Singleton v. Sherer

659 S.E.2d 196

377 S.C. 185

Roger M. SINGLETON, Jr., Appellant, v. George D. SHERER and Julie Underwood, Respondents.

No. 4346.

Court of Appeals of South Carolina.

Heard February 12, 2008.

Decided February 25, 2008.

Darra James Coleman and Charles S. Gwynne, both of Columbia, for Appellant.

S. Jahue Moore, of West Columbia, for Respondent.

ANDERSON, J.

In this personal injury action for injuries sustained from a raccoon bite, Roger Singleton appeals the trial court's grant of summary judgment in favor of Julie Underwood and George Sherer. Singleton challenges each of the trial court's rulings, arguing: (1) he was an invitee, not a licensee, while on Underwood's property the day of the incident; (2) issues of material fact existed regarding negligence on Underwood's behalf; (3) the proximate cause of his injury was the negligence of Underwood; (4) the doctrine of assumption of risk does not bar recovery; and (5) the raccoon was a domestic animal rather than a wild animal. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

A raccoon bit Roger Singleton while he was on George Sherer and Julie Underwood's jointly owned property.¹ Approximately a year before this incident, Singleton rescued the raccoon from the yard of a home where he was delivering furniture "but wanted someone else to take care of it." Subsequently, Underwood agreed to take the raccoon. According to Singleton, he was familiar with the raccoon from the time it was removed from the wild and placed in Underwood's care. Indeed, Singleton "would come to [Underwood's] home from time to time and was often around the [raccoon]. He would play with the raccoon and he liked it." Singleton testified the raccoon was neither vicious nor dangerous and had never bitten anyone prior to the incident.

The night before the incident, the raccoon escaped from his outdoor pen and reappeared the next morning in a "disheveled" state. After letting the raccoon into the house, Underwood attempted to calm the animal by picking him up and feeding him. However, when her dog entered the room, the raccoon bit Underwood's arm severing an artery and median nerve. Underwood was taken by ambulance to the emergency room accompanied by her children.

At her deposition, Underwood was asked if she called anyone in her family for help. From the hospital, she first called her husband but he was out of town. She called her father, Duke Singleton (Duke), to tell him she had been bitten. She explained:

A: And, so then I called my father and told him that he had bitten me. . . . I was very surprised at his behavior because he had never done anything like that before, so I didn't know, you know, what was going on and he was in the house and to please go to my house and open the door so he could get out.

Q: Okay

A: I was really worried because my two cats and my dog were in the house and I just didn't know what his behavior would be and I didn't want them to get hurt.

Q: Were you in the hospital when you called your dad?

A: Yes.

Q: All right. At any point, did you instruct that he was not to call your brother ...

A: No.

Q: . . . for assistance? Okay. At any point, did you tell either your dad or Roger that they were not have any contact with [the raccoon]?

A: If so I do not . . . I did not talk to Roger, so I didn't tell him anything. I'm pretty sure I told my dad, don't go inside or try to catch him because I didn't know what he would do, but I'm ... it's really hard to remember exactly. My dad would probably remember better than me.

Q: Okay. Prior to September 24th of 2001, did you pretty much have an open door policy with your dad and your brother? Any by open door policy, I mean, that they could come in to your house or show up at your house without calling for prior permission?

A: Yes, we all do in our family.

. . .

Q: And that's the way it is with all of you that you just ... you're welcomed ...

A: Yes.

Q: ... and your home and they're welcomed at your home, right?

A: Yes.

Q: To the best of your knowledge, would there have been any reason for Roger to believe that he was not authorized to go into your home?

A: No.

Q: Okay. Did you have any objection to Roger actually going into your home . . .

A: No.

After learning his daughter was bitten and in the hospital, Duke called and informed Singleton of the incident and suggested he go to Underwood's home "to see what he could do." However, Duke advised Singleton to wait until he could arrive "with a net and some sacks" and specifically instructed Singleton not to capture the raccoon by himself. When Singleton arrived at Underwood's home, no one was home, and his father had not yet arrived. Despite his father's warning, Singleton entered the home and proceeded into the room where the raccoon was located. Singleton confronted the raccoon and attempted to "soothe the animal with his voice." During Singleton's attempt to calm the raccoon, "the animal attacked him and bit him on the hand." Shortly thereafter, Duke arrived and Singleton made another effort to capture the raccoon with the burlap sack his father provided. While Singleton was successful in capturing the raccoon, "the raccoon bit Singleton a second time through the bag."

