UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KITTY GREEN, 

Plaintiff-Appellant,

v.  No. 04-1095

UNITED STATES OF AMERICA,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of South Carolina, at Beaufort.

Patrick Michael Duffy, District Judge.

(CA-02-3925)

Submitted: July 9, 2004

Decided: August 5, 2004

Before MOTZ and GREGORY, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion. 

COUNSEL

J. Brent Kiker, KIKER & DOUDS, P.A., Beaufort, South Carolina,

for Appellant. J. Strom Thurmond, Jr., United States Attorney, John

H. Douglas, Assistant United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Kitty Green appeals from the district court’s order granting summary judgment to the Government in her suit under the Federal Tort

Claims Act ("FTCA"). Green alleged that, while visiting a family

member at the Federal Correctional Institution in Estill, South Carolina, she slipped in a puddle of water and fractured her ankle. The district court found that the danger was open and obvious and, thus,

Green had a duty to discover and avoid the danger. We find that material issues of fact exist preventing summary judgment. Accordingly,

we vacate and remand. 

This court reviews de novo a district court’s order granting summary judgment. Moore Bros. Co. v. Brown & Root, Inc., 207 F.3d

717, 722 (4th Cir. 2000). Summary judgment is only appropriate

when there is no genuine issue of material fact that could lead a trier

of fact to find for the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986). "In determining whether to grant

summary judgment, all justifiable inferences must be drawn in favor

of the non-movant." Miltier v. Beorn, 896 F.2d 848, 852 (4th Cir.

1990). The non-movant is entitled to "have the credibility of his evidence as forecast assumed, his version of all that is in dispute

accepted, [and] all internal conflicts in it resolved favorably to him."

Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).

The FTCA "permits the United States to be held liable in tort in the

same respect as a private person would be liable under the law of the

place where the act occurred." Medina v. United States, 259 F.3d 220,

223 (4th Cir. 2001). Thus, liability under the FTCA is determined by

reference to the law of the state in which the allegedly tortious conduct occurred. 28 U.S.C. § 1346(b)(1) (2000). Therefore, South Carolina law governs. 

2 GREEN v. UNITED STATES
Under South Carolina law, the owner of property owes no duty to

use reasonable care to take precautions against or to warn guests of

open and obvious dangers. In such situations, the guests themselves

have a duty to discover and avoid the danger. Neil v. Byrum, 343

S.E.2d 615, 616 (S.C. 1986). This general rule has an exception,

where the owner should reasonably anticipate that invitees may be

distracted or will not discover the danger. Callander v. Charleston

Doughnut Corp., 406 S.E.2d 361, 362-63 (S.C. 1991). The degree of

care owed with regard to an open and obvious danger is commensurate with the circumstances involved, including the possessor’s prior

knowledge of the defect’s existence and the age and capacity of the

invitee. See Larimore v. Carolina Power & Light, 531 S.E.2d 535,

539-40 (S.C. Ct. App. 2000). 

The district court held that a twelve foot long puddle on the floor

of the visitor’s room, coupled with the fact that it was raining for

twelve hours prior to the accident, created an open and obvious danger and, thus, the Government had no duty to take precautions or

warn Green. However, drawing all inferences in favor of Green, she

walked over thirty-six feet out of the rain on dry floors before opening

the door to the visitor’s room.1 Thus, Green entered the visitor’s room

with no warning that there would be a large puddle on the opposite

side of the door. Moreover, even if the puddle was large enough to

be seen immediately, Green testified at her deposition that she began

to slip as soon as she entered the room. Thus, while the puddle may

have been open and obvious to someone standing in the room,

Green’s view was blocked by the door,2 and she potentially did not

have time to process the puddle’s danger before she fell. Thus, we

find that a material issue of fact exists as to whether the danger was

open and obvious, and summary judgment was, therefore, inappropriate. 

1

In her brief, Green appears to assume that there was no water on the

floor prior to the visitor’s room and that the door to the visitor’s room

was closed. There is no evidence in the joint appendix regarding these

allegations, but the Government does not dispute them. The joint appendix contains only excerpts from the deposition testimony. 

2While the door was made mostly of glass, the pictures in the record

show that the view of the floor was somewhat obstructed. 

GREEN v. UNITED STATES 3
There is also the issue of whether, under Larimore and Callander,

the circumstances dictated a duty to warn, even in the face of an open

and obvious danger. Here too, we find a genuine issue of material

fact. Green alleges that there was a guard just inside the visitor’s

room door, where he would have been well aware of the large puddle

of water. In addition, presumably the Government was more aware of

where water pooled during times of rain than Green, who had allegedly never been to the prison during rain before. Furthermore, in the

moments between opening the door and slipping, Green would have

reasonably been distracted by handling the door and locating the signin table.3

 Thus, the forecast evidence could support a jury finding that

the Government should have warned Green of the puddle. 

Based on the foregoing, we vacate the district court’s order and

remand the case for further proceedings. We dispense with oral argument, because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process. 

VACATED AND REMANDED

3The district court found it significant that Green had been to the facility and signed in on two prior occasions. However, the record reflects

that this was the only occasion on which it was raining. In addition, the

immediacy of Green’s fall upon entering the room would only require a

brief distraction for her to miss seeing the puddle. 

4 GREEN v. UNITED STATES