UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 frac-
tured in the fall, and she was taken to the emergency room for treat-
ment. 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-
_________________________________________________________________
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 tes-
tified 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 dif-
ficult 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 wit-
ness saw the piece detached before she fell, and Holma (the store
manager) testified that when he walked through the seasonal area four

                    3
to ten minutes before the accident, he did not see the trim piece dis-
lodged, 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 judg-
ment as a matter of law or in the alternative a new trial.

II.

Toys raises three arguments on appeal. First, it asserts that the dis-
trict 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 deter-
mination 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 prejudi-
cial 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 inci-
dents 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 admissi-
bility.

                     4
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 prop-
erly 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 never-
theless "does owe them a duty of exercising ordinary care to keep the
aisles, passageways, and such other parts of the premises as are ordi-
narily 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 rea-
sonably safe condition'" (quoting Henderson v. St. Francis Commu-
nity 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 danger-
ous 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

                    5
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 rea-
sonableness 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 condi-
tion 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 visi-
tors 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

                    6
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 ade-
quately in order to provide a reasonably safe shopping environment.

We do not believe this case is like those in which slip and fall acci-
dents 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 conse-
quence 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 reason-
able 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).

                    7
Any other result would make a storekeeper the insurer of his custom-
ers' safety. This policy concern is not present, however, when the
danger at issue is not inherent to the business. There, when an unrea-
sonably 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 prem-
ises for its customers. Accordingly, we affirm the district court's evi-
dentiary 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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