United States District Court, D. South Carolina, Columbia Division
Clarence B. Jenkins, Jr., Plaintiff,
United States, Defendant.
REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE
plaintiff, Clarence B. Jenkins, Jr., a self-represented
litigant, filed this action pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§
2671-2680, 1346(b). Plaintiff files this action in forma
pauperis under 28 U.S.C. § 1915. This matter is
before the court pursuant to 28 U.S.C. § 636(b) and
Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and
Recommendation on Defendant's motion to dismiss. (ECF No.
25.) Pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), the court advised Plaintiff of the summary
judgment and dismissal procedures and the possible
consequences if he failed to respond adequately to
Defendant's motion. (ECF No. 27.) Plaintiff filed a
response in opposition to the motion and a supplement. (ECF
Nos. 30 & 31.) Having reviewed the record presented and
the applicable law, the court finds the defendant's
motion should be denied.
following allegations are taken as true for purposes of
resolving Defendant's motion to dismiss. Plaintiff
alleges that on August 4, 2015, he hit his head on the
suggestion box while he was sitting down in the pharmacy at
the Dorn VA Medical Center in Columbia, South Carolina.
(Compl., ECF No. 1 at 5.) He alleges Defendant was negligent
because the locations of the sitting chairs and the
suggestion box were improper. (Id.) He indicates he
brings this negligence claim pursuant to the FTCA, seeking
damages. (Id. at 3.)
Rule 12(b)(6) Standard
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) examines the legal sufficiency of the facts alleged
on the face of the complaint. Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive
a Rule 12(b)(6) motion, “[f]actual allegations must be
enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). The “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.' ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). A claim is facially
plausible when the factual content allows the court to
reasonably infer that the defendant is liable for the
misconduct alleged. Id. When considering a motion to
dismiss, the court must accept as true all of the factual
allegations contained in the complaint. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). The court “may
also consider documents attached to the complaint,
see Fed.R.Civ.P. 10(c), as well as those attached to
the motion to dismiss, so long as they are integral to the
complaint and authentic.” Philips v. Pitt Cty.
Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)
(citing Blankenship v. Manchin, 471 F.3d 523, 526
n.1 (4th Cir. 2006)).
while the federal court is charged with liberally construing
a complaint filed by a pro se litigant to allow the
development of a potentially meritorious case, see,
e.g., Erickson, 551 U.S. 89, the
requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleadings to allege
facts which set forth a federal claim, nor can the court
assume the existence of a genuine issue of material fact
where none exists. Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
Defendant's Motion to Dismiss
argues Plaintiff fails to state a claim upon which relief can
be granted for negligence because the facts alleged in the
Complaint show Defendant has not breached a duty of care to
Plaintiff. The court disagrees.
FTCA provides for a limited waiver of the United States's
sovereign immunity from suit by allowing a plaintiff to
recover damages in a civil action for loss of property or
personal injuries caused by the “negligent or wrongful
act or omission of any employee of the Government while
acting within the scope of his office or employment, under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1); see also Medina v. United
States, 259 F.3d 220, 223 (4th Cir. 2001) (“The
statute permits the United States to be held liable in tort
in the same respect as a private person would be liable under
the law of the place where the act occurred.”).
establish a cause of action for negligence in South Carolina,
the plaintiff must prove: (1) a duty of care owed by
defendant to plaintiff; (2) breach of that duty by a
negligent act or omission; and (3) damage proximately
resulting from the breach of duty. Bishop v. S.C.
Dep't of Mental Health, 502 S.E.2d 78, 82 (S.C.
1998) (citing Rickborn v. Liberty Life Ins. Co., 468
S.E.2d 292 (S.C. 1996)). “The Court must determine, as
a matter of law, whether the defendant owed a duty of care to
the plaintiff.” Dorrell v. S.C. Dep't of
Transp., 605 S.E.2d 12, 15 (S.C. 2004) (citing
Steinke v. S.C. Dep't of Labor, Licensing, &
Regulation, 520 S.E.2d 142, 149 (S.C. 1999)).
South Carolina, the duty of care owed to a plaintiff in a
premises liability action is determined by the status or
classification of the plaintiff in relation to the property
at the time of his injury. See Roe v. Bibby, 763
S.E.2d 645, 650 (S.C. Ct. App. 2014) (quoting Singleton
v. Sherer, 659 S.E.2d 196, 204 (S.C. Ct. App. 2008)).
Here, the parties agree Plaintiff was an invitee at the Dorn
VA Medical Center. (Def.'s Mem. Supp. Mot. to Dismiss,
ECF No. 25-1 at 4; Pl.'s Resp. in Opp'n, ECF No. 30
at 1); see Lane v. Gilbert Constr. Co. Ltd., 681
S.E.2d 879, 882 (S.C. 2009) (“An invitee is a person
‘who enters onto the property of another by express or
implied invitation, his entry is connected with the
owner's business or with an activity the owner conducts
or permits to be conducted on his land, and there is a
mutuality of benefit or a benefit to the owner.' ”)
(quoting Singleton); Sims v. Giles, 541
S.E.2d 857, 861 (S.C. Ct. App. 2001) (stating invitees are
offered the utmost duty of care by the landowner, compared to
other classifications of persons on a defendant's
South Carolina, property owners owe invitees a duty of
exercising reasonable or ordinary care for the invitee's
safety, and are liable for injuries resulting from the breach
of such duty. Sims, 541 at 863 (citing Larimore
v. Carolina Power & Light, 531 S.E.2d 535 (S.C. Ct.
App. 2000)). Adopting the position of the Restatement of
Torts (Second) on this issue, the South Carolina Supreme
Court provides, “A 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.” Callander v.
Charleston Doughnut Corp., 406 S.E.2d 361, 362 (S.C.
1991) (adopting the Restatement of Torts (Second) § 343A
(1965)) (original emphasis omitted). The court also provides
in Callander that “an owner may be required to
warn the invitee, or take other reasonable steps to protect
him, if the ‘possessor has reason to expect that the