Parks v. Characters Night Club, 3342.

• Decision Date: 21 May 2001
• Docket Number: No. 3342.,3342.
• Citation: 345 S.C. 484,548 S.E.2d 605
• Court: South Carolina Court of Appeals
• Parties: Shonya Renee PARKS, Respondent, v. CHARACTERS NIGHT CLUB and Thomas Schweitzer, d/b/a Characters, Defendants, Of whom Thomas Schweitzer, d/b/a Characters is Appellant. Thomas Schweitzer, d/b/a Characters, Third Party Plaintiff, Appellant, v. Kenneth Antoine Smith, Third Party Defendant, Respondent.

345 S.C. 484

548 S.E.2d 605

Shonya Renee PARKS, Respondent, v. CHARACTERS NIGHT CLUB and Thomas Schweitzer, d/b/a Characters, Defendants, Of whom Thomas Schweitzer, d/b/a Characters is Appellant.

Thomas Schweitzer, d/b/a Characters, Third Party Plaintiff, Appellant, v. Kenneth Antoine Smith, Third Party Defendant, Respondent.

No. 3342.

Court of Appeals of South Carolina.

Heard May 7, 2001.

Decided May 21, 2001.

O.W. Bannister, Jr., of Greenville, for Appellant.

David B. Greene, of Greenville, for Respondent.

ANDERSON, Judge:

In this negligence action, Characters and Thomas Schweitzer, who is President of the corporation that owns Characters, appeal the magistrate's denial of their motion for an involuntary nonsuit as well as the nonjury verdict in favor of Shonya Parks. They argue there was no evidence Characters was negligent or that Parks' injury was reasonably foreseeable. We reverse.

FACTS/PROCEDURAL BACKGROUND

On June 12, 1996, seventeen-year-old Shonya Parks attended "Teen Night" at Characters nightclub in Greenville, South Carolina. Parks was accompanied by her cousin, Tomika Miles, and two of Tomika's friends. At the nightclub, Parks ran into Kenneth "Tweek" Smith, her "ex-boyfriend" and the father of her child.¹

While in the club, Parks and Smith had a disagreement. Smith pulled Parks' arm in an attempt to force her to walk off with him. Parks told security, who kept Smith away from her. Sometime later in the evening, Parks and Smith "made up." When the club closed around midnight, Smith walked Parks to her car.

Smith stood nearby while Parks and her companions entered Parks' 1989 Suzuki. As Parks waited to pull out of the parking lot, a thrown object broke the car window and struck her in the head, knocking her sideways into her cousin's lap. The object was later discovered to be a billiard ball. Smith pulled Parks out of the car and held her until Characters' security arrived.

On hearing the ball strike Parks' vehicle, Jimmy Chambers, the owner and operator of Eagle Security, immediately went to help Parks. Chambers observed Smith holding Parks. Additionally, Chambers overheard Smith telling Parks that he was "sorry, he [didn't] know why he did it." Chambers testified Smith confessed to a police officer who later arrived at the scene. Several passengers in Parks' jeep yelled for Chambers to arrest Smith. One of the girls told Chambers "he did it, he did it." Parks, however, did not want police to arrest Smith.

According to Chambers, Smith said "he was sorry for doing it and all that. He didn't know why he meant to hit—I just meant to hit your car, I didn't mean to hit you." When asked by Chambers where he got the ball, Smith replied: "I took it from inside." An ambulance transported Parks to the hospital where she was apparently treated and released. Parks' actual damages totaled $969.65.

Parks filed this action against Thomas Schweitzer, doing business as Characters, alleging Characters was negligent in failing to break up a fight in the club's doorway and this negligence proximately caused the billiard ball to strike her in the head.

Schweitzer and Characters answered denying negligence on their part and the existence of a fight. Schweitzer impleaded Smith as a third-party defendant pursuant to Rule 14(a), SCRCP, asserting Smith threw the ball and was liable for all or part of the damages.²

At the nonjury trial in Magistrate's Court, Parks testified: "I was sitting still waiting for the traffic and a cue ball came from behind-like on the side-not the side but like behind me and hit me in the head." Parks did not see the ball coming. She admitted she did not see who threw the ball or from where it was thrown. Parks nonetheless insisted the ball was thrown from behind her vehicle. Parks attested two boys from Easley were fighting behind her car and one of them threw the ball that hit her. Parks, however, conceded she did not see anyone fighting with a billiard ball. Further, Parks admitted she did not see whether the "boys from Easley" had a billiard ball in their possession. During cross examination of Parks, the following exchange occurred:

Q. You can't tell us that either one of these boys from Easley threw that pool ball, can you?

A. No.

Parks stated she did not "notice" if anyone from Characters attempted to "break up" the fight. She was not sure the fight was on Characters' property. The fight was in a parking lot next door to Characters.

