Garvin v. Bi-Lo, Inc.

• Citation: 523 S.E.2d 481,337 S.C. 436
• Decision Date: 18 October 1999
• Docket Number: No. 3057.,3057.
• Court: Court of Appeals of South Carolina
• Parties: Linda GARVIN, Appellant, v. BI-LO, INC., Respondent.

337 S.C. 436
523 S.E.2d 481

Linda GARVIN, Appellant,
v.
BI-LO, INC., Respondent

No. 3057.

Court of Appeals of South Carolina.

Submitted October 5, 1999.

Decided October 18, 1999.

Rehearing Denied December 25, 1999.

337 S.C. 438

Thomas R. Goldstein, of Belk, Cobb, Infinger & Goldstein, of Charleston, for Appellant

Heather Coleman, of Martin Law Firm, of Charleston, for Respondent.

ANDERSON, Judge:

Linda Garvin was injured when cans fell from a display of canned goods at a Bi-Lo grocery store and struck her in the face. The trial court granted summary judgment in favor of Bi-Lo. Garvin appeals, asserting a genuine issue of material fact existed as to Bi-Lo's breach of its duty to Garvin. We reverse and remand for trial.¹

FACTUAL/PROCEDURAL BACKGROUND

Garvin was shopping at Bi-Lo # 284 in Monck's Corner when she saw a display of canned items advertised at four for

337 S.C. 439

$1.00. The items were stacked in the boxes they had been shipped in, with the tops of the boxes cut off. There were approximately twenty-four cans in each box. According to Garvin, she reached up and took two cans off the top and placed them in her shopping cart. She then reached back to get two more cans, but before she touched them, approximately fifteen cans came tumbling down. Some of the cans hit Garvin in the face, cutting her above her lip. A store employee gave her ice to stop the bleeding

During Garvin's deposition, defense counsel for Bi-Lo asked Garvin what she thought caused the cans to fall. Garvin stated, "That I don't know. I cannot say." She testified she did not notice whether the cans were unstable. She just reached for the cans on the top, and there were no other items above them. She could not remember exactly how high the boxes were stacked, but said they were stacked higher than her head, and she is 5'2".

Bi-Lo moved for summary judgment "on the basis of lack of constructive or actual notice on the part of Defendant Bi-Lo and that it took all reasonable measures in the operation of its store." (Emphasis added.) The trial judge, in a form order, granted Bi-Lo's motion for summary judgment. During the hearing, he stated there was no evidence the store was on notice there was a problem with cans falling or had committed a negligent act that caused the cans to fall. He explained his ruling as follows:

We can't say that the stacking of cans is a dangerous, inherently dangerous situation, it's not.

Now, it may be dangerous to someone who is five-two, but that's not before me, because I don't have any evidence to say that.

I don't have anything other than the fact that the cans fell, to say that the cans were stacked improperly or inadequately. There's nothing to suggest that.

The judge added:

The [South Carolina Supreme] Court has consistently held that a business is not an insurer of the safety of its patrons and the liability to a business invitee is predicated upon negligence.

337 S.C. 440

Negligence is not presumed and the happening of an accident does not establish negligence. The burden is upon the plaintiff to establish negligence and proximate cause.

. . . .

Certainly I agree with you a hundred percent and the standpoint of [sic], is it foreseeable that if it's first, a dangerous condition or they were negligent, could it be foreseeable that somebody could be pull [sic] it over on them? Absolutely. No question about it.

If we are at that point, I don't have any hesitancy in denying summary judgment, but I'm not there. All I have is a stacking of cans.

I do not have anything to suggestions [sic] that it was negligent or there was anything negligent or inherently dangerous about it.

If I would have had cans falling, several, before any evidence, any evidence, for cans to fall, then maybe you've got something.

At least from this standpoint, a reasonable inference of hey, you've been warned to that, you need to look at how you're stacking your merchandise, I have no problem with that.

But I don't have that. This is apparently, from everything before me, a first time basis.

Garvin, in her affidavit, avers: "The reason that the cans fell was because they were stacked up at the end of an isle [sic, aisle] and they were stacked higher than I could reach. The cans were not on shelves but rather stacked from [the] floor to a point over my head. These cans were on special sale, 4 for $1.00[.] As I attempted to take the cans off the top, I reached as high as I possibly could, but the cans still fell and struck me, causing me the injuries that are set forth in the complaint." Garvin appeals the grant of summary judgment to Bi-Lo.

ISSUE

Did the trial court err in granting summary judgment to Bi-Lo because a genuine issue of material fact existed about whether Bi-Lo breached its duty to Garvin?

337 S.C. 441

STANDARD OF REVIEW

Summary judgment is appropriate only when "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." Rule 56(c), SCRCP. See also Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997).

Under Rule 56(c), SCRCP, the party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact. Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings. Rather, the non-moving party must come forward with specific facts showing there is a genuine issue for trial. Rule 56(e), SCRCP; SSI Med. Servs., Inc. v. Cox, 301 S.C. 493, 392 S.E.2d 789 (1990); NationsBank v. Scott Farm, 320 S.C. 299, 465 S.E.2d 98 (Ct.App.1995).

In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); Hamiter v. Retirement Div. of South Carolina, 326 S.C. 93, 484 S.E.2d 586 (1997); City of Columbia v. American Civil Liberties Union, 323 S.C. 384, 475 S.E.2d 747 (1996).

LAW/ANALYSIS

Garvin contends the trial judge erred in granting Bi-Lo's motion for summary judgment. She argues: (1) the record established a genuine issue of material fact as to Bi-Lo's breach of a...