S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Regina L. Strother and
Douglas Strother, Petitioners,
v.
Lexington County
Recreation Commission, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Lexington County
William P. Keesley, Judge
Opinion No. 24823
Heard March 5, 1998 - Filed July 27, 1998
AFFIRMED AS MODIFIED
H. Patterson McWhirter and Stephen B. Samuels, both of
McWhirter, Bellinger & Associates, of Lexington, for
petitioners.
Patrick J. Frawley, of Nicholson, Davis, Frawley,
Anderson & Ayer, L.L.P., of Lexinqton, for respor0ent.
BURNETT,, A.J.: Regina and Douglas Strother (petitioners)
brought this negligence action against Lexington County Recreation
Commission (respondent) alleging Regina Strother was injured when she
tripped over a sprinkler head while playing softball on one of respondent's
fields. The Court of Appeals upheld the circuit court's grant of summary
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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..
judgment in favor of respondent. Strother v. Lexington County Recreation
Comm'n, 324 S.C. 611, 479 S.E.2d 822 (Ct. App. 1996) (Anderson, J.,
dissenting). We affirm as modified.
FACTS
Respondent operates the Pine Grove Softball Complex. While
Regina Strother was playing softball at the complex in May 1992, she
attempted to catch a fly ball in the outfield, and in the process tripped
over a "popped-up" water sprinkler head and twisted her left knee.
The softball complex contains five softball fields which are each
equipped with a sprinkler system using the Rainbird R-70 (R-70) pop-up
sprinkler heads. Respondent installed the sprinkler system in the fall of
1991. The sprinkler system waters each of the zones of the fields in thirty
minute intervals every night. Petitioners alleged the sprinkler head on
which she tripped was defective because it failed to retract.
Respondent moved for summary judgment asserting it did not
have actual notice of the alleged defect or the opportunity to correct the
defect as required by S.C. Code Ann. 15-78-60(16) (Supp. 1997).
Respondent presented the depositions of four of its maintenance personnel
to support its claim.
David Hendricks, the Director of Facilities and Maintenance for
the Lexington County Recreation and Aging Commission, was in charge of
maintenance at the ball field. He started working with pop-up head
sprinkler systems in 1984 or 1985 at Oak Grove, another Lexington
County recreation facility. Since 1987, Hendricks has been aware that
some types of "pop-up head sprinkler systems sometimes pop up when the
water goes on and when it goes off, they don't go back down." He had no
knowledge any sprinkler head at Pine Grove had ever failed to retract.
Earl Smith, maintenance supervisor for the Lexington County
Recreation and Aging Commission, testified, before petitioner's accident, he
was aware pop-up sprinkler heads would sometimes pop up but not retract
when the water was turned off. He learned this from working with other
sprinkler systems owned by the county. He first became involved with
Rainbird sprinkler systems in 1984 at Oak Grove. Smith testified the only
problem he experienced with Rainbird sprinklers was occasional clogging
after initial installation. He also testified he had problems at Oak Grove
with other sprinkler systems which would pop up but not retract; however,
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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..
he had never experienced this problem with a Rainbird sprinkler system.
He was not aware of any retraction failure of sprinkler heads at Pine
Grove. Smith testified, for purposes of repair, most systems are similar;
however, the types of systems installed on the other softball fields are "not
the same thing" as the R-70. According to Smith, the maintenance
workers for each field were responsible for ensuring sprinkler heads were
down before players used the fields, but there was no formal inspection
procedure.
Jerry Zenoni, the person who actually maintained Pine Grove,
was not aware of any sprinkler heads failing to retract. 1 Zenoni testified
he never checked to see if the sprinkler heads were down and was never
told to do so. Thomas Davis, another maintenance worker, testified he
had never seen a sprinkler head fail to retract.
Petitioners argued respondent had actual notice because the
maintenance workers had general knowledge pop-up heads on some
sprinkler systems did not always retract. They further argued actual
notice of the defect in the R-70 sprinkler system could be implied, and
maintenance workers should have devised a system to check the sprinkler
heads. Petitioners presented three affidavits to support their position.2
Petitioners submitted two affidavits of personnel assigned to
maintain the athletic fields at the University of South Carolina. These
affiants indicated they were familiar with pop-up sprinkler systems and
1 Zenoni admitted since this incident he had noticed some of the R-70
sprinkler heads failing to retract at the Pine Grove Softball Complex.
