Anderson v. Racetrac Petroleum, Inc., 22902

• Citation: 296 S.C. 204,371 S.E.2d 530
• Decision Date: 08 June 1988
• Docket Number: No. 22902,22902
• Court: United States State Supreme Court of South Carolina
• Parties: Julie M. ANDERSON, Appellant, v. RACETRAC PETROLEUM, INC., Respondent. . Heard

Page 530

371 S.E.2d 530

296 S.C. 204

Julie M. ANDERSON, Appellant, v. RACETRAC PETROLEUM, INC., Respondent.

No. 22902.

Supreme Court of South Carolina.

Heard June 8, 1988.

Decided Aug. 29, 1988.

Jean P. Derrick, Lexington, for appellant.

Robert C. Brown, Columbia, for respondent.

PER CURIAM:

Appellant Julie M. Anderson appeals a circuit court order granting respondent Racetrac Petroleum, Inc., summary judgment. We reverse.

Appellant commenced this negligence action alleging that she was injured on July 19, 1986, by a metal strip protruding from the base of respondent's store counter. Appellant asserts that on the date of the injury, respondent either knew or should have known this dangerous condition existed and that for this reason, respondent is liable for damages. Respondent denied negligence and pled contributory negligence as an affirmative defense. Discovery was taken by way of interrogatories and depositions. The circuit court granted respondent's motion for summary judgment.

Appellant argues that the circuit court erred in granting respondent summary judgment because there are genuine issues of material fact as to whether respondent knew or should have known a dangerous condition existed on its premises and failed to warn appellant. In order for appellant to recover damages for injuries caused by a dangerous or defective condition on respondent's premises, appellant must show either (1) that the injury was caused by a specific act of the respondent which created the dangerous condition; or (2) that the respondent had actual or constructive knowledge of the dangerous condition and failed to remedy it. See Pennington v. Zayre Corp., 252 S.C. 176, 165 S.E.2d 695 (1969); Hunter v. Dixie Home Stores, 232 S.C. 139, 101 S.E.2d 262 (1957).

In order to be entitled to summary judgment, the moving party must show that no genuine issue exists as to any material fact and that such party is entitled to judgment as a matter of law. See S.C.Rule Civ.P. 56(c) (1988); see also Tom Jenkins Realty, Inc., v. Hilton, 278 S.C. 624, 300 S.E.2d 594 (1983); and Sumter Dairies v. Pelfrey, 268 S.C. 437, 234 S.E.2d 490 (1977).

Respondent contends the circuit court ruled properly because appellant presented no evidence that respondent had actual or constructive knowledge of the projecting metal strip prior to the accident. Evidence offered on behalf of the respondent by its cashier and store manager indicated that they were both on duty at the time of the incident. They testified that they did not "recall" a metal strip protruding into the aisle; that had there been, they would have observed it during the course of their duties. They further testified that appellant was barefoot and had injured herself, but they could not determine whether the accident occurred inside or outside the store.

To the contrary, appellant offered evidence by way of affidavit asserting...