Opinion
C/A 2:22-cv-02398-BHH-MHC
06-14-2023
CHERYL D. FORBES, Plaintiff, v. WAL-MART STORES, INC.; WAL-MART, INC.; WAL-MART ASSOCIATES, INC.; and WAL-MART STORES EAST, LP, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge.
Plaintiff Cheryl D. Forbes (“Plaintiff”) brings this premises liability action against Defendants Wal-Mart Stores, Inc.; Wal-Mart, Inc.; Wal-Mart Associations, Inc.; and Wal-Mart Stores East, LP, (collectively, “Defendants”). Before the Court is Defendants' Motion for Summary Judgment (“Motion”). ECF No. 24. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if she failed to adequately respond to Defendants' Motion, Plaintiff filed a Response in Opposition. ECF No. 29. Defendants filed a Reply, ECF No. 30, and Plaintiff filed a Sur-Reply, ECF No. 31. The matter is therefore ripe for review.
The Local Rules make no provision for Sur-Replies, and Plaintiff did not seek leave of the Court to file a Sur-Reply. See Stanfield v. Charleston Cnty. Court, No. 2:15-CV-0756-PMD-MGB, 2015 WL 4929186, at *4 n.2 (D.S.C. Aug. 18, 2015) (explaining that “neither the Federal Rules of Civil Procedure nor the Local Civil Rules permit the filing of a sur-reply without leave of the Court”). Nevertheless, because Plaintiff is pro se, the undersigned has reviewed and considered Plaintiff's Sur-Reply.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.). Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting the Motion.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff asserts that Defendants' negligence/gross negligence caused Plaintiff's injuries. ECF No. 1-1 at 4-5. Specifically, on November 16, 2019, Plaintiff was a customer at Wal-Mart Store #3367 in North Charleston, South Carolina. ECF No. 1-1 at 3. She alleges that she stepped on misplaced products (a cardboard box) left on the Wal-Mart floor, causing her to fall and to suffer injuries to her lower back, left hip, and left leg. ECF No. 1-1 at 3.
In support of their Motion, Defendants provided the Court with a surveillance video, which captured the moments before and after Plaintiff's fall. ECF No. 28; see also ECF No. 24-3. The following facts are derived from that video, which clearly depicts the events at issue. On the video, Plaintiff arrived at the self-checkout at the store at approximately 5:58 PM, at which time a small cardboard box was on the floor adjacent to the bagging area. ECF No. 28. Plaintiff was at the register for over seven minutes, during which time she scanned her items and placed them in the bagging area, immediately above the box. Id. During these seven minutes, the surveillance video showed that the cardboard box was present when Plaintiff arrived at the self-checkout station. Id. at 00:05. At one point during the checkout process, Plaintiff's foot nudged the box, moving it slightly. Id. at 5:19-:21. As Plaintiff concluded paying for her items, she pushed her shopping cart away from the register, and the left back wheel of the cart met the box on the floor. Id. at 07:13. The box was pushed by the wheel for a short distance. Id. at 07:13-:16. At this moment, Plaintiff looked down at the cardboard on the floor. Id. at 07:15-:18. She then crouched down and laid back onto the floor. Id. at 07:16-:18. Plaintiff's left foot-which was the foot closest to the left wheel of her cart and the box on the floor-never made contact with the box. See id. at 07:15-:16. Subsequently, Plaintiff requested to speak with a store manager; then, she was transported to a hospital via ambulance after paramedics arrived at the store to assist Plaintiff from the floor. ECF No. 24 at 2-3; ECF No. 31.
The facts are construed in the light most favorable to Plaintiff, as the non-moving party on Defendants' Motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To the extent that the video clearly depicts the events at issue, they will prevail over contrary versions of the events submitted by either side. “[W]hen a video ‘quite clearly contradicts the version of the story told by [the plaintiff] . . . so that no reasonable jury could believe it, a court should not adopt [the plaintiff's] version of the facts for purposes of ruling on a motion for summary judgment.'” Witt v. West Virginia State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011) (alterations in original) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)); see also Assa'ad-Faltas v. Wal-Mart Stores E., L.P., No. 03:18-3563-TLW-SVH, 2021 WL 2228464, at *1 n.2 (D.S.C. Jan. 11, 2021) (applying Scott in a slip and fall case), report and recommendation adopted, No. CV 3:18-3563-TLW, 2021 WL 2227350 (D.S.C. June 1, 2021).
