In many South Carolina premises liability claims, an important element is proving defendant had actual or constructive knowledge of the defect. This means the defendant:
- Created the dangerous condition OR
- Was expressly informed of the dangerous condition OR
- Should have expected it because it occurred with such frequency OR
- Should have discovered it because it had existed for such a time that, had defendant been using reasonable care, it would have been found.
This element is essential in many cases where it is alleged a business owner failed to protect patrons from some dangerous condition on site.
The issue was raised recently in the case of Wheeling Park Commission v. Dattoli, where the West Virginia Supreme Court reversed a $56,000 judgment in favor of a man who was injured when he fell after leaning on an allegedly defective split-rail fence at a private resort.
According to court records, plaintiff was visiting the resort and conference center when he leaned against a fence on the grounds. Just before he did, he looked briefly at the fence to make sure all the parts were attached. He leaned against the post and put his hand on top of the rail. Unfortunately, the top end of the rail broke into several pieces causes him to fall down a hill and injure his shoulder.
Plaintiff suffered a rotator cuff tear and had to undergo surgery. He also endured months of physical therapy and was couldn’t return to a work for half a year. He also reportedly suffered burdens to his marriage and finances.
He filed a personal injury lawsuit against the owner of the property.
At trial, evidence was presented that the fence had been installed sometime between the 1970s and 1990s, Defendant reportedly did not, when plaintiff requested, produce repair or maintenance records. Defendant’s director of operations testified he understood that wood only has a certain life expectancy and that defendant was in a better position than plaintiff to make sure it was in good repair.
At the close of trial, defendant moved for judgment as a matter of law based on insufficient evidence of the park’s duty to maintain and repair the fence and breach of that duty. Circuit court denied that motion and jurors sided in favor of plaintiff for $56,000.
Defendant appealed the order denying its motion for summary judgment. The West Virginia Supreme Court reversed.
There were a number of fatal flaws by the plaintiffs here. The first was that, as defense pointed out, plaintiff did not present evidence of what the defendant should have done differently in maintaining the fence. There were no witnesses arguing that the fence maintenance was improper or what kind of different approach might have prevented this accident.
Further, plaintiff had not presented evidence that defendant knew or should have known the fence was structurally deficient.
Based on that latter argument, the court found plaintiff failed to make a prima facie case (on first impression) of negligence, and therefore the lower court made a mistake in not granting defendant summary judgment before the verdict was reached.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Wheeling Park Commission v. Dattoli, June 2, 2016, West Virginia Supreme Court
More Blog Entries:
In re H.E.B. Grocery Co. – Injury Plaintiff Must Submit to Medical Exam, June 10, 2016, Rock Hill Injury Lawyer Blog