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Walker v. DDR Corp.

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

March 29, 2019

Sharon Walker, Plaintiff,
v.
DDR Corp., BRE DDR Harbison Court LLC, Joe Doe No. 1, John Doe No. 2, John Doe Company No. 1, Joe Doe Company No. 2, Joe Doe Company No. 3, Defendants. BRE DDR Harbison Court LLC, Third-Party Plaintiff,
v.
Coffelt Consolidated Holdings Inc., d/b/a Elite Sweeping Service, Third-Party Defendant.

          ORDER AND OPINION

         This matter is before the court for review of DDR Corp. and BRE DDR Harbison Court LLC's (collectively, “Defendants”) Motion for Summary Judgment filed on July 20, 2018. (ECF No. 44.) On August 3, 2018, Plaintiff Sharon Walker (“Plaintiff”) filed her Memorandum in Opposition to Defendants' Motion for Summary Judgment. (ECF No. 51.) After several evidentiary rulings (ECF Nos. 96, 103), the court required the parties to provide supplemental pleadings concerning Defendants' Motion. (ECF No. 105.) The parties completed their supplemental briefing on February 19, 2019. (ECF Nos. 111, 119, 121.) On February 21, 2019, the court heard arguments from both parties about Defendants' Motion. (ECF No. 123.) For the reasons set forth herein, the court DENIES Defendants' Motion for Summary Judgment (ECF No. 44).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On June 19, 2014, Plaintiff used a parking lot, owned, maintained, and managed by Defendants, in Columbia, South Carolina. (ECF No. 1-2 at 4 ¶ 10.) While using the parking lot, Plaintiff, allegedly, stepped into a hole between a water meter lid and the parking lot's surface. (Id.) Plaintiff maintains that she “fell violently to the ground and sustained serious injuries to her right knee.” (Id. at 4 ¶ 11.) Plaintiff specifically testifies as follows: “all of a sudden I stepped in a hole, twisted my ankle[, ] and fell on the pavement.” (ECF No. 51-1 at 2.) Purportedly, Plaintiff “hit [her] right knee on the pavement.” (Id. at 5.) Plaintiff's husband, Ed Walker (“Mr. Walker”), took a photograph, using his cell phone, of the pertinent area of the parking lot minutes after the accident, which shows the water valve covered by the shadow of Plaintiff's vehicle. (ECF No. 119 at 3.) Mr. Walker testifies that “you could see the hole where she twisted her ankle or where the pavement sunk in.” (ECF No. 119-1 at 2.) After the fall, Plaintiff reported the accident to an employee at Fast Signs, a tenant of Defendants, and a cone was later placed over the water valve cover. (ECF No. 51-1 at 6; ECF No. 120-4 at 11.) Because of the purported accident, DDR property manager Lisa Nesbitt (“Nesbitt”) prepared an incident report and e-mailed Greg Coffelt (“Coffelt”), the principal of the third-party Defendant, about the accident. (ECF No. 66-1 at 2; ECF No. 66-4 at 1.) Since the fall, Plaintiff has allegedly “endured extensive medical treatment, including surgery and the implant of a spinal cord stimulator to treat those injuries, ” and cannot return to her job as a pharmacist. (ECF No. 119 at 4.) The parking lot was repaved after Plaintiff's accident, but before she filed the instant lawsuit. (ECF Nos. 43, 55.)

         After initially filing her Complaint in the Richland County Court of Common Pleas on May 9, 2017, Defendants removed the case to the United States District Court for the District of South Carolina on June 16, 2017. (ECF Nos. 1, 1-1, 1-2.) Plaintiff's action is brought pursuant to the laws of negligence in South Carolina. (ECF No. 1-2.) Plaintiff's first cause of action alleges that Defendants were negligent in the maintenance of their own premises, while her second cause of action submits that Defendants were negligent in the hiring, training, supervision, and retention of its employees and contractors. (Id. at 5, 7.)

         Importantly, on April 26, 2018, the parties deposed Nesbitt. (ECF No. 51-3.) Nesbitt testifies that Defendants consider “an uneven surface” to constitute a trip-and-fall hazard. (Id. at 13.) She further testifies that the accident area “was maybe not completely flush” and admits, on behalf of Defendants, that the water valve's surface was a trip-and-fall hazard by their own, self-imposed standards. (Id. at 12-14.) Moreover, Nesbitt admits that the water valve cover “was not completely level, ” but should have been level with the surrounding asphalt. (ECF No. 120-4 at 2- 3.) She testifies that there were no efforts to ensure that the water valve cover was level with the surrounding pavement. (ECF No. 51-3 at 10.) Nesbitt also admits that the condition of the area where Plaintiff fell needed to be reported to Defendants as a safety hazard, but it was not. (Id. at 9-10.) Lastly, Nesbitt affirms that the accident area was redeveloped after Plaintiff's accident as part of a re-development project. (Id. at 17.)

