Olson v. Faculty House of Carolina, Inc.

• Decision Date: 22 January 2001
• Docket Number: No. 3289.,3289.
• Parties: Susan OLSON, Appellant/Respondent, v. FACULTY HOUSE OF CAROLINA, INC., and the University of South Carolina, Defendants, South Carolina Department of Labor, Licensing and Regulation, Intervener, of whom Faculty House of Carolina, Inc. is Respondent/Appellant, and The University of South Carolina is, Respondent.
• Court: South Carolina Court of Appeals

344 S.C. 194

544 S.E.2d 38

Susan OLSON, Appellant/Respondent, v. FACULTY HOUSE OF CAROLINA, INC., and the University of South Carolina, Defendants, South Carolina Department of Labor, Licensing and Regulation, Intervener, of whom Faculty House of Carolina, Inc. is Respondent/Appellant, and The University of South Carolina is, Respondent.

No. 3289.

Court of Appeals of South Carolina.

Heard December 12, 2000.

Decided January 22, 2001.

Rehearing Denied March 26, 2001.

Robert A. McKenzie and Gary H. Johnson, II, both of McDonald, McKenzie, Rubin, Miller & Lybrand, of Columbia, for appellant/respondent.

William L. Pope, of Pope & Rodgers, of Columbia, for respondent.

Andrew F. Lindemann, of Davidson, Morrison & Lindemann, of Columbia, for respondent/appellant.

Kent Lesesne, of S.C. Department of Labor, Licensing and Regulation, of Columbia, for intervener.

ANDERSON, Judge:

In this negligence action, Susan Olson appeals the Circuit Court's grants of summary judgment to the University of South Carolina ("the University") and to Faculty House of Carolina, Inc. ("Faculty House"). The court found Olson's action against the University was barred by the statute of limitations. In awarding summary judgment to Faculty House, the court held Olson failed to demonstrate a violation of the South Carolina Handicapped Accessibility Act, specifically S.C.Code Ann. § 10-5-260.¹ Faculty House appeals the denial of its cross motion for summary judgment on Olson's common law negligence action. We affirm as addressed.

FACTUAL/PROCEDURAL BACKGROUND

Susan Olson has suffered from polio since childhood. At the time of the accident giving rise to these actions, she walked with the aid of crutches. On November 6, 1995, Olson was in The Faculty House, which is situated on the University's Columbia campus, when her right crutch encountered an unknown liquid on the floor and slipped out from under her. The Faculty House is a dining club operated by Faculty House in a building leased to it by the University. Olson did not fall, but in maintaining her balance, she tore her left rotator cuff and sustained other injuries. As a result, Olson is now confined to a wheelchair.

Olson filed a tort action against Faculty House on March 4, 1997. When Olson later discovered the University owned the premises on which the Faculty House operates, she sought to add the University as a defendant by motion dated January 22, 1998. The University answered asserting the statute of limitations as a bar and subsequently moved for summary judgment.

On September 30, 1998, the Circuit Court granted the University's motion for summary judgment dismissing it from the action. Olson did not immediately appeal this ruling.

Meanwhile, Olson pursued her actions against Faculty House for a violation of § 10-5-260 and common law negligence. Section 10-5-260 is a provision in this state's chapter governing the accessibility of public and governmental buildings to the disabled.

Faculty House moved for summary judgment on both causes of action. The Circuit Court concluded Olson failed to demonstrate a violation of a duty of care under state handicapped accessibility regulations as a matter of law. The court dismissed Olson's cause of action based on these regulations. However, the court found sufficient questions of material fact existed to preclude summary judgment on the common law negligence action. Faculty House appeals this ruling.

Olson appeals the earlier grant of summary judgment to the University and the grant of summary judgment to Faculty House.

STANDARD OF REVIEW

Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999); Vermeer Carolina's, Inc. v. Wood/Chuck Chipper Corp., 336 S.C. 53, 518 S.E.2d 301 (Ct.App.1999); Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999); see also Wells v. City of Lynchburg, 331 S.C. 296, 501 S.E.2d 746 (Ct.App.1998)

(a trial court should grant motion for summary judgment when pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and moving party is entitled to judgment as matter of law). In determining whether any triable issue of fact exists so as to preclude summary judgment, the evidence and all inferences reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party. Strother v. Lexington County Recreation Comm'n, 332 S.C. 54, 504 S.E.2d 117 (1998); Pye v. Aycock, 325 S.C. 426, 480 S.E.2d 455 (Ct.App.1997). If triable issues exist, those issues must go to the jury for consideration. Rothrock v. Copeland, 305 S.C. 402, 409 S.E.2d 366 (1991); Joubert v. South Carolina Dep't of Soc. Servs., 341 S.C. 176, 534 S.E.2d 1 (Ct.App.2000).

