LeFont v. City of Myrtle Beach

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Christine LeFont, Appellant,

v.

City of Myrtle Beach; Myrtle Beach Convention Center
Hotel Corporation, Respondents.

Appellate Case No. 2017-001258

Appeal From Horry County
R. Markley Dennis, Jr., Circuit Court Judge

Opinion No. 5715
Heard February 4, 2020 – Filed March 11, 2020

REVERSED AND REMANDED

Stephen Lewis Goldfinch, Jr., and Thomas William
Winslow, both of Goldfinch Winslow LLC, and Ryan P.
Compton, of Inlet Law Group, LLC, all of Murrells Inlet,
for Appellant.

Christian Stegmaier, of Collins & Lacy, PC, of
Columbia, and Amy Lynn Neuschafer, of Collins &
Lacy, PC, of Murrells Inlet, for Respondent City of
Myrtle Beach.

LOCKEMY, C.J.: In this premises liability action, Christine LeFont argues the
circuit court erred in granting a directed verdict to the City of Myrtle Beach (the
City). We reverse and remand.
FACTS

This premises liability action arises out of LeFont's trip and fall in a parking lot
behind the Myrtle Beach Convention Center1 (the Convention Center) on August
13, 2014. LeFont and her husband were vendors participating in a trade show at
the Convention Center. The Convention Center has a large lot dedicated to public
parking. A small gated employee parking lot is located immediately behind the
Convention Center. On the morning of the incident, LeFont entered the employee
parking lot and dropped off her husband near the loading docks to allow him to
carry boxes of product into the Convention Center. LeFont then asked the security
guard at the gate if she could briefly park in the employee lot while she went inside
the Convention Center to determine whether she needed to return to the warehouse
for more product. After receiving permission to park, LeFont walked toward the
Convention Center and tripped over a small pothole2 and fell. LeFont sustained
injuries in the fall, including a broken wrist, a broken forearm, and two broken
elbows.

On January 5, 2015, LeFont filed a complaint against the City and the Convention
Center asserting a negligence cause of action against both defendants. The City
filed an answer denying liability and raising several affirmative defenses alleging,
in part, that LeFont's action was subject to certain provisions of the South Carolina
Tort Claims Act3.

Prior to trial, the parties stipulated to the dismissal of the Convention Center. The
case proceeded to trial on September 6, 2016. At trial, following the close of
LeFont's case, the City moved for a directed verdict. The circuit court denied the
motion. Subsequently, following the close of all evidence, the City moved again
for a directed verdict. The circuit court granted the City's motion and directed a
verdict on multiple grounds, finding: (1) LeFont was a licensee; (2) there was no
evidence the City breached its duty owed to LeFont as a licensee; and (3) there was
no evidence the City had constructive notice of the pothole.

1
The City owns the Convention Center.
2
The hole was approximately four to six inches in diameter and one and a half inches
deep.
3
S.C. Code Ann. §§ 15-78-10 to -220 (2005 & Supp. 2019).
On September 20, 2016, LeFont filed a Rule 59(e), SCRCP, motion to alter or
amend. The circuit court denied LeFont's motion in April 2017. This appeal
followed.

STANDARD OF REVIEW

When reviewing the circuit court's ruling on a directed verdict motion, this court
must apply the same standard as the circuit court "by viewing the evidence and all
reasonable inferences in the light most favorable to the nonmoving party." Elam v.
S.C. Dep't of Transp., 361 S.C. 9, 27-28, 602 S.E.2d 772, 782 (2004). An appellate
court will reverse the circuit court's ruling on a directed verdict motion only when
there is no evidence to support the ruling or when the ruling is controlled by an
error of law. Law v. S.C. Dep't of Corr., 368 S.C. 424, 434-35, 629 S.E.2d 642,
648 (2006). "When the evidence yields only one inference, a directed verdict in
favor of the moving party is proper." Wright v. Craft, 372 S.C. 1, 22, 640 S.E.2d
486, 498 (Ct. App. 2006). "On the other hand, the [circuit] court must deny a
motion for a directed verdict when the evidence yields more than one inference or
its inference is in doubt." Id. "When considering a directed verdict motion, neither
the [circuit] court nor the appellate court has authority to decide credibility issues
or to resolve conflicts in the testimony or evidence." Burnett v. Family Kingdom,
Inc., 387 S.C. 183, 188-89, 691 S.E.2d 170, 173 (Ct. App. 2010).

LAW/ANALYSIS

I. Circuit Court Ruling

As an initial matter, the parties disagree as to the circuit court's basis for granting a
directed verdict.

The City argues the circuit court granted its motion for a directed verdict on
multiple grounds, including a lack of evidence establishing liability under section
15-78-60(15) of the South Carolina Tort Claims Act (the Act)4 and under a

4
Pursuant to section 15-78-60(15), a governmental entity is not liable for a loss
resulting from

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
traditional premises liability analysis. The City contends LeFont failed to appeal
the court's ruling based on application of the Act, and, therefore, the court's ruling
on that ground is the law of the case.

