Major v. City of Hartsville

FEW, C.J. This appeal involves constructive notice under subsection 15-78-60(15) of the South Carolina Code (2005), a provision of the Tort Claims Act. The question before the court is “constructive notice of what?” More precisely stated, the issue we address is: What is the “defect or condition” of which a plaintiff must prove a governmental entity had constructive notice before the entity is subject to liability “for loss arising out of a defect or a condition in [or] on ... a highway, road, street, ... or other public way caused by a third party?” § 15-78-60(15). Alberta Major presented evidence the City of Hartsville had notice of circumstances it knew would eventually lead to a dangerous defect or condition, but she presented no evidence the City had any notice of the defect or condition she alleged proximately caused her injury. We affirm the circuit court’s decision to grant summary judgment to the City. I. Facts and Procedural History Major attended night classes at Coker College in Hartsville, South Carolina. On the afternoon of her injury, December 1, 2008, Major parked in a lot across the street from the Student Union Building, where she was going to check her mailbox before class. To reach the building, Major walked on a sidewalk that turned into a grassy area before she crossed the street at a corner. The City owns the sidewalk and grassy area. As Major walked over the grassy area to get to the — 259 — street, her foot “slipped into a hole.” She did not fall but “stumbled” and “hobbled on across the street.” Five days later, Major went to the emergency room for ankle pain. She later saw an orthopedist and attended physical therapy for her ankle. In July 2009, Major filed this action for damages against the City. The City filed a motion for summary judgment asserting it was not liable under the Tort Claims Act because it was not on notice of any hole. The circuit court conducted a hearing, agreed with the City’s position, and granted the motion. II. Summary Judgment Standard Summary judgment is proper when “there is no genuine issue as to any material fact and [] the moving party is entitled to a judgment as a matter of law.” Rule 56(c), SCRCP. “In determining whether any triable issue of fact exists, the evidence and all inferences which can reasonably be drawn therefrom must be viewed in the light most favorable to the nonmoving party.” Robinson v. Estate of Harris, 388 S.C. 630, 638, 698 S.E.2d 222, 226 (2010) (internal quotation marks omitted). “On appeal from the grant of a summary judgment motion, [we apply] the same standard as that required for the circuit court.” 388 S.C. at 637, 698 S.E.2d at 226. III. “Defect or Condition” Under the Tort Claims Act Major argues the City is liable for her injuries under subsection 15-78-60(15) of the Tort Claims Act, which provides in part: Governmental entities responsible for maintaining highways, roads, streets, causeways, bridges, or other public ways are not liable for loss arising out of a defect or a condition in, on, under, or overhanging a highway, road, street, causeway, bridge, or other public way caused by a third party unless the defect or condition is not corrected by the particular governmental entity responsible for the maintenance within a reasonable time after actual or constructive notice. S.C.Code Ann. § 15-78-60(15) (2005). The parties agree there is no evidence of actual notice. Major argues the City was on constructive notice of “the condition at issue,” which — 260 — she defines as “the unpaved corner of the intersection that was frequently subject to vehicles driving over it creating ruts.” Her argument is based primarily on the testimony of the City Director of Parks and Leisure Services, Phillip Gardner. Gardner testified that “for years” he observed trucks cutting the corner where Major fell and that the truck tires crossing unpaved ground caused “depressions.” Gardner stated when his crew noticed a depression, “they’ve gone back and they have put sand or clay back in the area.” However, he called it “a fruitless effort because a few days later, it’s ... right back in the same condition.” He testified that because of this, “they just kept an eye on that area to make sure that it did not create ... some sort of a ... problem at a later time.” Major also presented the testimony of Hartsville police officer Michael Sanchez,1 who responded to the scene of Major’s fall when she reported it to the City three days later. Officer Sanchez testified he observed “a little bit of a concave depression in the dirt” at the corner. When Major’s counsel asked him what “thoughts” he had on “how the depression was created,” Sanchez testified it could have been caused by “vehicles crossing] over sidewalks and corners.” Sanchez