Strother v. Lexington County Recreation Com'n

• Decision Date: 11 September 1996
• Docket Number: No. 2586,2586
• Citation: 479 S.E.2d 822,324 S.C. 611
• Court: South Carolina Court of Appeals
• Parties: Regina L. STROTHER and Douglas Strother, Appellants, v. LEXINGTON COUNTY RECREATION COMMISSION, Respondent. . Heard

Page 822

479 S.E.2d 822

324 S.C. 611

Regina L. STROTHER and Douglas Strother, Appellants, v. LEXINGTON COUNTY RECREATION COMMISSION, Respondent.

No. 2586.

Court of Appeals of South Carolina.

Heard Sept. 11, 1996.

Decided Nov. 4, 1996.

Rehearing Denied Jan. 23, 1997.

Certiorari Granted Sept. 17, 1997.

H. Patterson McWhirter, Lexington, for appellants.

Patrick J. Frawley, Lexington, for respondent.

HOWARD, Judge:

Regina and Douglas Strother sued Lexington County Recreation and Aging Commission (Commission) for damages incurred when Regina Strother tripped over a sprinkler head while playing softball on one of the Commission's fields. The Strothers appeal the circuit court's order granting summary judgment to the Commission. We affirm.

FACTS

The Commission operates the Pine Grove Softball Complex. While Regina Strother was playing softball at the complex, she attempted to catch a fly ball in the outfield, and in the process hit a water sprinkler head and twisted her left knee.

The softball complex contains five softball fields, which are each equipped with a sprinkler system using the Rainbird R-70 (R-70) pop-up sprinkler heads. The piston-driven sprinkler heads are encased in heavy-duty industrial grade plastic cases with a heavy-duty retract spring. The R-70 has a 3 1/4"' inch pop-up height and a 2 1/4"' inch exposed diameter. The Commission installed the sprinkler system in the fall of 1991, just prior to the first full spring of playing in 1992. The sprinkler system watered each of the zones of the fields in thirty minute intervals every night. The Strothers alleged the sprinkler head on which she tripped was defective because it did not retract.

The Commission moved for summary judgment, asserting it did not have actual notice of the alleged defect nor opportunity to correct the defect as required by S.C.Code Ann. § 15-78-60(16) (Supp.1995). The Strothers argued the Commission had actual notice because its maintenance workers had general knowledge pop-up heads on some sprinkler systems did not always retract. They further argued actual notice of the defect in this sprinkler system could be implied, and the maintenance workers should have devised a system to check the sprinkler heads.

The trial judge granted the Commission's motion for summary judgment, finding the Commission did not have actual notice the sprinkler head involved in the incident failed to retract, or that there had been problems with the sprinkler heads at this particular ball field. The trial judge also found the Strothers failed to provide any evidence of actual notice to the Commission, or of a subsequent failure to remedy the defect.

SCOPE OF REVIEW

Summary judgment is proper when it is clear there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP. In determining whether an issue of fact exists, the evidence and all its inferences must be viewed in the light most favorable to the nonmoving party. Koester v. Carolina Rental Ctr., 313 S.C. 490, 443 S.E.2d 392 (1994).

LAW/ANALYSIS

On appeal, the Strothers argue the trial judge erred in granting the Commission's motion for summary judgment because the Commission had actual notice of the defect in the sprinkler system. The Strothers assert the Commission had actual notice because its maintenance workers had general knowledge that pop-up heads on some sprinkler systems do not always retract, and actual notice of the defect in the Pine Grove sprinkler system could be implied. The Strothers contend a reasonable inquiry into whether the R-70 had problems similar to other pop-up sprinkler systems would have revealed the problem.

Under § 15-78-60(16), the Commission, as a governmental entity, "is not liable for a loss resulting from: ... maintenance, security, or supervision of any public property, intended or permitted to be used as a park, playground, or open area for recreational purposes, unless the defect or condition causing a loss is not corrected by the particular governmental entity responsible for maintenance, security, or supervision within a reasonable time after actual notice of the defect or condition." (Emphasis added.)

The primary concern in interpreting a statute is to ascertain and give effect to the intention of the legislature. Singletary v. South Carolina Dep't of Educ., 316 S.C. 153, 447 S.E.2d 231 (Ct.App.1994). All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the purpose of the statute. Id. Moreover, if a statute's language is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for employing rules of statutory interpretation and the court has no right to look for or impose another meaning. Paschal v. State Election Comm'n, 317 S.C. 434, 454 S.E.2d 890 (1995).

