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 Easterlin
Company's ("Easterlin") motion for summary
judgment (Dkt. No. 121). For the reasons set forth below, the
Court grants in part and denies in part Defendant
April 4, 2015, Plaintiff Corinne Voeltz rented a condominium
at 113 East Arctic Avenue, Unit C in Folly Beach, South
Carolina (the "property"). (Dkt. No. 148-2 at 8 -
9.) On April 4, 2015, Plaintiff was on the first floor (one
floor up from the ground floor) of the property and opened an
access door to the elevator. (Id. at 22 - 23, 34.)
Plaintiff then stepped through the door and fell down the
elevator shaft because the elevator was not at the second
floor. (Id.) The elevator was manufactured by
Defendant Waupaca Elevator Company, Inc. and was purchased
and installed in 2008 and 2009 by Defendant Colson Electric
& Elevators, Inc. ("Colson"). (Dkt. Nos. 121-5;
121-6 at 3.) At the time, Defendant Easterlin was the general
contractor. (Dkt. No. 121 -3 at 3 - 4.) Defendant JEM
Development, LLC was the owner and developer of the property.
(Dkt. No. 121-3 at 5; 121-8.) The property was later sold
and, at the time of the incident, the property was owned by
Defendant Bridge Charleston Investments E, LLC ("Bridge
Charleston") and managed by Defendant Luxury Simplified
Retreats ("Luxury Simplified"). (Dkt. Nos. 94-1 at
7; 121-8; 121-9 at 3-4.)
brought claims against Defendant Easterlin for negligence,
strict liability and breach of warranty. (Dkt. No. 33.)
Easterlin now moves for summary judgment on all claims. (Dkt.
No. 121.) Plaintiff Voeltz opposes the motion. (Dkt. Nos.
prevail on a motion for summary judgment, the movant must
demonstrate that there is no genuine issue of any material
fact and that the movant is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(a). The party seeking summary
judgment has the burden of identifying the portions of the
"pleadings, depositions, answers to interrogatories, any
admissions on file, together with the affidavits, if any,
which show there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law." Celotex Corp. v. Catrett, Ml U.S. 317,
322 (1986). The Court will construe all inferences and
ambiguities against the movant and in favor of the non-moving
party. U.S. v. Diebold, Inc., 369 U.S. 654, 655
(1962). The existence of a mere scintilla of evidence in
support of the non-moving party's position is
insufficient to withstand a motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). However, an issue of material fact is genuine if the
evidence is such that a reasonable jury could return a
verdict in favor of the non-movant. Id. at 257.
the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). "In the language of the Rule,
the nonmoving party must come forward with 'specific
facts showing that there is a genuine issue for
trial.'" Id. at 587. "Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue
for trial.'" Id. (quoting First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 289 (1968)).
Supreme Court of South Carolina held that, under S.C.Code
Ann. § 15-73-10, South Carolina's strict products
liability statute, "a general contractor building a home
performs a service and does not sell a product."
Fields v. J. Haynes Waters Builders, Inc., 376 S.C.
545, 565, 658 S.E.2d 80, 91 (2008) (holding general
contractor not liable for strict liability under statute as
it performs a service). It is undisputed that Easterlin's
position here was solely as the general contractor. (Dkt. No.
121-3 at 3 - 5.) Therefore, Easterlin is not subject to suit
for strict liability since it performed a service and is
entitled to summary judgment on Plaintiffs cause of action
for strict liability.
Voeltz brings claims of breach of warranty against Easterlin.
It is unclear exactly which warranties Plaintiff Voeltz
asserts, only mentioning merchantability specificallty. (Dkt.
No. 33 at ¶¶ 46 - 51.) However, the South Carolina
Supreme Court recognized that the warranties contained in the
Uniform Commercial Code ("UCC"), including express,
implied warranty of merchantability and implied warranty of
fitness for a particular purpose, do not apply to
"contracts which are purely for services." In
re Breast Implant, 331 S.C. at 553. As held above, a
general contractor provides a service rather than selling a
product. Fields, 376 S.C. at 565. Therefore, the
warranties under the UCC do not apply to Easterlin.
Similarly, it is undisputed that Easterlin was involved in
building the property but did not sell the property. (Dkt.
Nos. 121-3 at 7; 121-8.) Therefore, the warranty of
habitability does not apply to Easterlin. See Kennedy v.
Columbia Lumber & Mfg. Co., 299 S.C. 335, 344, 384
S.E.2d 730, 736 (1989) ("the warranty of habitability
arises or springs from the sale of the home.")
Easterlin is subject to suit under the implied warranty of
workmanlike service. See Id.: Smith v.
Breedlove, 377 S.C. 415, 422, 661 S.E.2d 67, 71 (2008)
("A builder who contracts to construct a dwelling
impliedly warrants that the work undertaken will be performed
in a careful, diligent, workmanlike manner."). While the
Supreme Court of South Carolina has not explicitly ruled on
the issue, it has strongly indicated that this warranty
extends only to subsequent purchasers of the property.
See Id. ("a subsequent purchaser may
sue a professional builder on the implied warranty of
workmanlike service....") (emphasis added); Kennedy
v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 345
(1989) ("Hence, a purchaser may sue a builder
on his implied warranty of service, despite the
purchaser's lack of contractual privity.") (emphasis
added). Therefore, as Plaintiff was not the initial or
subsequent purchaser of the home, she cannot bring a claim
for breach of the implied warranty of workmanlike service,
and Defendant Easterlin is entitled to summary judgment on
the breach of warranty claim.
while the warranty of workmanlike service does not extend to
Plaintiff, the Supreme Court of South Carolina has recognized
that the duty of general contractor for liability in tort
does extend to individuals who will foreseeably occupy a
structure. See Rogers v. Scyphers, 251 S.C. 128, 134
(1968) ("We think there was a duty on the defendants as
builders to use reasonable care in the construction of the
home to avoid unreasonable risk and danger to those who would
normally be expected to occupy it..."); Kennedy v.
Columbia Lumber & Mfg. Co., 299 S.C. 335, 346 (1989)
(recognizing in tort "imposition of a legal duty on a
builder to refrain from constructing housing that he knows or
should know will pose serious risks of physical harm. We
recognized such a duty, which should extend to foreseeable
parties, in Rogers, 251 S.C. at 134....").
Further, "[a]lthough a general contractor is not
automatically responsible for the negligence of a
subcontractor, a builder who undertakes to supervise the
construction of a building has a duty to exercise reasonable
care." Magnolia N. Prop. Owners' Ass 'n,
Inc. v. Heritage Communities, Inc., 397 S.C. 348, 370
(Ct. App. 2012).
is a dispute of material fact regarding whether Easterlin
breached this duty, and whether the breach proximately caused
Plaintiffs injuries. Specifically, there is evidence in the
record that while Easterlin was not "on site physically
doing work such as hammering...[, ]" it would
"oversee that type of work." (Dkt. No. 121-3 at 4.)
Further, there is evidence in the record that, at the time of
construction, the keeper, a component of the electro-mechanic
interlock ("EMI"), that helps make sure that the
door stays locked when the elevator is operating, was
misaligned at the time of installation. (Dkt. No. 174-4 at 5;
172-2; 174-3 at 8.) Indeed, at least one expert tied the
misalignment of the keeper to the ability of an individual to
open the door even when the elevator was not present. (Dkt.
No. 174-4 at 5.) Therefore, there is a dispute of material