November 10, 2015
From Charleston County Kristi Lea Harrington, Circuit Court
William Mullins McLeod, Jr. and David Ellis Roberts, both of
McLeod Law Group, LLC, of Charleston, for Appellant.
L. McDonald, Jr. and Christina Rae Fargnoli, both of Clawson
& Staubes, LLC, of Charleston, for Respondents.
Easterling appeals the circuit court's grant of summary
judgment in favor of Burger King Corporation and Capital
Restaurant Group, LLC (collectively "Burger King"),
arguing the court erred in failing to (1) find Burger King
breached its duty to take reasonable action to protect him
against a foreseeable risk of physical harm; (2) find Burger
King had notice of and created an unreasonable and dangerous
condition on its premises; (3) find Burger King breached its
duty of care by deviating from its own internal policies; and
(4) properly rule upon the arguments presented and vacate the
grant of summary judgment in light of his Rule 59(e), SCRCP,
motion. We affirm.
case stems from an attack on Easterling that occurred in the
drive-through and parking lot of a Burger King restaurant
located at 945 Folly Road in Charleston, South Carolina.
approximately 10:00 P.M. on July 8, 2008, Easterling was
waiting to place his order at Burger King when Gary Eastwood,
who was in a truck directly behind him in line, rear-ended
Easterling. Easterling explained he did not engage Eastwood,
whom he had never seen before, after the initial contact
because he "thought it was just an accident."
According to Easterling, he "just wanted to get [his]
food and go home." Easterling further conceded he did
not report the initial accident to anyone at Burger King when
he placed his order.
Easterling placed his order and entered the drive-through
lane, however, Eastwood began "pushing the accelerator
but keeping his foot on the brake, so the tires were
spinning. It was making loud screeching noises, and smoke was
going everywhere." As Easterling moved forward in the
drive-through lane to pick up his food, Eastwood began
spinning his tires again and then rear-ended Easterling a
second time. Easterling described this impact as a "hard
hit, " stating it "jarred [his] entire upper body
back" when Eastwood rear-ended him again. According to
Easterling, at this point, "[t]he people inside Burger
King were looking out the window to see what was going
the second impact, Easterling stepped out of his vehicle to
assess the damage. While Easterling was assessing the damage,
Eastwood exited his vehicle and approached Easterling in a
"very aggressive" fashion. Eastwood lunged at
Easterling, put his shoulder in Easterling's stomach, and
grabbed Easterling around the waist. At some point during the
altercation, Easterling hit the curb, tripped, and fell
backward down the embankment. Easterling stated he must have
bumped his head when he hit the ground because he was
"knocked unconscious." When Easterling regained
consciousness, Eastwood was on top of him and proceeded to
violently bite his nose off.
confirmed that Eastwood attacked him approximately two
minutes after getting out of his vehicle. Further, Easterling
agreed the attack was "totally unexpected" and
"happened so quickly that . . . there was really no time
to make a run inside the restaurant." According to
Easterling, he "had no idea what [Eastwood] was going to
do" when Eastwood exited his vehicle. Regarding the time
frame of the incident, Easterling stated the following:
Q: And Tommy, from the time that you got into the
drive-through line until . . . the customer that helped you
-- picked [Eastwood] up off of you, how long a time period
are we talking about that expired? Do you have any --
A: Like I said, that's a notoriously slow drive-through.
To me, it felt like an eternity, but being four cars in front
of me, I would say from the time that the guy helped me up, I
would say eight minutes.
Q: And . . . from the time of the second impact, and when you
got out to go check the damage to your car, what kind of time
elapsed there where he charged you and basically tackled you
and bit your nose off?
A: Just a matter of a few minutes.
Jones, the manager of Burger King, worked the drive-through
window at the time of the incident and recalled taking
Easterling's and Eastwood's orders that evening.
Jones testified that, when a car pulls up to the
drive-through speaker box, she can hear everything going on
inside and outside of the car through her headset. Jones,
however, heard no honking, tire screeching, or yelling while
Easterling and Eastwood were in the drive-through line
waiting on their food.
was unaware of Eastwood's behavior until the car in front
of Easterling pulled up to the drive-through window, at which
point she heard a customer yelling and honking the horn.
Further, Jones indicated she did not know Eastwood was the
one causing the commotion until Easterling pulled up to the
window. Jones testified as follows regarding the time frame:
Q: So from the time that you started serving -- or the time
that you saw the car in front of [Easterling], where you kind
of looked out the window and saw what was going on, how long
do you think elapsed between then and the time [Easterling]
got to your window?
A: From the time the car got in front of [Easterling]?
A: Basically, maybe 10, 12 minutes. From the whole incident,
or just [Easterling] getting to my window?
Q: [Easterling] getting to your window.
A: Maybe five minutes.
initially thought nothing of Eastwood blowing his horn and
yelling. According to Jones, it was normal for people who
were in a rush to honk in the drive-through because
"they don't know once you get in there, you
can't get out." Nevertheless, Jones then observed
Eastwood rear-end Easterling's car. Jones stated
Easterling jumped out of his car seconds after she saw
Eastwood rear-end him and the ...