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24823 - Regina L. Strother, et al. v. Lexington County Recreaction Commission

Davis Adv. Sh. No. 27
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



Regina L. Strother and

Douglas Strother, Petitioners,

v.

Lexington County

Recreation Commission, Respondent.





ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS





Appeal From Lexington County

William P. Keesley, Judge





Opinion No. 24823

Heard March 5, 1998 - Filed July 27, 1998





AFFIRMED AS MODIFIED



H. Patterson McWhirter and Stephen B. Samuels, both of

McWhirter, Bellinger & Associates, of Lexington, for

petitioners.

Patrick J. Frawley, of Nicholson, Davis, Frawley,

Anderson & Ayer, L.L.P., of Lexinqton, for respor0ent.





BURNETT,, A.J.: Regina and Douglas Strother (petitioners)

brought this negligence action against Lexington County Recreation

Commission (respondent) alleging Regina Strother was injured when she

tripped over a sprinkler head while playing softball on one of respondent's

fields. The Court of Appeals upheld the circuit court's grant of summary



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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..





judgment in favor of respondent. Strother v. Lexington County Recreation

Comm'n, 324 S.C. 611, 479 S.E.2d 822 (Ct. App. 1996) (Anderson, J.,

dissenting). We affirm as modified.





FACTS



Respondent operates the Pine Grove Softball Complex. While

Regina Strother was playing softball at the complex in May 1992, she

attempted to catch a fly ball in the outfield, and in the process tripped

over a "popped-up" water sprinkler head and twisted her left knee.





The softball complex contains five softball fields which are each

equipped with a sprinkler system using the Rainbird R-70 (R-70) pop-up

sprinkler heads. Respondent installed the sprinkler system in the fall of

1991. The sprinkler system waters each of the zones of the fields in thirty

minute intervals every night. Petitioners alleged the sprinkler head on

which she tripped was defective because it failed to retract.





Respondent moved for summary judgment asserting it did not

have actual notice of the alleged defect or the opportunity to correct the

defect as required by S.C. Code Ann. § 15-78-60(16) (Supp. 1997).

Respondent presented the depositions of four of its maintenance personnel

to support its claim.



David Hendricks, the Director of Facilities and Maintenance for

the Lexington County Recreation and Aging Commission, was in charge of

maintenance at the ball field. He started working with pop-up head

sprinkler systems in 1984 or 1985 at Oak Grove, another Lexington

County recreation facility. Since 1987, Hendricks has been aware that

some types of "pop-up head sprinkler systems sometimes pop up when the

water goes on and when it goes off, they don't go back down." He had no

knowledge any sprinkler head at Pine Grove had ever failed to retract.



Earl Smith, maintenance supervisor for the Lexington County

Recreation and Aging Commission, testified, before petitioner's accident, he

was aware pop-up sprinkler heads would sometimes pop up but not retract

when the water was turned off. He learned this from working with other

sprinkler systems owned by the county. He first became involved with

Rainbird sprinkler systems in 1984 at Oak Grove. Smith testified the only

problem he experienced with Rainbird sprinklers was occasional clogging

after initial installation. He also testified he had problems at Oak Grove

with other sprinkler systems which would pop up but not retract; however,

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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..





he had never experienced this problem with a Rainbird sprinkler system.

He was not aware of any retraction failure of sprinkler heads at Pine

Grove. Smith testified, for purposes of repair, most systems are similar;

however, the types of systems installed on the other softball fields are "not

the same thing" as the R-70. According to Smith, the maintenance

workers for each field were responsible for ensuring sprinkler heads were

down before players used the fields, but there was no formal inspection

procedure.



Jerry Zenoni, the person who actually maintained Pine Grove,

was not aware of any sprinkler heads failing to retract. 1 Zenoni testified

he never checked to see if the sprinkler heads were down and was never

told to do so. Thomas Davis, another maintenance worker, testified he

had never seen a sprinkler head fail to retract.



Petitioners argued respondent had actual notice because the

maintenance workers had general knowledge pop-up heads on some

sprinkler systems did not always retract. They further argued actual

notice of the defect in the R-70 sprinkler system could be implied, and

maintenance workers should have devised a system to check the sprinkler

heads. Petitioners presented three affidavits to support their position.2





Petitioners submitted two affidavits of personnel assigned to

maintain the athletic fields at the University of South Carolina. These

affiants indicated they were familiar with pop-up sprinkler systems and


1 Zenoni admitted since this incident he had noticed some of the R-70

sprinkler heads failing to retract at the Pine Grove Softball Complex.





