United States District Court, D. South Carolina, Charleston Division
BISHARA BRAZIEL and LAMONT GEORGE, as Co-Personal Representatives of the Estate of Daimere S. George, Plaintiffs,
NOVO Development Corporation, d/b/a NOVO Properties, Defendant.
C. NORTON UNITED STATES DISTRICT JUDGE
matter is before the court on defendant Novo Development
Corporation's (“NOVO”) motion for summary
judgment, ECF No. 50. For the reasons set forth below, the
court denies the motion.
case arises out of the accidental drowning of three-year-old
Daimere S. George (“decedent”) in the swimming
pool of South Pointe Apartments (“South Pointe”)
at 6220 North Murray Avenue in Hanahan, South Carolina. At
the time of the incident, NOVO was the owner and operator of
South Pointe. Plaintiffs Bishara Braziel
(“Braziel”) and Lamont George
(“George”) (together, “plaintiffs”)
allege that on May 18, 2016, NOVO was preparing for the pool
opening in June and left gates and access points to the pool
unlocked, unsecure, opened, and/or left the pool in such a
condition that enable decedent to gain entry to the pool.
That day, decedent was found face down in the pool; he died
on May 25, 2016.
filed suit on December 1, 2017, bringing causes of action for
wrongful death pursuant to S.C. Code § 15-51-10 and
survival action pursuant to S.C. Code 15-5-90. Plaintiffs
allege that decedent's death was proximately caused by
NOVO's negligent, negligent per se, grossly negligent,
careless, willful, wanton, and reckless conduct. On January
7, 2019, NOVO filed the instant motion for summary judgment.
ECF No. 50. On January 22, 2019, plaintiffs filed their
response. ECF No. 56. The motion is ripe for the court's
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). “[T]he 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 . . . such that a reasonable jury could return a
verdict for the nonmoving party.” Id. at 248.
“[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. Id. at 255.
asks the court to grant summary judgment on both of
plaintiffs' claims, arguing that because the fence
surrounding the pool did not violate the requirements of
applicable building codes, NOVO neither created nor had
notice of an unsafe or hazardous condition. The court
disagrees with NOVO's position.
owners owe a duty of care to those on their property.
Larimore v. Carolina Power & Light, 531 S.E.2d
535, 538 (S.C. Ct. App. 2000). This duty varies depending on
whether they are adult trespassers, invitees, licensees, or
children. Id. In 2007, the Supreme Court of South
Carolina adopted § 339 of the Restatement (Second) of
Torts as the state's official law for premises liability
cases involving children. Henson ex rel. Hunt v.
Int'l Paper Co., 650 S.E.2d 74, 81 (S.C. 2007).
Section 339 provides that [a] possessor of land is subject to
liability for physical harm to children trespassing thereon
caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which
the possessor knows or has reason to know that children are
likely to trespass, and
(b) the condition is one of which the possessor knows or has
reason to know and which he realizes or should realize will
involve an unreasonable risk of death or serious bodily harm
to such children, and
(c) the children because of their youth do not discover the
condition or realize the risk involved in intermeddling with
it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition
and the burden of eliminating the danger are slight as
compared with ...