         Defendants filed their Motion for Summary Judgment on July 20, 2018. (ECF No. 44.) Defendants supplemented their Motion on January 28, 2019, after several evidentiary rulings by the court. (ECF No. 111.) Defendants first contend that, in light of the court's exclusion of Plaintiff's expert (ECF No. 96), Plaintiff's “claim must now fail as a matter of law for want of a duty.” (Id. at 3.) Second, Defendants maintain that because the condition of the water valve “was neither latent nor hidden, but rather open and obvious, summary judgment should be granted in [their] favor.” (Id. at 5.) Lastly, Defendants submit that “Plaintiff has failed to show that Defendants breached a legal duty, ” and “[e]xpert testimony is necessary to establish the existence of a dangerous condition because[] the determining factor for dangerousness . . . is the depth of the valve cover.” (Id. at 5, 7.) Defendants specifically argue that the water valve cover was not “inherently dangerous” unless “[] it violates a prevailing code or standard.” (Id. at 7.) In other words, Defendants vigorously argue that the exclusion of Plaintiff's expert means that “Plaintiff cannot provide any testimony that establishes any evidence of a deviation from the standard of care occurred.” (Id. at 8.)

         On August 3, 2018, Plaintiff filed her Memorandum in Opposition to Defendants' Motion for Summary Judgment. (ECF No. 51.) Similar to Defendants, Plaintiff supplemented her Memorandum in Opposition on February 11, 2019, after several evidentiary rulings by the court. (ECF No. 119.) First, as it relates to whether the water valve's depression allegedly caused her injuries, Plaintiff emphasizes that, even without her expert, “the evidence of record creates a genuine issue of material fact as to the existence of a hazardous defect” because Defendants allegedly provided an “admission that the area was a tripping hazard[] and constituted a defect in their parking lot . . . .” (Id. at 8.) Moreover, Plaintiff argued that industry standards are not dispositive for defining the appropriate standard of care, which Defendants seem to imply and presume. (Id. at 9-10.) As it concerns whether the alleged defect was open and obvious, Plaintiff contends that “the valve cover that caused [her] fall was the same color as the surrounding asphalt and painted area of the parking lot and fell within the shadow of [her] vehicle at the time of the incident.” (Id. at 12.) Even if the condition of the water valve was open and obvious, Plaintiff alleges that Defendants “were on actual or constructive notice of the dangerous condition in light of their past inspections of the property” and should have anticipated the harm because of their alleged admissions and inspections, management, and ownership of the parking lot. (Id. at 13-17.) Lastly, Plaintiff argues that Defendants' “failure to preserve and alteration of evidence” support “an inference that Defendants knew that they would likely be exposed to legal liability from the incident, ” which further warrants the denial of summary judgment. (Id. at 18-19.)

         The court heard arguments from both parties on February 21, 2019. (ECF No. 123.) Defendants stressed that the exclusion of Plaintiff's expert warrants summary judgment because she cannot show the breach of a duty. Plaintiff, on the other hand, pointed to evidence which still shows a breach of a duty and liability on the part of Defendants. Because this matter has been extensively briefed and argued, it is now ripe for the court's review. See generally Sauls v. Wyeth Pharm., Inc., 846 F.Supp.2d 499, 501 (D.S.C. 2012) (“The parties have fully briefed the issues, and this matter is ripe for consideration.”).

         II. LEGAL STANDARD

         A federal court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[S]ummary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). In a summary judgment motion, “[a] court must take care to ‘resolve all factual disputes and any competing, rational inferences in the light most favorable' to the party opposing that motion.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)). In other words, “[a]t the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed.R.Civ.P. 56(c)). Nevertheless, “the nonmoving party . . . must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). Summary judgment is therefore appropriate “when the nonmoving party has the burden of proof on an essential element of her case and does not make, after adequate time for discovery, a showing sufficient to establish that element.” Id. (citing Celotex Corp., 477 U.S. at 322-23).

         At the summary judgment stage, a factual dispute raised by a non-moving party must be “genuine” and “material.” See Fed. R. Civ. P. 56(a). To determine if a fact is “material, ” a federal court is guided by the substantive law at issue, which will identify the facts that are material and those that “might affect the outcome of the suit.” Anderson, 477 U.S. at 248. The United States Supreme Court has instructed that the substantive law identifies “which facts are critical and which facts are irrelevant . . . .” Id. Put simply, “[a] fact is ‘material' if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case.” Agee v. Wayne Farms LLC, C/A Nos. 2:07cv1010-KS-MTP, 2:07cv1011-KS-MTP, 2008 WL 5398743, at *1 (S.D.Miss. Dec. 19, 2008) (citing Anderson, 477 U.S. at 248). See generally Polycast Tech. Corp. v. Uniroyal, Inc., 792 F.Supp. 244, 249 (S.D.N.Y. 1992) (“While the party resisting summary judgment must show a dispute of fact, it must also be a material fact in light of the substantive law.”); Allstate Ins. Co. v. Shockley, 793 F.Supp. 852, 854 (S.D. Ind. 1991) (“Moreover, the mere existence of a factual dispute is not by itself sufficient to bar summary judgment; the disputed fact must be outcome determinative.” (citations omitted)). A fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The mere existence of “some alleged factual dispute” is insufficient to defeat a well-supported summary judgment motion. Anderson, 477 U.S. at 247-48. “A dispute over irrelevant or unnecessary facts will not preclude summary judgment, but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of summary judgment.” GSGSB, Inc. v. N.Y. Yankees, 862 F.Supp. 1160, 1170 (S.D.N.Y. 1994) (citations omitted). See also Anderson, 477 U.S. at 249-50 (stating that summary judgment may be granted when the evidence is merely “colorable” or “not significantly probative”).

         III. DISCUSSION

         A. Plaintiff's Negligence Claim

         i. Negligence and Premises Liability Under ...


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