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.

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 $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.

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?

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 duty owed to her; (2) the judge improperly weighed the parties' affidavits and determined Garvin was not entitled to prevail on the facts instead of determining whether the deposition and affidavits created a genuine issue of material fact; and (3) the judge refused to apply South Carolina law to determine if an issue of fact existed as to whether Bi-Lo breached its duty by carelessly stacking cans for reduced sale, knowing that such cans have a propensity to fall. We agree.

In granting summary judgment for Bi-Lo, the trial judge found: (1) Bi-Lo had no notice of the existing problems with falling cans; and (2) Garvin could point to no specific act or omission by Bi-Lo that caused the cans to fall on top of her. Therefore, the trial judge determined Garvin did not establish a genuine issue of material fact as to whether Bi-Lo had committed a breach of duty that would constitute a negligent act. The Court held there was no evidence from which a jury could find Bi-Lo had failed to keep its premises reasonably safe under these circumstances.

At the hearing on the summary judgment motion, Garvin maintained a jury question was created as to whether Bi-Lo should not stack the cans "higher than somebody can reach." Garvin's counsel professed it was only natural that in a tall display of sale items, people were going to "start grabbing them," and the purpose of the display was "to entice people to do precisely what Ms. Garvin did, which was reach up and grab them." He claimed "it then becomes at least a jury issue as to whether or not a reasonable person would have stacked cans in that fashion and advertised them for sale." Garvin challenged she did not have to prove notice of a condition that the defendant admits creating.

To survive the motion for summary judgment, Garvin needed to demonstrate a genuine issue of material fact existed regarding the elements of negligence. In order to establish liability, the plaintiff must show: (1) a duty of care owed to the plaintiff by the defendant; (2) a breach of that duty by some act or omission; and (3) that the plaintiff suffered damages as a proximate result of the breach. Staples v. Duell, 329 S.C. 503, 494 S.E.2d 639 (Ct.App.1997).

"In a negligence action, the determination of whether a party has a duty to exercise reasonable care for the benefit of another is a question of law for the court. If the court determines there is such a duty, the jury's function is to determine whether a breach of that duty has occurred, resulting in damages." Creighton v. Coligny Plaza Ltd. Partnership, 334 S.C. 96, 114, 512 S.E.2d 510, 519 (Ct.App.1998).

I. Notice by Store

The plaintiff must show either: (1) the defendant or the defendant's employees created the condition or; (2) the defendant had notice of it. Cook v. Food Lion, Inc., 328 S.C. 324, 491 S.E.2d 690 (Ct.App.1997), cert. denied (1998). In Cook, a customer alleged she was injured as a result of a fall caused by a floor mat which had admittedly been placed on the floor by store employees. This Court reversed the trial judge's grant of a directed verdict in favor of the store. We held the customer was not required to show the store had notice of the danger created by the mats, because the store employees created the allegedly dangerous condition by placing the mats by the exit doors. It was not necessary for the customer to show the store had notice that the floor mats were wrinkled or bunched immediately prior to the customer's accident.

Similarly, in Smith v....