Wallace Graham; Dorothy Graham v. Progress Energy, Incorporated

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1906
WALLACE GRAHAM; DOROTHY GRAHAM,
Plaintiffs - Appellants,
v.
PROGRESS ENERGY, INCORPORATED,
Defendant - Appellee,
and
BASSETT FURNITURE INDUSTRIES, INCORPORATED; FLEETWOOD HOMES
OF GEORGIA, INCORPORATED; PHILLIPS, INCORPORATED,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cv-02895-TLW)
Argued: May 12, 2010 Decided: June 25, 2010
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
ARGUED: Robert Paul Foster, FOSTER LAW FIRM, LLP, Greenville,
South Carolina, for Appellants. Jerome Scott Kozacki, WILLCOX
BUYCK & WILLIAMS, PA, Florence, South Carolina, for Appellee.
ON BRIEF: William P. Walker, Jr., WALKER & MORGAN, LLC,
Lexington, South Carolina, for Appellants.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This appeal arises from a grant of summary judgment. The
district court dismissed a negligence claim upon finding
insufficient evidence to establish proximate causation under
South Carolina law. Because we are unable to find that the
alleged harm was unforeseeable as a matter of law, we reverse.
I.
When Appellants Wallace and Dorothy Graham failed to pay
their electricity bill, Appellee Progress Energy, Inc.,
(“Progress”) disconnected electricity to their home allegedly
without following various regulations (e.g., requiring that the
Grahams receive prior notice and be offered a deferred payment
plan). The Grahams consequently lit several candles for
illumination. Two of the candles were placed on sconces mounted
on the wall above a sofa in their living room. The Grahams
forgot to extinguish the candles before falling asleep. That
night, Wallace Graham awoke to find that the burning candles had
caused a fire beginning on the living room wall above the couch.
His wife managed to escape through the front door, but he became
trapped inside the master bedroom and suffered burns and smoke
inhalation before being rescued.

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The Grahams sued Progress (among other defendants) for
negligence under South Carolina law. The district court granted
Progress’s motion for summary judgment under Federal Rule of
Civil Procedure 56. Finding insufficient evidence to establish
proximate causation, the court reasoned that, “[w]hile Progress
may have foreseen that the plaintiffs would use candles as a
source of light, it is unforeseeable that the plaintiffs would
fail to extinguish the candles prior to falling asleep.” J.A.
318. This appeal followed.
II.
We “review[] a district court’s decision to grant summary
judgment de novo, applying the same legal standards as the
district court.” Pueschel v. Peters, 577 F.3d 558, 563 (4th
Cir. 2009). Summary judgment should be granted “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c)(2). “[I]n ruling on a
motion for summary judgment, the nonmoving party’s evidence is
to be believed, and all justifiable inferences are to be drawn
in that party’s favor.” Hunt v. Cromartie, 526 U.S. 541, 552
(1999) (internal quotations omitted).

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The issue before us is whether a reasonable jury could
conclude that Progress’s alleged negligent conduct proximately
caused the Grahams’ alleged harm. The South Carolina Supreme
Court has recently articulated the relevant law:
To establish a negligence cause of action under
South Carolina law, the plaintiff must prove the
following three elements: (1) a duty of care owed by
defendant to plaintiff; (2) breach of that duty by a
negligent act or omission; and (3) damage proximately
resulting from the breach of duty.
Normally, proximate cause is a question of fact
for the jury, and it may be proved by direct or
circumstantial evidence. Proximate cause requires
proof of: (1) causation-in-fact, and (2) legal cause.
Causation-in-fact is proved by establishing the injury
would not have occurred but for the defendant’s
negligence, and legal cause is proved by establishing
foreseeability.
Indeed, foreseeability is considered the
touchstone of proximate cause, and it is determined by
looking to the natural and probable consequences of
the defendant’s act or omission. However, while
foreseeability of some injury from an act or omission
is a prerequisite to establishing proximate cause, the
plaintiff need not prove that the defendant should
have contemplated the particular event which occurred.
Moreover, it is not necessary to prove that the
defendant’s negligence was the sole proximate cause of
the injury. Instead, it is sufficient if the evidence
establishes that the defendant’s negligence is a
concurring or a contributing proximate cause.
Concurring causes operate contemporaneously to produce
the injury, so that it would not have happened in the
absence of either. In other words, if the actor’s
conduct is a substantial factor in the harm to
another, the fact that he neither foresaw nor should
have foreseen the extent of harm or the manner in
which it occurred does not negative his liability.
J.T. Baggerly v. CSX Transp., Inc., 635 S.E.2d 97, 101 (S.C.
2006) (internal quotations, citations, and emphases omitted).

