UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CLEMA O. BAKER,

Plaintiff-Appellee,

v. No. 96-2815

TOYS-R-US, INCORPORATED,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Matthew J. Perry, Jr., Senior District Judge.

(CA-95-1183-3-0)

Argued: October 29, 1997

Decided: January 13, 1998

Before WILKINSON, Chief Judge, and RUSSELL and

MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Gray Thomas Culbreath, COLLINS & LACY, P.C.,

Columbia, South Carolina, for Appellant. William Pearce Davis,

BAKER, BARWICK, RAVENEL & BENDER, L.L.P., Columbia,

South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Mrs. Clema Baker slipped and fell in a Toys-R-Us ("Toys") store,

severely injuring her ankle. She brought a diversity action against

Toys in the District of South Carolina, and a jury awarded her

$50,000, reduced by 5 percent for comparative negligence. Toys

appeals and we affirm.

I.

On Saturday, June 12, 1993, Mrs. Baker entered a Toys store in

Columbia, South Carolina, to shop with her daughter-in-law, another

woman, and three children. As Mrs. Baker walked around a display

in the seasonal area of the store, she fell to the floor after stepping on

a (metal) base bracket trim piece that had become detached from the

bottom of the display shelving.1 Mrs. Baker's ankle was severely fractured in the fall, and she was taken to the emergency room for treatment. The injury required surgery, which included the insertion of

several pins in the ankle. Mrs. Baker, who was sixty-nine at the time,

claims that this injury will never completely heal.

On April 20, 1995, Mrs. Baker sued Toys, seeking damages in

excess of $50,000 for her injuries. As mentioned above, when the

case was tried, Mrs. Baker received a jury verdict for $50,000 that

was reduced by 5 percent for her own negligence.

At trial Mrs. Baker was allowed to present evidence, over Toys'

objections, about prior incidents in which trim pieces had fallen off

displays in Toys' stores. Kevin Holma, the manager of the Columbia

store at the time of the accident, testified that trim pieces are some-

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1 A base bracket trim piece is a decorative covering that attaches to the

base of display shelving.

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times bent by floor buffers and that these bent pieces are usually

replaced because they do not fit back on to the displays very well. He

also said that even if a trim piece is properly attached, its "nose"

sticks out enough that it can be caught by a passing shopping cart. He

admitted that shopping carts can and do knock trim pieces off.

Thomas Merriweather, who had worked for Toys for about three

years, said that he had witnessed trim pieces knocked off six to ten

times and that he had seen shopping carts knock them off. He also testified that five or six times he had to reinstall trim pieces knocked off

by customers or by children playing in the store. If the piece was difficult to get back on, he would use a rubber mallet to get the piece

to lock into place. Finally, Merriweather said, if trim pieces were not

properly installed, they would "hang[ ] loose" from the shelving.

Rachel McInnis, another employee, had seen both shopping carts

and flat cars (used by employees to move merchandise) accidentally

bump against trim pieces and dislodge them. She said that if a trim

piece is not put on correctly, "it just pops off" when something bumps

against it.

Cory Evins, a maintenance worker at Toys, testified that he saw

trim pieces on the floor on Monday mornings after the floor care crew

had been in the store. He generally found them lying immediately

next to the display shelving where they attach, and it was a part of his

job to pick them up off the floor.

The testimony of expert witness James Spano, a safety engineer

and certified hazard control manager, was also read to the jury. He

testified that trim pieces pose the risk of coming loose when they are

struck. According to Spano, in the front of the store where Mrs. Baker

fell the trim pieces were secured by clips, rather than by bolts or

screws. However, in the back of the store and in another Toys store

in Atlanta, the trim pieces were bolted to the display shelving and

thus could not be easily dislodged.

Mrs. Baker did not submit any evidence that established when or

how the trim piece that she stepped on had become detached. No witness saw the piece detached before she fell, and Holma (the store

manager) testified that when he walked through the seasonal area four

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to ten minutes before the accident, he did not see the trim piece dislodged, loose, or on the floor. Trim pieces make a loud noise when

they fall to the floor, yet no witness heard any such sound before Mrs.

Baker fell.

Toys timely objected to the submission of evidence relating to prior

trim piece incidents, and it now appeals both the admission of this

evidence as well as the district court's denial of its motion for judgment as a matter of law or in the alternative a new trial.

II.

