Opinion
C/A 21-2431-DCC-PJG
03-28-2023
Larry Michael Slusser, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Plaintiff Larry Michael Slusser, a self-represented federal prisoner, brings this negligence action against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, 1346(b). This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the Government's motion for summary judgment. (ECF No. 150.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Slusser of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the Government's motion. (ECF No. 151.) Slusser filed a response in opposition to the motion. (ECF No. 154.) Having reviewed the record presented and the applicable law, the court concludes that the Government's motion should be granted.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. Slusser is a federal inmate formerly incarcerated in the Federal Correctional Institution Edgefield (“FCI Edgefield”) in South Carolina. On August 15, 2020, Slusser broke his wrist in a slip and fall accident in Slusser's housing unit of FCI Edgefield. The incident occurred after Slusser took a shower. Slusser was walking away from the showers back to his cell when he thought he heard another inmate call his name. Slusser turned around, took two steps, and then stepped in something he described as “slick, which I'm pretty sure was water, and I slipped.” (Slusser Dep. 36, ECF No. 150-1 at 3.) Slusser also described what he slipped on as “a wet spot on the floor . . . what I believed to be water from the many showers that [day].” (Slusser Decl., ECF No. 154-1 at 2.) Slusser broke his wrist as a result of the fall.
Clemencia Morales, the correctional officer on duty in Slusser's housing unit that day, witnessed Slusser fall from approximately ten yards away. Morales testified that Slusser did not slip on anything on the surface of the floor, and instead he clearly stumbled forward over his own feet or sandals. (Morales Decl. ¶ 4, ECF No. 150-2 at 2.) Morales also testified that she rushed to Slusser as soon as he fell and there was no liquid or other hazard on the floor and Slusser's clothes were not observably wet after he got up. (Id. ¶¶ 5-6.) Slusser testified that he did not see any water on the floor when he fell, nor did he see any water on the floor when he got up because he was in too much pain. (Slusser Dep. 37, ECF No. 150-1 at 4.)
Slusser filed this action in August 2021, raising claims of negligence against the United States and claims pursuant to Bivens against Morales and two individuals who treated Slusser's injuries. The court dismissed the Bivens claims and any negligence claims related to the treatment of his injuries. (ECF Nos. 100 & 102.) Slusser's only remaining claim is for negligence against the United States based on Morales's failure to warn Slusser of the risk of slipping or to clean up the water on the floor.
Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. The Government's Motion
The FTCA provides for a limited waiver of the United States's sovereign immunity from suit by allowing a plaintiff to recover damages in a civil action for loss of property or personal injuries caused by the “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see also Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001) (“The statute 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.”).
To establish negligence in South Carolina, the plaintiff must prove: (1) a duty of care owed by the defendant to the plaintiff; (2) breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty. Bishop v. S.C. Dep't of Mental Health, 502 S.E.2d 78, 82-83 (S.C. 1998) (citing Rickborn v. Liberty Life Ins. Co., 468 S.E.2d 292 (S.C. 1996)). In the premises liability context, courts have held that prisoners are most analogous to invitees. See Finnigan v. United States, C/A No. 5:15-cv-3515-BHH-KDW, 2016 WL 5858715, at *6 (D.S.C. Aug. 5, 2016) (collecting cases), report and recommendation adopted, 2016 WL 5815776 (D.S.C. Oct. 4, 2016).
Under South Carolina law, property owners owe an invitee the duty of exercising reasonable or ordinary care for the invitee's safety, including a duty to warn the invitee of any latent or hidden dangers; the property owner does not have a duty to warn invitees of open and obvious conditions unless the property owner should have anticipated the resulting harm. Sides v. Greenville Hosp. Sys., 607 S.E.2d 362, 365 (S.C. Ct. App. 2004). To recover damages for injuries caused by a dangerous or defective condition on a 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., 542 S.E.2d 728, 729 (S.C. 2001).