2 Respondent argues the affidavits submitted by petitioners failed to

meet the requirements of Rule 56(e), SCRCP, because the affidavits failed

to set forth specific facts indicating the affiants were sufficiently familiar

with the R-70 sprinkler system to allow them to comment on the problems

of the system and to render opinions as to what the maintenance workers

should have known with respect to the sprinkler system. We agree with

the Court of Appeals' resolution of this issue. 479 S.E.2d at 827, fn. 1.

The court found the trial judge did not abuse his discretion in admitting

these affidavits based on the affiants' experience and familiarity with

sprinkler systems. See Hoeffner v. The Citadel, 311 S.C. 361, 429 S.E.2d

190 (1993) (a trial court's ruling on the admission of evidence will not be

disturbed on appeal absent an abuse of discretion amounting to an error of

law).

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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..





that "occasionally the heads pop up and do not go back down." These

affiants testified they do not allow use of the athletic fields until the fields

have been checked for protruding sprinkler heads.



Petitioners also submitted an affidavit from Jay Corley, an

employee of the company which sold the R-70 to the contractor who

installed the system for respondent. Mr. Corley stated he is familiar with

pop-up sprinkler systems because of his nine years experience working in

design and sales for a Rainbird dealer. He indicated he had knowledge of

problems with sprinkler systems including the fact that "seldomly [sic] the

heads pop up and do not go back down," and that had anyone called the

company to inquire, the problem would have been explained to them.



The trial judge granted respondent's motion for summary

judgment finding respondent did not have actual notice the sprinkler head

involved in the incident failed to retract or that there had been problems

with the sprinkler heads at this particular ball field.





The Court of Appeals affirmed finding petitioners did not show

respondent had actual notice of a defect in the sprinkler system. Strother,

supra. The Court of Appeals found the general knowledge that some types

of pop-up sprinkler systems sometimes failed to retract was insufficient to

provide actual notice of the defect. The court concluded actual notice

under § 15-78-60 (16) means express notice thus eliminating the option of

proving actual notice by circumstantial evidence. Id. Judge Anderson

dissented finding this general knowledge was sufficient to provide actual

notice of the defect. Judge Anderson found this case fell within the

definition of "implied actual notice" which, in his opinion, South Carolina

should recognize as a definition of actual notice. Id.





ISSUE

What constitutes actual notice under the South Carolina Tort

Claims Act, S.C. Code Ann. § 15-7S-60(16) (Supp. 1997) (the

Act)?

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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..





STANDARD OF REVIEW3



Summary judgment is appropriate where it is clear there is no

genuine issue of material fact, and the moving party is entitled to

judgment as a matter of law. Hamiter v. Retirement Division of South

Carolina, 326 S.C. 93, 484 S.E.2d 586 (1997). In determining whether any

triable issues of fact exist, the evidence and all inferences which can be

reasonably drawn from the evidence must be viewed in the light most

favorable to the nonmoving party. Id.





DISCUSSION



Petitioners argue the Court of Appeals misapplied the

requirement of actual notice found in § 15-78-60(16) (Supp. 1997).4


3 In their brief, petitioners raise the question of who has the burden

of proving actual notice. Petitioners claim because respondent is asserting

an affirmative defense under the Act, respondent has the burden of

proving it had no actual notice of the defect. For purposes of summary

judgment, the moving party has the burden of proving no material fact

exists. Standard Fire Co. v. Marine Contracting & Towing Co., 301 S.C.

418, 392 S.E.2d 460 (1990). Once a party moving for summary judgment

carries the initial burden of showing an absence of evidentiary support for

the nonmoving party's case, the nonmoving party may not simply rest on

mere allegations or denials contained in the pleadings. Baughman v.

American Tel. and Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991). Whether

petitioners or respondent would have the burden of proving actual notice

at trial is not an issue before this Court. However, usually the plaintiff

has the burden of establishing notice in a negligence action. See Simmons

v. Winn-Dixie Greenville, Inc., 318 S.C. 310, 457 S.E.2d 608 (1995); Baugh

& Sons Co. v. Graham, 150 S.C. 398, 148 S.E. 220 (1929).



4 Petitioners also argue because respondent created the defective

condition by installing the pop-up head sprinkler system at Pine Grove, no

actual notice of the defect was required. Petitioners failed to preserve this

issue for review because they did not raise the issue below. Jackson v.

Speed, 326 S.C. 289, 486 S.E.2d 750 (1997). Further, this argument is

without merit. Installation of this sprinkler system did not create a

dangerous condition. Compare with Pinckney v. Winn Dixie Stores, Inc.,

311 S.C. 1, 426 S.E.2d 327 (Ct. App. 1992) (knowledge could be inferred

where the store owner created the dangerous situation by placing the

poinsettias near the front of the store and the leaves were dropping on the

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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..





