Braziel v. Novo Development Corporation

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         This 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.

         Plaintiffs 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 review.

         II. STANDARD

         Summary 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.

         III. DISCUSSION

         NOVO 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.

         Property 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 ...