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Fish v. CVS Pharmacy, Inc.

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

March 27, 2017

Marci Fish, Plaintiff,
CVS Pharmacy, Inc. and A-Team Services, Inc., Defendants.



         Through this action, Plaintiff, Marci Fish (“Plaintiff”), seeks damages from CVS Pharmacy, Inc. (“CVS”) for injuries suffered when she fell over sandbags stacked outside the entrance of a CVS store.[1] The matter is before the court on CVS's motion for summary judgment, which relies on the open and obvious nature of the stacked sandbags. For reasons set forth below, the motion for summary judgment is denied.


         Summary judgment should be granted 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.” Fed.R.Civ.P. 56(a). It is well established that summary judgment should be granted “only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

         Rule 56(c)(1) provides as follows:

         (1) 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, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers or other materials; 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).


         On October 5, 2015, Plaintiff visited the CVS store on Hardscrabble Road in Columbia, South Carolina. Jarrod Washington dep. at 22, 23 (noting incident occurred on Monday October 5, 2015); see also Plaintiff dep at 35 (stating accident happened after the flood). Two days prior to Plaintiff's visit, sandbags were delivered to the CVS as a precautionary measure to avoid damage from heavy rains and anticipated flooding in the area. Washington dep. at 21-22 (stating sandbags were delivered on Saturday morning as precautionary measure); see also ECF No. 50-2 (“Record of Climatological Observations” reflecting rainfall in Columbia area of 1.48 inches on October 3, 2015, 8.78 inches on October 4, 2015, 5.05 inches on October 5, 2015, and .40 inches on October 6, 2016).

         The sandbags were placed in front of the customer entrance at night and moved to the sides of the door when the store was opened. Cathy Lizotte dep. at 31-33 (CVS employee explaining sandbags had to be moved in order to open the doors, describing bags as being placed to the sides of the door when the store was open, and indicating she may have moved the bags if she had to open or close the store, though she does not recall); Washington dep. at 29-30, 48 (stating sandbags were to the sides of the door, “not blocking the door directly” so he believed “they were fine where they were”); Amy Cox dep. at 41 (CVS employee explaining bags were stacked on top of each other against the wall “a good 3-4 inches away from [the] doors on both sides” of the entrance); see also Plaintiff dep. at 37-38 (describing accordion door at angled entrance). Though no flooding was occurring within the immediate area of the CVS at the time of Plaintiff's visit, the back room of the CVS had been flooded and it was not clear that all risk of flooding had passed. Washington dep. at 23, 48 (stating store was not actively flooding at the time of Plaintiff's fall), 64-65 (stating he “didn't know if the rain was going to stop or keep going” and sandbags were kept near where they would be needed because, at 50 pounds each, they were not easy to move); 73 (stating he understood from customers that there was “flooding within a half-mile of the store”);74-75 (stating stock room in back of store flooded prior to the incident). The bags were made of clear plastic with large red and green writing. Washington dep. at 45 (addressing weight and difficulty of one person moving); ECF No. 50-1 (Reply Ex. 1, photograph).[2]

         Plaintiff “distinctly remember[s] seeing [sandbags stacked] on the [far] side of the door as she entered. Id. at 38. She did not “recall seeing [sandbags] on the closer side.” Id.; see also Id. at 40 (“I don't remember seeing them on [the closer] side of the door as I walked in. . . . I just think I didn't notice.”). Based on her observations after she fell, Plaintiff “believe[s] there were three [sandbags] on each side” of the door. Id. at 39.[3] Plaintiff concedes nothing prevented her from seeing the sandbags. Id. at 49.

         When Plaintiff exited the store, she turned sharply to the right to avoid the possibility of running into anyone who might be coming from that direction. Id. at 40, 42, 55 (describing exit as a blind corner). When she did so, she tripped over the stack of sandbags she had not previously observed (on her right as exiting). Id. at 40. After Plaintiff fell, the store manager, Washington, “came out and the first thing he did is he said let me move these sandbags. I don't want anybody else to trip.” Plaintiff dep. at 60. When asked whether the bags had moved when she tripped over them, Plaintiff conceded she did not know. Plaintiff dep. at 66- 67. ...

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