Toys raises three arguments on appeal. First, it asserts that the district court erred in admitting evidence relating to prior incidents when

trim pieces became detached. Toys says that under South Carolina

slip and fall law this evidence was not "of consequence to the determination of the action," Fed. R. Evid. 401, so it was irrelevant and

inadmissible under Fed. R. Evid. 402.2 Second, Toys argues that even

if the evidence was relevant, the district court abused its discretion in

not excluding it under Fed. R. Evid. 403 because its prejudicial

impact substantially outweighed its probative value. According to

Toys, because evidence of prior incidents cannot establish liability

under South Carolina law, admitting this evidence is highly prejudicial because it encourages a jury to expand a proprietor's liability on

legally impermissible grounds. Finally, Toys argues that the district

court erred by failing to grant its motion for judgment as a matter of

law (or in the alternative a new trial) because Mrs. Baker failed to

show that Toys had actual or constructive notice that the trim piece

had become detached. Toys asserts that it cannot be held liable under

South Carolina law without this showing. Each of these arguments is

grounded in the same legal issue, namely, whether South Carolina law

requires that Mrs. Baker establish that Toys had actual or constructive

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2 The federal cases cited by Toys requiring that evidence of prior incidents bear a "substantial similarity" to the accident at issue are not on

point. These cases either predate the Federal Rules of Evidence which

embody a broad principle of relevancy or relate to product liability

issues. If the evidence in this case is otherwise relevant, any dissimilarity

of prior incidents affects the weight of the evidence and not its admissibility.

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knowledge of the detachment of the trim piece that caused her fall,

regardless of any prior experience that Toys might have had with trim

pieces.

We review evidentiary rulings for abuse of discretion, see Ridge v.

Cessna Aircraft Co., 117 F.3d 126, 129-30 (4th Cir. 1997), although

we review de novo a trial court's interpretation of state law, see

Trimed, Inc. v. Sherwood Med. Co., 977 F.2d 885, 888 (4th Cir.

1992). We also review de novo the denial of judgment as a matter of

law, see Redman v. John D. Brush & Co., 111 F.3d 1174, 1177 (4th

Cir. 1997), but we will only reverse the denial of a motion for a new

trial for an abuse of discretion, see United States v. Wilson, 118 F.3d

228, 237 (4th Cir. 1997). Because we believe the district court properly applied South Carolina law, we affirm.

Under South Carolina law it is well settled that while a storekeeper

"is not an insurer of the safety of those who enter his store," he nevertheless "does owe them a duty of exercising ordinary care to keep the

aisles, passageways, and such other parts of the premises as are ordinarily used by customers in transacting business in a reasonably safe

condition." Bagwell v. McLellan Stores Co. , 57 S.E.2d 257, 260 (S.C.

1949); accord Meadows v. Heritage Village Church & Missionary

Fellowship, Inc., 409 S.E.2d 349, 351 (S.C. 1991) (owner has duty of

"`reasonable care . . . to keep the premises used by invitees in a reasonably safe condition'" (quoting Henderson v. St. Francis Community Hosp., 399 S.E.2d 767, 768 (1990)); Moore v. Levitre, 365 S.E.2d

730, 730 (S.C. 1988) (quoting case following Bagwell). In order to

recover from a storekeeper, a plaintiff must prove negligence by

"show[ing] either (1) that the injury was caused by a specific act of

the [owner or his agent] which created the dangerous condition; or (2)

that the [owner or his agent] had actual or constructive knowledge of

the dangerous condition and failed to remedy it." Anderson v.

Racetrac Petroleum, Inc., 371 S.E.2d 530, 531 (S.C. 1988) (per

curium).

The key issue in this appeal is whether this case involves a dangerous condition which was "created" by Toys or whether it involves a

condition relating to a "foreign substance" for which Toys is liable

only if it had actual or constructive knowledge of the specific hazard

and failed to remedy it. We agree with Mrs. Baker that her case is

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governed by South Carolina law governing the "creation" of hazards

by store owners.

In Henderson v. St. Francis Community Hospital , 399 S.E.2d 767

(S.C. 1990), the South Carolina Supreme Court ruled that a hospital

could be held liable for a dangerous condition created by sweet gum

trees planted in its parking lot. Because the court found that "more

than one reasonable inference c[ould] be drawn in regard to the reasonableness of [the hospital's] safety precautions," it held that a jury

could find "that the hospital failed to keep its premises reasonably

safe." Id. at 769. The hospital in that case not only created the condition by planting the trees in its parking lot, it also knew that the gum

balls which fell from the trees created a safety hazard. Indeed, the

hospital was "specifically advised to remove the trees because they

produced debris which created a nuisance and maintenance problem."