At issue in this case is what constitutes actual notice in the context of the South Carolina Tort Claims Act. The Act does not define actual notice. Furthermore, after a thorough review of South Carolina case law, we have found no cases construing actual notice within the context of the Act.

The Strothers contend actual notice can be implied from circumstances, but admitted at oral argument they are not aware of any South Carolina cases using the term "implied actual notice." The Strothers rely on South Carolina case law which equates actual notice with inquiry notice.

A review of the applicable case law reveals apparent inconsistency in the use of the terms "constructive notice" and "actual notice." Historically, if circumstances were sufficient to put a person upon inquiry, he was held to have constructive notice. Over time, the application of these terms in different contexts has altered their meaning to the point of equating inquiry notice with actual notice; thus, creating confusion between actual notice and constructive notice. See Black v. Childs, 14 S.C. 312, 321 (1880) ("[i]f there are circumstances sufficient to put a party upon the inquiry, he is held to have notice of everything which that inquiry, properly conducted would certainly disclose; but constructive notice goes no further."); McGee v. French, 49 S.C. 454, 27 S.E. 487 (1897) (holding where facts were sufficient to be put on inquiry, then it was equivalent to notice); Huestess v. South Atl. Life Ins. Co., 88 S.C. 31, 39, 70 S.E. 403, 406 (1911) (finding inquiry equivalent to actual notice); Norris v. Greenville, S. & A. Ry., 111 S.C. 322, 330, 97 S.E. 848, 850 (1919) (holding if notice sufficient to be put on inquiry, then knowledge is presumed); City of Greenville v. Washington Am. League Baseball Club, 205 S.C. 495, 509, 32 S.E.2d 777, 782 (1945) (inquiry is notice); Government Employees Ins. Co. v. Chavis, 254 S.C. 507, 176 S.E.2d 131 (1970) (Brailsford, J., dissenting) (knowledge sufficient to put on inquiry is equivalent to actual notice); Multimedia Pub. of S.C., Inc. v. Mullins, 314 S.C. 551, 431 S.E.2d 569 (1993) (if notice sufficient to be put on inquiry, then knowledge is presumed); Fuller-Ahrens Partnership v. South Carolina Dep't of Highways & Pub. Transp., 311 S.C. 177, 185, 427 S.E.2d 920, 924 (Ct.App.1993), cert. denied, (October 7, 1993) (Cureton, J., concurring and dissenting) ("Actual notice may be inferred from circumstances. That which puts a party on inquiry may be the equivalent of actual notice.") (quoting Patellis v. Tanner, 197 Ga. 471, 29 S.E.2d 419, 424 (App.1944)). Although these cases discuss actual notice within the context of inquiry or implied notice, they never define actual notice.

In contrast, there are cases which appear to define actual notice as express notice and inquiry notice as constructive notice. See Campbell v. South Carolina Highway Dep't, 244 S.C. 186, 191, 135 S.E.2d 838, 840 (1964) ("There is no evidence that [the] defendant had actual notice of the dangerous condition of the road at this time; however, the evidence reveals that there had been previous washouts at this point and that during periods of heavy rain the drainage system was insufficient to take care of the excess water, thereby providing defendant with constructive notice of the defect."), overruled to the extent it holds that an action may not be maintained against the State without its consent McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985) (abolishing the doctrine of sovereign immunity); see also 66 C.J.S. Notice § 3 (1950) ("Notice is actual when it is directly and personally given to the person to be notified.")

Generally, actual notice is synonymous with knowledge. Hannah v. United Refrigerated Serv., 312 S.C. 42, 430 S.E.2d 539 (Ct.App.1993), cert. denied, (December 7, 1993). Actual notice may be subdivided into two categories, express and implied. 66 C.J.S. Notice § 3; 58 Am.Jur.2d Notice § 6 (1989). "Express notice is that kind of actual notice which consists of general knowledge actually brought personally home; information which of itself gives actual notification." 66 C.J.S. Notice § 4. On the other hand, "implied notice is generally regarded as a kind of actual notice which consists of knowledge of facts so informing that a reasonably cautious person would be led by them to the ultimate fact; that which, if prosecuted with ordinary diligence, will furnish information of the fact." 66 C.J.S. Notice § 5.

"Implied notice greatly resembles constructive notice, with which it is frequently confounded, and it has been referred to as being the same, or almost the same, as constructive notice...." Id.; see Black's Law Dictionary 958 (5th ed. 1979) ("Constructive 'notice' includes implied actual notice and inquiry notice.") Although implied actual notice and constructive notice are similar, they are distinguishable in that "constructive notice is a legal inference, while implied actual notice is an inference of fact." 58 Am.Jur.2d No...