            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.