Plaintiff has disputed the video's accuracy, alleging that the video evidence Defendants provided was edited. See ECF Nos. 29, 31. She maintains that she viewed two videos, one of which she has in her possession, and alleges the differences between the two videos “clearly indicate” that the video surveillance was edited. ECF No. 31. However, other than this allegation, Plaintiff has not provided any evidence to support her assertion, despite indicating she has a video in her possession. See Anderson, 477 U.S. at 249 (noting that, in the face of a properly supported motion for summary judgment, a plaintiff cannot rest on his allegations to get to a jury without “any significant probative evidence tending to support the complaint”). Plaintiff's mere assertion that the video was “edited” is not enough to throw the authenticity of the video into question, nor does it create a genuine issue of material fact that would preclude summary judgment. See Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion).
The timestamp notation refers to the length expended on the video clip provided to the Court. See ECF No. 28.
On June 20, 2022, Plaintiff, who was originally represented by counsel, commenced this action in the Court of Common Pleas for Charleston County, South Carolina. ECF No. 1-1. Defendants removed the action to federal court, pursuant to this Court's diversity jurisdiction. ECF No. 1 at 2. Plaintiff, now proceeding pro se, claims that Defendants breached their duty of care owed to her on their premises. ECF No. 1-1 at 4. Additionally, Plaintiff claims that Defendants knew or should have known that there was a hazardous condition and failed to remedy it. Id. Plaintiff seeks actual, compensatory, and punitive damages, among other things. ECF No. 1-1 at 4-5.
On August 17, 2022, Defendants' counsel produced a copy of the surveillance video to Plaintiff's counsel, and Defendants indicated that they intended to pursue sanctions under the South Carolina Frivolous Civil Proceedings Sanctions Act, unless Plaintiff dismissed the lawsuit by August 31, 2022. ECF No. 24-4. On August 25, 2022, Plaintiff's counsel moved to withdraw as attorney for Plaintiff, which was ultimately granted. ECF Nos. 10, 14, 16, 17, 18.
II. SUMMARY JUDGMENT STANDARD
Defendants move for summary judgment on Plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 24. Summary judgment is appropriate if a party shows “there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A material fact is one that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of material fact is “genuine” if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49. Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson, 477 U.S. at 255. However, although the court must view all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a “mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion.” Anderson, 477 U.S. at 252. Likewise, conclusory, speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. To survive summary judgment, the nonmovant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
Defendants argue that Plaintiff has failed to establish a cause of action for negligence, entitling them to summary judgment. ECF No. 24. The Court agrees.
I. Applicable Law - Negligence and Premises Liability
To establish negligence in a premises liability action in South Carolina, “a plaintiff must prove the following three elements: (1) a duty of care owed by defendant to plaintiff; (2) defendant's breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty.” Charleston Elec. Servs., Inc. v. Rahall, 831 S.E.2d 122, 125 (S.C. Ct. App. 2019) (citation omitted). “South Carolina recognizes four classes of persons present on the property of another: adult trespassers, invitees, licensees, and children. The level of care owed is dependent upon the class of the person present.” Williams v. Perdue Farms, Inc., No. 4:18-CV-02387-RBH, 2020 WL 564715, at *3 (D.S.C. Feb. 5, 2020) (quoting Lanier Const. Co. v. Bailey & Yobs, Inc., 681 S.E.2d 909, 912 (S.C. Ct. App. 2009)).
As this case is before the Court pursuant to its diversity jurisdiction and solely concerns state law claims, South Carolina law applies. See Cap. Associated Indus., Inc. v. Stein, 922 F.3d 198, 211 (4th Cir. 2019) (“To construe state law, we look to decisions of the state's highest court or, if needed, decisions of the state's intermediate appellate court.”); Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
Both parties agree that Plaintiff was a business visitor-i.e., an invitee-on Defendants' premises. ECF No. 1-1 at 3; ECF No. 24-1 at 4. A business visitor is “an invitee whose purpose for being on the property is directly or indirectly connected with business dealings with the owner.” Sims v. Giles, 541 S.E.2d 857, 862 (S.C. Ct. App. 2001). “Generally, the owner of property owes an invitee or business visitor the duty of exercising reasonable or ordinary care for his safety and is liable for injuries resulting from the breach of such duty.” Singleton v. Sherer, 659 S.E.2d 196, 205 (S.C. Ct. App. 2008).