According to petitioners, respondent had actual notice of a defect in other

pop-up sprinkler systems. Therefore, actual notice of the defect in the

system that caused the accident could be implied. The petitioners contend

a reasonable inquiry into whether the R-70 had problems similar to other

pop-up sprinkler systems would have revealed the problem.



The Act precludes liability for "maintenance, security, or

supervision of any public property, intended or permitted to be used as a

park, playground, or open area for recreational purposes, unless the defect

or condition causing a loss is not corrected by the particular governmental

entity . . . within a reasonable time after actual notice of the defect or

condition." S.C. Code Ann. § 15-78-60(16) (Supp. 1997) (emphasis added).

Other provisions of the Act impose liability if the governmental entity has

actual or constructive notice. See S.C. Code Ann. § 15-78-60(10) & (15).

The Act does not define actual notice and no South Carolina case has

construed actual notice within the context of the Act.



The cardinal rule of statutory construction is to ascertain and

effectuate the legislative intent whenever possible. Joint Legislative

Comm. v Huff, 320 S.C. 241, 464 S.E.2d 324 (1995). If a statute's

language is plain and unambiguous and conveys a clear and definite

meaning, there is no occasion for employing rules of statutory

interpretation and the court has no right to look for or impose another

meaning. City of Columbia v. ACLU of S.C., Inc., 323 S.C. 384, 475

S.E.2d 747 (1996). When faced with an undefined statutory term, the

court must interpret the term in accord with its usual and customary

meaning. Adoptive Parents v. Biological Parents, 315 S.C. 535, 446 S.E.2d

404 (1994). When construing a limitation or exemption to liability under

the Act, the provision must be liberally construed in favor of limiting the

liability of the governmental entity. S.C. Code Ann. § 15-78-20(f) (Supp.

1997).



Although we agree with the Conclusion reached in the majority

opinion of the Court of Appeals, that petitioners failed to show respondent

had actual notice of the defect, the court's opinion has unduly complicated

the definitions of actual and constructive notice. While the Court of

Appeals acknowledged several cases in South Carolina have distinguished




floor).

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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..

between actual notice and constructive notice,5 the majority opinion

perceived an inconsistency in the use of the terms constructive/inquiry

notice and actual notice in our case law. According to the court, our, cases

have altered the meaning of these terms "to the point pf equating inquiry

notice with actual notice." Strother, 324 S.C. at 616, 479 S.E.2d at 825.



We disagree with this interpretation of our case law. While

inquiry/constructive notice has served in some contexts as a sufficient

substitute for actual notice, it is not the same as actual notice.6 Our case

law has stated inquiry notice is equivalent7 to actual notice. Huestess v.

South Atlantic Life Ins. Co., 88 S.C. 31, 70 S.E. 403 (1911) (inquiry notice


5 Government Employees Ins. Co. v. Chavis, 254 S.C. 507, 176 S.E.2d

131 (1970) (Brailsford, J., dissenting) (inquiry notice is constructive notice

and actual notice means all facts are disclosed and there is nothing left to

investigate); Campbell v. S.C. Highway Dep't, 244 S.C. 186, 135 S.E.2d

838 (1964), overruled to the extent it holds an action may not be

maintained against the State without its consent, Andrews v. Batson, 285

S.C. 243, 329 S.E.2d 741 (1985); McGee v. French, 49 S.C. 454, 27 S.E.

487 (1897).



6 Actual notice means all the facts are disclosed and there is nothing

left to investigate. Government Employees Ins. Co. v. Chavis, 254 S.C.

507) 176 S.E.2d 131 (1970) (Brailsford, J., dissenting). Notice is regarded

as actual where the person sought to be charged therewith either knows of

the existence of the particular facts in question or is conscious of having

the means of knowing it, even though such means may not be employed

by him. 58 Am.Jur.2d Notice § 5. Generally, actual notice is synonymous

with knowledge. Hannah v. United Refrigerated Services., Inc., 312 S.C.

42, 430 S.E.2d 539 (Ct. App. 1993). Constructive notice is a legal

inference which substitutes for actual notice. It is notice imputed to a

person whose knowledge of facts is sufficient to put him on inquiry; if

these facts were pursued with due diligence, they would lead to other

undisclosed facts. Therefore, this person is presumed to have actual

knowledge of the undisclosed facts. Multimedia Publishing of South

Carolina, Inc. v. Mullins, 314 S.C. 551, 431 S.E.2d 569 (1993); Government

Employees Ins. Co. v. Chavis, 254 S.C. 507, 176 S.E.2d 131 (1970)

(Brailsford, J., dissenting) (inquiry notice is constructive notice); 58

Am.Jur.2d Notice §§ 8-12; Black's Law Dictionary 1062 (6th ed. 1990).



