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Welsh v. Speedway LLC

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

July 6, 2017

RONALD WELSH, Plaintiff,
SPEEDWAY LLC, Defendant.


          R. Bryan Harwell United States District Judge

         This matter is before the Court on Defendant's Motion for Summary Judgment filed May 1');">1');">1');">11');">1');">1');">1, 201');">1');">1');">17. [ECF #28');">28');">28');">28]. On May 25, 201');">1');">1');">17, Plaintiff filed a Response in Opposition to Defendant's Motion. [ECF #30');">30');">30');">30]. On June 1');">1');">1');">1, 201');">1');">1');">17, Defendant filed its Reply. [ECF #32]. This Court has considered all of the filings related to the Motion filed in this case, and this matter is now before the Court for review.[1');">1');">1');">1" name="FN1');">1');">1');">1" id="FN1');">1');">1');">1">1');">1');">1');">1]

         Standard of Review

         Speedway LLC (“Speedway”) brings this motion as one for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.p. 56(c). The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes the showing, however, the opposing party must respond to the motion with “specific facts showing there is a genuine issue for trial.” Fed.R.Civ.p. 56(e).

         When no genuine issue of any material fact exists, summary judgment is appropriate. Shealy v. Winston, 1');">1');">1');">1009');">929 F.2d 1');">1');">1');">1009, 1');">1');">1');">101');">1');">1');">11');">1');">1');">1 (4th Cir. 1');">1');">1');">1991');">1');">1');">1). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. However, “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.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1');">1');">1');">1986)).

         In this case, Defendant “bears the initial burden of pointing to the absence of a genuine issue of material fact.” Temkin v. Frederick Cnty. Comm'rs, 1');">1');">1');">16');">945 F.2d 71');">1');">1');">16, 71');">1');">1');">18 (4th Cir. 1');">1');">1');">1991');">1');">1');">1) (citing Celotex Corp. v. Catrett, 1');">1');">1');">17');">477 U.S. 31');">1');">1');">17, 322 (1');">1');">1');">1986)). If Defendant carries this burden, “the burden then shifts to the non-moving party to come forward with fact sufficient to create a triable issue of fact.” Id. at 71');">1');">1');">18-1');">1');">1');">19 (citing Anderson, 477 U.S. at 247-48).

         Moreover, “once the moving party has met its burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show there is a genuine issue for trial.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1');">1');">1');">1992). The nonmoving party may not rely on beliefs, conjecture, speculation, of conclusory allegations to defeat a motion for summary judgment. See id; Doyle v. Sentry, Inc., 1');">1');">1');">1002');">877 F.Supp. 1');">1');">1');">1002, 1');">1');">1');">1005 (E.D. Va. 1');">1');">1');">1995). Rather, the nonmoving party is required to submit evidence of specific facts by way of affidavits, depositions, interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue for trial. See Fed. R. Civ. p. 56(c), (e); Baber, 977 F.2d at 875 (citing Celotex, 477 U.S. at 324)). The nonmovant's proof must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data Gen. Corp., 1');">1');">1');">12 F.3d 1');">1');">1');">131');">1');">1');">10, 1');">1');">1');">131');">1');">1');">16 (4th Cir. 1');">1');">1');">1993); DeLeon v. St. Joseph Hosp., Inc., 1');">1');">1');">1 F.2d 1');">1');">1');">1229');">871');">1');">1');">1 F.2d 1');">1');">1');">1229, 1');">1');">1');">1239 n.7 (4th Cir. 1');">1');">1');">1989). The parties have had the opportunity to conduct discovery in this case. This Court will analyze this Motion under the applicable standard for summary judgment.

         Factual Background and Procedural History

         This lawsuit was filed on or about December 1');">1');">1');">15, 201');">1');">1');">15 in the Horry County Court of Common Pleas, but it was removed to this Court on January 1');">1');">1');">14, 201');">1');">1');">16. [ECF #1');">1');">1');">1-1');">1');">1');">1]. As alleged in the Complaint, on or about April 1');">1');">1');">16, 201');">1');">1');">14, Plaintiff Ronald Welsh was a guest/invitee on Speedway's premises. [ECF #1');">1');">1');">1-1');">1');">1');">1, pp. 2');">p. 2-3]. While at the Speedway, Mr. Welsh sustained an injury, allegedly because he tripped and fell at the gas station due to the length of the gas pump hose, or otherwise because Speedway created a dangerous condition. [Complaint, ECF #1');">1');">1');">1-1');">1');">1');">1, p. 3]. Mr. Welsh is now suing Speedway claiming its alleged negligence caused Mr. Welsh to experience significant injury and undergo pain and suffering. [ECF #1');">1');">1');">1-1');">1');">1');">1, p. 4');">p. 4');">p. 4');">p. 4]. Mr. Welsh seeks actual and punitive damages for the injuries he alleges to have sustained. [ECF #1');">1');">1');">1-1');">1');">1');">1, p. 5].

