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2004-UP-504 - Browning v. Bi-Lo, Inc

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


Nancy Browning,        Appellant,

v.

Bi-Lo, Inc.,        Respondent.


Appeal From Union County
John C. Hayes, III, Circuit Court Judge


Unpublished Opinion No. 2004-UP-504
Submitted October 1, 2004 – Filed October 8, 2004


AFFIRMED


Nancy Browning, of Union, Pro Se.

Samuel W. Outten and Laurel R.S. Blair, both of Greenville, for Respondent.


PER CURIAM:  This is a slip and fall case.  Nancy Browning appeals from the circuit court’s order granting summary judgment to Bi-Lo, Inc.  We affirm. [1]

FACTS

On August 21, 1998, Browning slipped and fell on a substance in a Bi-Lo grocery store.  As a result of the fall, Browning sustained an injury to her right shoulder.  She subsequently filed suit against Bi-Lo.  Bi-Lo answered, denying liability and averring that Browning was comparatively negligent.  Bi-Lo then moved for summary judgment, which the circuit judge granted.

STANDARD OF REVIEW

When reviewing the grant of summary judgment, the appellate court applies the same standard applied by the trial court pursuant to Rule 56(c), SCRCP.  Fleming v. Rose, 350 S.C. 488, 567 S.E.2d 857 (2002).  Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party must prevail as a matter of law.  Rule 56(c), SCRCP; Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997).

LAW

I.

Browning argues the circuit judge erred in granting Bi-Lo’s motion for summary judgment.  We disagree.

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 defendant which created the dangerous condition; or (2) that the defendant had actual or constructive knowledge of the dangerous condition and failed to remedy it.  Wintersteen v. Food Lion, Inc., 344 S.C. 32, 542 S.E.2d 728 (2001).  In the case of a foreign substance, the plaintiff must demonstrate either that the substance was placed there by the defendant or its agents, or that the defendant had actual or constructive notice the substance was on the floor at the time of the slip and fall.  Id. at 35, 542 S.E.2d at 729-30.  The mere fact the substance was on the floor is insufficient standing alone to charge the storekeeper with negligence.  Calvert v. House Beautiful Paint & Decorating Ctr., Inc., 313 S.C. 494, 443 S.E.2d 398 (1994).

Here, the record reveals no evidence that Bi-Lo either placed the foreign substance on the floor or had actual or constructive notice that the substance was on the floor before Browning’s fall.  In her deposition, Browning testified that she did not see the alleged foreign substance before she fell because she was not looking at the floor and she had no idea who placed the substance on the floor.  When asked what evidence she had that Bi-Lo was on notice of the substance on the floor prior to her fall, Browning stated there was a video camera operating “[r]ight above” the place where she fell.  Browning asserts Bi-Lo had constructive notice by virtue of a camera directed at the location where the fall occurred and the presence of a monitor fed by the camera in an area allegedly observable by Bi-Lo employees at the time of the fall.  There is no evidence the mere presence of a camera constituted constructive notice to Bi-Lo.  Additionally, the presence or absence of an incident report completed after Browning’s fall has no bearing on Bi-Lo’s notice of the foreign substance before the fall.

Because Browning failed to meet her burden as to the two Wintersteen elements, we find the trial court did not err in granting summary judgment to Bi-Lo.  It is clear that Browning has failed to present any evidence establishing a genuine issue of fact for trial.

II.

Browning contends that her attorney “did not represent same in as much as he did not disagree with counsel for Bi-Lo.”  She further maintains that Bi-Lo’s attorney “[m]ade inaccurate statements to” the judge when the attorney “stated that there was no incident report filed.”

These issues on appeal were abandoned due to their conclusory nature and lack of supporting authority.  See Glasscock, Inc. v. United States Fidelity & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001) (“South Carolina law clearly states that short, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review.”).  Moreover, because these issues were not raised to and ruled upon by the circuit judge, they are not preserved for our review.  See Widman v. Widman, 348 S.C. 97, 557 S.E.2d 693 (Ct. App. 2001) (holding issue cannot be raised for first time on appeal, but must have been raised to and ruled upon by trial judge to be preserved for appellate review).

III.

Browning’s “Statement of Issues on Appeal” includes the bare assertion that “Ms. Jennifer Eubanks fell on a green substance in the store approximately thirty minutes before Plaintiff’s accident.”  This conclusory statement is insufficient to preserve this issue for appellate review.  See Fields v. Melrose Ltd. P’ship, 312 S.C. 102, 439 S.E.2d 283 (Ct. App. 1993) (holding an issue is deemed abandoned and thus not presented for appellate review if argued in a short, conclusory statement).

CONCLUSION

Accordingly, based on the foregoing reasons, the decision of the circuit judge is

AFFIRMED.

GOOLSBY, ANDERSON, and WILLIAMS, JJ., concur.


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