United States District Court, D. South Carolina, Rock Hill Division
ORDER AND OPINION
MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE
Richard Stipanovic (“Plaintiff”) filed this
action on February 29, 2016, alleging that Defendant Wal-Mart
Stores East LP (“Defendant”) negligently
maintained its premises at its store in Indian Land, South
Carolina, causing him to suffer injuries.
pricing sign was placed near the store entranceway by
employees and/or agents of Defendant on November 5, 2013. A
customer leaving Defendant's store dislodged the sign
with her cart, causing the sign to encroach on the
entranceway to the store. A few moments later, Plaintiff
tripped over the sign and suffered physical injuries as the
result of his fall.
filed a motion for summary judgment on November 3, 2016.
Plaintiff filed a response in opposition on March 3, 2017, to
which Defendant filed a reply on March 10, 2017. The court
held a hearing on Defendant's motion for summary judgment
on June, 20, 2017.
STANDARD OF REVIEW
to Federal Rules of Civil Rule 56(a), the court shall grant
summary judgment if the moving party shows that there is no
genuine dispute as to any material fact and is entitled to
judgment as a matter of law. The evidence presents a genuine
issue of material fact if “a reasonable jury could
return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 24, 251-52
(1986). Any inference drawn from the facts should be viewed
in the light most favorable to the non-moving party.
United States v. Diebold, Inc., 369 U.S.
654, 655 (1962). The party seeking summary judgment bears the
initial burden of demonstrating to the court that there is no
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S 317-23 (1986). Once the movant has made
this showing, the non-moving party must demonstrate specific,
material facts that give rise to a genuine issue.
Id. at 324. A “mere scintilla” of
evidence is insufficient to overcome the summary judgment
motion. Anderson v. Liberty Lobby, 477 U.S. 242, 252
prove negligence in a slip and fall case, the plaintiff must
show either that the defendant or defendant's agents
either created a hazardous condition or had notice of it.
Anderson v. Racetrac Petroleum, Inc., 371 S.E.2d
530, 531 (S.C. 1988). Plaintiff asserts in response to
Defendant's motion for summary judgment that Defendant
created the allegedly dangerous condition. Plaintiff alleges
that by simply placing the insecure and/or improperly secured
sign in close proximity to the
“heavily-trafficked” store entrance, it was
“reasonably foreseeable” that the sign
“could be moved into the store's entranceway by the
foreseeable, regular, and expected movements of
Defendant's customers.” ECF No. 26, 3. The question
becomes, then, whether the unsecured pricing sign was indeed
dangerous and created a hazardous condition.
merchant is not an insurer of the safety of his customers,
but rather owes them the duty to exercise ordinary care to
keep the premises in a reasonably safe condition.”
Cook v. Food Lion, 491 S.E.2d 690, 691 (S.C. Ct.
App. 1997). The finding of dangerousness is based on the
evidence in the record and the showing that the defendant was
aware of the tendency of a dangerous condition to exist.
Cook v. Food Lion, the plaintiff tripped on a
wrinkled floor mat near the exit of the store. Cook,
491 S.E.2d at 691. The court held that the defendant had
created a dangerous condition by placing a wrinkled floor mat
near the exit of the store, because several employees
testified that the mats were often wrinkled or crumpled.
Id. at 691-92. The Cook court's finding
of dangerousness was based on evidence showing that the mats
were often in a dangerous wrinkled state. Id.
in Sellers v. JC Penney, the plaintiff tripped on a
torn rug at the entrance of a JC Penney store. Civil Action
No. 5:10-2568-MBS, 2011 WL 5105470, *1 (D.S.C. Oct. 27,
2011). This court found that the plaintiff failed to produce
evidence showing that any store employee was aware of the
tendency of the rug to tear or otherwise become dangerous.
Id. at *3. Accordingly, the evidence in the record
did not establish that the defendant had created a dangerous
present case, similar to Sellers, there is no
evidence to suggest that the sign was placed in such a manner
as to create an unreasonable risk of harm. The pricing sign
was placed at or near a display of merchandise. There is no
evidence the sign was placed in such a way to impede
customers or that Defendant or its employees were aware of
the tendency of pricing signs to become displaced or
otherwise become dangerous.
argument, Plaintiff's counsel referenced, for the first
time, a confidential employee handbook to suggest that
Defendant created a dangerous condition by failing to
properly place or properly secure the pricing sign in
accordance with its company policy. Plaintiff quoted a
section on improperly placed or improperly secured
merchandise to support its argument. However, Plaintiff has
put forth no evidence showing that the sign was in fact,
improperly placed or improperly ...