Vatrick v. SC Federal Credit Union

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Melva Vatick,       
Appellant,

v.

South Carolina Federal Credit Union,       
Respondent.

Appeal From Charleston County

Jackson V. Gregory, Circuit Court Judge

Unpublished Opinion No. 2004-UP-191

Submitted March 8, 2004 – Filed March
22, 2004

AFFIRMED

Reese I. Joye and J. Craig Smith, of N. Charleston; Stephen
L. Brown, of Charleston; for Appellant.

Andrea St. Amand and Richard A. Farrier, Jr., of Charleston;
for Respondent.

PER CURIAM:  Melva Vatick
filed a negligence suit against South Carolina Federal Credit Union for damages
incurred when she fell after using Credit Union’s automatic teller machine. 
At the close of Vatick’s case, the trial court granted Credit Union’s motion
for a directed verdict.  Vatick appeals.  We affirm.
[1]

FACTS

Vatick, a customer of Credit
Union, routinely used its automatic teller machine (ATM).  Vatick testified
that she always parked her car in front of the building and walked to the ATM,
which included climbing one step from the pathway to the ATM enclosure.  Vatick
testified she would then withdraw money from the ATM and immediately count it.  

On the day in question, Vatick drove
to Credit Union, accompanied by her nephew.  Due to construction outside of
Credit Union’s building, Vatick was forced to park on the right side of the
building, in a space where she never parked before.
[2]   Vatick parked the car and walked over to the ATM.  Vatick testified
that she walked through the construction site along a path that included two
steps in order to reach the ATM.  Vatick stated that she saw red cones in the
construction area and agreed with defense counsel’s contention that such cones
generally indicated that one should “proceed with caution.”  However, Vatick
testified there were no warning signs, handrailings, or personnel from Credit
Union present at the site to warn her to watch her step.   

While Vatick stated the path through
the construction site was “narrow,” Vatick did not require her nephew’s assistance
to reach the ATM.  In fact, Vatick successfully navigated the parking lot, the
temporary path, and the two unfamiliar steps up to the ATM.  Vatick testified
the steps to the ATM were not obstructed.  After Vatick used the ATM, she began
to count her money.  She testified that she was “intrigued” by the design of
the new twenty-dollar bill, and began to walk back to her car while looking
at the bill.  Vatick fell down the two steps on the temporary path and was injured. 
She filed a complaint alleging Credit Union was “negligent, reckless, and breached
the duties” owed to her. 

At the close of Vatick’s case,
Credit Union moved for a directed verdict.  The trial judge granted the motion. 
Though Vatick filed a motion for reconsideration under Rule 59(e), SCRCP, it
was denied. 

STANDARD OF REVIEW

“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.”  Sims v. Giles, 343 S.C. 708,
714, 541 S.E.2d 857, 861 (Ct. App. 2001).  This court can reverse the trial
court only when there is no evidence to support the ruling below.  Sabb v.
South Carolina State Univ., 350 S.C. 416, 427, 567 S.E.2d 231, 236 (2002).

LAW/ANALYSIS

Vatick
argues the trial court erred in granting Credit Union’s motion for a directed
verdict.  We do not agree.

In order to establish a claim
for negligence, the plaintiff must prove the following elements:  1) a duty
of care owed by the defendant to the plaintiff; 2) a breach of that duty by
the defendant’s negligent act or omission; 3) the plaintiff was damaged; and
4) the damages proximately resulted from the breach of the duty.  Thomasko
v. Poole, 349 S.C. 7, 11, 561 S.E.2d 597, 599 (2002).  “In a negligence
action, the court must determine, as a matter of law, whether the defendant
owed a duty of care to the plaintiff.”  Faile v. South Carolina Dep’t of
Juvenile Justice, 350 S.C. 315, 334, 566 S.E.2d 536, 545 (2002) (citation
omitted); see also Doe v. Batson, 345 S.C. 316, 322-23,
548 S.E.2d 854, 857 (2001) (“An essential element in a cause of action for negligence
is the existence of a legal duty of care owed by the defendant to the plaintiff.”).    