explained he had seen vehicles do that at the intersection where Major fell, and “we find this happening throughout the City a lot where people cut corners and it could have been something generated from just constant wear and tear. I know I’ve observed many a vehicle travel through a corner like that and go over it.” The circuit court found that the allegation the City was on notice of an “unpaved corner of the intersection that was frequently subject to vehicles driving over it creating ruts” does not create a “genuine issue as to any material fact” under subsection 15-78-60(15). The court stated: [T]he alleged defect in this case involved nothing more than the periodic placement and correction of tire tracks on grass at a City of Hartsville street corner. The Court disagrees with the Plaintiffs assertion that the Defendant’s knowledge — 261 — of the periodic cutting of street corners was a continuous condition and finds that this did not place the Defendant on constructive notice of the actual defect, rut or depression in which the Plaintiff injured herself. We agree with the circuit court. To prove liability under subsection 15-78-60(15), a plaintiff must prove the governmental entity was on notice of that which she alleges was the proximate cause of her injury. Here, Major alleges the proximate cause was the depression, rut, or hole. However, viewing the evidence in the light most favorable to Major, she has shown only that the City was aware of the circumstances which were likely, even certain, to cause a hole. As we will discuss later, this argument misses the significance of what a plaintiff alleges was the proximate cause of her injury. Major argues the repetitive nature of trucks driving off the roadway at the corner and causing depressions, ruts, or holes establishes a continual condition, and therefore the City was on constructive notice that the specific condition or defect that caused Major’s fall would likely develop. In support of her argument, Major cites Fickling v. City of Charleston, 372 S.C. 597, 643 S.E.2d 110 (Ct.App.2007). Fickling is factually similar to Major’s case because it involved a plaintiff who “stepped into a hole in a sidewalk and fell, sustaining injuries.” 372 S.C. at 599, 643 S.E.2d at 112. However, Fickling does not support Major’s argument because in that case we found evidence that the City of Charleston was on constructive notice of the specific “defect or condition” the plaintiff alleged caused her injuries — “a hole in a sidewalk.” We stated: “In the light most favorable to Fickling, there was at least some evidence that (1) there were numerous City personnel within the area of the defect who could have seen and reported the problem; [and] (2) the condition had existed for a while.” 372 S.C. at 609-10, 643 S.E.2d at 117. Specifically, we cited evidence “the hole was partially covered by leaves,” 372 S.C. at 601, 643 S.E.2d at 113, a photograph showing “[l]arge cracks radiated out from [the hole],” id,., and the testimony of Charleston’s Public Service Director that the hole “had probably been that way for a while.” 372 S.C. at 610 n. 34, 643 S.E.2d at 117 n. 34. Fickling, therefore, was decided on the basis of the existence of evidence that the “condition or defect” that caused the plaintiffs injury — the hole in the sidewalk— — 262 — had existed long enough that City of Charleston personnel should have seen it and fixed it. In this case, on the other hand, Major offered no evidence the City was on notice of the particular depression, rut, or hole she alleges caused her injury. Gardner testified his crew typically inspected a particular intersection every three to five weeks. Gardner did not know if any of his staff was present at the corner in the week before Major fell. He testified the City’s records indicated that because Major fell on the Monday after Thanksgiving, “the last time we would have or could have been there would be Wednesday before Thanksgiving.” Major’s counsel conceded at oral argument that “we don’t know” how long “the particular depression that caused Mrs. Major’s injuries” had been there, and that it could have been created that morning. Because there was no evidentiary basis on which the jury could determine how long a depression, rut, or hole had been there, a jury would have to speculate whether City personnel should have seen it. In this situation, there was no evidence of constructive notice and summary judgment was required. See Hanahan v. Simpson, 326 S.C. 140, 149, 485 S.E.2d 903, 908 (1997) (stating “verdicts may not be permitted to rest upon surmise, conjecture or speculation”). Major’s argument that Fickling is applicable to this case appears to be based on a reference this court made at the end of a footnote to the supreme court’s discussion of two cases in Wintersteen v. Food Lion, Inc., 344 S.C. 32, 542 S.E.2d 728 (2001). See Fickling, 372 S.C. at 610 n. 37, 643 S.E.2d at 117 n. 37. In Wintersteen, refuting an argument that our courts “have ... required storekeepers to take actions to prevent or minimize the foreseeable risk of a foreign substance on the floor of its premises,” the supreme court explained its holding in Henderson v. St. Francis Community Hospital, 303 S.C. 177, 399 S.E.2d 767 (1990) and this court’s holding in Pinckney v. Winn-Dixie Stores, Inc., 311 S.C. 1, 426 S.E.2d 327 (Ct.App.1992). 