Sims v. Giles

• Citation: 541 S.E.2d 857,343 S.C. 708
• Decision Date: 29 January 2001
• Docket Number: No. 3291.,3291.
• Court: Court of Appeals of South Carolina
• Parties: Angela SIMS and Anthony Sims, Appellants, v. Derrick GILES, Respondent.

343 S.C. 708

541 S.E.2d 857

Angela SIMS and Anthony Sims, Appellants, v. Derrick GILES, Respondent.

No. 3291.

Court of Appeals of South Carolina.

Heard January 8, 2001.

Decided January 29, 2001.

Percy Beauford, of Moncks Corner, for Appellants.

James A. Atkins, of Clawson & Staubes, of Charleston, for Respondent.

ANDERSON, Judge:

This is a premises liability case. An electric company meter reader was injured while on the property of a customer. The trial court directed a verdict in favor of the customer concluding the meter reader was a licensee on the property as opposed to an invitee. The meter reader appeals. We reverse and remand.

FACTS/PROCEDURAL BACKGROUND

At the time of her accident, Angela Sims was employed by the South Carolina Electric & Gas Company ("SCE & G") as a meter reader. On April 18, 1995, because of a backlog, Sims was reading meters on a route she had ridden on as a passenger but was otherwise unfamiliar with the route. One of the houses on this route was owned by Derrick Giles. His meter was located on the back of his residence and only accessible through a wrought iron gate leading into his backyard. When Sims attempted to open the gate, it somehow came off its hinges and crashed on top of her.

In approximately July of 1994, Giles began wedging a stick, which he painted the same color orange as the fence, behind his cast iron gate to hold it shut. Due to settling, the gate no longer functioned the same as when it was originally installed. The stick propped behind the gate stopped it from opening and blowing in the wind.

To open the gate, a person must reach through the bars and knock the stick over. Without the stick in place, the gate swings freely with no problem and with little effort. It swings inward on pin-type hinges and typically lifts up slightly as it opens. Randall Langston, one of the regular meter readers on this route, testified he had no trouble with the gate after he started using the proper technique for opening it. However, if too much force is applied to the gate, as happened on at least one occasion with Langston, then it would fall off its hinges.

After discovering the gate off its hinges at some point prior to Sims' accident, Giles called SCE & G and gave instructions on how to open the gate. He explained the technique of reaching through the gate and knocking the stick aside. Information to this effect was entered on a hand-held computer carried by SCE & G meter readers called a "data cap." The data cap contains all necessary information while in the field, including addresses, meter locations at those addresses, and other special instructions, which range from telephone numbers of customers to reports of bad dogs or locked gates. While on the route each month, the data cap beeps until the meter reader reads and acknowledges any special instructions or warnings at a particular address by pressing a button.

Sims declared the data cap advised to "kick on board, gate will fall open." She professed she only saw a two-by-four under the bottom of the gate. She did not see the stick holding the gate shut. Sims propped the data cap between her legs and kicked the two-by-four. After her second kick, the board shifted. Sims caught her boot under the gate. She fell to the ground and the gate crashed on top of her. Sims and her husband filed actions for negligence, loss of consortium, and negligent infliction of emotional distress. At the conclusion of the Sims' case, Giles moved for a directed verdict on the issue of liability. After hearing arguments on the motion, the trial judge found Sims, acting in her capacity as a meter reader, was a licensee. Based on this classification, the trial judge ruled that, as a matter of law, there was no evidence of negligence on the part of Giles. The trial judge directed a verdict in favor of Giles on all causes of action. The Simses appeal the directed verdict on their causes of action.

STANDARD OF REVIEW

In ruling on a motion for directed verdict, the court must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Futch v. McAllister Towing, 335 S.C. 598, 518 S.E.2d 591 (1999); Collins v. Bisson Moving & Storage, Inc., 332 S.C. 290, 504 S.E.2d 347 (Ct.App.1998). See also Weir v. Citicorp Nat'l Servs., Inc., 312 S.C. 511, 435 S.E.2d 864 (1993)

(illustrating an appellate court must apply the same standard when reviewing the trial judge's decision on such motions). When the evidence yields only one inference, a directed verdict in favor of the moving party is proper. Swinton Creek Nursery v. Edisto Farm Credit, 334 S.C. 469, 514 S.E.2d 126 (1999); Arthurs v. Aiken County, 338 S.C. 253, 525 S.E.2d 542 (Ct.App.1999). If more than one reasonable inference can be drawn from the evidence, the case must be submitted to the jury. Mullinax v. J.M. Brown Amusement Co., 333 S.C. 89, 508 S.E.2d 848 (1998); Getsinger v. Midlands Orthopaedic Profit Sharing Plan, 327 S.C. 424, 489 S.E.2d 223 (Ct.App.1997). See also Horry County v. Laychur, 315 S.C. 364, 434 S.E.2d 259 (1993)(directed verdict should not be granted unless only one reasonable inference can be drawn from the evidence).