“A merchant is not an insurer
of the safety of his customer but owes only the duty of exercising ordinary
care to keep the premises in reasonably safe condition.”  Garvin v. Bi-Lo,
Inc., 343 S.C. 625, 628, 541 S.E.2d 831, 832 (2001) (citation omitted);
see also Wintersteen v. Food Lion, Inc., 344 S.C. 32,
36, 542 S.E.2d 728, 730 (2001) (“Storekeeper liability is founded upon the
duty of care a possessor of land owes to an invitee.”).  A merchant does not
owe a duty to maintain its premises in such a condition that no accident could
happen to a patron.  See Denton v. Winn-Dixie Greenville, Inc.,
312 S.C. 119, 120, 439 S.E.2d 292, 293 (Ct. App. 1993).  “To recover damages
for injuries caused by a dangerous or defective condition on a storekeeper’s
premises, the plaintiff must show either (1) that the injury was caused by
a specific act of the respondent which created the dangerous condition; or
(2) that the respondent had actual or constructive knowledge of the dangerous
condition and failed to remedy it.”  Garvin, 343 S.C. at 628, 541 S.E.2d
at 832 (citations omitted).

Credit Union, as a merchant,
owed Vatick the duty of exercising ordinary care to keep its premises, including
its passageways, in a reasonably safe condition.  See Wintersteen,
344 S.C. at 36, 542 S.E.2d at 730 (stating that a merchant owes a duty to
keep aisles and passageways in a reasonably safe condition).  Therefore, under
the two part analysis set forth in Garvin, Vatick must present evidence
to prove either that her injury was caused by a specific act by Credit Union
which created a dangerous condition or that Credit Union had knowledge of
a dangerous condition and failed to remedy it.  See Garvin,
343 S.C. at 628, 541 S.E.2d at 832. 

Vatick failed to present evidence to
satisfy the first part of the Garvin test, that her injuries resulted
from a specific act of Credit Union that created a dangerous condition.  Initially,
we note Vatick does not identify a particular hazard that proximately caused
her to fall.  Rather, she appears to imply the construction site in the entire
ATM area was hazardous.  While Credit Union initiated the construction work
on its premises, we do not find it created a dangerous condition.  Vatick
testified there was a “narrow” path to the ATM, but she did not state she
had any trouble walking along it.  Vatick also testified her view of the area
was unobstructed and that she noticed red cones in the area.  However, Vatick
did not state these cones were blocking the path and testified that she knew
this indicated she should be cautious.  Further, while Vatick’s testimony
seems to imply the addition of an extra step leading up to the ATM caused
her to fall, Vatick testified she noticed the path had two steps and successfully
navigated the steps on her way to the ATM.  This court has found a merchant
was not liable when a customer was injured after failing to step over a clearly
visible and unobstructed object.  See Denton, 312 S.C. at 121-22,
439 S.E.2d at 294 (finding the store was not liable when the patron testified
she saw the clearly visible concrete dividers in the parking lot but that
she was preoccupied and tripped over one of the dividers).  Finally, Vatick
suggests that the lack of railings along the path and steps created a dangerous
condition; however, because we find the construction, path, and step did not
create a dangerous condition as they existed, this argument is without merit.

Vatick also failed to present evidence
to satisfy the second part of the Garvin test, that Credit Union had
actual or constructive knowledge of the dangerous condition and failed to
remedy it.  Vatick appears to argue Credit Union should have known, by virtue
of performing construction in the ATM area, that a dangerous condition could
have resulted.  However, Vatick failed to establish that a dangerous condition
did result or that Credit Union had actual or constructive knowledge of any
such dangerous condition.  See id. at 121, 439 S.E.2d at 294
(“Accidents may happen around . . . steps, escalators, and other raised structures. 
This does not mean they are unreasonably dangerous or that a person exercising
due care would not have them on the premises.  They are, in fact, common structures
that a person taking reasonable care for his own safety would likely expect
and see while on the premises.”).  By Vatick’s own testimony, she did not
require any assistance to walk from the parking lot to the path through the
construction area, and up the two steps to the ATM.  Further, Vatick admitted
that she fell down after she left the ATM and was examining the new twenty-dollar
bill while walking to her car.

It is axiomatic that one cannot prevail
on a negligence claim without proving a breach of duty.  Because Vatick cannot
prove Credit Union breached its duty to exercise ordinary care to keep its
premises in a reasonably safe condition, she cannot prevail on this negligence
action.  See Thomasko, 349 S.C. at 11-12, 561 S.E.2d at 599. 
Accordingly, the trial court did not err in granting Credit Union’s motion
for a directed verdict.

CONCLUSION

Based upon the foregoing, the trial
court’s grant of Credit Union’s motion for a directed verdict is

AFFIRMED.

HEARN, C.J., ANDERSON and BEATTY,
J.J., concur.

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.

[2] Vatick’s daughter, who was a Credit Union employee at the time of
the accident, testified there was construction at the site in order to erect
a new drive-up ATM and eliminate the walk-up ATM.