Green v. United States , 105 F. App'x 515 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KITTY GREEN, 
Plaintiff-Appellant,
v.  No. 04-1095
UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Beaufort.
Patrick Michael Duffy, District Judge.
(CA-02-3925)
Submitted: July 9, 2004
Decided: August 5, 2004
Before MOTZ and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
J. Brent Kiker, KIKER & DOUDS, P.A., Beaufort, South Carolina,
for Appellant. J. Strom Thurmond, Jr., United States Attorney, John
H. Douglas, Assistant United States Attorney, Charleston, South Car-
olina, for Appellee.
2 GREEN v. UNITED STATES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kitty Green appeals from the district court’s order granting sum-
mary judgment to the Government in her suit under the Federal Tort
Claims Act ("FTCA"). Green alleged that, while visiting a family
member at the Federal Correctional Institution in Estill, South Caro-
lina, she slipped in a puddle of water and fractured her ankle. The dis-
trict court found that the danger was open and obvious and, thus,
Green had a duty to discover and avoid the danger. We find that mate-
rial issues of fact exist preventing summary judgment. Accordingly,
we vacate and remand.
This court reviews de novo a district court’s order granting sum-
mary judgment. Moore Bros. Co. v. Brown & Root, Inc., 207 F.3d
717, 722 (4th Cir. 2000). Summary judgment is only appropriate
when there is no genuine issue of material fact that could lead a trier
of fact to find for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). "In determining whether to grant
summary judgment, all justifiable inferences must be drawn in favor
of the non-movant." Miltier v. Beorn, 896 F.2d 848, 852 (4th Cir.
1990). The non-movant is entitled to "have the credibility of his evi-
dence as forecast assumed, his version of all that is in dispute
accepted, [and] all internal conflicts in it resolved favorably to him."
Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
The FTCA "permits the United States to be held liable in tort in the
same respect as a private person would be liable under the law of the
place where the act occurred." Medina v. United States, 259 F.3d 220,
223 (4th Cir. 2001). Thus, liability under the FTCA is determined by
reference to the law of the state in which the allegedly tortious con-
duct occurred. 28 U.S.C. § 1346(b)(1) (2000). Therefore, South Caro-
lina law governs.
GREEN v. UNITED STATES 3
Under South Carolina law, the owner of property owes no duty to
use reasonable care to take precautions against or to warn guests of
open and obvious dangers. In such situations, the guests themselves
have a duty to discover and avoid the danger. Neil v. Byrum, 343
S.E.2d 615, 616 (S.C. 1986). This general rule has an exception,
where the owner should reasonably anticipate that invitees may be
distracted or will not discover the danger. Callander v. Charleston
Doughnut Corp., 406 S.E.2d 361, 362-63 (S.C. 1991). The degree of
care owed with regard to an open and obvious danger is commensu-
rate with the circumstances involved, including the possessor’s prior
knowledge of the defect’s existence and the age and capacity of the
invitee. See Larimore v. Carolina Power & Light, 531 S.E.2d 535,
539-40 (S.C. Ct. App. 2000).
The district court held that a twelve foot long puddle on the floor
of the visitor’s room, coupled with the fact that it was raining for
twelve hours prior to the accident, created an open and obvious dan-
ger and, thus, the Government had no duty to take precautions or
warn Green. However, drawing all inferences in favor of Green, she
walked over thirty-six feet out of the rain on dry floors before opening
the door to the visitor’s room.1 Thus, Green entered the visitor’s room
with no warning that there would be a large puddle on the opposite
side of the door. Moreover, even if the puddle was large enough to
be seen immediately, Green testified at her deposition that she began
to slip as soon as she entered the room. Thus, while the puddle may
have been open and obvious to someone standing in the room,
Green’s view was blocked by the door,2 and she potentially did not
have time to process the puddle’s danger before she fell. Thus, we
find that a material issue of fact exists as to whether the danger was
open and obvious, and summary judgment was, therefore, inappropri-
ate.
1
In her brief, Green appears to assume that there was no water on the
floor prior to the visitor’s room and that the door to the visitor’s room
was closed. There is no evidence in the joint appendix regarding these
allegations, but the Government does not dispute them. The joint appen-
dix contains only excerpts from the deposition testimony.
2
While the door was made mostly of glass, the pictures in the record
show that the view of the floor was somewhat obstructed.
4 GREEN v. UNITED STATES
There is also the issue of whether, under Larimore and Callander,
the circumstances dictated a duty to warn, even in the face of an open
and obvious danger. Here too, we find a genuine issue of material
fact. Green alleges that there was a guard just inside the visitor’s
room door, where he would have been well aware of the large puddle
of water. In addition, presumably the Government was more aware of
where water pooled during times of rain than Green, who had alleg-
edly never been to the prison during rain before. Furthermore, in the
moments between opening the door and slipping, Green would have
reasonably been distracted by handling the door and locating the sign-
in table.3 Thus, the forecast evidence could support a jury finding that
the Government should have warned Green of the puddle.
Based on the foregoing, we vacate the district court’s order and
remand the case for further proceedings. We dispense with oral argu-
ment, because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
VACATED AND REMANDED
3
The district court found it significant that Green had been to the facil-
ity and signed in on two prior occasions. However, the record reflects
that this was the only occasion on which it was raining. In addition, the
immediacy of Green’s fall upon entering the room would only require a
brief distraction for her to miss seeing the puddle.