Here, the Government argues that Slusser cannot put forth evidence that Morales had actual or constructive knowledge of a dangerous condition, and accordingly, Plaintiff cannot establish that the Government breached a duty of care to support his negligence claim. The court agrees.
Initially, the court notes that Slusser's declaration-submitted in response to the Government's motion-appears to contradict his deposition testimony. See Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (stating a party cannot create a genuine issue of material fact by submitting a conclusory affidavit that contradicts his prior deposition testimony); see also Williams v. Genex Servs., LLC, 809 F.3d 103, 110 (4th Cir. 2015) (“It is well-settled that a plaintiff may not avoid summary judgment by submitting contradictory evidence.”). Slusser testified in his deposition that he never saw water on the floor, even after he fell, because he was in too much pain. (Slusser Dep. 37, ECF No. 150-1 at 4.) Yet, in his declaration, he asserts he believes he slipped on water from the showers, without explaining why he thinks there was water on the floor when he did not see any the day he fell. (Slusser Decl., ECF No. 154-1 at 2.) Thus, it is not even clear from Slusser's own testimony and declaration whether he has an actual recollection of seeing water on the floor, or whether he is just speculating that there was water on the floor because he slipped near the showers. See CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647, 658 (4th Cir. 2020) (stating that a party's self-serving opinion, absent objective corroboration, cannot defeat summary judgment). Slusser's declaration is conclusory, speculative, and lacks any corroboration from objective evidence. See Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (stating the non-moving party has “the ultimate burden of demonstrating a genuine issue of material fact for trial” and that “[c]onclusory or speculative allegations do not suffice, nor does a “mere scintilla of evidence” in support of his case”) (internal citations and quotation marks omitted); Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (“The nonmoving party, however, cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.”)
More importantly, even crediting Slusser's testimony over Morales's testimony, and thus assuming there was water on the floor where he slipped, Slusser puts forth no evidence that the water was such an obvious risk that Morales had actual or constructive knowledge that a dangerous condition existed. Morales denies seeing any water on the floor. (Morales Decl. ¶¶ 4-6, ECF No. 150-2 at 2.) Therefore, there is no evidence that Morales had actual knowledge of a dangerous condition. To show constructive knowledge, Slusser would have to show that the condition “existed for such length of time prior to the injury that, under existing circumstances, [the defendant] should have discovered and remedied it in the exercise of due care.” Olson v. Fac. House of Carolina, Inc., 544 S.E.2d 38, 44 (S.C. Ct. App. 2001), aff'd, 580 S.E.2d 440 (S.C. 2003). But Slusser puts forth no evidence that there was water on the floor for so long that Morales could have discovered and remedied it before Slusser fell. Slusser's belief that there was water on the floor from the showers, absent evidence of the risk the water posed, where it came from, or how long it was on the floor, is insufficient evidence from which a reasonable jury could conclude that Morales was on constructive notice of an obviously dangerous condition that created a duty of care. See, e.g., Lucas v. Sysco Columbia LLC, C/A No. 3:13-cv-02883-JFA, 2014 WL 4976509, at *4-5 (D.S.C. Oct. 3, 2014) (stating that the plaintiff's evidence that the defendant knew there was water on the floor every time it rained was not sufficient to survive summary judgment on her negligence claim because she put forth no evidence about the specific condition of the floor at the time she fell); Norris v. Wal-Mart Stores E., L.P., C/A No. 1:12-02592-JMC, 2014 WL 496010, at *6 (D.S.C. Feb. 6, 2014) (concluding the defendant was entitled to summary judgment on the plaintiff's negligence claim where the plaintiff failed to put forth evidence showing that the foreign substance was on the floor for a sufficient length of time for the defendant to discover and remove it). Consequently, Slusser fails meet his burden of putting forth evidence that creates a genuine issue of material fact about his negligence claim.
RECOMMENDATION
Based on the foregoing, the court recommends that the Government's motion for summary judgment be granted. (ECF No. 150.)
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).