At his deposition, Singleton explained his arrival at Underwood's house:

Q: Did [Underwood and Sherer] know you were going into their house?

A: I don't know.

Q: Did they ask you to go into their house?

A: The phone call that I had was from my father. I never spoke with them.

Q: All right, so the answer is ...

A: I would walk into their house on a regular basis without knocking.

Q: I understand. I just wanted to make sure that we understand on this particular day they, either of them, asked you to come to their house?

A: I didn't speak directly to either one of them.

. . .

Q: The person who had asked you to go was your father?

A: Correct.

Q: Now, you say you had a practice of walking into their house uninvited?

A: Absolutely.

Subsequently, Singleton filed a complaint against Sherer and Underwood for the injuries he sustained from the raccoon bite while on their jointly owned property. The trial court granted summary judgment in favor of Sherer and Underwood, reasoning (1) Singleton's status on the property at the time of the incident was "at best" a social guest or licensee and the duty owed to a licensee is much less than the duty owed to an invitee; (2) Singleton failed to prove any negligence on the part of Underwood because there was no evidence the raccoon was vicious prior to the day of the incident; (3) the acts and conduct of Singleton were the proximate cause of his injury; and (4) the true cause of Singleton's injury was his voluntarily exposure to a known risk. Singleton filed a motion to alter or amend judgment, challenging both the trial court's ruling regarding his "licensee" status and the trial court's application of the assumption of risk defense. Singleton's motion was denied.

STANDARD OF REVIEW

"In reviewing the grant of summary judgment, [an appellate court] applies the same standard that governs the trial court under Rule 56, SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Pittman v. Grand Strand Entm't, Inc., 363 S.C. 531, 536, 611 S.E.2d 922, 925 (2005); Young v. South Carolina Dep't of Disabilities & Special Needs, 374 S.C. 360, 649 S.E.2d 488 (2007); Henderson v. Allied Signal, Inc., 373 S.C. 179, 644 S.E.2d 724 (2007); Eagle Container Co., LLC v. County of Newberry, 366 S.C. 611, 622 S.E.2d 733 (Ct.App.2005); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 603 S.E.2d 629 (Ct.App. 2004). In determining whether any triable issue of fact exists, the evidence and all inferences that can reasonably be drawn therefrom must be viewed in the light most favorable to the nonmoving party. Catawba Indian Tribe of South Carolina v. State, 372 S.C. 519, 642 S.E.2d 751 (2007); Medical Univ. of South Carolina v. Arnaud, 360 S.C. 615, 602 S.E.2d 747 (2004); Moore v. Weinberg, 373 S.C. 209, 216, 644 S.E.2d 740, 743 (Ct.App.2007); Rife v. Hitachi Constr. Mach. Co., Ltd., 363 S.C. 209, 609 S.E.2d 565 (Ct. App.2005). If triable issues exist, those issues must go to the jury. Mulherin-Howell v. Cobb, 362 S.C. 588, 608 S.E.2d 587 (Ct. App.2005).

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Hansson v. Scalise Builders of South Carolina, 374 S.C. 352, 650 S.E.2d 68 (2007); Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 611 S.E.2d 485 (2005); BPS, Inc. v. Worthy, 362 S.C. 319, 608 S.E.2d 155 (Ct.App.2005). On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party. RWE NUKEM Corp. v. ENSR Corp., 373 S.C. 190, 644 S.E.2d 730 (2007); Connor Holdings, L.L.C. v. Cousins, 373 S.C. 81, 644 S.E.2d 58 (2007); Willis v. Wu, 362 S.C. 146, 607 S.E.2d 63 (2004); see also Schmidt v. Courtney, 357 S.C. 310, 592 S.E.2d 326 (Ct.App.2003) (stating that all ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party).

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Gadson v. Hembree, 364 S.C. 316, 613 S.E.2d 533 (2005); Montgomery v. CSX Transp., Inc., 362 S.C. 529, 608 S.E.2d 440 (Ct.App.2004). Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Montgomery v. CSX Transp., Inc., 376 S.C. 37, 656 S.E.2d 20 (2007) (Shearouse...