United States District Court, D. South Carolina, Beaufort Division
C. NORTON, UNITED STATES DISTRICT JUDGE.
following matter is before the court on defendants Wal-Mart
Stores, Inc. and Wal-Mart Stores East, LP's
(collectively, “Walmart”) motion for summary
judgment, ECF No. 13. For the reasons set forth below, the
court denies the motion for summary judgment.
case stems from a slip and fall that occurred on November 18,
2013 at a Walmart store in Hardeeville, South Carolina.
Plaintiff Melinda Malphrus Carn (“Carn”) was in
the produce department of the Walmart when she fell on a
puddle of water. As a result of the fall, Carn suffered
injuries to her neck, back, and spine.
February 9, 2016, Carn filed suit, alleging that Walmart was
negligent and reckless by: (1) failing to provide a safe
environment for patrons to do business on the premises; (2)
allowing a puddle of water to form and remain on the floor of
the store; (3) failing to place appropriate signs or
barricades warning patrons, and Carn specifically, of the
existing danger; (4) failing to train its employees how to
properly address and handle such situations that could cause
injury to patrons; and (5) failing to exercise the degree of
care that a normal prudent person would exercise under the
filed this motion for summary judgment on February 20, 2017,
to which Carn responded on March 6, 2017. The motion has been
fully briefed and is now ripe for the court's review.
judgment shall be granted “if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show 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(c). “By its
very terms, this standard provides that 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.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). “Only disputes
over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is
‘genuine, ' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. “[A]t the summary judgment
stage the judge's function is not himself to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”
Id. at 249. The court should view the evidence in
the light most favorable to the non-moving party and draw all
inferences in its favor. Id. at 255.
moves for summary judgment, arguing that Carn has failed to
establish that Walmart created the puddle of water on the
floor or that Walmart had actual or constructive notice of
the dangerous conditions that caused Carn's injuries.
Def.'s Mot. 1. Without this, Walmart contends, Carn's
claims fail as they are all based on premises liability.
Walmart does not dispute that there was a puddle of water on
the floor of the produce department, or that Carn suffered
injuries from slipping on the puddle and falling down. Carn
contends that there are factual disputes on the record that
can only be resolved by a jury.
Walmart patron, Carn was a business invitee to the Walmart
store at the time of her injuries. Sims v. Giles,
541 S.E.2d 857, 861 (S.C. Ct. App. 2001) (“A business
visitor . . . is an invitee whose purpose for being on the
property is directly or indirectly connected with business
dealings with the owner.”). Walmart is not required to
maintain its store in such a condition that no
accident could happen to a patron. See Denton v.
Winn-Dixie Greenville, Inc., 439 S.E.2d 292, 293 (S.C.
1993). But under South Carolina law, Walmart owes business
invitees such as Carn a duty to exercise reasonable and
ordinary care for their safety and is liable for any injuries
resulting from a breach of this duty. H.P. Larimore v.
Carolina Power & Light, 531 S.E.2d 535, 538 (S.C.
Ct. App. 2000) (internal citations omitted). To recover
damages for injuries caused by a dangerous or defective
condition on a landowner's premises, a plaintiff must
show that (1) the injury was caused by a specific act of the
defendant which created the dangerous condition, or (2) that
the defendant had actual or constructive knowledge of the
dangerous condition and failed to remedy it. Wintersteen
v. Food Lion, Inc., 542 S.E.2d 728, 729 (S.C. 2001).
Since the court finds that there is a genuine issue of
material fact on the issue of whether Walmart had knowledge
of the puddle and failed to remedy it, an adequate and
independent ground for denying Walmart summary judgment, it
need not assess if Walmart's actions created the puddle.
contends that Walmart had actual or constructive knowledge
that there was a puddle of water in the produce aisle where
she fell. Constructive knowledge of a dangerous condition can
be established by showing “that the foreign substance
had been on the floor for a sufficient length of time that
the storekeeper would or should have discovered and removed
it had the storekeeper used ordinary care.”
Gillespie v. Wal-Mart Stores, Inc., 394 S.E.2d 24,
24-25 (S.C. Ct. App. 1990). The court notes that the parties
have not deposed the Walmart employees responsible for
overseeing general maintenance of the produce
department-namely Harry Toomer, the Walmart employee who is
seen on the surveillance video taken immediately preceding
Carn's fall sweeping garbage from the aisles of the
produce department, or the cart custodian who is seen on the
surveillance videotape loading and unloading produce in the
produce aisles. Indeed, Carn's testimony is the only
deposition evidence in the record before the court. Without
the testimony of Toomer, the court is unable to determine if
Toomer, or any other Walmart's employee, had actual or
constructive knowledge of the puddle in the produce
department. The court cannot properly analyze the actual and
constructive knowledge issue with Carn's deposition
testimony alone-Carn cannot accurately testify about
Toomer's or the cart custodian's knowledge of the
appears to argue that because there is no deposition
testimony from any Walmart employee in the record before the
court, Carn cannot meet her burden of proving that any
Walmart employee had actual or constructive notice of the
puddle. The court is not so convinced. The surveillance
videotape shows a “floor custodian” sweeping
trash from the produce aisle where the puddle was located and
walking within several feet of the puddle a short period of
time before Carn's fall. It also shows a “cart
attendant” placing a cart with vegetables to the left
side of the aisle in the area where Carn fell, and then
moving this cart to various positions in the produce aisle in
the time period before Carn fell. Certainly, the amount of
time that the puddle was on the floor cannot be left to
speculation. See Gillespie, 394 S.E.2d at 25
(“[The record] does not show how long the water had
been on the floor . . . [and] [t]he question of whether the
water was on the floor for such a length of time as to infer
that Wal-Mart was ...