7 Equivalent means "equal in ... effect . . . ." Black's Law

Dictionary 541 (6th ed. 1990).





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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..





is equivalent to actual notice); Government Employees Ins. Co. v. Chavis

254 S.C. 507, 176 S.E.2d 131 (1970) (Brailsford, J., dissenting); Fuller-

Ahrens Partnership v. S.C. Dep't of Highways & Public Transp., 311'iS.C.

177, 427 S.E.2d 920 (Ct. App. 1993) (Cureton, J., concurring and

dissenting) (inquiry notice may be equivalent to actual notice). However,

in these cases, the appellate courts are simply referring to the fact that

inquiry notice can have the same effect as actual notice, not that inquiry

notice is actual notice. In our opinion, our appellate courts have

consistently distinguished between actual notice and constructive/inquiry

notice.



The Court of Appeals then defines actual notice by dividing it

into two categories: express and implied. Express notice is defined as

"embrac[ing] not only knowledge, but also that which is communicated by

direct information, either written or oral, from those who are cognizant of

the fact communicated." Black's Law Dictionary 1062 (6th ed. 1990); see

also 58 Am.Jur.2d Notice § 6 (express actual notice includes direct

information). Implied actual notice is defined as "a kind of actual notice

which consists of knowledge of facts so informing that a reasonably

cautious person would be led by them to the ultimate fact; that which, if

prosecuted with ordinary diligence, will furnish information of fact." 66

C.J.S. Notice § 5 (1990); see also Black's Law Dictionary 1062 (6th ed.

1990) (implied notice is also defined as "one of the varieties of actual

notice (not constructive) and is distinguished from 'express' actual notice.

It is notice inferred or imputed to a party by reason of his knowledge of

facts or circumstances collateral to the main fact, of such a character as to

put him upon inquiry, and which, if the inquiry were followed up with due

diligence, would lead him definitely to the knowledge of the main fact.").



In our opinion, the definition of implied actual notice blurs the

distinction between actual and constructive notice because it appears to

impose a duty to inquire. Our case law does not support this type of

implied actual notice. Instead, under our case law, this type of implied

actual notice is classified as constructive notice because of the duty to

inquire. See Government Employees Ins. Co. v. Chavis, supra. Further,

because we are to liberally construe the Act's provisions limiting liability

in favor of the government, we refuse to adopt such a broad definition of

actual notice which would classify this definition as a part of actual notice.



The Court of Appeals then concluded the legislature intended

"to limit the exposure of the governmental entity to situations involving

express notice, thus excluding a duty of inquiry." Strother, 324 S.C. at

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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..





619, 479 S.E.2d at 826 (emphasis added). In our opinion, the court's

decision erroneously eliminates the option of proving actual notice by the

factual circumstances of the case (circumstantial evidence). We find, in

the context of the Act, actual notice means all the fact are disclosed and

there is nothing left to investigate. Government Employees Ins. Co. v.

Chavis, 254 S.C. 507, 176 S.E.2d 131 (1970) (Brailsford, J., dissenting).

Actual notice may be shown by direct evidence or inferred from factual

circumstances. Southern Railway-Carolina Division v. Horne Investment

Co., 233 S.C. 440, 105 S.E.2d 527 (1958) (notice may be inferred from the

facts in evidence); Fuller-Ahrens Partnership v. S.C. Dep't of Highways &

Public Transp., 311 S.C. 177, 427 S.E.2d 920 (Ct. App. 1993) (Cureton, J.,

concurring and dissenting) (actual notice may be inferred from the

circumstances); Bryant v. City of North Charleston, 304 S.C. 123, 403

S.E.2d 159 (Ct. App. 1991) (can infer actual notice from the evidence); 58

Am.Jur.2d Notice §§ 5-7 (1989).





However, we agree with the result reached by the Court of

Appeals. The depositions submitted by respondent proved it had no actual

notice of the defect and petitioners failed to present any evidence creating

a genuine question of material fact on this issue. Petitioners did not

prove respondent knew this R-70 system was defective or prove this

system is so similar to the other troublesome systems that actual notice

could have been inferred from the circumstantial evidence. Therefore,

summary judgment was properly granted in favor of respondent.





AFFIRMED AS MODIFIED.

FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.



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