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2004-UP-191 - Vatrick v. SC Federal Credit Union

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Melva Vatick,        Appellant,

v.

South Carolina Federal Credit Union,        Respondent.


Appeal From Charleston County
Jackson V. Gregory, Circuit Court Judge


Unpublished Opinion No. 2004-UP-191
Submitted March 8, 2004 – Filed March 22, 2004


AFFIRMED


Reese I. Joye and J. Craig Smith, of N. Charleston; Stephen L. Brown, of Charleston; for Appellant.

Andrea St. Amand and Richard A. Farrier, Jr., of Charleston; for Respondent.

PER CURIAM:  Melva Vatick filed a negligence suit against South Carolina Federal Credit Union for damages incurred when she fell after using Credit Union’s automatic teller machine.  At the close of Vatick’s case, the trial court granted Credit Union’s motion for a directed verdict.  Vatick appeals.  We affirm. [1]

FACTS

Vatick, a customer of Credit Union, routinely used its automatic teller machine (ATM).  Vatick testified that she always parked her car in front of the building and walked to the ATM, which included climbing one step from the pathway to the ATM enclosure.  Vatick testified she would then withdraw money from the ATM and immediately count it.  

On the day in question, Vatick drove to Credit Union, accompanied by her nephew.  Due to construction outside of Credit Union’s building, Vatick was forced to park on the right side of the building, in a space where she never parked before. [2]   Vatick parked the car and walked over to the ATM.  Vatick testified that she walked through the construction site along a path that included two steps in order to reach the ATM.  Vatick stated that she saw red cones in the construction area and agreed with defense counsel’s contention that such cones generally indicated that one should “proceed with caution.”  However, Vatick testified there were no warning signs, handrailings, or personnel from Credit Union present at the site to warn her to watch her step.   

While Vatick stated the path through the construction site was “narrow,” Vatick did not require her nephew’s assistance to reach the ATM.  In fact, Vatick successfully navigated the parking lot, the temporary path, and the two unfamiliar steps up to the ATM.  Vatick testified the steps to the ATM were not obstructed.  After Vatick used the ATM, she began to count her money.  She testified that she was “intrigued” by the design of the new twenty-dollar bill, and began to walk back to her car while looking at the bill.  Vatick fell down the two steps on the temporary path and was injured.  She filed a complaint alleging Credit Union was “negligent, reckless, and breached the duties” owed to her. 

At the close of Vatick’s case, Credit Union moved for a directed verdict.  The trial judge granted the motion.  Though Vatick filed a motion for reconsideration under Rule 59(e), SCRCP, it was denied. 

STANDARD OF REVIEW

“In deciding whether to grant or deny a directed verdict motion, the trial court is concerned only with the existence or non-existence of evidence.”  Sims v. Giles, 343 S.C. 708, 714, 541 S.E.2d 857, 861 (Ct. App. 2001).  This court can reverse the trial court only when there is no evidence to support the ruling below.  Sabb v. South Carolina State Univ., 350 S.C. 416, 427, 567 S.E.2d 231, 236 (2002).

LAW/ANALYSIS

Vatick argues the trial court erred in granting Credit Union’s motion for a directed verdict.  We do not agree.

In order to establish a claim for negligence, the plaintiff must prove the following elements:  1) a duty of care owed by the defendant to the plaintiff; 2) a breach of that duty by the defendant’s negligent act or omission; 3) the plaintiff was damaged; and 4) the damages proximately resulted from the breach of the duty.  Thomasko v. Poole, 349 S.C. 7, 11, 561 S.E.2d 597, 599 (2002).  “In a negligence action, the court must determine, as a matter of law, whether the defendant owed a duty of care to the plaintiff.”  Faile v. South Carolina Dep’t of Juvenile Justice, 350 S.C. 315, 334, 566 S.E.2d 536, 545 (2002) (citation omitted); see also Doe v. Batson, 345 S.C. 316, 322-23, 548 S.E.2d 854, 857 (2001) (“An essential element in a cause of action for negligence is the existence of a legal duty of care owed by the defendant to the plaintiff.”).    

