Beruflich Dokumente
Kultur Dokumente
No. 09-1885
JOHN E. THOMPSON,
Plaintiff - Appellant,
v.
CDL PARTNERS LLC,
Defendant - Appellee,
v.
DON ALVIN MESSERVY,
Third Party Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Patrick Michael Duffy, District
Judge. (2:08-cv-02423-PMD)
Submitted:
Decided:
PER CURIAM:
John E. Thompson appeals the district courts grant of
summary judgment in favor of CDL Partners LLC (CDL), in this
personal injury action.
I.
In 2006, Thompson, a resident of Florida, was living
in Folly Beach, South Carolina, in a residential apartment owned
and maintained by CDL. 1
floor and two apartments were located on each of the second and
third
floors.
stairwelllocated
exterior.
Each
in
floor
the
had
an
middle
exterior
of
the
balcony
and
buildingwas
the
also
fix
the
Thompsons
railing
next
in
door
question.
neighbor,
Roughly
Kenneth
two
weeks
McDowell,
before,
noticed
the
time,
McDowell
endeavored
to
repair
it.
McDowell
and
Several
days later, Poruben saw that the railing had completely fallen
off and landed on his car.
his
Poruben,
part,
but
Thompson
he
does
does
not
remember
remember
McDowell
the
incident
mentioning
with
that
the
mentioned
its
McDowell
fixed
the
railing,
with
room
the
from
Polito,
landlord.
Politonot
In
fact,
he
McDowelltypically
it
was
McDowells
property.
McDowell
thought
that
Polito
spoke
to
CDL
regarding the railing, but Polito could not recall doing so.
McDowell, Poruben, and Thompson all testified that they did not
notify CDL about the railings condition prior to Thompsons
fall.
On July 3, 2008, Thompson filed this action in the
District
common
of
law
South
Carolina
negligence
and
against
a
CDL,
violation
of
alleging
the
claims
South
for
Carolina
The district
hearing,
granted
the
motion
July
10,
2009.
II.
On
appeal,
Thompson
argues
that
the
district
court
A.
We
review
grant
of
summary
judgment
de
novo.
We generally must
view all facts and draw all reasonable inferences in the light
Scott v. Harris, 550
court,
apply
the
the
South
jurisprudence
Carolina
of
Supreme
the
South
Carolina
Supreme
Court
South
Carolinas
Court.
Wells
v.
But in a situation
has
spoken
neither
Id.
In
the
states
intermediate
appellate
court,
constitute
the
next best indicia of what state law is, although such decisions
may be disregarded if the federal court is convinced by other
persuasive data that the highest court of the state would decide
5
otherwise.
F.2d
1156
1153,
omitted).
(4th
Cir.
1992)
(internal
quotation
marks
under
the
law
of
South
Carolina,
Code
provides
Ann.
for
27-40-440(a)(1)-(2)
recovery
of
actual
damages
(S.C.
plaintiff
(2007).
as
The
result
SCRLTA
of
any
App.
must
1996).
establish
(1)
As
with
any
negligence
action,
duty
of
care
by
owed
the
Id. at 633.
safety
standards
under
6
27-40-440
at
the
time
of
Thompsons fall.
burden
SCRLTA.
under
the
CDL
argues
that,
even
under
the
SCRLTA, Thompson must show that CDL had notice of the defective
condition.
the
South
Carolina
Court
of
Appeals,
the
South
Carolina
In
1989, the Court of Appeals held, just years after the SCRLTAs
enactment, that the RLTA by express words creates a cause of
action in tort in favor of a tenant of residential property
against
his
landlord
for
failure,
after
notice,
to
make
369,
373
(S.C.
Ct.
App.
1989)
(emphasis
added).
of
the
landlord
to
make
the
necessary
repairs
after
In Code, a single-family
home that had been converted into a rental property lacked smoke
detectors
in
nonetheless
allege
violation
concluded
that
they
of
state
that,
law.
because
notified
the
The
the
owner
Court
of
plaintiffs
of
the
Appeals
failed
lack
of
to
smoke
Id.
at 498.
This consistent interpretation of the SCRLTA by the
Court of Appeals convinces us that the South Carolina Supreme
Court would require that the tenant provide the landlord notice
of a defective condition before liability attaches under the
SCRLTA.
In
provisions
addition,
of
the
the
SCRLTA
Court
that
of
Appeals
buttress
pointed
such
to
two
conclusion.
specifying
S.C.
the
Code
acts
Ann.
and
omissions
27-40-610(a).
constituting
In
addition,
the
the
next
that,
even
under
CDLs
The
Regarding
notice,
the
district
court
found
that
points
to
McDowells
testimony
that
he
On appeal,
told
Polito
about the railing and that McDowell thought that Polito spoke to
CDL about getting it fixed.
however,
McDowell
acknowledged
that
contacted
CDL
never
to
and
claimed
he
have
himself
any
had
first-hand
not
or
Moreover, Polito
We
agree
with
the
district
court
that
McDowells
(internal
quotation
marks
omitted).
According
to
The
task,
and
apparent
agency.
would
We
not
give
agree
with
rise
the
to
the
same
district
general
court
that
contractor
performing
functions
for
CDL.
It
is
undisputed, however, that McDowell never spoke with CDL and that
any agreement regarding yard work and upkeep was between Polito
and CDLs predecessor, Messervy.
2.
Thompson also appeals the grant of summary judgment on
his common law negligence claim.
10
that
duty
by
negligent
act
or
omission;
(3)
from
the
breach
of
duty."
Thomasko
v.
Poole,
561
Bishop v. S.C.
of
South
landlord
owes
no
duty
to
maintain
Thompson
argues
that
the
district
court
for discovery.
Id.
Our
and
have
that
party
may
not
simply
summary
judgment
when
it
failed
to
comply
with
the
requirement of Rule 56(f) to set out reasons for the need for
discovery in an affidavit.
In Evans, we cited
reject
inadequate.
claim
that
the
opportunity
for
discovery
was
12
and
that
he
intend[ed]
to
notice
the
deposition
of
this
factual
record,
we
conclude
that
the
discovery
between
the
deadline.
filing
of
Thompson
CDLs
had
summary
more
judgment
than
six
motion
months
and
the
Rule
56(f)
affidavit
or
attempt
to
take
more
discovery.
III.
We
affirm
the
district
courts
grant
of
summary
and
materials
legal
before
contentions
the
court
are
adequately
and
argument
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED
14