THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Alberta Major, Petitioner, 

v. 

City of Hartsville, Respondent. 

Appellate Case No. 2012-212740 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal From Darlington County 

The Honorable Paul M. Burch, Circuit Court Judge 

Opinion No. 27446 

Submitted September 10, 2014 – Filed September 17, 2014 

 REVERSED 

Michael T. Miller, of Smith Haughey Rice & Roegge, 

PC, of Ann Arbor, MI for Petitioner. 

William Bailey Woods, of Richardson Plowden & 

Robinson, PA, of Columbia, for Respondent. 
 

PER CURIAM: This matter is before this Court by way of a petition for a writ of 

certiorari seeking review of the Court of Appeals' decision in Major v. City of 

Hartsville, 398 S.C. 257, 728 S.E.2d 52 (Ct. App. 2012). We grant the petition for 

a writ of certiorari, dispense with further briefing, and reverse the decision of the 

Court of Appeals. 

Petitioner fell and sustained an ankle injury while walking across an unpaved area 

of an intersection, which was owned and maintained by respondent. Petitioner 

asserted her injury was a result of a rut in the ground created by vehicles frequently 

driving over the unpaved area. Petitioner brought suit against respondent alleging 

negligence, gross negligence, and willful and wanton conduct. 

Prior to trial, respondent filed a motion for summary judgment contending it was 

not liable under the South Carolina Torts Claims Act (SCTCA)1

 because it was not 

on notice of any rut at the location where petitioner allegedly sustained her injury. 

At the summary judgment hearing, petitioner presented testimony that respondent 

was aware drivers often cut the corner at the intersection where the unpaved area 

was located, leaving ruts. Testimony established that in the past, respondent had a 

procedure for correcting the issue by filling the ruts with sand or clay. However, 

further testimony revealed that prior to petitioner's injury, respondent ceased 

efforts to correct the issue since, according to an employee of respondent, "it was a 

fruitless effort because a few days later . . . it was right back to the same 

condition." 

The trial judge granted summary judgment in favor of respondent, finding 

respondent's knowledge of vehicles cutting the unpaved corner at the intersection 

did not create a continual condition and did not place respondent on constructive 

notice of the actual rut. 

The Court of Appeals affirmed, referring to the SCTCA and finding although 

petitioner presented evidence that respondent had notice of circumstances it knew 

1

 S.C. Code Ann. § 15-78-60(15) (2005), which states: 

Governmental entities responsible for maintaining highways, roads, streets, 

causeways, bridges, or other public ways are not liable for loss arising out 

of a defect or a condition in, on, under, or overhanging a highway, road, 

street, causeway, bridge, or other public way caused by a third party unless 

the defect or condition is not corrected by the particular governmental entity 

responsible for the maintenance within a reasonable time after actual or 

constructive notice. 
 

would eventually lead to a rut, there was no evidence respondent had notice of the 

specific rut petitioner alleged caused her injury. The Court of Appeals further 

found there was no continual condition sufficient to establish constructive notice 

and impute liability to respondent. 

Constructive notice is a legal inference, which substitutes for actual notice. 

Strother v. Lexington Cnty. Recreation Comm'n, 332 S.C. 54, 504 S.E.2d 117 

(1998). "Constructive notice arises when a condition has existed for such a period 

of time that a municipality in the use of reasonable care should have discovered the 

condition." Fickling v. City of Charleston, 372 S.C. 597, 609-10 n.34, 643 S.E.2d 

110, 117 n.34 (Ct. App. 2007) (quoting Jindra v. City of St. Anthony, 533 N.W.2d 

641 (Minn. Ct. App. 1995)). Where a recurring condition is of such a nature as to 

amount to a continual condition, when coupled with other factors, the recurring 

condition may be sufficient to create a jury issue as to constructive notice. 

Fickling, 372 S.C. at 601 n.37, 643 S.E.2d at 117 n.37 (citing Wintersteen v. Food 

Lion, Inc., 344 S.C. 32, 542 S.E.2d 728 (2001)); see also Henderson v. St. Francis 

Cmty. Hosp., 303 S.C. 177, 399 S.E.2d 767 (1990) (finding JNOV improper where 

evidence was presented that debris from trees created a maintenance problem and 

the defendant failed to use a regular maintenance program to remedy the issue); 

Pinckney v. Winn-Dixie Stores, Inc., 311 S.C. 1, 426 S.E.2d 327 (Ct. App. 1992) 

(holding the defendant was not entitled to a directed verdict where there was 

evidence a jury might have inferred the store manager had knowledge of a 

potential hazard created by the recurring condition of fallen leaves on the floor in 

the area near a poinsettia display, and the manager failed to remedy the issue or put 

up a warning sign). 

Based on the testimony presented at the summary judgment hearing, we find a 

genuine issue of material fact exists as to whether respondent should be charged 

with constructive notice on the basis that the rut existed for such a period of time 

that respondent, in the use of reasonable care, should have discovered it.2 We 

further find that a genuine issue of material fact exists as to whether the recurring 

2

 We note the record is unclear as to when respondents last filled the rut prior to petitioner's 

injury or when respondents last checked-on the area to ensure a defect had not arisen. However, 

respondent permanently corrected the issue by extending the sidewalk to the intersection after 

petitioner filed this lawsuit. 
nature of the defect created a continual condition giving rise to constructive notice. 

We therefore reverse the Court of Appeals' opinion affirming the grant of summary 

judgment to respondent. 

REVERSED 

TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur. 

HEARN, J., not participating.