Braziel v. Novo Dev. Corp.
| Decision Date | 28 June 2019 |
| Docket Number | No. 2:17-cv-03244-DCN,2:17-cv-03244-DCN |
| Citation | 399 F.Supp.3d 487 |
| Parties | Bishara BRAZIEL and Lamont George, as Co-Personal Representatives of the Estate of Daimere S. George, Plaintiffs, v. NOVO DEVELOPMENT CORPORATION, d/b/a NOVO Properties, Defendant. |
| Court | U.S. District Court — District of South Carolina |
Christopher James Bryant, David Breault Lail, David B. Yarborough, Jr., Yarborough Applegate, Charleston, SC, for Plaintiff Bishara D. Braziel.
Christopher J. McCool, Joye Law Firm, Charleston, SC, for Plaintiff Lamont George.
Jay Jones, Barnwell Whaley Patterson and Helms LLC, Margaret Chamberlain Ornduff, Gallivan White and Boyd, Charleston, SC, John Edward Cuttino, Gallivan White and Boyd, Columbia, SC, for 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.
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.
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, 373 S.C. 390, 645 S.E.2d 245, 250 (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, 331 S.C. 79, 502 S.E.2d 78, 81 (1998). The existence and scope of the duty are questions of law for the courts. Miller v. City of Camden, 317 S.C. 28, 451 S.E.2d 401, 403 (Ct. App. 1994), aff'd as modified, 329 S.C. 310, 494 S.E.2d 813 (1997) ; Roe v. Bibby, 410 S.C. 287, 763 S.E.2d 645, 648 (Ct. App. 2014).
Restatement (Second) of Torts § 339 (1965).
The first question before the court is what status Daimere occupied at the time of his drowning, as it will inform how the court will instruct the jury regarding NOVO’s legal duty to Daimere. NOVO argues that Daimere was licensee, because he was a social guest of his grandmother and aunt, who were residents at South Pointe.2 Accordingly, NOVO contends that it should only be liable for Daimere’s death if a jury finds the "condition" to be "unreasonably dangerous and if [NOVO did] not exercise due care to prevent the injury." ECF No. 92 at 4 (quoting McLendon v. Hampton Cotton Mills Co., 109 S.C. 238, 95 S.E. 781 (S.C. 1917)) ("one who creates upon his own premises a thing which is naturally attractive to children and at the same time dangerous to them, ... should anticipate their childish proclivities and exercise reasonable care to safeguard them from injury that otherwise would probably result"). In establishing the rule of "reasonable care" owed to children in McLendon, the South Carolina Supreme Court sought to avoid imposing "unreasonable burdens or liabilities upon the owner of occupier of land" and to avoid making the owner "an insurer of the safety of his neighbors' trespassing children." McLendon, 109 S.C. 238, 95 S.E. 781. The court observes that, even though in 1917 the South Carolina Supreme Court established a standard of care for children that did not provide specific protections for children who are trespassing, South Carolina law on premises liability has developed over the last one hundred years. And in 2007, the South Carolina Supreme Court ruled that when a child is trespassing on property, the property owner or occupier’s potential liability for harm caused to that child "by an artificial condition upon that land" is determined according to the elements of § 339.
Significantly, NOVO concedes that "the moment Daimere entered the pool area, his legal status changed to child trespasser." ECF No. 95 at 8. Yet according to NOVO, "because South Carolina law treats children the same whether they enter property with or without a license, the common law duty owed to Daimere did not change when he entered the pool area." Id. NOVO does not cite any law to support this contention, but presuming that NOVO is referring to law it cited earlier in its supplemental brief, the court has already addressed the developments in premises liability law that have culminated in the Henson court replacing the former common law duties with clear instructions that § 339 establishes the duties owed to children who are trespassing. A few sentences later, NOVO concedes that "if the duty owed to Daimere ever changed from the common law standard to the § 339 standard, it only did so once Daimere actually trespassed—when he breached the pool enclosure and stepped into the pool area." Id. "Even then," NOVO claims, "the South Carolina Supreme...
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