However, a merchant is not an insurer of the safety of his customers; rather, he merely “owes a duty to keep aisles and passageways in a reasonably safe condition.” Wintersteen v. Food Lion, Inc., 542 S.E.2d 728, 730 (S.C. 2001). In South Carolina, it is well settled that merchants owe invitees a duty to exercise reasonable and ordinary care for their safety and are not required to continuously inspect their floors for foreign substances. Legette v. Piggly Wiggly, Inc., 629 S.E.2d 375, 377 (S.C. Ct. App. 2006); see also H.P. Larimore v. Carolina Power & Light, 531 S.E.2d 535, 538-40 (S.C. Ct. App. 2000). In other words, “[a] business owner is not required to maintain its store in such a condition that no accident could happen to a patron.” Denton v. Winn-Dixie Greenville, Inc., 439 S.E.2d 292, 293 (S.C. Ct. App. 1993). Thus, to recover damages for injuries caused by a foreign substance on a merchant's premises, a plaintiff has the burden to prove that either: (1) “the substance was placed there by the defendant or its agents,” or (2) “the defendant had actual or constructive notice the substance was on the floor at the time of the slip and fall.” Wintersteen, 542 S.E.2d at 729-30.
II. Analysis
Defendants argue that the Court should grant its Motion for two reasons. Specifically, they argue (1) Plaintiff has failed to show that Defendants breached their duty to Plaintiff, and (2) Plaintiff has not shown that Defendants had actual or constructive notice of the cardboard box.ECF Nos. 24 at 1, and 24-1 at 7. For the reasons that follow, the Court agrees with Defendants.
Defendants also assert that Plaintiff fabricated the entire incident. ECF No. 24-1 at 5-6.
A. Defendants did not breach their duty owed to Plaintiff because the box was open and obvious to Plaintiff.
Defendants argue that merchants only owe a duty to store patrons to exercise ordinary care to keep the premises in reasonably safe condition. ECF No. 24-1 at 6. They maintain that they did not breach the duty to provide a reasonably safe premises because the box was open and obvious to Plaintiff. ECF Nos. 24 at 1, and 24-1 at 6. The Court agrees.
“South Carolina law provides that the owner of a property does not owe a duty to use reasonable care to take precautions warning guests of open and obvious dangers.” Welsh v. Speedway LLC, No. 4:16-CV-00129-RBH, 2017 WL 2881007, at *2 (D.S.C. July 6, 2017). Rather, in such situations, “the guests themselves have a duty to discover and avoid the danger.” Hackworth v. United States, 366 F.Supp.2d 326, 330 (D.S.C. 2005). A danger is “open and obvious” when it is “reasonably discoverable to the patron.” Welsh, No. 4:16-CV-00129-RBH, 2017 WL 2881007, at *2 (collecting cases). “A landowner is not liable for open and obvious dangers unless the landowner ‘has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, . . . or fail to protect himself against it.'” Nash v. Marriott Hotel Servs., Inc., No. 7:07-503-HMH, 2007 WL 3125315, at *2 (D.S.C. Oct. 23, 2007) (quoting Callander v. Charleston Doughnut Corp., 406 S.E.2d 361, 363 (S.C. 1991)).
Here, Defendants owed no duty to Plaintiff, as the surveillance video plainly shows that the cardboard box was open and obvious to Plaintiff. The cardboard box was on the floor adjacent to the bagging area when Plaintiff arrived at the self-checkout station. ECF No. 28 at 00:05. Plaintiff was at the self-checkout station for over seven minutes, during which time she scanned her items and placed them in the bagging area, immediately above the box. At one point during the check-out process, Plaintiff's foot actually nudged the box, moving it slightly. Id. at 5:19-:21. When Plaintiff concluded paying for her items, she pushed her shopping cart away from the register, and the left back wheel of the cart pushed the box on the floor a short distance. Id. at 07:13-:16. At this moment, Plaintiff looked down at the box, and then she crouched down and laid back onto the floor. Id. at 07:15-:18. Plaintiff's left foot-which was the foot closest to the left wheel of her cart and the box on the floor-never made contact with the box. See id. at 07:15-:16.
Even in viewing the evidence in the light most favorable to Plaintiff, the surveillance video plainly shows that the cardboard box near the check-out station was an open and obvious obstacle Plaintiff had a duty to discover and avoid. See Welsh, No. 4:16-CV-00129-RBH, 2017 WL 2881007, at *2 (noting a danger is “open and obvious” when it is “reasonably discoverable to the patron”). Plaintiff was at the self-checkout station for over seven minutes, during which time she scanned her items and placed them in the bagging area, immediately above the box. Indeed, Plaintiff made physical contact with the box during the check-out process-nearly two minutes before her shopping cart made contact with it again while leaving. Thus, the cardboard box was in plain view and reasonably discoverable to Plaintiff.
