Pryor v. Northwest Apartments, Ltd.

469 S.E.2d 630, 321 S.C. 524, 1996 S.C. App. LEXIS 56

• Court: Court of Appeals of South Carolina
• Decided: April 15, 1996
• Docket: 2493
• Status: Published

Opinions

Connor, Judge:

Regina Pryor appeals the trial court’s order granting the summary judgment motion of Northwest Apartments and Boyd Management in this slip and fall case. We affirm.

Summary judgment is proper only when no genuine issue of material fact exists. Rule 56(c), SCRCP. In determining whether an issue of facts exists, the evidence and all its inferences must be viewed in the light most favorable to the non-moving party. Koester v. Carolina Rental Center, Inc., 313 S.C. 490, 443 S.E. (2d) 392 (1994). Moreover,

[a] party opposing a properly supported motion for summary judgment. . . may not rest on the mere allegations or denials of his pleading, but must set forth or point to specific facts showing that there is a genuine issue of material fact. Thus, the existence of a mere scintilla of evidence in support of the nonmoving party’s position is not sufficient to overcome a motion for summary judgment.

Bravis v. Dunbar, 316 S.C. 263, 265, 449 S.E. (2d) 495, 496 (Ct. App. 1994) (citations omitted).

FACTS

The evidence, in the light most favorable to Pryor, is as follows. Pryor resided in an apartment building owned by Northwest Apartments, Ltd., and Boyd Management (collectively Northwest). On the night of February 1, 1991, Pryor was walking from her apartment to the parking area for the building. A truck in front of the paved walk partially blocked the entrance to the parking lot. Pryor walked through an unpaved common area and slipped on a patch of mud covered with pine straw, breaking her leg. She could have taken several alternate routes around the muddy area.¹

The ground was wet that night because it had rained earlier. Pryor knew the muddy common area was dangerously slick when wet because her mother had previously fallen nearby. The night Pryor fell, the mud had been covered with pine straw. Pryor knew the straw had been placed over the mud, but did not know another tenant had put it there. Northwest, on the other hand, knew a resident had raked the pine straw over the bare spots.

ISSUES

Pryor sued Northwest alleging, among other things, negligent failure to properly maintain the common area.and failure to warn of a dangerous condition. Northwest moved for summary judgment, arguing it had no duty to warn Pryor the wet common area presented a dangerous condition. Moreover, Northwest argued even if it had a duty, Pryor assumed the risk of her injuries. The trial court granted the summary judgment, agreeing Northwest had no duty and Pryor had assumed the risk. Pryor now appeals that ruling.

DISCUSSION

Pryor first argues the trial judge erred in applying the law to the facts in this case. She points out the judge analyzed this case under Meadows v. Heritage Village Church & Missionary Fellowship, Inc., 305 S.C. 375, 409 S.E. (2d) 349 (1991), which involved a premises liability action against a hotel. Pryor asserts the judge should have analyzed the case under the South Carolina Residential Landlord and Tenant Act (RLTA), S.C. Code Ann. §§ 27-40-10 through 27-40-940 (1991 & Supp. 1995).

This is an action sounding in negligence under the RLTA. See Watson v. Sellers, 299 S.C. 426, 385 S.E. (2d) 369 (Ct. App. 1989) (the RLTA creates a right in tort for breach of a duty owed by the landlord to the tenant).² As with any negligence action, plaintiff must establish (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach. Crolley v. Hutchins, 300 S.C. 355, 387 S.E. (2d) 716 (Ct. App. 1989). Section 27-40-440(a)(3) of the RLTA sets out the applicable duty of care:

(a) A landlord shall:

* # * *

(3) Keep all common areas of the premises in a reasonably safe condition, and, for premises containing more than four dwelling units, keep in a reasonably clean condition.

S.C. Code Ann. § 27-40-440(a)(3) (1991) (emphasis added). The RLTA creates a new cause of action not found at common law. Watson v. Sellers. However, we must look to the common law for guidance in analyzing new causes of action. In Meadows v. Heritage Village Church & Missionary Fellowship, Inc., 305 S.C. 375, 409 S.E. (2d) 349 (1991), a premises liability action, the Supreme Court addressed the duties owed to invitees by possessors of land. Under the facts of that case, Meadows, a hotel guest, was walking from the hotel parking lot to the hotel. Because the gravel path back to the hotel was flooded, Meadows decided to walk across the grass. She slipped on the wet grass and fell. Even though the route across the grass was the shortest way to the hotel, there were at least two alternate routes Meadows could have taken. The Meadows court held the operator of a parking lot could not insure the safety of all who used the lot, but owed a duty to keep the premises used by invitees in a reasonably safe condition. We note this is the same duty of care defined in the RLTA. Meadows also held a possessor of land had no duty to warn an invitee of an open and obvious natural condition. Id. at 378, 409 S.E. (2d) at 351. Applying these principles to the facts before us, there is no evidence Northwest breached its statutory duty to keep the premises in a reasonably safe condition. Moreover, Northwest owed no duty to warn of open and obvious natural conditions. A landlord cannot serve as an insurer of the safety of every tenant. The facts of this case are very similar to those in Meadoes, except here, the naturally occurring condition (mud) was immaterially altered by a tenant who had raked pine straw that had fallen nearby. Furthermore here, as in Meadows, the landlord could not foresee Pryor would choose to walk on the mud and pine straw rather than taking an alternate route. Accordingly, there was no evidence the landlord breached his duty of care. Summary judgment was therefore proper as a matter of law. Although the trial judge based his finding on a lack of duty, we may affirm on any ground appearing in the record. Rule 220(c), SCACR.

Pryor next argues the trial judge erred in granting summary judgment because discovery requests were outstanding. However, Pryor did not ask the court to continue the case so that discovery could be completed. Therefore this issue is not preserved for our review. Smith v. Phillips, 318 S.C. 453, 458 S.E. (2d) 427 (1995) (but for a very few exceptional situations, an appellate court cannot address an issue that was not raised to and ruled on by the trial court).³

Affirmed.

Howell, C.J., concurs and Cureton, J., dissents in separate opinion.

1 Pryor testified she could have walked around a dumpster. Also, she could have walked between the parked ears, but chose not to because she didn’t want to brush up against them.

2 Northwest argues Pryor has abandoned any argument she may have had under the RLTA by failing to specifically raise then issue in her memorandum in opposition to Northwest’s motion for summary judgment. Northwest further argues the issue is not preserved for appeal because the trial court did not expressly rule on it and Pryor failed to raise the issue in a Rule 59(e) motion to alter or amend the judgment. However, Pryor’s pleadings clearly asserted the RLTA was applicable to the facts of this case. Moreover, the trial court implicitly ruled on and rejected this argument in finding Northwest had no duty to warn of dangerous conditions existing on its property.

3 Because we affirm the grant of summary judgment on the basis that there is no evidence, even in the light most favorable to Pryor, that Northwest breached its duty of care, we need not address Pryor’s argument on assumption of the risk.