Miles testified Smith was standing in front by the roadway when the ball struck Parks' car from the left. She looked at him approximately thirty seconds before the accident. Like Parks, Miles did not see who threw the ball. Miles stated she saw the boys from Easley fighting and recognized both of them. She denied asking anyone at the scene to arrest Smith. Miles agreed Smith was a "pretty violent person." After brief testimony from Parks' mother, who was not present at the time of the accident, Parks rested her case.

Schweitzer and Characters moved for an involuntary nonsuit and dismissal pursuant to Rule 41(b), SCRCP, arguing Parks failed to demonstrate (1) her injury was foreseeable; (2) who threw the ball; and (3) security was inadequate.

The magistrate denied the motion. Characters then presented evidence from Schweitzer and Chambers. Schweitzer testified Characters had more than twenty security people on the premises for "Teen Night" to control a crowd of approximately eight hundred patrons. Of these twenty security people, six were uniformed, armed, security personnel from Eagle Security. The remainder of the security people were Characters' employees. Two security guards patrolled the parking lot. As the club closed around midnight, security personnel moved with the crowd to the parking lot outside.

All of the security personnel were outside when Parks was struck by the ball. They were equipped with radios and maintained constant communication with each other. At least four security people were in the parking lot. Chambers contended if there had been a fight in the parking lot, he would have known about it. No one reported a fight that night.

Chambers averred he was no more than sixty to seventy feet from Parks' car when he heard what he thought was a gunshot. According to Chambers, the driver's side window of Parks' Suzuki was broken. Chambers found a cue ball lying in the passenger seat of Parks' vehicle.

Based on the physical evidence, Chambers opined the billiard ball was thrown from the sidewalk at the front of the vehicle. Chambers explained: "The window on the Suzuki was a perfect circle-I mean a perfect circle. And it wasn't from an angle from behind, it was an angle from the front. It was exactly as if you just pointed straight at the vehicle from the curb, where this young black guy [Smith] had run from to the Suzuki. From the position he was there then run to it, just like it came straight there."

At the close of all the evidence, the magistrate held there was no evidence Smith was negligent and Characters was "somewhat negligent in failing to patrol the grounds so as to avoid plaintiffs injury." The magistrate ordered Characters to pay one-half of Parks' damages plus court costs.

Characters appealed the verdict to the Circuit Court. The Circuit Court judge affirmed the magistrate's order finding it was supported by evidence of a fight occurring at approximately the same time as the incident. Schweitzer and Characters appeal.

STANDARD OF REVIEW

In deciding whether to grant or deny a motion for nonsuit, the trial court must view the evidence and all reasonable inferences in the light most favorable to the plaintiff. Bullard v. Ehrhardt, 283 S.C. 557, 324 S.E.2d 61 (1984). If there is no relevant competent evidence reasonably tending to establish the material elements of the plaintiff's case, a motion for nonsuit must be granted. Id. Because this case originated in Magistrate's Court, South Carolina Code Ann. section 18-7-170 (1985) is applicable. Section 18-7-170 provides that on appeal from Magistrate's Court, the Circuit Court may make its own findings of fact. See Dingle v. Northwestern R.R., 112 S.C. 390, 99 S.E. 828 (1919); Truluck v. Atlantic Coast Line R.R., 110 S.C. 92, 96 S.E. 254 (1918); A. & E. Leather Goods Co. v. Sentz, 87 S.C. 267, 69 S.E. 390 (1910); Redfearn v. Douglass, 35 S.C. 569, 15 S.E. 244 (1892); Vacation Time of Hilton Head Island, Inc. v. Kiwi Corp., 280 S.C. 232, 312 S.E.2d 20 (Ct.App.1984).

However, on appeal from a Circuit Court's affirmance of a magistrate's order, our scope of review is more limited. The Court of Appeals will presume that an affirmance by a Circuit Court of a magistrate's judgment was made upon the merits where the testimony is sufficient to sustain the magistrate's judgment and there are no facts that show the affirmance was influenced by an error of law. Hadfield v. Gilchrist, 343 S.C. 88, 538 S.E.2d 268 (Ct.App.2000). We therefore look to whether the Circuit Court order is controlled by an error of law or is unsupported by the facts.

The Circuit Court order provided:

Magistrate's ruling is affirmed. Under Miletic v. Wal-Mart Stores, Inc., ... there is no duty unless the merchant or owner has knowledge or reason to know of criminal acts about to occur. Evidence was presented to magistrate that there was a fight and this incident occurred in approximately the same time frame. There is evidence to support the judge's conclusion that Characters had knowledge of activity that could lead to this incident. (i.e.foreseeable).

LAW/ANALYSIS

On appeal, Schweitzer and Characters (referred to in this section collectively as "Characters") argue the magistrate erred in denying their motion for nonsuit and in awarding damages to Parks. They contend there was no evidence in the record to support the finding of negligence. In particular, they assert Parks failed to show her injury was foreseeable and proximately caused by the alleged fight. Characters further maintains it...