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's motion for
summary judgment. For the reasons set forth below, the Court
grants the motion.
22, 2013, Plaintiff pulled up to the fuel pumps at the
Speedway convenience store at 8620 Dorchester Road in North
Charleston, South Carolina, exited his vehicle, and walked
inside the gas station to pay. When he exited the store, he
fell down. Plaintiff asserts that "going in I had to
step up on the curb and walk in. And coming out I had to step
down. But as I was moving my foot forward, my foot caught the
lip of that flashing" which was "sticking out"
on the curb. (Dkt. No. 15 at 1-2.) Plaintiff alleges he
suffered "personal injuries." (Dkt. No. 1-1 ¶
5.) On July 7, 2016, Plaintiff filed the present action in
the Dorchester County Court of Common Pleas, seeking
unspecified actual and punitive damages. Defendant removed to
this Court on September 2, 2016. Discovery is now complete,
but consists only of the deposition of Plaintiff. Defendant
has moved for summary judgment; in response to that motion,
Plaintiff has provided an affidavit with photographs of the
curb upon which he tripped attached as exhibits. (Dkt. No.
15-1.) Those photographs apparently were also exhibits at his
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)).
was an invitee at Speedway on July 22, 2013. "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. But "[t]he mere fact that there is a
difference between the levels in the different parts of the
premises does not, in itself, indicate negligence unless,
owing to the character, location and surrounding condition of
the change of level, a reasonably careful person would not be
likely to expect or see it." Denton v. Winn-Dixie
Greenville, Inc., 312 S.C. 119, 121 (S.C. Ct. App.
has no evidence that the character, location, or condition of
the curb he tripped on would cause a reasonably careful
person not to see the curb or its flashing-i.e.,
that there was anything dangerous about the step that was not
open and obvious. Instead, Plaintiff testified,
Q: Well, you're exiting the gas station, and you come to
the curb and, you know, there's a break in the flashing,
and you stepped on that.
A: I didn't see that.
Q: Do you believe that somebody paying reasonable attention
when they were leaving the store would have seen the
A: Generally, when people are leaving the gas station, you
know, you know you have to step down, but most people are
focused on their vehicles. They're going back to their
vehicles, or they're looking ...