Id. Despite this, the hospital did not remove the trees and did not

establish a regular groundskeeping program to address the hazard.

The South Carolina Supreme Court did not treat the case as one

involving a substance foreign to the parking lot and thus did not

require that the plaintiff prove that the hospital knew that gum balls

were on the ground at the time of the accident. Instead, it found that

the jury could properly infer from the evidence that"the hospital was

negligent in failing to provide reasonably safe conditions for its visitors and patients by not removing the trees or employing an adequate

maintenance program when it had actual and constructive knowledge

of the dangerous condition created by the sweet gum trees." Id.

Cook v. Food Lion, Inc., 491 S.E.2d 690, 691-92 (S.C. Ct. App.

1997), is even more similar to this case. In Cook the court ruled that

floor mats were not "foreign substances" because Food Lion created

the "dangerous conditions by placing the mats" on the floor. Id. at

691-92. Having ruled that Food Lion created the condition, the court

held that it was not necessary to show that the defendant "had notice

that the floor mats were wrinkled or bunched immediately prior to

Cook's fall." Id. at 692. Moreover, the court ruled that "the testimony

of the tendency of the floor mats to wrinkle was directly relevant to

the issue of whether a dangerous condition existed in the store." Id.

Like the proprietors in Henderson and Cook, Toys created a hazard

by installing trim pieces at floor level that would become dislodged

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if struck. Even though prior incidents showed that Toys and its

employees knew that trim pieces would become detached, Toys did

not implement a maintenance program which included bolting (or

otherwise securely attaching) the pieces to the shelving in the area of

the store where Mrs. Baker fell. A reasonable jury could therefore

infer that Toys was negligent for failing to address the problem adequately in order to provide a reasonably safe shopping environment.

We do not believe this case is like those in which slip and fall accidents are caused by foreign substances. In those cases, objects on the

floor such as grapes, spilled rice, and the traditional banana peel are

at issue. See, e.g., Joye v. Great Atl. & Pac. Tea Co., 405 F.2d 464

(4th Cir. 1968) (banana peel); Simmons v. Winn-Dixie Greenville,

Inc., 457 S.E.2d 608 (S.C. 1995) (grape); Pennington v. Zayre Corp.,

165 S.E.2d 695 (S.C. 1969) (plastic bag); Wimberly v. Winn-Dixie

Greenville, Inc., 165 S.E.2d 627 (S.C. 1969) (3-2 decision) (rice); see

also Hunter v. Dixie Home Stores, 101 S.E.2d 262, 265-67 (S.C.

1957) (surveying cases involving beets, strawberries, popcorn, and

other vegetable matter). These objects are clearly foreign to the floor.

They are normally stored on shelves or displayed in cases above floor

level and are located for convenient removal by customers. The trim

piece in this case, however, was installed as a semi-permanent fixture

to the store's display shelving. It was clearly not intended for removal

and was located at floor level. In this way it is quite similar to the

floor mats involved in Cook.

This case is also similar to Henderson because that case involved

gum balls which, like trim pieces, were not intended for removal by

patrons. In this way, both Henderson and this case are distinct from

the fruit or vegetable matter cases. Retail stores exist for the singular

purpose of selling goods to customers, and therefore the goods must

be subject to removal by store patrons. Sometimes, however, this

results in a dangerous condition created when a store's customers

drop products on the floor. Because this danger is a necessary consequence of the retail business, the South Carolina courts appear to rule

that such hazards are reasonable as a matter of law so long as they

are remedied when discovered. Thus, where "the defect results from

the unauthorized act of another, the storekeeper is held only to reasonable care in the discovery and remedy or removal of it." Richards v.

Great Atl. & Pac. Tea Co., 83 S.E.2d 917, 918 (S.C. 1954) (dicta).

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Any other result would make a storekeeper the insurer of his customers' safety. This policy concern is not present, however, when the

danger at issue is not inherent to the business. There, when an unreasonably hazardous condition is created by the proprietor, he breaches

his duty of care and is held liable. This was the case in Henderson and

Cook, and it is also the case here.

Like the floor mats in Cook, the tendency of these pieces to

become dislodged was directly relevant to the legal question of

whether Toys had breached its duty to provide reasonably safe premises for its customers. Accordingly, we affirm the district court's evidentiary rulings under Rules 402 and 403. Because South Carolina

law does not require evidence that Toys had actual or constructive

knowledge of the particular dislodged trim piece in order to be held

liable, we also affirm the district court's denial of Toys' motion for

judgment as a matter of law and motion for a new trial.

AFFIRMED

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