Nelson v. Piggly Wiggly Cent., Inc.

• Decision Date: 20 October 2010
• Docket Number: No. 4754.,4754.
• Citation: 701 S.E.2d 776,390 S.C. 382
• Court: South Carolina Court of Appeals
• Parties: Delores NELSON and Bernard Nelson, Parents of Patrice N., a Minor, Appellants, v. PIGGLY WIGGLY CENTRAL, INC., d/b/a Piggly Wiggly of Bishopville, Inc., Melco of Bishopville, Inc., and Lola Nelson, Defendants, of whom Piggly Wiggly Central, Inc., d/b/a Piggly Wiggly of Bishopville, Inc., and Melco of Bishopville, Inc. are the, Respondents.

701 S.E.2d 776

390 S.C. 382

Delores NELSON and Bernard Nelson, Parents of Patrice N., a Minor, Appellants,

v.PIGGLY WIGGLY CENTRAL, INC., d/b/a Piggly Wiggly of Bishopville, Inc., Melco of Bishopville, Inc., and Lola Nelson, Defendants,of whom Piggly Wiggly Central, Inc., d/b/a Piggly Wiggly of Bishopville, Inc., and Melco of Bishopville, Inc. are the, Respondents.

No. 4754.

Court of Appeals of South Carolina.

Heard May 19, 2010.

Decided Oct. 20, 2010.

William W. Wheeler, III, of Bishopville, for Appellants.

D. Michael Freeman, II, of Myrtle Beach, and Thomas E. Player, Jr., of Sumter, for Respondents.

CURETON, A.J.

Delores and Bernard Nelson (Appellants) appeal the entry of summary judgment in favor of Piggly Wiggly Central, Inc., d/b/a Piggly Wiggly of Bishopville, Inc. (Piggly Wiggly), and Melco of Bishopville, Inc. (Melco) (collectively "Respondents"). Appellants argue the circuit court erred in granting Respondents' motion for summary judgment despite the existence of genuine issues of material fact and in finding Respondents owed no duty to Appellants. We affirm.

FACTS

On August 16, 2004, Appellants' thirteen-year-old daughter, Patrice Nelson (Nelson), accompanied her great-grandmother, Lola Nelson (Grandmother), to the Piggly Wiggly grocery store in Bishopville.¹ Nelson was familiar with the store, having shopped there before. After Grandmother pulled her car into a designated parking space adjacent to and facing the side of the store, Nelson exited the car. As Nelson walked between the building and the front of Grandmother's car, the car accelerated, crossed a concrete wheel stop, and pinned Nelson against the wall.² The impact fractured Nelson's left femur.

In April 2006, Appellants filed suit against Grandmother, Piggly Wiggly, and Melco, alleging Nelson's injuries resulted from their "negligent, careless, reckless, and willful acts." Over the next two years, the parties deposed Appellants, Nelson, their expert, and others.

Appellants' expert witness, Bryan R. Durig, testified he examined the wheel stops in the Piggly Wiggly parking lot and found two different designs. The more recent wheel stop design consisted of a bar six inches tall with a flat top, vertical sides, and beveled edges between the top and sides. The older design consisted of a bar four to four and one-eighth inches tall that was sloped on one side. Durig did not know when the newer design came into use. According to Durig, the wheel stop in the parking space Grandmother used was of the older, slanted design. Although he believed a car could drive over the older design more easily than the newer design, Durig conducted no tests to determine the speed or force necessary for a car to cross over the older wheel stop and could give no opinion as to whether or not the newer design wheel stop would have prevented the accident.

Durig took some measurements but did not conduct any tests on the parking lot. He found the wheel stops wereinstalled four feet away from the building, which allowed approximately two feet between the building and the front bumper of most cars if they did not cross over the wheel stop. Although he testified he found no building code violation in the parking lot, he stated that building codes do not "tell you how to design your parking lot." He was unaware which industry or safety standard governed parking lot design and construction in 1972, when the parking lot at issue was constructed. In addition, he was unaware of any requirement that sidewalks or walkways be placed in front of parking spaces. Nevertheless, he opined the wheel stops in the parking lot were "installed in a defective manner so that they created hazards."

In February 2008, Respondents filed separate motions for summary judgment arguing Appellants failed to establish Respondents owed Nelson a duty of care and arguing the events in the parking lot were not reasonably foreseeable.³ At the hearing Appellants argued Nelson's injury was entirely foreseeable because the wheel stops were installed too close to the building and there was no room for a pedestrian to escape injury if a car crossed a wheel stop. Appellants also argued the grocery store appeared to recognize a need for sidewalks or curbing around the building as early as 1990, but neglected toinstall such curbing.⁴ The trial court granted Respondents' motions for summary judgment. This appeal followed.

