Paetzold v. Walgreens Co et al, No. 2:2017cv02883 - Document 19 (D.S.C. 2018)
Court Description: ORDER granting 7 Motion to Remand to State Court. Clerk's Notice: Attorneys are responsible for supplementing the State Record with all documents filed in Federal Court. Signed by Honorable David C Norton on January 6, 2018.(cban, )
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ditionally, Paetzold’s multiple allegations against Walgreen go beyond the mere traffic sign issue. Paetzold alleges that the defendants breached their duty to maintain the foliage on its property in a manner that: (1) does not obstruct the view of traffic signs that it elected to place on its own property, and (2) does not prevent drivers from being able to fully see oncoming traffic and pedestrians. Underwood does not foreclose Paetzold’s second allegation—that defendants were negligent in failing to ensure that the foliage on its property did not obscure drivers exiting Walgreens from seeing pedestrians and vehicles approaching the property. That allegation is distinct from 5 Underwood and the traffic sign issue. Thus, the court finds that defendants have failed to prove that there is no possibility of a cause of action in this instance. B. Possible Cause of Action Directly Against Johnson Next, defendants argue that Paetzold could not bring a cause of action against Johnson in particular, because he is lower management and did not exercise sufficient control over the premises to warrant a liability action against him. ECF No. 8 at 4–5. As an initial matter, South Carolina law recognizes that tortfeasors may be subject to joint and several liability when “an injury is the proximate result of separate and independent acts of negligence of two or more parties.” Cook v. Lowe’s Home Centers, Inc., 2006 WL 3098773, at *3 (D.S.C. Oct. 30, 2006) (citing Rouck v. Selvey, 164 S.E.2d 909, 910 (S.C. 1968)). In that regard, Paetzold is entitled to sue multiple defendants who may be jointly responsible for the same injury. “In South Carolina, a party who operates a premises but is neither an owner nor a lessee may also have a duty of reasonable care with respect to an allegedly dangerous condition.” Benjamin v. Wal-Mart Stores, Inc., 413 F. Supp. 2d 652, 656 (D.S.C. 2006) (citing Dunbar v. Charleston & W.C. Ry. Co., 44 S.E.2d 314, 317 (S.C. 1947)). This district has found that potential liability hinges on how much “control” a party had over the premises, not simply whether they own it. Id. “In considering whether an individual has exercised such control of the premises so as to impose a duty to reasonably inspect the premises, a court will generally consider the individual’s power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee the management of the property.” Id., citing CJS Negligence § 388. 6 “The South Carolina Supreme Court has never directly held what level of control a department manager or an employee must exercise to be personally liable, in addition to the store owner, for injuries that a customer sustains while in the store.” Benjamin, 413 F. Supp. 2d at 656. However, several recent District of South Carolina Cases have addressed this very issue of remand. For example, in Mobley v. Wal-Mart Stores, Inc., 2010 WL 503101 (D.S.C. Feb. 8, 2010), which closely resembles the facts of this case, the court granted a motion to remand based on a finding that the nondiverse defendant was not fraudulently added. Plaintiff Maureen Mobley (“Mobley”) tripped on uneven pavement in a Wal-Mart parking lot. She subsequently sued Wal-Mart and Nicole Rana (“Rana”), the manager of the Wal-Mart store, claiming that their negligence in failing to inspect and maintain the premises, or to warn customers of the hazards of the parking lot, caused her injuries. Rana was not the manager of a particular department within the store, nor was she a lower-level employee. The court found that, “‘by virtue of [her] position,’ Rana had a ‘high level of control over the store.’” Mobley, 2010 WL 503101 at *5 (quoting Cook, 2006 WL 3098773, at *4). Rana’s affidavit stated that she lacked the authority to make repairs in the parking lot, but the court found that this left open the possibility that she had the authority to search for and discover, or warn customers against, defects in the Wal-Mart parking lot. Similarly, as the store manager, Johnson exercised a higher level of control over the premises than a department manager or regular employee.2 Johnson’s affidavit, like 2 At the hearing on this matter, defendants argued that Walgreens store managers are not responsible for maintaining the parking lot and grounds. Rather, they contend that Walgreen hires independent contractors for this purpose. None of this is in the record before the court, and thus the court declines to rely on these statements in assessing Johnson’s level of “control” over the parking lot. The court instead relies on 7 Rana’s, states that he does not control the Walgreens premises or make decisions about its maintenance, but it fails to assert that he has no authority or responsibility to search for, and warn customers against, defects in the parking lot. ECF No. 8-1. While the state court might ultimately find that Johnson owed no duty to Paetzold, the question at this stage is whether it is possible that Paetzold could have a cause of action against Johnson. Based on Mobley and Cook, the court finds that this is possible and that Johnson was not added as a sham defendant. Because Johnson’s presence as a defendant defeats complete diversity, the court grants Paeztold’s motion to remand. IV. CONCLUSION Based on the above, the court GRANTS Patezold’s motion to remand. AND IT IS SO ORDERED. DAVID C. NORTON UNITED STATES DISTRICT JUDGE February 6, 2018 Charleston, South Carolina what has been submitted through the party’s filings—namely that Johnson is a store manager, and thus most closely resembles the store manager in Mobley. 8
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