In deciding whether to grant or deny a directed verdict motion, the trial court is concerned only with the existence or non-existence of evidence. Long v. Norris & Assocs., Ltd., 342 S.C. 561, 538 S.E.2d 5 (Ct.App.2000); Jones v. General Elec. Co., 331 S.C. 351, 503 S.E.2d 173 (Ct.App. 1998). The trial court can only be reversed by this Court when there is no evidence to support the ruling below. Swinton Creek Nursery, 334 S.C. at 477, 514 S.E.2d at 130; Arthurs, 338 S.C. at 261,525 S.E.2d at 546. When reviewing the grant of a directed verdict, the appellate court should not ignore facts unfavorable to the opposing party. Collins, 332 S.C. at 296,504 S.E.2d at 350. Rather, it must determine whether a verdict for the opposing party would be reasonably possible under the facts as liberally construed in the opposing party's favor. Jones, 331 S.C. at 356,503 S.E.2d at 176. See also First State Sav. & Loan v. Phelps, 299 S.C. 441, 385 S.E.2d 821 (1989)

(in reviewing granting of directed verdict, court should determine elements of action alleged and whether any evidence existed on each element).

ISSUE

Was Sims, in her capacity as a meter reader for SCE & G, a licensee or an invitee while on premises owned by Giles, a customer of SCE & G?

LAW/ANALYSIS

Sims argues she, while properly on Giles' property in her capacity as a meter reader for SCE & G, was an invitee. She contends the trial court committed reversible error in classifying her status as a licensee. We agree.

A. Premises Liability

South Carolina recognizes four general classifications of persons who come on premises: adult trespassers, invitees, licensees, and children. Different standards of care apply depending on whether the visitor is considered an "invitee," i.e., an invited (express or implied) business guest; a "licensee," i.e., a person not invited, but whose presence is suffered; a "trespasser," i.e., a person whose presence is neither invited nor suffered; or a child. See Joseph F. Singleton, Liability of Owner or Possessor of Land, 21 S.C. L.Rev. 291 (1969). See also Larimore v. Carolina Power & Light, 340 S.C. 438, 444, 531 S.E.2d 535, 538 (Ct.App.2000)

("The level of care owed is dependent upon the class of the person present.").

In premises liability cases, the invitee is offered the utmost duty of care by the landowner and a trespasser is generally offered the least. Since meter readers enter premises with some form of acquiescence or permission arising through the landowner's contract with SCE & G, they are not trespassers. See Smiley v. Southern R.R., 184 S.C. 130, 191 S.E. 895 (1937)(if owner or possessor consents or acquiesces in constant trespasses, an implicit invitation requiring such care as is individually owed to a licensee may be found); Snow v. City of Columbia, 305 S.C. 544, 552, 409 S.E.2d 797, 802 (Ct.App.1991)("The unwarrantable entry on land in the peaceable possession of another is a trespass.... The entry itself is the wrong. Thus, for example, if one without license from the person in possession of land walks upon it, ... he commits a trespass by the very act of breaking the enclosure.") (citation omitted). In fact, the contention that a meter reader is not specifically invited onto the premises and is thus a trespasser has been rejected. See 62 Am.Jur.2d Premises Liability § 453 (1990). Sims is not a child; therefore, the only issue presented, which is novel in South Carolina, is whether Sims, in her capacity as a SCE & G meter reader, should be considered an invitee or a licensee.

B. Invitees

"An invitee is a person who enters onto the property of another at the express or implied invitation of the property owner." Goode v. St. Stephens United Methodist Church, 329 S.C. 433, 441, 494 S.E.2d 827, 831 (Ct.App.1997). "Invitees are limited to those persons who enter or remain on land upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make them safe for their reception." Restatement (Second) of Torts § 332 cmt. a (1965). The visitor is considered an invitee especially when he is upon a matter of mutual interest or advantage to the property owner. Parker v. Stevenson Oil Co., 245 S.C. 275, 140 S.E.2d 177 (1965); Landry v. Hilton Head Plantation Prop. Owners Ass'n, Inc., 317 S.C. 200, 452 S.E.2d 619 (Ct.App.1994).

"Phrased somewhat differently, it may be said that a person is an invitee on the land of another if he enters by express or implied invitation, his entry is connected with the owner's business or with an activity the owner conducts or permits to be conducted on his land, and there is a mutuality of benefit or a benefit to the owner." 62 Am.Jur.2d Premises Liability § 87 (1990). See also Larimore, 340...