344 S.C. at 36, 36 n. 1, 542 S.E.2d at 730, 730 n. 1. The court explained that “recurrence alone is insufficient to establish constructive notice.” 344 S.C. at 37 n. 1, 542 S.E.2d at 730 n. 1. The court went on to explain that there may be certain factual patterns, as in Henderson and Pinckney, wherein the recurrence is of such a nature as to amount to a continual condition, and that factor, when — 263 — coupled with other evidence, such as store employees’ knowledge thereof, may be sufficient to create a jury issue as to the defendant’s constructive notice at the time of the accident. Id. For several reasons, this case does not fit the “factual patterns” of Henderson and Pinckney. First, those cases did not arise as exceptions to sovereign immunity under the Tort Claims Act. Second, in both of those cases the defendant’s negligence created the circumstance which led to the recurrence of a dangerous condition that “amount[ed] to a continual condition.” In Henderson, St. Francis Hospital ignored the advice of an architectural firm it hired to design an addition to its parking lot that it should remove numerous mature sweet-gum trees because the balls they drop on the parking lot “are dangerous to pedestrians.” 303 S.C. at 180, 399 S.E.2d at 768-69. Despite this advice, St. Francis “built a stairway immediately adjacent to one of the trees” and “failed to use a regular maintenance program.” 303 S.C. at 180, 399 S.E.2d at 769. In Pinckney, the store manager “created a dangerous situation” by putting a “poinsettia display ... on a make-shift shelf adjacent to the aisles in the store.” 311 S.C. at 4, 426 S.E.2d at 329. The plaintiff presented evidence that a poinsettia leaf “secretes a ‘milky substance’ ” when it is removed from the plant, and that “the store manager observed the poinsettia leaves falling to the floor and ... left [them] ... until the next periodic sweeping.” Id. Finally, as the supreme court stated in Wintersteen, the “continual condition” must be “coupled with other evidence.” 344 S.C. at 36 n. 1, 542 S.E.2d at 730 n. 1. We do not see any “other evidence” in this record which could create a jury question on the City’s liability under subsection 15-78-60(15) even if this were a “factual pattern” like Henderson or Pinckney. Our holding is further supported by Wintersteen. In Wintersteen, the plaintiff “slipped and fell on a puddle of clear liquid” while walking near “a self-service soda fountain equipped with an ice dispenser” in a Food Lion store. 344 S.C. at 34, 542 S.E.2d at 729. Wintersteen admitted Food Lion had neither actual nor constructive notice of the liquid on — 264 — the floor but instead argued “the storekeeper has a duty to minimize such risks and take measures to prevent the items from falling” because it is foreseeable that the ice dispenser will cause liquid to fall to the floor. 344 S.C. at 35, 542 S.E.2d at 730. Affirming this court’s decision that the trial court should have directed a verdict for Food Lion, the supreme court distinguished between liability for failure to correct an existing dangerous condition and liability for failure to prevent the dangerous condition from arising in the first place. Wintersteen does not dispute the trial court’s ruling that Food Lion neither placed the substance on the floor nor had actual or constructive notice thereof. Rather, she contends that, if it is foreseeable an item will fall to the floor, then the storekeeper has a duty to minimize such risks and take measures to prevent the items from falling. Although this approach has some appeal, we decline to depart from our traditional “foreign substance” analysis. We adhere to pri- or precedent that a storekeeper is liable only upon a showing that it actually placed the foreign substance on the floor, or that it had actual or constructive notice thereof. 