LeFont contends the circuit court did not rule on section 15-78-60(15). LeFont
admits the court and the parties discussed the Tort Claims Act during arguments on
the directed verdict motion, but she asserts the court did not rule upon every issue
discussed.

Pursuant to the record, the circuit court held the following after a lengthy
discussion with counsel:

[S]o that creates a twofold—a two barrel appeal if you
want to take it . . . .

I'm finding in this particular factual situation my
conclusion is these people meet the definition of a being
a—your lady, the Plaintiff met the definition of a
licensee, not an invitee, and was on the premises
certainly not as a trespasser. She had every right to be
there. And she had every right to expect the premises to
be—not contain any latent defects or any problems that
would have been hidden, and be on notice of that . . . .

But primarily I don't find that there's any evidence that
would establish constructive notice of the pothole and
therefore require that the City to take any action
independent of what was done.

We agree with LeFont that the circuit court did not rule on the Tort Claims Act
issue. Although the court discussed the Act with counsel prior to ruling, it did not
state it was granting a directed verdict based on the Act.

II. LeFont's Status

responsible for the maintenance within a reasonable time
after actual or constructive notice.

S.C. Code Ann. § 15-78-60(15) (2005).
LeFont argues the circuit court erred in finding she was a licensee, not an invitee,
while at the Convention Center the day of her injury. We agree.

"To establish negligence in a premises liability action, 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." Singleton v. Sherer, 377 S.C. 185,
200, 659 S.E.2d 196, 204 (Ct. App. 2008).

The nature and scope of duty in a premises liability action, if any, is determined
based upon the status or classification of the person injured at the time of his or her
injury. Sims v. Giles, 343 S.C. 708, 715, 541 S.E.2d 857, 861 (Ct. App. 2001). "A
landowner owes a licensee a duty to use reasonable care to discover the licensee, to
conduct activities on the land so as not to harm the licensee, and to warn the
licensee of any concealed dangerous conditions or activities." Landry v. Hilton
Head Plantation Prop. Owners Ass'n, Inc., 317 S.C. 200, 203, 452 S.E.2d 619, 621
(Ct. App. 1994). "Unlike a licensee, an invitee enters the premises with the
implied assurance of preparation and reasonable care for his protection and safety
while he is there." Id. (quoting Bryant v. City of North Charleston, 304 S.C. 123,
128, 403 S.E.2d 159, 161 (Ct. App. 1991)). "A landowner owes an invitee a duty
of due care to discover risks and to warn of or eliminate foreseeable unreasonable
risks." Id.

A licensee is a person who is privileged to enter or remain upon land by virtue of
the possessor's consent. Neil v. Byrum, 288 S.C. 472, 473, 343 S.E.2d 615, 616
(1986). "When a licensee enters onto the property of another, the primary benefit
is to the licensee, not the property owner." Hoover v. Broome, 324 S.C. 531, 535,
479 S.E.2d 62, 64 (Ct. App. 1996). "A licensee is a person whose presence is
tolerated, a person not necessarily invited on the premises, but one who is
privileged to enter or remain on the premises only by the property owner's express
or implied consent." Sims, 343 S.C. at 720, 541 S.E.2d at 863-64.

By contrast, an invitee is a person who enters onto the property of another "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." Id. at 716-17, 541 S.E.2d
at 862 (quoting 62 Am.Jur.2d Premises Liability § 87 (1990)). "The law
recognizes two types of invitees: the public invitee and the business visitor." Id. at
717, 541 S.E.2d at 862. "A public invitee is one who is invited to enter or remain
on the land as a member of the public for a purpose for which the land is held open
to the public." Goode v. St. Stephens United Methodist Church, 329 S.C. 433, 441,
494 S.E.2d 827, 831 (Ct. App. 1997). In contrast, a business visitor is an invitee
whose purpose for entering the property is either directly or indirectly connected
with the purpose for which the property owner uses the land. Sims, 343 S.C. at
717, 541 S.E.2d at 862.

[T]he class of persons qualifying as business visitors is
not limited to those coming upon the land for a purpose
directly or indirectly connected with the business
conducted thereon by the possessor, but includes as well
those coming upon the land for a purpose connected with
their own business, which itself is directly or indirectly
connected with a purpose for which the possessor uses
the land.

Singleton, 377 S.C. at 199, 659 S.E.2d at 203-04 (quoting 62 Am.Jur.2d Premises
Liability § 88 (1990)). "The basic distinction between a licensee and an invitee is
that an invitee confers a benefit on the landowner." Landry, 317 S.C. at 204, 452
S.E.2d at 621.

The circuit court concluded LeFont was a licensee as a matter of law and not an
invitee because: (1) "the [C]onvention [C]enter leases to somebody for their
benefit, and the benefit is certainly indirectly;" and (2) "because they don't control
who comes or goes or who's asked to come or go."