         Speedway seeks summary judgment on these claims, as Speedway argues that there is no genuine issue of material fact regarding Speedway's liability to Mr. Welsh due to the fact that the fuel dispensing hose was an “open and obvious” danger, Mr. Welsh was aware of the hose when he tripped over it, and Speedway did not have superior knowledge of any alleged “defect” with the hose. [ECF #28');">28');">28');">28, p. 1');">1');">1');">1]. Speedway argues that Plaintiff testified in his deposition that he was familiar with that particular gas station location. [ECF #28');">28');">28');">28, p. 2');">p. 2]. Speedway also points to Plaintiff's admission that he was attempting to step over a gas pump hose when he tripped and fell. [ECF #28');">28');">28');">28, p. 2');">p. 2]. Specifically, Speedway includes deposition testimony where Plaintiff acknowledges that he knew the hoses were there, and that his left leg made it over the hose, it was just his right foot that was caught, causing him to fall. [ECF #28');">28');">28');">28, pp. 3-4]. Finally, included within Speedway's brief is a photograph of the pumps showing the location and visibility of the gas pump hoses. [ECF #28');">28');">28');">28, p. 4');">p. 4');">p. 4');">p. 4]. In response, Plaintiff argues that Defendant has not met the standard for summary judgment because there are genuine issues of fact related to whether Defendant created a hazardous condition thereby causing Plaintiff's injuries. [ECF #30');">30');">30');">30, p. 2');">p. 2].


         In order for Plaintiff to establish a claim for negligence, he must prove: (1');">1');">1');">1) a duty owed by Speedway to him; (2) a breach of that duty; (3) proximate causation; and (4) damages. Nash v. Marriott Hotel Servs., Inc., No. 7:07-503-HMH, 2007 WL 31');">1');">1');">12531');">1');">1');">15, at *1');">1');">1');">1 (D.S.C. Oct. 23, 2007) (citing Daniel v. Days Inn of Am., Inc., 356 S.E.2d 1');">1');">1');">129, 1');">1');">1');">131');">1');">1');">1, 1');">1');">1');">1');">292 S.C. 291');">1');">1');">1 (S.C. Ct. App. 1');">1');">1');">1987)). Speedway argues that Plaintiff is unable to show there is a genuine issue of material fact with respect to at least one element of his claim because the gas pump hose that Plaintiff allegedly tripped over was an “open and obvious” danger of which Plaintiff testified he was aware of, thereby negating any breach of a duty on the part of Speedway.

         Merchants owe customers a duty to exercise ordinary care to keep their premises in a reasonably safe condition. Nash, 2007 WL 31');">1');">1');">12531');">1');">1');">15, at *2. South Carolina law provides that the owner of a property does not owe a duty to use reasonable care to take precautions warning guests of open and obvious dangers. Hackworth v. U.S., 366 F.Supp.2d 326, 330');">30');">30');">30 (D.S.C. Feb. 1');">1');">1');">11');">1');">1');">1, 2005) (citing Neil v. Byrum, 343 S.E.2d 61');">1');">1');">15, 61');">1');">1');">16, 28');">28');">28');">288 S.C. 472');">28');">28');">28');">288 S.C. 472 (S.C. 1');">1');">1');">1986)). Dangers are “open and obvious” when they are reasonably discoverable to the patron. See generally Donovan v. U.S., No. 9:05-321');">1');">1');">17-CWH, 2007 WL 1');">1');">1');">1074951');">1');">1');">1, at *4 (D.S.C. April 5, 2007); see also Hancock v. Mid-South Mgmt Co., Inc., 673 S.E.2d 801');">1');">1');">1, 1');">1');">1');">1 S.C. 326');">381');">1');">1');">1 S.C. 326 (2009) (finding that while a parking lot in a state of disrepair might be an “open and obvious” condition, owner of premises should have anticipated this to be a hazard); Moore v. Barony House Restaurant, LLC, 674 S.E.2d 500, 382 S.C. 35 (2009) (operating an unlighted golf car at night on a public highway is open and obvious as a matter of law). The degree of care owed when an open and obvious danger is involved is commensurate with the circumstances involved, including the possessor's knowledge of the defect's existence and the age and capacity of the invitee. Larimore v. Carolina Power & Light, 1');">1');">1');">1 S.E.2d 535');">531');">1');">1');">1 S.E.2d 535, 539-40, 340 S.C. 438 (S.C. Ct. App. 2');">p. 2000).

         In order to establish that Defendant did not owe a duty to Plaintiff, Defendant points to Mr. Welsh's deposition testimony, as compared to a recorded statement apparently provided by Mr. Welsh soon after the incident occurred, to establish that Mr. Welsh was aware of the “open and obvious” danger of the gas hoses. Defendant believes that the recorded statement indicates that initially, Plaintiff stated he tripped over the hose for regular gas (a shorter hose than the other two hoses at the pump station) that was actually distributing gas to his car, but later changed his testimony to say he tripped over two longer hoses that were not in use. [ECF #28');">28');">28');">28, pp. 2');">p. 2-5]. In response, Plaintiff disputes the use of Mr. Welsh's recorded statement, regardless of whether it reflects any alleged discrepancy in Mr. Welsh's recollection of the incident, because it was not attached to Defendant's Motion. [ECF #30');">30');">30');">30, p. 4');">p. 4');">p. 4');">p. 4]. ...

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