To the extent Plaintiff suggests the box caused her feet to slide, see ECF No. 29, this version of events is “so utterly discredited by the [video] record that no reasonable jury could have believed [her].” See Scott, 550 U.S. at 380.
Plaintiff's contention that Defendants had a duty to keep a clean and maintained environment for Wal-Mart customers to “shop freely from worry” of being injured, ECF No. 29, is simply not the law in South Carolina. See Denton, 439 S.E.2d at 293 (noting “[a] business owner is not required to maintain its store in such a condition that no accident could happen to a patron”); Legette, 629 S.E.2d at 377 (“It is well settled that merchants are not required to continuously inspect their floors for foreign substances.”). Plaintiff has not met her burden in showing Defendants owed her a duty or that they breached that duty. See Anderson, 477 U.S. at 249 (noting that, in the face of a properly supported motion for summary judgment, a plaintiff cannot rest on his allegations to get to a jury without “any significant probative evidence tending to support the complaint”). Consequently, summary judgment is proper.
B. Plaintiff has failed to show that Defendants created the dangerous condition, or that Defendants had notice of the dangerous condition.
Defendants argue that Plaintiff has failed to carry her burden in showing that her alleged injuries from the incident were caused by a specific act of Defendants which created the dangerous condition. ECF No. 24-1 at 4. Defendants maintain that Wal-Mart did not leave the cardboard box on the floor and argue Plaintiff must show that Wal-Mart had actual or constructive notice of the box. ECF No. 24-1 at 7.
Plaintiff argues that Defendants failed to adequately maintain the floors of the store, therefore creating a hazardous condition. ECF No. 1-1 at 3. Specifically, Plaintiff argues that Defendant knew or should have known that there was a hazardous condition and failed to remedy it. ECF No. 1-1 at 4.
Actual or constructive knowledge of a hazardous condition is essential to recovery against a storekeeper, “unless it is inferable from the evidence that the storekeeper was responsible for creating the hazard.” Anderson v. Winn-Dixie Greenville, Inc., 184 S.E.2d 77, 77 (S.C. 1971). Constructive knowledge of a dangerous condition can be established by showing “that the foreign substance had been on the floor for a sufficient length of time that the storekeeper would or should have discovered and removed it had the storekeeper used ordinary care.” Gillespie v. Wal-Mart Stores, Inc., 394 S.E.2d 24, 24-25 (S.C. Ct. App. 1990). However, the length of time that a foreign substance has been on the floor is not a determination that can be left to speculation. Id. at 25.
Here, even if the Court were to find the box was not open and obvious, Plaintiff has nevertheless failed to provide any evidence that Defendants placed the cardboard box at issue on the floor or had actual or constructive knowledge of the hazard and failed to remedy it. See Wintersteen, 542 S.E.2d at 729-30 (noting to recover damages for injuries caused by a foreign substance on a merchant's premises, a plaintiff has the burden to prove that either: (1) “the substance was placed there by the defendant or its agents,” or (2) “the defendant had actual or constructive notice the substance was on the floor at the time of the slip and fall”). As to the source of the box, Plaintiff has not shown, much less argued, that Defendants or one of their employees placed the cardboard box on the floor. See ECF Nos 29, 31. Nothing in the surveillance video indicates that Defendants placed the cardboard box on the floor, and Plaintiff has not submitted any evidence to the Court to suggest such a finding. Additionally, nothing in the witness statements provided in connection to the incident provides evidence of the source of the cardboard box. See ECF No. 24-5. In other words, Plaintiff has failed to show Defendants created the hazard.
As noted above, Plaintiff has also not provided evidence supporting her allegation that Defendants edited the surveillance video. See ECF Nos. 29, 31.
Likewise, Plaintiff has failed to show Defendants had actual or constructive knowledge of the box. Plaintiff has not provided any evidence showing that the box was on the floor for a sufficient period such that Defendants should have known about it. Indeed, Plaintiff has provided no evidence whatsoever regarding the length of time that the box was on the floor.
Consequently, Plaintiff has failed to meet her burden at the summary judgment stage, as she has not provided any evidence from which a reasonable jury could find that Defendants created or had knowledge of the cardboard box on the floor. See Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment); Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion). Therefore, summary judgment in favor of Defendants is proper. See Wilson v. Wal-Mart, Inc., No. CV 3:15-1157-JFA, 2016 WL 3086929, at *4 (D.S.C. June 2, 2016) (granting summary judgment where a plaintiff failed to provide “any evidence from which a reasonable jury could find that Defendant had actual or constructive knowledge of the foreign substance on the floor” (emphasis added)).
RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion, ECF No. 24, be GRANTED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).