Peterkin v. Bummz Beach, LLC

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

Priscilla Peterkin, Appellant,

v.

Bummz Beach, LLC, City of Myrtle Beach, and Bummz
on the Beach, Inc., Individually and d/b/a Bummz on the
Beach Cafe, Defendants,

of which Bummz on the Beach, Inc., individually and
d/b/a Bummz on the Beach Cafe, is the Respondent.

Appellate Case No. 2021-000803

Appeal From Horry County
Steven H. John, Circuit Court Judge

Unpublished Opinion No. 2024-UP-144
Submitted April 1, 2024 – Filed May 1, 2024

AFFIRMED

Deyaska Spencer Sweatman, of Deyaska Spencer Law
Firm, LLC, of Columbia, for Appellant.

Roopal S. Ruparelia, Sarah P. Spruill, and Charles Epps
Ipock, all of Haynsworth Sinkler Boyd, PA, of
Greenville, for Respondent.
PER CURIAM: Priscilla Peterkin appeals a circuit court order granting summary
judgment to Bummz on the Beach, Inc., individually and d/b/a Bummz on the
Beach Cafe (Bummz). On appeal, Peterkin argues the circuit court improperly
ruled her affidavit to be a sham, and it improperly granted Bummz's motion for
summary judgment because there was sufficient evidence to create a jury question.
We affirm pursuant to Rule 220(b), SCACR.

We hold the circuit court did not abuse its discretion by excluding Peterkin's
affidavit after determining it was a sham. See McMaster v. Dewitt, 411 S.C. 138,
144, 767 S.E.2d 451, 454 (Ct. App. 2014) (holding in reviewing a circuit court's
decision to exclude a sham affidavit, our court uses an abuse of discretion
standard); Cothran v. Brown, 357 S.C. 210, 218, 592 S.E.2d 629, 633 (2004)
(finding the court must consider "(1) whether an explanation is offered for the
statements that contradict prior sworn statements; (2) the importance to the
litigation of the fact about which there is a contradiction; (3) whether the
nonmovant had access to this fact prior to the previous sworn testimony; (4) the
frequency and degree of variation between statements in the previous sworn
testimony and statements made in the later affidavit concerning this fact; (5)
whether the previous sworn testimony indicates the witness was confused at the
time; (6) when, in relation to summary judgment, the second affidavit is
submitted"). In her deposition, Peterkin stated she was "not absolutely sure" what
caused her fall and she could not say that the fall was caused by the palm tree bush,
which was owned and maintained by Bummz. In her later filed affidavit, she
stated she "tripped and fell on a piece of raised concrete directly in front of the
restaurant" and "[s]ince it was both dark, and because a Bummz palm tree bush
was hanging over the raised concrete [she] couldn't see the danger and [she]
tripped." Peterkin's affidavit did not give an explanation as to the contradiction
between her affidavit and her deposition for the cause of her fall. Second, the fact
in contradiction, what caused Peterkin to fall, was the main dispute in the case and
the question in issue in deciding whether summary judgement was proper. Next,
Peterkin had access to all of the facts set forth in her affidavit regarding the
circumstances and condition of her fall at the time of her deposition. Peterkin
stated that she was not sure what caused her fall multiple times throughout her
deposition; however, she stated the fall was caused by the palm tree bush blocking
her view of the "danger" of the "raised concrete" only once and only in her
affidavit. Finally, Peterkin's affidavit did not allege she was confused during her
deposition and her deposition testimony did not indicate she was confused at that
time. Accordingly, we hold the circuit court properly exercised its discretion in
finding the affidavit was a sham based on the Cothran guidelines.
We hold the circuit court did not err in granting Bummz's motion for summary
judgment. See USAA Prop. & Cas. Ins. Co. v. Clegg, 377 S.C. 643, 653, 661
S.E.2d 791, 796 (2008) ("When reviewing the grant of a summary judgment
motion, appellate courts apply the same standard that governs the [circuit] court
. . . ."); Rule 56(c), SCRCP (explaining a party must "show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law"). Viewing the evidence in the light most favorable to Peterkin, we
conclude Peterkin did not show a reasonable inference from the evidence that her
fall was caused by a specific act of Bummz that created a dangerous condition or
that Bummz had actual or constructive knowledge of the dangerous condition and
failed to remedy it. See Kitchen Planners, LLC v. Friedman, 440 S.C. 456, 461,
892 S.E.2d 297, 300 (2023) (stating a party opposing the motion must "show a
'reasonable inference' to be drawn from the evidence"); Garvin v. Bi-Lo, Inc., 343
S.C. 625, 628, 541 S.E.2d 831, 832 (2001) (holding a plaintiff must prove "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"). Peterkin stated
multiple times in her deposition that she was unable to say what caused her fall.
When she did explain what caused it, she stated she fell because of a "crack" in the
concrete sidewalk, which was owned and maintained by the City of Myrtle Beach,
and denied that her fall was caused by an overgrown palm tree bush, which was
owned and maintained by Bummz. Moreover, it was undisputed that Bummz was
not the owner of the sidewalk and did not have a duty to maintain it. Peterkin did
not provide an expert opinion, outside testimony, or other evidence to show
Bummz created the dangerous condition or had a duty to remedy it. Accordingly,
we hold the circuit court did not err in granting Bummz's motion for summary
judgment.

AFFIRMED. 1

WILLIAMS, C.J., KONDUROS, J., and LOCKEMY, A.J., concur.

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