United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
matter is before the Court on Defendant the United States of
America's motion for summary judgment. For the reasons
set forth below, the Court grants summary judgment for
August 24, 2014, Plaintiff Edward Bennett went fishing with
his nephew and cousin, leaving from Garris Landing in the
morning. (Dkt. No. 15-2 (Dep. of Edward Bennett).) Garris
Landing is a recreational boating facility in Awendaw, South
Carolina, that is owned and operated by Defendant. Plaintiff
paid no fee to use Garris Landing. (Id. at 20-21.)
They came back to Garris Landing at approximately 4:00 p.m.
Plaintiff pulled the boat up to the ladder section of the
seawall to tie the boat to the ladder. (Id.) As he
was standing with one foot on the seawall and the other in
the boat, his foot slipped from the seawall and he fell,
severely injuring his knee. (Dkt. No. 1 ¶ 9.)
exhausting administrative remedies, Plaintiff filed this
action under the Federal Tort Claims Act ("FTCA")
on July 26, 2016. (Dkt. No. 1 ¶ 3.) Plaintiff asserts
two causes of action: general negligence and premises
liability. Defendant was negligent, according to Plaintiff,
in installing a marine ladder to the bulkhead so that the
slick metal bulkhead cap at the top of the ladder became the
ladder's landing platform or top step. Defendant moved
for summary judgment on April 24, 2017.
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, 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 Props., 810 F.2d 1282, 1286 (4th Cir.
1987). "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party, "
HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross,
101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking
summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
the moving party has made this threshold demonstration, the
non-moving party, to survive the motion for summary judgment,
may not rest on the allegations averred in his pleadings.
Id. at 324. Rather, the non-moving party must
demonstrate that specific, material facts exist that give
rise to a genuine issue. Id. Under this standard,
"[c]onclusory or speculative allegations do not suffice,
nor does a 'mere scintilla of evidence'" in
support of the non-moving party's case. Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (quoting Phillips v. CSX Transp., Inc., 190
F.3d 285, 287 (4th Cir. 1999)).
FTCA waives the sovereign immunity of the United States for
tort claims, rendering the United States "liable... in
the same manner and to the same extent as a private
individual under like circumstances." 28 U.S.C. §
2674. South Carolina law provides that private individuals
are liable in negligence if the plaintiff proves "(1) a
duty of care owed by defendant to plaintiff; (2) breach of
that duty by a negligent act or omission; (3) resulting in
damages to the plaintiff; and (4) damages proximately
resulted from the breach of duty." Fettler v.
Gentner, 722 S.E.2d 26, 29 (S.C. Ct. App. 2012). In
premises liability cases, the "level of care owed is
dependent upon the class of the person present."
Larimore v. Carolina Power & Light, 531 S.E.2d
535, 538 (S.C. Ct. App. 2000). "South Carolina
recognizes four classes of persons present on the property of
another; adult trespassers, invitees, licensees, and
describes himself as "a licensee on [Defendant's]
property at the time of the incident" and he claims
Defendant therefore owed him duties to refrain from conduct
on the land that could injure him and to warn him of
concealed dangers. (Dkt. No. 17 at 3.) Plaintiff correctly
describes the low duty of care owed licensees, who "can
be said to accept the premises as they are and demand no
greater safety than his host provides himself." Sims
v. Giles, 541 S.E.2d 857, 864 (S.C. Ct. App. 2001)
(emphasis removed). Under premises liability law, however,
Plaintiff likely would be an invitee on Defendant's
property at the time of the incident because the boat landing
is held open to the public. See Goode v. St. Stephens
United Methodist Church, 494 S.E.2d 827, 831 (S.C. Ct.
App. 1997) ("A public invitee is one who is invited to
enter or remain on the land as a member of the public for a
purpose for which the land is held open to the public").
"The owner of property owes to an invitee ... the duty
of exercising reasonable or ordinary care for his safety, and
is liable for injuries resulting from the breach of such
duty." Sims, 541 S.E.2d at 863. "The
degree of care required is commensurate with the particular
circumstances involved ...." Id.
however, did not owe Plaintiff the duty of care owed an
invitee or a licensee because the South Carolina Recreational
Use Statute relieves Defendant of that duty. Under that law,
property owners who permit persons to use land for
recreational purposes without charge owe no duty of care to
recreational users, and they do not "[e]xtend any
assurance that the premises are safe for any purpose" or
"[c]onfer upon recreational users the legal status of an
invitee or licensee to whom a duty of care is owed."
S.C. Code §§ 27-3-30, -40. The Recreational Use
Statute applies to public property owners like the United
States. Richardson v. City of Columbia, 532 S.E.2d
10, 13 (S.C. Ct. App. 2000). Because Plaintiff was not
charged for recreational use of the boat landing, Defendant
can have no simple negligence liability for Plaintiffs
admits Defendant cannot be liable for simple negligence, but
argues Defendant's installation of the ladder was grossly
negligent. The Recreational Use Statute does not bar
liability for gross negligence. S.C. Code § 27-3-40.
"Gross negligence is the intentional, conscious failure
to do something which it is incumbent upon one to do or the
doing of a thing intentionally that one ought not to do.
Negligence is the failure to exercise due care, while gross
negligence is the failure to exercise slight care."
Clyburn v. Sumter Cty. Sch. Dist. No. 77, 451 S.E.2d
885, 887 (S.C. 1994). Normally, the question of what activity
constitutes gross negligence is a mixed question of law and
fact, but "[w]hen the evidence supports but one
reasonable inference, the question becomes a matter of law
for the court." Id. at 887-88.
undisputed facts are that Defendant installed a marine ladder
having slip-resistant rungs to a bulkhead but failed to add
any slip-resistant feature to the metal bulkhead cap at the
top of the ladder. In essence, the bulkhead and ladder
together formed a ladder with an allegedly slippery top step.
Installing a ladder which every step but one is
slip-resistant might be a failure to exercise due care, but
it cannot be a failure to exercise even slight care. There is
no dispute that the ladder Defendant installed is a non-slip
marine ladder appropriate for that use. There is no dispute
that the ladder was securely affixed to the bulkhead. Those
undisputed facts are evidence that at least slight care was
exercised in the ladder ...