Senn v. Sun Printing Co., 1123

Decision Date16 February 1988
Docket NumberNo. 1123,1123
Citation295 S.C. 169,367 S.E.2d 456
CourtSouth Carolina Court of Appeals
PartiesFlorence SENN, Respondent, v. SUN PRINTING COMPANY and Bowers & Floyd, Inc., Defendants. Appeal of BOWERS & FLOYD, INC. . Heard

William B. Woods, Brown & Woods, Columbia, for appellant.

Eugene C. Griffith, Griffith, Mays, Foster & Kittrell, Newberry, for respondent.

GARDNER, Judge:

This is a premises liability case brought by Florence Senn (Senn) against Sun Printing Company (Sun) and Bowers & Floyd, Inc. (Bowers). Upon trial, the jury returned a verdict against Bowers and Sun for $11,099.94. Upon Senn's motion, the trial judge granted a new trial on the issues of damages only. Bowers appeals; Sun does not. We reverse and remand.

Senn fell in a parking lot which she alleged was jointly maintained by Bowers and Sun for the purpose of providing parking for the automobiles owned by customers calling upon both Bowers and Sun; she alleged that upon parking in the parking lot, she went into the business houses of both Bowers and Sun for the purposes of transacting business with them, and as such, was a business invitee of both Bowers and Sun; she then alleged that as she was walking back to her truck, the asphalt covering over the parking lot not being properly maintained and several potholes being present, she stepped near a pothole and the asphalt crumbled under her foot causing her to fall and suffer severe injuries.

Bowers' answer set up, inter alia, the defense of assumption of risk. During the trial Bowers made a timely motion on the basis of its defense of assumption of risk and a post-verdict motion for judgment n.o.v. on the same ground; the trial judge overruled both motions. Whether the trial judge erred in so ruling is the issue treated by this decision.

We briefly review the facts. Bowers and Sun own adjoining tracts of land; their businesses front on Boyce Street in Newberry, South Carolina; Boyce Street intersects McKiven Street; the rear of both tracts is used for parking; the employees of Bowers and Sun permissively used each other's spaces. One entering the Bowers' property must enter from McKiven Street. The following is a drawing depicting the situation.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

There were no signs prohibiting customer parking; both Bowers and Sun were aware that customers, including Senn, parked in the lot and neither Bowers nor Sun objected thereto. There is evidence of record to support Senn's theory that Bowers and Sun jointly maintained the parking lot for purposes of providing parking for automobiles owned by customers of both Bowers and Sun.

Bowers and Sun had covered the parking lot with asphalt around the year 1965; at that time, they had together marked off parking areas. By December 28, 1983, the date Senn was injured, large potholes had developed in the asphalt; from the pictures of record, it is evident that the edges of the potholes were crumbling and a dangerous situation existed. Employees of Bowers and Sun testified that when Senn drove into the parking lot she parked over one of the potholes approximately 20 feet behind the business houses of Bowers and Sun. She safely exited her car and made business visits to both Bowers and Sun's offices. Senn testified that she knew the potholes were dangerous. She testified "I came out of the backdoor and naturally I saw the big washed-out area. While I was trying to dodge it and I was walking along the outer edge, you know, where it was still asphalt, solid. As I was walking along I felt it give and whatever it gave I don't know whether it humped off or whether it crumbled or whether it just broke off. I do not know." On cross-examination she testified as follows:

Q. You didn't have any problem when you initially got out of your pick up and went to Sun Printing and went to Bowers and Floyd?

A. No, sir, I went in a different direction.

Q. Is there any reason you couldn't have taken that very same route back to...

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15 cases
  • Davenport v. Cotton Hope Plantation
    • United States
    • South Carolina Supreme Court
    • November 9, 1998
    ...the nature and extent of the danger; and (4) the plaintiff must voluntarily expose himself to the danger. Senn v. Sun Printing Co., 295 S.C. 169, 367 S.E.2d 456 (Ct.App.1988). "The doctrine is predicated on the factual situation of a defendant's acts alone creating the danger and causing th......
  • Davenport v. Cotton Hope Plantation Horizontal Property Regime
    • United States
    • South Carolina Court of Appeals
    • April 1, 1996
    ...Inc., 205 S.C. 333, 348-49, 32 S.E.2d 5, 9 (1944) (stating assumption of risk rests in contract) with Senn v. Sun Printing Co., 295 S.C. 169, 173, 367 S.E.2d 456, 458 (Ct.App.1988) (stating assumption of risk turns on assent, voluntariness, and Courts continued, however, in their effort to ......
  • Ervin v. Continental Conveyor & Equipment Co.
    • United States
    • U.S. District Court — District of South Carolina
    • July 23, 2009
    ...Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71, 508 S.E.2d 565, 569 (1998) (citing Senn v. Sun Printing Co., 295 S.C. 169, 367 S.E.2d 456 (Ct.App.1988)). In addition, the "trial court may declare the plaintiff assumed the risk as a matter of law where it clearly ap......
  • Cole v. Raut
    • United States
    • South Carolina Supreme Court
    • May 25, 2005
    ...exposing himself to such an obvious danger with appreciation thereof which resulted in the injury. Senn v. Sun Printing Co., 295 S.C. 169, 173, 367 S.E.2d 456, 458 (Ct.App.1988). In the present case, Cole signed a consent form acknowledging the risks associated with the VBAC procedure. The ......
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