United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
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 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. See ECF Nos. 102 & 103.
Village Resort,  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 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).
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.” Id. at ¶ 12.
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 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.
Active's Motion for Summary Judgment on Hucks'
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.
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).
“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.
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).
Breach of ...