seeks damages for her medical bills, physical and mental pain and suffering, permanent physical impairment, and loss of enjoyment of life.
On April 29, 2015, the Hotel filed a motion for summary judgment, arguing that Ms. White is barred from recovery because the alleged hazardous condition was open and obvious and Ms. White was on notice of the condition. On June 17, 2015, the Whites filed a response in opposition to the motion for summary judgment. The Hotel filed a reply on June 29, 2015. The court held a hearing on the motion for summary judgment on July 24, 2015. On August 10, 2015, the court issued an order denying the Hotel’s motion for summary judgment, finding that there was a genuine issue of material fact as to whether the Hotel anticipated that, despite the open and obvious character of the hazard, Ms. White would continue to encounter the mold. The Hotel filed the present motion for reconsideration on September 4, 2015. The parties filed a consent motion to stay a ruling on the motion for reconsideration in order for the parties to mediate the dispute. The parties conducted an unsuccessful mediation on November 13, 2015. The Whites filed a response in opposition to the motion for reconsideration on November 30, 2015, and on December 16, 2015, the Hotel replied. The motion has been fully briefed and is now ripe for the courts review.
The Hotel moves for reconsideration of the court’s August 10 Order pursuant to Federal Rule of Civil Procedure 59(e). The Fourth Circuit has recognized three grounds for amending an earlier judgment under Federal Rule of Civil Procedure 59(e): (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice. Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). “In general reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly.” Id. (citation and internal quotation marks omitted). A motion for reconsideration “is not a license for a losing party’s attorney to get a second bite at the apple.” Bey v. Shapiro Brown & Alt, LLP, 997 F.Supp.2d 310, 321 (D. Md. 2014) (citing Shields v. Shetler, 120 F.R.D. 123, 125-26 (D. Colo. 1988)). While the Hotel does not assert under which ground it moves to amend the court’s order, the court assumes it is to correct a clear error of law or prevent manifest injustice.
The Hotel’s motion consists of the following three arguments: (1) the court failed to properly distinguish Hancock v. Mid-South Mgmt. Co., 673 S.E.2d 801, 803 (S.C. 2009), and Padgett v. Colleton County, 679 S.E.2d 533, 537 (S.C. Ct. App. 2009); (2) the court improperly distinguished Nash v. Marriott Hotel Servs., Inc., No. 7:07-cv-503, 2007 WL 3125315, at *1 (D.S.C. Oct. 23, 2007), from the present case; and (3) the court overlooked the Hotel’s arguments concerning the applicability of Hackworth v. United States, 366 F.Supp.2d 326, 330 (D.S.C. 2005). Although the court finds that the Hotel’s motion rehashes arguments already made and addressed in the August 10 Order, the court will address each argument in turn.
A. Hancock and Padgett
The Hotel first argues that unlike the plaintiffs in Hancock v. Mid-South Mgmt. Co., 673 S.E.2d 801, 803 (S.C. 2009),  and Padgett v. Colleton County, 679 S.E.2d 533, 537 (S.C. Ct. App. 2009),  Ms. White “appreciated the potential hazard” the mildew presented. Def.’s Mot. 2. Therefore, the Hotel argues that the court failed to properly distinguish Hancock and Padgett from this case. However, the Hotel fails to cite any case law in which a court in a premises liability action holds that the Callander exception applies, but that the claim is barred because there is evidence that the plaintiff appreciated the risk. Further, as stated in the August 10 Order, the court finds this argument more appropriate for a determination on the affirmative defenses of assumption of risk and comparative negligence. See August 10 Order, 9 (“Rather than act as a bar to recovery at the summary judgment stage, Ms. White’s continued use of the balcony despite her knowledge of the mold and its slippery condition should be evaluated for purposes of comparative negligence.”).
Under the comparative negligence standard, “a plaintiff in a negligence action may recover damages if his or her negligence is not greater than that of the defendant.” Nelson v. Concrete Supply Co., 399 S.E.2d 783, 784 (S.C. 1991). “A defense based on the doctrine of assumption of risk requires a showing that the plaintiff (1) has knowledge of the facts constituting the dangerous condition; (2) knew that the condition was dangerous; (3) appreciated the nature and extent of the danger; and (4) voluntarily exposed herself to the danger. Creighton v. Coligny Plaza Ltd. P’ship, 512 S.E.2d 510, 519 (S.C. Ct. App. 1998) (citing Pryor v. Northwest Apartments, Ltd., 469 S.E.2d 630 (S.C. Ct. App. 1996)). “The determination of respective degrees of negligence attributable to the plaintiff and the defendant presents a question of fact for the jury, at least where conflicting inferences may be drawn.” Berberich v. Jack, 709 S.E.2d 607, 611 (S.C. 2011) (quoting Hurd v. Williamsburg Cty., 611 S.E.2d 488, 492 (S.C. 2005). Similarly, the defense of assumption of risk “ordinarily present[s] [a] question ...