United States District Court, D. South Carolina, Beaufort Division
Monica V. Bell, Plaintiff,
United States of America, Defendant. v.
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
matter is before the Court on Defendant the United
States' motion for summary judgment (Dkt. No. 28). For
the reasons set forth below, the Court grants Defendant's
motion as to Plaintiff's first cause of action and
dismisses Plaintiff's second cause of action for lack of
Monica Bell and her husband attended family day activities
associated with the Marine Corps graduation of their daughter
from boot camp in Parris Island, South Carolina on February
27, 2014. Plaintiff walks with a cane due to a debilitating
stroke that she suffered approximately one month earlier,
which has left her partially paralyzed. In the afternoon of
the 27th, Plaintiff attended an event in a gymnasium-style
building. Handicapped-accessible seating was provided at the
gymnasium, but Plaintiff did not ask to be seated in
handicapped-accessible seating or for any other
accommodation. (Dkt. No. 28-1 at 8-9 (excerpts from Mrs.
Bell's deposition testimony).) Plaintiff alleges that the
handicapped-accessible seating was “closed” and
that she was directed to climb bleacher stairs to find a
seat. As she navigated the stairs, she tripped on a step and
suffered a mildly displaced fracture in the fourth metatarsal
and a nondisplaced fracture in the fifth metatarsal of her
April 20, 2016, Plaintiff filed the present action, seeking
monetary damages for her injuries. She asserts claims for
negligence under the Federal Tort Claims Act
(“FTCA”) and for violation of the Rehabilitation
Act of 1973, 29 U.S.C. § 794. On April 11, 2017,
Defendant moved for summary judgment.
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.
317, 323 (1986).
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.
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
parties agree that Plaintiff was an invitee at Parris Island
when the incident occurred. “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 v.
Giles, 541 S.E.2d 857, 863 (S.C. Ct. App. 2001).
Generally, “[t]he landowner has a duty to warn an
invitee only of latent or hidden dangers of which the
landowner has knowledge or should have knowledge.”
Id. The “possessor of land is not liable to
his invitees for physical harm caused to them by any activity
or condition on the land whose danger is known or obvious to
them, unless the possessor should anticipate the harm despite
such knowledge or obviousness.” Id. at 864.
The landowner also has a duty to his invitees to
“refrain from any act which may make the
invitee's use of the premises dangerous or result in
injury to him.” Id.
does not allege any latent dangers in the premises. Rather,
Plaintiff alleges Defendant breached its duty of care owed
Plaintiff as an invitee in (1) “[c]reating a dangerous
and hazardous condition by closing off the
[handicapped-]accessible seating in the” gymnasium and
(2) “directing an individual with an obvious physical
handicap to use stairs which were unsafe for her to
use.” (Dkt. No. 1 ¶ 24.) Placing Plaintiff's
allegations into the framework of South Carolina premises
liability law, Plaintiff alleges that closing the
handicapped-accessible seating area was an “act which
may make the invitee's use of the premises dangerous or
result in injury to him, ” and that, although the
danger posed by the gymnasium steps was obvious to all,
Defendant nevertheless should have anticipated harm to
Plaintiff despite that obviousness because of the obviousness
of Plaintiff's disability.
Defendant did deny Plaintiff access to handicapped-accessible
seating, that might give rise to liability in negligence to
an invitee. But Plaintiff has no evidence to support her
allegation that the handicapped-accessible seating area was
“closed.” She instead opposes summary judgment by
arguing, “a handicapped accessible area was available,
but knowledge of its availability was not given to either
Mrs. Bell.” (Dkt. No. 29 at 2.) In other words, she has
abandoned the argument that she was denied access to
handicapped-accessible seating and stands on ...