Wanda V. Berry v. Scott Richardson

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Wanda V. Berry and Gary A. Berry, Appellants,

v.

Scott Richardson d/b/a Chick-Fil-A of Sumter Mall,
Respondent.

Appellate Case No. 2019-000877

Appeal From Sumter County
Kristi F. Curtis, Circuit Court Judge

Unpublished Opinion No. 2022-UP-124
Submitted February 1, 2022 – Filed March 23, 2022

AFFIRMED

John Derrick Clark, of Clark Law Firm, LLC, of Sumter,
for Appellants.

Kelsey Jan Brudvig and Claude Townsend Prevost, III,
both of Collins & Lacy, PC, of Columbia, for
Respondent.

PER CURIAM: Wanda and Gary Berry appeal the circuit court's grant of
summary judgment to Scott Richardson d/b/a Chick-fil-A of Sumter Mall. On
appeal, Wanda argues the circuit court erred by (1) finding her negligence claim
constituted an assertion of res ipsa loquitur and (2) failing to find the facts alleged
and evidence presented created a genuine issue of material fact sufficient to
survive summary judgment. Gary argues the circuit court erred by granting
Chick-fil-A's motion for summary judgment on his claim for loss of consortium.
We affirm.

1. We hold the circuit court did not err by granting Chick-fil-A's motion for
summary judgment as to Wanda's negligence claim. See Bluestein v. Town of
Sullivan's Island, 429 S.C. 458, 462, 839 S.E.2d 879, 881 (2020) ("When
reviewing a grant of summary judgment, appellate courts apply the same standard
applied by the trial court pursuant to Rule 56(c), SCRCP." (quoting Turner v.
Milliman, 392 S.C. 116, 121-22, 708 S.E.2d 766, 769 (2011))); Rule 56(c), SCRCP
(stating 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"); Bluestein, 429 S.C.at 462, 839 S.E.2d at 881 ("When determining if any
triable issues of fact exist, the evidence and all reasonable inferences must be
viewed in the light most favorable to the non-moving party." (quoting Turner, 392
S.C. at 122, 708 S.E.2d at 769)). Wanda did not allege, nor is there any evidence
in the record, that Chick-fil-A placed a foreign substance on its floor. See
Wintersteen v. Food Lion, Inc., 344 S.C. 32, 35, 542 S.E.2d 728, 729-30 (2001)
(providing that one way for a merchant to be held liable for a customer's injury
from a slip and fall is for the customer to show that the foreign substance that
caused the fall was placed on the floor by the merchant). Because Wanda failed to
present evidence that Chick-fil-A actually was aware of a foreign substance on its
floor when she fell and failed to remedy it, we find Wanda failed to show evidence
existed from which a jury could reasonably find that Chick-fil-A had actual notice.
See id. (providing that for a merchant to be liable for a customer's injury from a
slip and fall "[i]n the case of a foreign substance, the plaintiff must demonstrate
either that the substance was placed there by the defendant . . . , or that the
defendant had actual or constructive notice the substance was on the floor at the
time of the slip and fall"); Strother v. Lexington Cnty. Recreation Comm'n, 332
S.C. 54, 64 n.6, 504 S.E.2d 117, 122 n.6 (1998) ("Generally, actual notice is
synonymous with knowledge."). Moreover, because Wanda failed to present
evidence of how long a foreign substance was on Chick-fil-A's floor or that the
foreign substance was the result of a recurring, continual condition, we find Wanda
failed to show any evidence existed from which a jury could reasonably find that
Chick-fil-A had constructive notice. See Wintersteen, 344 S.C. at 36 n.1, 542
S.E.2d at 730 n.1 (stating the issue of constructive notice should be submitted to
the jury when there is evidence showing (1) a foreign substance was on the
merchant's floor for a sufficient length of time for the merchant to have discovered
and removed it or (2) the presence of a foreign substance on the merchant's floor
was the result of a recurring, continual condition and there existed other evidence
from which the merchant's knowledge of the substance could be inferred).1
Accordingly, we find Wanda failed to present any evidence from which a jury
could reasonably find that Chick-fil-A was liable for her injuries.

2. Because we find the circuit court did not err by granting summary judgment on
Wanda's negligence claim, we hold the circuit court did not err by granting
Chick-fil-A's motion for summary judgment as to Gary's claim for loss of
consortium. See Lee v. Bunch, 373 S.C. 654, 663, 647 S.E.2d 197, 202 (2007);
("Generally, a plaintiff spouse's claim for loss of consortium fails if the impaired
spouse's claim fails . . . ." (quoting 41 Am. Jur. 2d Husband and Wife § 227
(2007))); Smith v. Ridgeway Chems., Inc., 302 S.C. 303, 307, 395 S.E.2d 742, 744
(Ct. App. 1990) (holding an injured party's husband could not recover on his loss
of consortium claim because his wife was not entitled to recover for her injuries).

AFFIRMED.2

WILLIAMS, C.J., and KONDUROS and VINSON, JJ., concur.

1
We decline to address whether Wanda's negligence claim constituted an
assertion of res ipsa loquitur because our finding that the circuit court properly
granted Chick-fil-A's motion for summary judgment is dispositive. See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (declining to address the appellant's remaining issues because the resolution
of a prior issue was dispositive).
2
We decide this case without oral argument pursuant to Rule 215, SCACR.