344 S.C. at 35-36, 542 S.E.2d at 730. A similar distinction exists for liability of governmental entities under the Tort Claims Act. When a plaintiff seeks to recover for the failure to correct some existing “defect or condition,” the plaintiff must prove the governmental entity had actual or constructive notice of the defect or condition alleged to have proximately caused the plaintiffs injury. See S.C.Code Ann. § 15-78-60(10) (2005) (requiring proof of actual or constructive notice for “loss resulting from ... natural conditions on unimproved property”); § 15-78-60(15) (requiring the same for “loss resulting from ... a defect or condition ...” caused by a third party); § 15-78-60(16) (2005) (requiring the same for “loss resulting from ... public property, intended or permitted to be used as a park, playground, or open area for recreational purposes”). However, the Tort Claims Act contains different standards for liability when a plaintiff seeks to recover for the governmental entity’s failure to prevent a dangerous condition from arising. For example, the Act provides immunity from liability in design defect cases. See S.C.Code Ann. § 15-78-60(15) — 265 — (“Governmental entities are not liable for the design of highways and other public ways.”). Even though absolute design immunity is not available in all cases, the City’s actions might have been subject to discretionary design immunity. Compare Giannini v. S.C. Dep’t of Transp., 378 S.C. 573, 580, 664 S.E.2d 450, 453 (2008) (holding absolute design immunity was not available when SCDOT was on notice of the need for median barriers) and Wooten v. S.C. Dep’t of Transp., 333 S.C. 464, 467-68, 511 S.E.2d 355, 357 (1999) (holding absolute design immunity was not available when SCDOT was on notice an intersection was hazardous because existing traffic signals did not allow safe pedestrian crossing) with Wooten, 333 S.C. at 469, 511 S.E.2d at 358 (holding discretionary immunity was a jury issue on a claim that SCDOT failed to redesign an intersection with traffic signals that allowed safe pedestrian crossing “after notice the intersection was hazardous”) and Giannini, 378 S.C. at 590, 664 S.E.2d at 459 (Pleicones, J., dissenting) (stating “[ajlthough an entity may lose design immunity, it may still be immune from liability if it exercises discretion when faced with actual or constructive knowledge of a hazardous condition”). The distinction in Wintersteen and the Tort Claims Act turns on the plaintiffs allegation of proximate cause. In Wintersteen, the plaintiff alleged the proximate cause of her injury was Food Lion’s failure to “take measures to prevent the items from falling” to the floor. 344 S.C. at 35, 542 S.E.2d at 730. The supreme court “decline[d] to depart from our traditional ‘foreign substance’ analysis ... [and] adhere[d] to prior precedent that a storekeeper is liable only upon a showing ... that it had actual or constructive notice” of the “substance on the floor.” 344 S.C. at 35-36, 542 S.E.2d at 730. It is not enough, therefore, to prove the storekeeper knew the substance would eventually be on the floor and failed to take steps to prevent it. Similarly, when a plaintiff alleges a governmental entity is “liable for loss arising out of a defect or a condition ... caused by a third party” under subsection 15-78-60(15), she must offer evidence that the governmental entity had notice of the defect or condition she alleges was the proximate cause of her injury. Major’s argument that the City was on notice of trucks cutting the corner to create holes misses the distinction. Just as in Wintersteen, it is not — 266 — enough to allege the governmental entity knew the defect or condition would eventually develop and then cause injury. This would not be an allegation that the City should have fixed the hole, but a design defect allegation that the City should have taken steps to fix the intersection where trucks cause holes. However, her complaint contains no allegation the City failed to take any step to prevent a depression, rut, or hole from developing, and, at oral argument, her counsel conceded she did not raise a design defect claim. The dissent argues that we have applied an actual notice standard when only constructive notice is required. Our focus, however, is not the difference between actual and constructive notice. The question we address is “constructive notice of what?” The answer is that the plaintiff must prove the governmental entity was on constructive notice of the defect or condition she alleges proximately caused her injury. Major alleges the proximate cause of her injury was a hole but presented no evidence the City was on constructive notice of a hole. IV. Conclusion We affirm the circuit court’s decision to grant summary judgment in the City’s favor because we find no evidence the City was on constructive notice of the defect or condition Major alleges proximately caused her injury. CURETON, A.J., concurs. HUFF, J., dissents. Footnotes [1] Gardner and Sanchez are the only City employees whose testimony is in the record. We have not considered the testimony of any other witnesses because their knowledge cannot be imputed to the City.