“A merchant is not an insurer of the safety of his customer but owes only the duty of exercising ordinary care to keep the premises in reasonably safe condition.”  Garvin v. Bi-Lo, Inc., 343 S.C. 625, 628, 541 S.E.2d 831, 832 (2001) (citation omitted); see also Wintersteen v. Food Lion, Inc., 344 S.C. 32, 36, 542 S.E.2d 728, 730 (2001) (“Storekeeper liability is founded upon the duty of care a possessor of land owes to an invitee.”).  A merchant does not owe a duty to maintain its premises in such a condition that no accident could happen to a patron.  See Denton v. Winn-Dixie Greenville, Inc., 312 S.C. 119, 120, 439 S.E.2d 292, 293 (Ct. App. 1993).  “To recover damages for injuries caused by a dangerous or defective condition on a storekeeper’s premises, the plaintiff must show 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.”  Garvin, 343 S.C. at 628, 541 S.E.2d at 832 (citations omitted).

Credit Union, as a merchant, owed Vatick the duty of exercising ordinary care to keep its premises, including its passageways, in a reasonably safe condition.  See Wintersteen, 344 S.C. at 36, 542 S.E.2d at 730 (stating that a merchant owes a duty to keep aisles and passageways in a reasonably safe condition).  Therefore, under the two part analysis set forth in Garvin, Vatick must present evidence to prove either that her injury was caused by a specific act by Credit Union which created a dangerous condition or that Credit Union had knowledge of a dangerous condition and failed to remedy it.  See Garvin, 343 S.C. at 628, 541 S.E.2d at 832. 

Vatick failed to present evidence to satisfy the first part of the Garvin test, that her injuries resulted from a specific act of Credit Union that created a dangerous condition.  Initially, we note Vatick does not identify a particular hazard that proximately caused her to fall.  Rather, she appears to imply the construction site in the entire ATM area was hazardous.  While Credit Union initiated the construction work on its premises, we do not find it created a dangerous condition.  Vatick testified there was a “narrow” path to the ATM, but she did not state she had any trouble walking along it.  Vatick also testified her view of the area was unobstructed and that she noticed red cones in the area.  However, Vatick did not state these cones were blocking the path and testified that she knew this indicated she should be cautious.  Further, while Vatick’s testimony seems to imply the addition of an extra step leading up to the ATM caused her to fall, Vatick testified she noticed the path had two steps and successfully navigated the steps on her way to the ATM.  This court has found a merchant was not liable when a customer was injured after failing to step over a clearly visible and unobstructed object.  See Denton, 312 S.C. at 121-22, 439 S.E.2d at 294 (finding the store was not liable when the patron testified she saw the clearly visible concrete dividers in the parking lot but that she was preoccupied and tripped over one of the dividers).  Finally, Vatick suggests that the lack of railings along the path and steps created a dangerous condition; however, because we find the construction, path, and step did not create a dangerous condition as they existed, this argument is without merit.

Vatick also failed to present evidence to satisfy the second part of the Garvin test, that Credit Union had actual or constructive knowledge of the dangerous condition and failed to remedy it.  Vatick appears to argue Credit Union should have known, by virtue of performing construction in the ATM area, that a dangerous condition could have resulted.  However, Vatick failed to establish that a dangerous condition did result or that Credit Union had actual or constructive knowledge of any such dangerous condition.  See id. at 121, 439 S.E.2d at 294 (“Accidents may happen around . . . steps, escalators, and other raised structures.  This does not mean they are unreasonably dangerous or that a person exercising due care would not have them on the premises.  They are, in fact, common structures that a person taking reasonable care for his own safety would likely expect and see while on the premises.”).  By Vatick’s own testimony, she did not require any assistance to walk from the parking lot to the path through the construction area, and up the two steps to the ATM.  Further, Vatick admitted that she fell down after she left the ATM and was examining the new twenty-dollar bill while walking to her car.

It is axiomatic that one cannot prevail on a negligence claim without proving a breach of duty.  Because Vatick cannot prove Credit Union breached its duty to exercise ordinary care to keep its premises in a reasonably safe condition, she cannot prevail on this negligence action.  See Thomasko, 349 S.C. at 11-12, 561 S.E.2d at 599.  Accordingly, the trial court did not err in granting Credit Union’s motion for a directed verdict.

CONCLUSION

Based upon the foregoing, the trial court’s grant of Credit Union’s motion for a directed verdict is

AFFIRMED.

HEARN, C.J., ANDERSON and BEATTY, J.J., concur.


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

[2] Vatick’s daughter, who was a Credit Union employee at the time of the accident, testified there was construction at the site in order to erect a new drive-up ATM and eliminate the walk-up ATM.