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Braziel v. Novo Development Corp.

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

June 28, 2019

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.



         This matter is before the court on the supplemental briefing submitted by the parties to help the court determine which legal standard to apply in this case. For the reasons set forth below, the court finds as a matter of law that: (1) Daimere S. George (“Daimere”) was a child trespasser; (2) defendant NOVO Development Corporation, d/b/a NOVO Properties (“NOVO”) owed Daimere a duty of care in accordance with the principles of § 339 of the Restatement (Second) of Torts; and (3) comparative negligence is not a viable defense in this context.

         I. BACKGROUND

         This case arises out of the accidental drowning of three-year-old Daimere 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, unsecured, opened, and/or left the pool in such a condition that enabled Daimere to gain entry to the pool. That day, Daimere 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 Daimere's death was proximately caused by NOVO's negligent, negligent per se, grossly negligent, careless, willful, wanton, and reckless conduct.

         On June 19, 2019, the court held a hearing on the parties' motions in limine, in preparation for the upcoming trial. Before this hearing, the only dispositive motion that had been filed was NOVO's motion for summary judgment, in which NOVO argued that plaintiffs could not succeed in their negligence claim because plaintiffs' purported expert should not be allowed to testify regarding inapplicable building codes. ECF No. 50. In their response, plaintiffs argued that the motion for summary judgment should be denied because NOVO did not address Restatement § 339, which they contended is the applicable law in this case. ECF No. 56. Plaintiffs did not file a reply contesting the applicability of § 339; this, in addition to the South Carolina Supreme Court's adoption of § 339 as the law that should control premises liability cases involving trespassing children, led the court to assume that § 339 was the relevant law in this case. The court denied NOVO's motion for summary judgment, partly due to NOVO's failure to address § 339. ECF No. 65. At the June 19 hearing, the court learned for the first time that NOVO disputed the applicability of § 339. Instead, NOVO planned to rely on general negligence principles at trial and expressed its desire to introduce evidence that Daimere's caretakers negligently failed to properly supervise him and that this comparative negligence caused his death.[1]

         The court ordered supplemental briefing on these issues to help the court determine in advance of trial what law to rely on when charging the jury. NOVO filed its brief on June 25, 2016. ECF No. 95. Plaintiffs filed their response to NOVO's brief on June 26, 2019. ECF No. 96. NOVO filed its reply on June 27, 2019. ECF No. 97. The court has considered all of the parties' arguments and sets forth its finding below.


         A. Status of Daimere

         Plaintiffs have alleged, among other things, that NOVO's negligence caused the drowning death of Daimere in the pool at South Pointe. In order to bring a successful negligence claim, a plaintiff must demonstrate that “(1) defendant owes a duty of care to the plaintiff; (2) defendant breached the duty by a negligent act or omission; (3) defendant's breach was the actual or proximate cause of the plaintiff's injury; and (4) plaintiff suffered an injury or damages.” Doe v. Marion, 645 S.E.2d 245, 250 (S.C. 2007). “An essential element in a cause of action for negligence is the existence of a legal duty of care owed by the defendant to the plaintiff.” Bishop v. S.C. Dep't of Mental Health, 502 S.E.2d 78, 81 (S.C. 1998). The existence and scope of the duty are questions of law for the courts. Miller v. City of Camden, 451 S.E.2d 401, 403 (S.C. Ct. App. 1994), aff'd as modified, 494 S.E.2d 813 (S.C. 1997); Roe v. Bibby, 763 S.E.2d 645, 648 (S.C. Ct. App. 2014).

         In a premises liability action, the nature and extent of the duty a landowner owes to a person depends on the person's status. Sojourner v. AutoZone Stores LLC, 2018 WL 6065381, at *2 (D.S.C. Nov. 20, 2018). “South Carolina recognizes four general classifications of persons present on the property of another: adult trespassers, invitees, licensees, and children.” Singleton v. Sherer, 659 S.E.2d 196, 204 (S.C. Ct. App. 2008). The level of care owed is dependent upon the class of the person present. Larimore v. Carolina Power & Light, 531 S.E.2d 535, 538 (S.C. Ct. App. 2000). 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 trespassing. 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 ...

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