LAW/ANALYSIS

All actions in negligence require proof of: duty; breach; causation; and damages.

To prevail in an action founded in negligence, the plaintiff must establish three essential elements: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) damage proximately caused by a breach of duty. If the plaintiff fails to prove any one of these elements, the action will fail. Actionable negligence is based upon the breach of duty to do or refrain from doing some particular act. A breach of duty exists when it is foreseeable that one's conduct may likely injure the person to whom the duty is owed. The damages allegedly sustained must be shown to have been proximately caused, i.e. causally connected, to the breach of duty in order to warrant a recovery. If one neglects a duty which proximately causes injury to another, recovery is warranted.

Vinson v. Hartley, 324 S.C. 389, 399-400, 477 S.E.2d 715, 720 (Ct.App.1996) (citation omitted).

I. Olson's Appeal of Summary Judgment in Favor of Faculty House²

Olson raises the following issues on appeal:

I. Did she establish Faculty House violated American National Standards Institute (ANSI) standards?

II. Does the Handicapped Accessibility Act create a higher duty of care than the common law?

III. Does S.C.Code Ann. § 10-5-260 give rise to a private cause of action permitting the recovery of monetary damages?

IV. Did Olson establish Faculty House's alleged violation of the Handicapped Accessibility Act proximately caused her injury?

A. Duty & Breach

We first address Olson's argument that the South Carolina Handicapped Accessibility Act, S.C.Code Ann. §§ 10-5-210 to -330, established Faculty House's duty of care and this duty was higher than that required by common law. We then turn to whether Olson presented evidence Faculty House breached any alleged duty under the Handicapped Accessibility Act.

Olson maintains the court erred in finding she failed to establish the Faculty House violated the Handicapped Accessibility Act. Olson specifically argues: (1) ANSI standards regarding the recommended coefficient of friction apply to wet floors, as well as dry; and (2) Faculty House failed to properly maintain the floor's elements and components in a safe and usable condition. We disagree.

In 1963, the General Assembly enacted legislation for the construction of public buildings in such a manner as to make them accessible to physically disabled persons. Act No. 174, 1963 Acts 189. Eleven years later, the legislature acted again by passing the Handicapped Accessibility Act:

The General Assembly hereby declares that it shall henceforth be the policy of this State to encourage and enable persons who are physically handicapped to achieve maximum personal independence; to become gainfully employed; to use and enjoy all governmental buildings and facilities and all public buildings and facilities; and to otherwise participate fully in all aspects of society. The General Assembly resolves to enact legislation necessary to implement this policy and the purpose of this article is to begin this implementation.

Act No. 1171, 1974 Acts 2794 (codified as Code 1962, § 1-491 (Supp.1975) & S.C.Code Ann. § 10-5-230 (1986 & Supp.1999)).

In keeping with this goal, the legislature created the South Carolina Board for Barrier-Free Design ("Board"). Id. (codified as Code 1962, § 1-493 (Supp.1975) & S.C.Code Ann. § 10-5-230 (1986 & Supp.1999)). The Board's duties include the establishment, publication, and enforcement of minimum standards and specifications for the removal of architectural barriers to the handicapped in government and public buildings. See id. (codified as Code 1962, § 1-495(1) (Supp.1975) & S.C.Code Ann. § 10-5-250(1) (1986 & Supp.1999)) ("In this connection the Board shall adopt the latest revisions of the Standard Building Code and the American National Standards Institute specifications A117.1 with such modifications as the Board shall deem appropriate.").

Pursuant to the authority granted to it, the Board adopted ANSI specifications in its regulations. 23 S.C.Code Ann. Regs. 19-400.2(B)(1), as initially promulgated, stated:

The provisions of these rules and regulations may not adequately provide for every contingency relating to barriers for the handicapped. In situations not contemplated by the provisions of these rules and regulations, compliance with the Standard "Specifications for Making Buildings and Facilities Accessible To, and Usable By the Physically Handicapped," American National Standards Institute (ANSI), A117.1 (1961 R.71) shall be evidence of compliance with the intent of these rules and regulations.

(emphasis added).

The Board significantly revised Regulation 19-400 in 1983. Nevertheless, reference to and reliance upon ANSI specifications continue to pervade the regulation:

Every building or structure shall have all levels and areas made accessible to the physically handicapped in accordance with American

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