2 Respondent argues the affidavits submitted by petitioners failed to
meet the requirements of Rule 56(e), SCRCP, because the affidavits failed
to set forth specific facts indicating the affiants were sufficiently familiar
with the R-70 sprinkler system to allow them to comment on the problems
of the system and to render opinions as to what the maintenance workers
should have known with respect to the sprinkler system. We agree with
the Court of Appeals' resolution of this issue. 479 S.E.2d at 827, fn. 1.
The court found the trial judge did not abuse his discretion in admitting
these affidavits based on the affiants' experience and familiarity with
sprinkler systems. See Hoeffner v. The Citadel, 311 S.C. 361, 429 S.E.2d
190 (1993) (a trial court's ruling on the admission of evidence will not be
disturbed on appeal absent an abuse of discretion amounting to an error of
law).
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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..
that "occasionally the heads pop up and do not go back down." These
affiants testified they do not allow use of the athletic fields until the fields
have been checked for protruding sprinkler heads.
Petitioners also submitted an affidavit from Jay Corley, an
employee of the company which sold the R-70 to the contractor who
installed the system for respondent. Mr. Corley stated he is familiar with
pop-up sprinkler systems because of his nine years experience working in
design and sales for a Rainbird dealer. He indicated he had knowledge of
problems with sprinkler systems including the fact that "seldomly [sic] the
heads pop up and do not go back down," and that had anyone called the
company to inquire, the problem would have been explained to them.
The trial judge granted respondent's motion for summary
judgment finding respondent did not have actual notice the sprinkler head
involved in the incident failed to retract or that there had been problems
with the sprinkler heads at this particular ball field.
The Court of Appeals affirmed finding petitioners did not show
respondent had actual notice of a defect in the sprinkler system. Strother,
supra. The Court of Appeals found the general knowledge that some types
of pop-up sprinkler systems sometimes failed to retract was insufficient to
provide actual notice of the defect. The court concluded actual notice
under 15-78-60 (16) means express notice thus eliminating the option of
proving actual notice by circumstantial evidence. Id. Judge Anderson
dissented finding this general knowledge was sufficient to provide actual
notice of the defect. Judge Anderson found this case fell within the
definition of "implied actual notice" which, in his opinion, South Carolina
should recognize as a definition of actual notice. Id.
ISSUE
What constitutes actual notice under the South Carolina Tort
Claims Act, S.C. Code Ann. 15-7S-60(16) (Supp. 1997) (the
Act)?
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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..
STANDARD OF REVIEW3
Summary judgment is appropriate where it is clear there is no
genuine issue of material fact, and the moving party is entitled to
judgment as a matter of law. Hamiter v. Retirement Division of South
Carolina, 326 S.C. 93, 484 S.E.2d 586 (1997). In determining whether any
triable issues of fact exist, the evidence and all inferences which can be
reasonably drawn from the evidence must be viewed in the light most
favorable to the nonmoving party. Id.
DISCUSSION
Petitioners argue the Court of Appeals misapplied the
requirement of actual notice found in 15-78-60(16) (Supp. 1997).4
3 In their brief, petitioners raise the question of who has the burden
of proving actual notice. Petitioners claim because respondent is asserting
an affirmative defense under the Act, respondent has the burden of
proving it had no actual notice of the defect. For purposes of summary
judgment, the moving party has the burden of proving no material fact
exists. Standard Fire Co. v. Marine Contracting & Towing Co., 301 S.C.
418, 392 S.E.2d 460 (1990). Once a party moving for summary judgment
carries the initial burden of showing an absence of evidentiary support for
the nonmoving party's case, the nonmoving party may not simply rest on
mere allegations or denials contained in the pleadings. Baughman v.
American Tel. and Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991). Whether
petitioners or respondent would have the burden of proving actual notice
at trial is not an issue before this Court. However, usually the plaintiff
has the burden of establishing notice in a negligence action. See Simmons
v. Winn-Dixie Greenville, Inc., 318 S.C. 310, 457 S.E.2d 608 (1995); Baugh
& Sons Co. v. Graham, 150 S.C. 398, 148 S.E. 220 (1929).
4 Petitioners also argue because respondent created the defective
condition by installing the pop-up head sprinkler system at Pine Grove, no
actual notice of the defect was required. Petitioners failed to preserve this
issue for review because they did not raise the issue below. Jackson v.
Speed, 326 S.C. 289, 486 S.E.2d 750 (1997). Further, this argument is
without merit. Installation of this sprinkler system did not create a
dangerous condition. Compare with Pinckney v. Winn Dixie Stores, Inc.,
311 S.C. 1, 426 S.E.2d 327 (Ct. App. 1992) (knowledge could be inferred
where the store owner created the dangerous situation by placing the
poinsettias near the front of the store and the leaves were dropping on the
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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..
