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Holland v. Hucks Pool Co., Inc.

United States District Court, D. South Carolina, Florence Division

October 24, 2016

Patricia Holland, Plaintiff,
v.
Hucks Pool Company, Inc., Defendant / Cross-Claimant, and Active Shotcrete & Plaster, LLP, Defendant / Cross-Defendant.

          ORDER

          R. Bryan Harwell United States District Judge

         Plaintiff Patricia Holland filed this lawsuit against Defendant/Cross-Claimant Hucks Pool Company, Inc. (“Hucks”), Defendant/Cross-Defendant Active Shotcrete & Plaster, LLP (“Active”), and two other defendants[1] after allegedly slipping and falling on the stairs of an indoor lazy river pool at a hotel in Myrtle Beach, South Carolina. The matter is now before the Court for resolution of (1) Active's motion for summary judgment on Hucks' crossclaims and (2) Plaintiff's motion to strike Hucks' answer.[2][3] See ECF Nos. 102 & 103.

         Background

         Dunes Village Resort, [4] a hotel located in Myrtle Beach, has an indoor lazy river pool that Hucks built in 2005 and replastered in 2007. Third Am. Compl. at ¶ 8; SCDHEC[5] Form, ECF No. 102-2; Ted Hucks Dep., ECF No. 102-3 at 6-7. The steps leading into the pool have a plaster finish on the tread and a curved (“bull-nosed”) tile trim on the nosing. See Ted Hucks Dep., ECF No. 102-3 at 4, 8; Campbell Dep., ECF No. 107-1 at 2. The governing SCDHEC regulation permits a maximum slope of one-half inch on each step tread. Campbell Dep., ECF No. 107-1 at 5; see S.C. Code Ann. Regs. 61-51 (Supp. 2015).[6]

         In 2013, Dunes Village Resort hired Hucks to replaster the pool a second time. Ted Hucks Dep., ECF No. 102-3 at 3, 6-7. Hucks, in turn, subcontracted with Active to apply plaster to the step treads. Hucks' Answer & Cross-Complaint, ECF No. 57 at 8; Garcia Dep., ECF No. 102-4 at 3. Under their oral contract, Hucks primed the tread surface by chipping away whatever material needed to be removed, and Active then applied plaster to the exposed surface. Hucks' Answer & Cross-Complaint, ECF No. 57 at 8-9; Ted Hucks Dep., ECF No. 102-3 at 8-9; Garcia Dep., ECF No. 102-4 at 3. Hucks retained sole responsibility for deciding whether to keep or replace the nosing tile on the edge of each stair; Active's role was limited to applying plaster on the step treads. Ted Hucks Dep., ECF No. 102-3 at 4. Active performed the replastering job during December 2013. Garcia Dep., ECF No. 102-4 at 3-4. On April 12, 2014, Plaintiff slipped and fell while descending the steps leading into the pool. Third Am. Compl. at ¶¶ 8, 12. She filed the instant action alleging her fall occurred as a result of defects in the stairs, including the “tread depth, tread angle, tread nosing, and/or tread surface material.”[7] Id. at ¶ 12.

         Plaintiff named Hucks and Active as defendants in her Third Amended Complaint (in addition to the Pan-American Defendants, who have since been dismissed from this action). Id. at ¶¶ 4-5. Hucks filed an answer and cross-claimed against Active for breach of contract/warranty[8] and equitable indemnity. ECF No. 57. Active filed a motion for summary judgment on Hucks' crossclaims, and Plaintiff filed a motion to strike Hucks' answer. ECF Nos. 102 & 103. Both motions are now ripe for disposition.

         Discussion

         I. Active's Motion for Summary Judgment on Hucks' Crossclaims

         Active moves for summary judgment on Hucks' crossclaims for breach of contract/warranty and indemnity. ECF No. 102. Hucks has filed a response in opposition, and Active has filed a reply. ECF Nos. 107 & 114.

         A. Legal Standard

         Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 413 (4th Cir. 2015); see Fed. R. Civ. P. 56(a) (“The 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.”). “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 . . .; 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). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party, Reyazuddin, 789 F.3d at 413, but the Court “cannot weigh the evidence or make credibility determinations.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015).

         Moreover, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “A dispute of material fact is ‘genuine' if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party.” Seastrunk v. United States, 25 F.Supp.3d 812, 814 (D.S.C. 2014). A fact is “material” if proof of its existence or nonexistence would affect disposition of the case under the applicable law. Anderson, 477 U.S. at 248.

         At the summary judgment stage, “the moving party must demonstrate the absence of a genuine issue of material fact. Once the moving party has met his burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show that there is a genuine issue for trial.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992) (internal citation omitted). Summary judgment is not warranted unless, “from the totality of the evidence, including pleadings, depositions, answers to interrogatories, and affidavits, the [C]ourt believes no genuine issue of material fact exists for trial and the moving party is entitled to judgment as a matter of law.” Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385 (4th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         B. Breach of ...


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