LeFont argues the circuit court erred in granting a directed verdict on the ground
that she was a licensee at the time of her injury because there was sufficient
evidence in the record for the jury to infer that she was an invitee. Specifically,
LeFont contends (1) her entry onto the City's premises was to her benefit and that
of the City; (2) she entered the City's premises, and specifically the parking lot,
through an express invitation and an implied invitation; and (3) she entered the
City's premises for her own business connected to the purpose for which the
Convention Center was held open.

We agree with LeFont. We find sufficient evidence was presented for the jury to
infer that LeFont was an invitee.

First, the record contains sufficient evidence for the jury to infer that LeFont
provided a benefit to the City. LeFont testified she and her husband paid between
$1,800 and $2,500 to HT Hackney, the distributor hosting the trade show, as
vendors to attend the trade show in August 2014. In turn, Susan Skellett, the
Convention Center's convention services manager, testified HT Hackney paid to
lease Convention Center space to host its show.

Second, the record contains sufficient evidence for the jury to infer that LeFont
was on the Convention Center premises as a result of an express and implied
invitation. Skellett testified vendors are invited to the Convention Center to
display their goods. In addition, LeFont also testified the security guard working
in the employee parking lot opened the gate for her to enter and gave her
permission to park.

Finally, the record contains sufficient evidence for the jury to infer that LeFont's
entry onto the Convention Center premises was for business connected to the
purpose for which the Convention Center was held open. The Convention Center
was open for a trade show. LeFont and her husband were vendors participating in
the trade show.

"Ordinarily, when conflicting evidence is presented as to whether someone is a
licensee or invitee, the question becomes one of fact and as such, is properly left to
the jury." Vogt v. Murraywood Swim & Racquet Club, 357 S.C. 506, 511, 593
S.E.2d 617, 620 (Ct. App. 2004). Based on the record in this case, we find a
conflict in the evidence exists regarding LeFont's status at the time of the incident.
Accordingly, we reverse the circuit court's finding that LeFont was a licensee.5

III. Notice

LeFont argues the circuit court erred in finding the record contains no evidence
that the City had constructive notice of the pothole. We agree.

To recover damages for injuries caused by a dangerous or
defective condition on a defendant's premises, a plaintiff
'must show either (1) that the injury was caused by a
specific act of the respondent which created the

5
Based upon our reversal of the circuit court's finding that LeFont was a licensee,
the court need not address LeFont's second argument on appeal that the circuit
court erred in finding the City did not breach its duty of care. See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (holding an appellate court need not address remaining issues when
disposition of a prior issue is dispositive).
dangerous condition; or (2) that the respondent had actual
or constructive knowledge of the dangerous condition
and failed to remedy it.'

Pringle v. SLR, Inc. of Summerton, 382 S.C. 397, 404, 675 S.E.2d 783, 787 (Ct.
App. 2009) (quoting Anderson v. Racetrac Petroleum, Inc., 296 S.C. 204, 205, 371
S.E.2d 530, 531 (1988)).

Here, the circuit court held there was no evidence the City had constructive notice
of the pothole in the Convention Center parking lot. "Constructive notice is a legal
inference, which substitutes for actual notice." Major v. City of Hartsville, 410
S.C. 1, 3, 763 S.E.2d 348, 350 (2014). "Constructive notice . . . is notice imputed
to a person whose knowledge of facts is sufficient to put him on inquiry; if these
facts were pursued with due diligence, they would lead to other undisclosed facts."
Strother v. Lexington Cty. Recreation Comm'n, 332 S.C. 54, 63 n.6, 504 S.E.2d
117, 122 n.6 (1998).

LeFont asserts conflicting evidence was presented as to whether the City had
constructive notice of the pothole. Conversely, the City maintains there is no
evidence in the record that the pothole existed at any time prior to the date of
LeFont's injury.

Viewing the evidence in the light most favorable to LeFont, we find the record
contains sufficient evidence for the jury to infer that the City had constructive
notice of the pothole. Dr. Bryan Durig testified at trial as an expert in the field of
mechanical engineering. Dr. Durig testified the employee parking lot where
LeFont's injury occurred is in a loading zone and receives frequent traffic not only
from employees and vendors, but also from tractor trailers carrying heavy loads
that cause wear and tear on the parking surface. Dr. Durig further testified the hole
was in violation of the International Property Maintenance Code that was adopted
by the City and requires parking lots to be maintained free from hazardous
conditions. In addition, the record contains testimony that Convention Center
employees were regularly in the parking lot and could have detected the hole and
that the City had procedures in place for fixing holes. Dr. Durig noted the hole
contained dirt and debris—evidence from which the jury could infer the hole had
existed long enough for the City's employees to discover it.

In light of the foregoing, we find there was sufficient evidence of constructive
notice to allow the jury to resolve the question of the City's liability. Accordingly,
we reverse the circuit court's grant of a directed verdict.
CONCLUSION

We reverse the circuit court's grant of a directed verdict to the City and remand for
trial.

REVERSED AND REMANDED.

GEATHERS and HEWITT, JJ., concur.