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, this court applies the same standard that governs thecircuit court under Rule 56(c), SCRCP. Englert, Inc. v. Netherlands Ins. Co., 315 S.C. 300, 302, 433 S.E.2d 871, 873 (Ct.App.1993). This standard requires all facts and reasonable inferences to be drawn therefrom to be viewed in the light most favorable to the appellant. Id. However, "[a]n appellate court may decide questions of law with no particular deference to the trial court." In re Campbell, 379 S.C. 593, 599, 666 S.E.2d 908, 911 (2008). Whether a duty exists in a negligence action is a question of law to be determined by the court. Doe v. Greenville County Sch. Dist., 375 S.C. 63, 72, 651 S.E.2d 305, 309 (2007).

LAW/ANALYSIS

I. Genuine Issue of Material Fact

Appellants assert the circuit court erred in granting summary judgment despite the existence of genuine issues of material fact. We disagree.

Summary judgment is appropriate 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. 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. Law v. S.C. Dep't of Corr., 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006). "[F]or purposes of summary judgment, an issue is 'material' if the facts alleged are such as to constitute a legal defense or are of such a nature as to affect the result of the action." PPG Indus., Inc. v. Orangeburg Paint & Decorating Ctr., Inc., 297 S.C. 176, 179, 375 S.E.2d 331, 332 (Ct.App.1988). "A court considering summary judgment neither makes factual determinations nor considers the merits of competing testimony; however, summary judgment is completely appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner." David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 250, 626 S.E.2d 1, 5 (2006).

A plaintiff seeking damages for personal injuries incurred due to a defendant's negligent acts or omissions must prove each element of his cause of action by a preponderance of the evidence. Grier v. Cornelius, 247 S.C. 521, 534, 148 S.E.2d 338, 344 (1966). When the burden of proof is by a preponderance of the evidence, a non-moving party need only present a scintilla of evidence to withstand a motion for summary judgment. Hancock v. Mid-South Management Co., Inc., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009). However:

A plaintiff cannot create a genuine issue of material fact with the argument that the jury does not have to believe a witness. A party defeats summary judgment by affirmatively demonstrating the presence of a genuine issue of material fact. As Rule 56(e), SCRCP, states, a party "may not rest upon the mere allegations or denials of his pleading[s]."

Hoard ex rel. Hoard v. Roper Hosp., Inc., 387 S.C. 539, 549, 694 S.E.2d 1, 6 (2010) (alteration in original).

A plaintiff seeking damages suffered because of a dangerous or defective condition on a defendant's property must demonstrate that the defendant committed a specific act that created the dangerous condition, which in turn caused her injury.Pringle v. SLR, Inc. of Summerton, 382 S.C. 397, 404, 675 S.E.2d 783, 787 (Ct.App.2009). Alternatively, she must demonstrate that the defendant had actual or constructive knowledge of an existing dangerous condition and failed to correct it. Id.

We affirm the circuit court's finding that no genuine issue of material fact existed. Summary judgment is appropriate when the material facts are not in dispute. David, 367 S.C. at 250, 626 S.E.2d at 5. Here, viewing the facts in the light most favorable to Appellants, we find none of the material facts is in dispute. Appellants failed to demonstrate Nelson's injuries resulted from any act of the Respondents that created a dangerous condition or, as is apparently Appellants' contention, that Respondents had actual or constructive knowledge of a dangerous condition and failed to remedy it.

It is undisputed that the parking lot was built in 1972, and there is no evidence that its construction, which includedthe installation of the wheel stops, violated any code or building standard in effect at that time. Moreover, Appellants' expert could not state that current building or safety standards for parking lots applied to the lot in question. See Elledge v. Richland/Lexington Sch. Dist. Five, 352 S.C. 179, 186, 573 S.E.2d 789, 793 (2002) (stating the general rule that evidence of industry standards is relevant to establishing the standard of care in a negligence action). Appellants claim that a 1990 drawing, which arguably shows an addition to the store and curbing in the area of the injury, creates a reasonable inference Respondents were on notice as early as 1990 or 1991 that the installed wheel stops were unreasonably dangerous. Moreover, Appellants also argue their expert's testimony that raised sidewalks are preferred over wheel stops creates an inference that Respondents recognized as early as 1990 the superior safety of the sidewalk design and thus were negligent in not installing sidewalks in conjunction with the 1990 or 1991 renovations. This inferential leap does not create a genuine issue of material fact. See McKnight v. S.C. Dep't of Corr., 385 S.C. 380, 389-390, 684 S.E.2d 566, 570-71 (Ct.App.2009) (holding a non-moving...