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Jenkins v. United States

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

March 12, 2018

Clarence B. Jenkins, Jr., Plaintiff,
v.
United States, Defendant.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE

         The 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.

         BACKGROUND

         The 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.)

         DISCUSSION

         A. Rule 12(b)(6) Standard

         A 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)).

         Further, 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).

         B. Defendant's Motion to Dismiss

         Defendant 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.

         The 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.”).

         To 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)).

         In 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 premises).

         In 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 ...


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