United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER GRANTING MOTION FOR SUMMARY
Cameron McGowan Currie Senior United States District Judge.
this action, Judy Phillips (“Phillips”) seeks
recovery from BI-LO, LLC. (“BI-LO”) for an injury
suffered when she slipped in a brown substance on the floor
of a BI-LO supermarket. ECF No. 1-1 ¶¶ 3, 7, 8. The
matter is before the court on BI-LO's motion for summary
judgment. ECF No. 10. For reasons set forth below, the motion
for summary judgment is granted.
judgment should be granted 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). It is well established that summary
judgment should be granted “only when it is clear that
there is no dispute concerning either the facts of the
controversy or the inferences to be drawn from those
facts.” Pulliam Inv. Co. v. Cameo Properties,
810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for
summary judgment has the burden of showing the absence of a
genuine issue of material fact, and the court must view the
evidence before it and the inferences to be drawn therefrom
in the light most favorable to the nonmoving party.
United States v. Diebold, Inc., 369 U.S. 654, 655
(1962). While all justifiable inferences must be drawn in
favor of the non-movant, Miltier v. Beorn, 896 F.2d
848 (4th Cir. 1990), a non-moving party cannot create a
genuine issue of material fact through mere speculation or
the building of inference upon inference. Beale v.
Hardy, 769 F.2d 213 (4th Cir. 1985).
56(c)(1) provides as follows:
(1) A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers or other materials; or (b)
showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
August 27, 2015, Phillips visited the BI-LO supermarket at
7830 Garners Ferry Road in Columbia, South Carolina. ECF No.
1-1 ¶¶ 3, 6; Phillips dep. at 20, 22; ECF No. 12-1
(Safety Report). While pushing her cart through the dairy
aisle, Phillips' right foot slipped in a brown substance.
Phillips dep. at 32, 33. Phillips concluded the substance was
likely pudding. Id. at 33 (testifying “I think
I came to the conclusion maybe it looked like pudding”
and “I still think it was pudding”); see
also ECF No. 12-1 at 3 (Safety Report describing
substance as “pudding or what ever”).
grabbed her grocery cart for balance, shifting her weight to
her left leg. Phillips dep. at 32. While she did not feel
pain immediately, Phillips' left knee began to hurt and
swell within a week. Id. at 45 (attributing these
symptoms to the incident at BI-LO because they were new).
Phillips argues the abrupt and sudden movement when she
slipped caused her to tear her meniscus, which ultimately
required surgery to repair. ECF No. 10 at 2.
reported the injury to the store manager, Tanya Price. ECF
No. 12-1. Price completed a Safety Report, which described
the incident as follows: “the floor was clear the only
thing that was wrong was the pudding or what ever it was on
the floor cause[d] her to slip. There w[ere] no packages on
the floor that was damaged on what she slip[ped] in.”
Id. at 3. The Safety Report includes multiple
options for potential cause. “Caused by Unsafe
Condition” is marked “yes.” Id. at
2. The Safety Report also lists “Knee (Left)” as
the injured “Body Part.” Id.
argues it is entitled to summary judgment because there is no
“competent evidence that BI-LO placed any substance on
the floor where the . . . incident occurred or had actual or
constructive notice that there was any substance on the
floor.” ECF No. 10 at 1. BI-LO relies, in part, on
Phillips' deposition testimony that she had no knowledge
as to how the substance came to be on the floor, how long it
was there, or whether any BI-LO employee had notice of it.
Id. at 2 (citing Phillips dep. at ...