According to petitioners, respondent had actual notice of a defect in other
pop-up sprinkler systems. Therefore, actual notice of the defect in the
system that caused the accident could be implied. The petitioners contend
a reasonable inquiry into whether the R-70 had problems similar to other
pop-up sprinkler systems would have revealed the problem.
The Act precludes liability for "maintenance, security, or
supervision of any public property, intended or permitted to be used as a
park, playground, or open area for recreational purposes, unless the defect
or condition causing a loss is not corrected by the particular governmental
entity . . . within a reasonable time after actual notice of the defect or
condition." S.C. Code Ann. 15-78-60(16) (Supp. 1997) (emphasis added).
Other provisions of the Act impose liability if the governmental entity has
actual or constructive notice. See S.C. Code Ann. 15-78-60(10) & (15).
The Act does not define actual notice and no South Carolina case has
construed actual notice within the context of the Act.
The cardinal rule of statutory construction is to ascertain and
effectuate the legislative intent whenever possible. Joint Legislative
Comm. v Huff, 320 S.C. 241, 464 S.E.2d 324 (1995). If a statute's
language is plain and unambiguous and conveys a clear and definite
meaning, there is no occasion for employing rules of statutory
interpretation and the court has no right to look for or impose another
meaning. City of Columbia v. ACLU of S.C., Inc., 323 S.C. 384, 475
S.E.2d 747 (1996). When faced with an undefined statutory term, the
court must interpret the term in accord with its usual and customary
meaning. Adoptive Parents v. Biological Parents, 315 S.C. 535, 446 S.E.2d
404 (1994). When construing a limitation or exemption to liability under
the Act, the provision must be liberally construed in favor of limiting the
liability of the governmental entity. S.C. Code Ann. 15-78-20(f) (Supp.
1997).
Although we agree with the Conclusion reached in the majority
opinion of the Court of Appeals, that petitioners failed to show respondent
had actual notice of the defect, the court's opinion has unduly complicated
the definitions of actual and constructive notice. While the Court of
Appeals acknowledged several cases in South Carolina have distinguished
floor).
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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..
between actual notice and constructive notice,5 the majority opinion
perceived an inconsistency in the use of the terms constructive/inquiry
notice and actual notice in our case law. According to the court, our, cases
have altered the meaning of these terms "to the point pf equating inquiry
notice with actual notice." Strother, 324 S.C. at 616, 479 S.E.2d at 825.
We disagree with this interpretation of our case law. While
inquiry/constructive notice has served in some contexts as a sufficient
substitute for actual notice, it is not the same as actual notice.6 Our case
law has stated inquiry notice is equivalent7 to actual notice. Huestess v.
South Atlantic Life Ins. Co., 88 S.C. 31, 70 S.E. 403 (1911) (inquiry notice
5 Government Employees Ins. Co. v. Chavis, 254 S.C. 507, 176 S.E.2d
131 (1970) (Brailsford, J., dissenting) (inquiry notice is constructive notice
and actual notice means all facts are disclosed and there is nothing left to
investigate); Campbell v. S.C. Highway Dep't, 244 S.C. 186, 135 S.E.2d
838 (1964), overruled to the extent it holds an action may not be
maintained against the State without its consent, Andrews v. Batson, 285
S.C. 243, 329 S.E.2d 741 (1985); McGee v. French, 49 S.C. 454, 27 S.E.
487 (1897).
6 Actual notice means all the facts are disclosed and there is nothing
left to investigate. Government Employees Ins. Co. v. Chavis, 254 S.C.
507) 176 S.E.2d 131 (1970) (Brailsford, J., dissenting). Notice is regarded
as actual where the person sought to be charged therewith either knows of
the existence of the particular facts in question or is conscious of having
the means of knowing it, even though such means may not be employed
by him. 58 Am.Jur.2d Notice 5. Generally, actual notice is synonymous
with knowledge. Hannah v. United Refrigerated Services., Inc., 312 S.C.
42, 430 S.E.2d 539 (Ct. App. 1993). Constructive notice is a legal
inference which substitutes for actual notice. It is notice imputed to a
person whose knowledge of facts is sufficient to put him on inquiry; if
these facts were pursued with due diligence, they would lead to other
undisclosed facts. Therefore, this person is presumed to have actual
knowledge of the undisclosed facts. Multimedia Publishing of South
Carolina, Inc. v. Mullins, 314 S.C. 551, 431 S.E.2d 569 (1993); Government
Employees Ins. Co. v. Chavis, 254 S.C. 507, 176 S.E.2d 131 (1970)
(Brailsford, J., dissenting) (inquiry notice is constructive notice); 58
Am.Jur.2d Notice 8-12; Black's Law Dictionary 1062 (6th ed. 1990).