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Progress does not dispute causation-in-fact. Regarding
legal causation, Progress contends that “Mr. and Mrs. Graham’s
actions were an intervening, independent cause of the fire” that
was unforeseeable. Appellee’s Br. at 16. Under South Carolina
law, “[f]or an intervening act to break the causal link and
insulate the tortfeasor from further liability, the intervening
act must be unforeseeable.” McKnight v. S.C. Dep’t of
Corrections, 684 S.E.2d 566, 569 (S.C. Ct. App. 2009) (quoting
Dixon v. Besco Eng’g, Inc., 463 S.E.2d 636, 640 (S.C. Ct. App.
1995). Although admitting that “Mr. and Mrs. Graham’s decision
to illuminate their home with candle light following their
termination of power services for non-payment may certainly have
been foreseeable,” Progress contends that “their going to sleep
with the candles lit or otherwise failing to attend to the
candles so as to prevent them from falling was certainly by no
means so.” Appellee’s Br. at 17.
Progress’s approach misconstrues the relevant inquiry
because South Carolina law does not require that particular
events be foreseeable. For instance, the conduct of falling
asleep without extinguishing candles need not have been
foreseeable. See J.T. Baggerly, 635 S.E.2d at 101 (“[W]hile
foreseeability of some injury from an act or omission is a
prerequisite to establishing proximate cause, the plaintiff need
not prove that the defendant should have contemplated the

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particular event which occurred.”); Childers v. Gas Lines, Inc.,
149 S.E.2d 761, 765 (S.C. 1966) (“If the actor’s conduct is a
substantial factor in the harm to another, the fact that he
neither foresaw nor should have foreseen the extent of harm or
the manner in which it occurred does not negative his
liability.”); see also Mellen v. Lane, 659 S.E.2d 236, 248 (S.C.
Ct. App. 2008) (“The original actor need not contemplate the
particular intervening act responsible for the injury.” (citing
Oliver v. S.C. Dep’t of Highways and Pub. Transp., 422 S.E.2d
128, 131 (S.C. 1992))). Instead, only the general harm (injury
during a house fire) and general intervening cause (careless
misuse of candles) need to have been foreseeable.
Progress concedes that “Mr. and Mrs. Graham’s decision to
illuminate their home with candle light following their
termination of power services” was foreseeable. Appellee’s Br.
at 17. This seems obvious because people who have suddenly lost
electricity will naturally try to illuminate their home without
it, and candles are frequently used for this purpose. Common
sense and ordinary experience reveal that people are sometimes
careless when they use candles.*
* The Grahams also support this with evidence: The National
Fire Protection Association’s research shows that from 1999 to
2001 “[o]ne-third (34%) of all home candle fires occurred after
candles were left unattended, abandoned, or inadequately
controlled.” J.A. 152.
Because candle use was

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foreseeable, a reasonable jury could therefore conclude that
some amount of candle misuse was also foreseeable. Progress
also concedes that the Grahams’ house fire foreseeably resulted
from their using candles carelessly. See Appellee’s Br. at 16
(asserting that “the direct and proximate cause of the fire
resulted from the lit candles Mr. and Mrs. Graham had forgotten
to extinguish prior to their having fallen asleep”). This means
that, assuming careless misuse of candles was foreseeable, the
Grahams’ house fire arising from careless misuse of candles
would also have been foreseeable.
The evidence presented also provides support for the
conclusion that the alleged harm might have been foreseeable.
Progress’s website describes how people should handle power
outages during severe weather. Among items people should have
ready, the website mentions “[c]andles and lantern[s].” J.A.
217. More importantly, the website provides a warning
indicating that people should exercise special care when using
candles: “If possible, avoid using candles – using a camping
lantern is safer. If you must use candles, remember that open
windows and gusty winds can knock them over or blow flammable
materials into them, so be careful about where you place them.”
J.A. 218. From this evidence, one could easily infer that
Progress recognized that people who have just lost electricity
might cause a house fire by using candles carelessly.

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Our precedent Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th
Cir. 1971), also forecloses the argument that the Grahams’
negligence in falling asleep without extinguishing the candles
insulates Progress from liability. Gardner involved paraffin-
filled hair rollers that, once boiled in water for 15 minutes,
could be used to create curls. A nurse dressing for church
after her night shift placed the hair rollers inside a pot
containing water and activated the stove. She then started a
bath but fell asleep in the bathtub. When the unattended pot
boiled over, the hair rollers caused a fire which burned down
her apartment building. The building owner sued the hair-roller
manufacturer and seller for negligence and breach of warranty
under South Carolina law, but the district court dismissed the
action at summary judgment. On appeal, we held that “[t]he
district judge was in error . . . in his apparent conclusion
that . . . falling asleep was an act of intervening negligence
which, as a matter of law, was the proximate cause of the fire
and thereby insulated defendants from any liability on their
part which the jury might have found had the case been submitted
to it.” Id. at 243.
III.
For all the above reasons, we hold that a reasonable jury
could conclude that the Grahams’ alleged harm was foreseeable.

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We therefore reverse the grant of summary judgment on that
ground. Because the district court found that proximate
causation could not be established, the court never reached
Progress’s claim that relief should be barred under the doctrine
of comparative negligence. The district court is free to
consider that claim on remand.
REVERSED AND REMANDED

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