THE STATE OF SOUTH CAROLINA In The Supreme Court

Alberta Major, Petitioner,

v.
City of Hartsville, Respondent.

Appellate Case No. 2012-212740

ON WRI T OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Darlington County The Honorable Paul M. Burc h, 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 Cour t 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 furthe r briefing, and reverse the decision of the Court of Appeals.

Petitioner fell and sustained an ankle injury while walk ing across an unpaved area of an intersection, which was owned a nd maintained by resp ondent. Petitioner asserted her injury was a result of a rut in the ground created by vehicles frequently driving over the unpaved ar ea. Petitioner brought suit against respondent alleging negligence, gross negligence, an d willful and wanton conduct.
Prior to trial, respondent filed a moti on 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, petiti oner presented testimony that respondent was aware drivers often cut the corner at the intersection where the unpaved area was located, leaving ruts. Testimony estab lished 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 empl oyee 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 judgm ent 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, refe rring to the SCTCA and finding although petitioner presented evidence that responde nt 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 ot her public ways are not lia ble for loss arising out of a defect or a condition in, on, unde r, or overhanging a highway, road, street, causeway, bridge, or other pub lic 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 wa s 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 suffi cient to establish constructive notice and impute liability to respondent.
Constructive notice is a legal inference, which substitutes for actual notice. Strother v. Lexington Cnty. Recrea tion 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 Charle ston , 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 recurri ng condition is of such a nature as to amount to a continual condition, when coupl ed with other factors, the recurring condition may be sufficient to create a ju ry issue as to constructive notice. Fickling , 372 S.C. at 601 n.37, 643 S.E.2d at 117 n.37 (c iting 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 (1 990) (finding JNOV improper where evidence was presented that debris from trees created a maintenance problem and the defendant failed to use a regular maintenance progr am 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 verdic t where there was evidence a jury might have inferred the store manager had knowledge of a potential hazard created by the recurring c ondition of fallen leaves on the floor in the area near a poinsettia display, and th e manager failed to re medy the issue or put up a warning sign).
Based on the testimony presented at th e 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 reas onable care, should have discovered it. 2 We further find that a genuine issue of materi al fact exists as to whether the recurring

2 We note the record is unclear as to when res pondents 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 ex tending the sidewalk to the intersection after petitioner filed this lawsuit.nature of the defect created a continual c ondition 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.