7 Equivalent means "equal in ... effect . . . ." Black's Law
Dictionary 541 (6th ed. 1990).
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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..
is equivalent to actual notice); Government Employees Ins. Co. v. Chavis
254 S.C. 507, 176 S.E.2d 131 (1970) (Brailsford, J., dissenting); Fuller-
Ahrens Partnership v. S.C. Dep't of Highways & Public Transp., 311'iS.C.
177, 427 S.E.2d 920 (Ct. App. 1993) (Cureton, J., concurring and
dissenting) (inquiry notice may be equivalent to actual notice). However,
in these cases, the appellate courts are simply referring to the fact that
inquiry notice can have the same effect as actual notice, not that inquiry
notice is actual notice. In our opinion, our appellate courts have
consistently distinguished between actual notice and constructive/inquiry
notice.
The Court of Appeals then defines actual notice by dividing it
into two categories: express and implied. Express notice is defined as
"embrac[ing] not only knowledge, but also that which is communicated by
direct information, either written or oral, from those who are cognizant of
the fact communicated." Black's Law Dictionary 1062 (6th ed. 1990); see
also 58 Am.Jur.2d Notice 6 (express actual notice includes direct
information). Implied actual notice is defined as "a kind of actual notice
which consists of knowledge of facts so informing that a reasonably
cautious person would be led by them to the ultimate fact; that which, if
prosecuted with ordinary diligence, will furnish information of fact." 66
C.J.S. Notice 5 (1990); see also Black's Law Dictionary 1062 (6th ed.
1990) (implied notice is also defined as "one of the varieties of actual
notice (not constructive) and is distinguished from 'express' actual notice.
It is notice inferred or imputed to a party by reason of his knowledge of
facts or circumstances collateral to the main fact, of such a character as to
put him upon inquiry, and which, if the inquiry were followed up with due
diligence, would lead him definitely to the knowledge of the main fact.").
In our opinion, the definition of implied actual notice blurs the
distinction between actual and constructive notice because it appears to
impose a duty to inquire. Our case law does not support this type of
implied actual notice. Instead, under our case law, this type of implied
actual notice is classified as constructive notice because of the duty to
inquire. See Government Employees Ins. Co. v. Chavis, supra. Further,
because we are to liberally construe the Act's provisions limiting liability
in favor of the government, we refuse to adopt such a broad definition of
actual notice which would classify this definition as a part of actual notice.
The Court of Appeals then concluded the legislature intended
"to limit the exposure of the governmental entity to situations involving
express notice, thus excluding a duty of inquiry." Strother, 324 S.C. at
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REGINA L. STROTHER, et al. v. LEXINGTON COUNTY RECREATION COMM..
619, 479 S.E.2d at 826 (emphasis added). In our opinion, the court's
decision erroneously eliminates the option of proving actual notice by the
factual circumstances of the case (circumstantial evidence). We find, in
the context of the Act, actual notice means all the fact are disclosed and
there is nothing left to investigate. Government Employees Ins. Co. v.
Chavis, 254 S.C. 507, 176 S.E.2d 131 (1970) (Brailsford, J., dissenting).
Actual notice may be shown by direct evidence or inferred from factual
circumstances. Southern Railway-Carolina Division v. Horne Investment
Co., 233 S.C. 440, 105 S.E.2d 527 (1958) (notice may be inferred from the
facts in evidence); Fuller-Ahrens Partnership v. S.C. Dep't of Highways &
Public Transp., 311 S.C. 177, 427 S.E.2d 920 (Ct. App. 1993) (Cureton, J.,
concurring and dissenting) (actual notice may be inferred from the
circumstances); Bryant v. City of North Charleston, 304 S.C. 123, 403
S.E.2d 159 (Ct. App. 1991) (can infer actual notice from the evidence); 58
Am.Jur.2d Notice 5-7 (1989).
However, we agree with the result reached by the Court of
Appeals. The depositions submitted by respondent proved it had no actual
notice of the defect and petitioners failed to present any evidence creating
a genuine question of material fact on this issue. Petitioners did not
prove respondent knew this R-70 system was defective or prove this
system is so similar to the other troublesome systems that actual notice
could have been inferred from the circumstantial evidence. Therefore,
summary judgment was properly granted in favor of respondent.
AFFIRMED AS MODIFIED.
FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.
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