                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-1906


WALLACE GRAHAM; DOROTHY GRAHAM,

                 Plaintiffs - Appellants,

           v.

PROGRESS ENERGY, INCORPORATED,

                 Defendant - Appellee,

           and

BASSETT FURNITURE INDUSTRIES, INCORPORATED; FLEETWOOD HOMES
OF GEORGIA, INCORPORATED; PHILLIPS, INCORPORATED,

                 Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:05-cv-02895-TLW)


Argued:   May 12, 2010                       Decided:   June 25, 2010


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: Robert Paul Foster, FOSTER LAW FIRM, LLP, Greenville,
South Carolina, for Appellants.    Jerome Scott Kozacki, WILLCOX
BUYCK & WILLIAMS, PA, Florence, South Carolina, for Appellee.
ON BRIEF: William P. Walker, Jr., WALKER & MORGAN, LLC,
Lexington, South Carolina, for Appellants.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     This appeal arises from a grant of summary judgment.                    The

district   court     dismissed     a   negligence     claim     upon     finding

insufficient     evidence    to   establish     proximate     causation    under

South Carolina law.          Because we are unable to find that the

alleged harm was unforeseeable as a matter of law, we reverse.



                                       I.

     When Appellants Wallace and Dorothy Graham failed to pay

their    electricity    bill,      Appellee      Progress      Energy,     Inc.,

(“Progress”)     disconnected     electricity    to   their    home    allegedly

without following various regulations (e.g., requiring that the

Grahams receive prior notice and be offered a deferred payment

plan).     The     Grahams    consequently      lit   several    candles    for

illumination.     Two of the candles were placed on sconces mounted

on the wall above a sofa in their living room.                    The Grahams

forgot to extinguish the candles before falling asleep.                     That

night, Wallace Graham awoke to find that the burning candles had

caused a fire beginning on the living room wall above the couch.

His wife managed to escape through the front door, but he became

trapped inside the master bedroom and suffered burns and smoke

inhalation before being rescued.




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       The   Grahams      sued   Progress    (among    other    defendants)      for

negligence under South Carolina law.             The district court granted

Progress’s motion for summary judgment under Federal Rule of

Civil Procedure 56.          Finding insufficient evidence to establish

proximate causation, the court reasoned that, “[w]hile Progress

may have foreseen that the plaintiffs would use candles as a

source of light, it is unforeseeable that the plaintiffs would

fail to extinguish the candles prior to falling asleep.”                         J.A.

318.   This appeal followed.



                                       II.

       We “review[] a district court’s decision to grant summary

judgment     de   novo,    applying   the    same     legal    standards    as   the

district court.”          Pueschel v. Peters, 577 F.3d 558, 563 (4th

Cir.    2009).      Summary      judgment     should     be    granted     “if    the

pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.”        Fed. R. Civ. P. 56(c)(2).              “[I]n ruling on a

motion for summary judgment, the nonmoving party’s evidence is

to be believed, and all justifiable inferences are to be drawn

in that party’s favor.”            Hunt v. Cromartie, 526 U.S. 541, 552

(1999) (internal quotations omitted).



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     The   issue   before   us   is   whether   a   reasonable   jury   could

conclude that Progress’s alleged negligent conduct proximately

caused the Grahams’ alleged harm.           The South Carolina Supreme

Court has recently articulated the relevant law:

          To establish a negligence cause of action under
     South Carolina law, the plaintiff must prove the
     following three elements: (1) a duty of care owed by
     defendant to plaintiff; (2) breach of that duty by a
     negligent act or omission; and (3) damage proximately
     resulting from the breach of duty.
          Normally, proximate cause is a question of fact
     for the jury, and it may be proved by direct or
     circumstantial evidence.      Proximate cause requires
     proof of: (1) causation-in-fact, and (2) legal cause.
     Causation-in-fact is proved by establishing the injury
     would not have occurred but for the defendant’s
     negligence, and legal cause is proved by establishing
     foreseeability.
          Indeed,    foreseeability    is   considered    the
     touchstone of proximate cause, and it is determined by
     looking to the natural and probable consequences of
     the defendant’s act or omission.         However, while
     foreseeability of some injury from an act or omission
     is a prerequisite to establishing proximate cause, the
     plaintiff need not prove that the defendant should
     have contemplated the particular event which occurred.
     Moreover, it is not necessary to prove that the
     defendant’s negligence was the sole proximate cause of
     the injury. Instead, it is sufficient if the evidence
     establishes that the defendant’s negligence is a
     concurring   or    a   contributing   proximate   cause.
     Concurring causes operate contemporaneously to produce
     the injury, so that it would not have happened in the
     absence of either.     In other words, if the actor’s
     conduct is a substantial factor in the harm to
     another, the fact that he neither foresaw nor should
     have foreseen the extent of harm or the manner in
     which it occurred does not negative his liability.

J.T. Baggerly v. CSX Transp., Inc., 635 S.E.2d 97, 101 (S.C.

2006) (internal quotations, citations, and emphases omitted).


                                      5
       Progress      does    not    dispute        causation-in-fact.              Regarding

legal causation, Progress contends that “Mr. and Mrs. Graham’s

actions were an intervening, independent cause of the fire” that

was unforeseeable.           Appellee’s Br. at 16.              Under South Carolina

law, “[f]or an intervening act to break the causal link and

insulate the tortfeasor from further liability, the intervening

act    must     be   unforeseeable.”               McKnight        v.     S.C.     Dep’t     of

Corrections, 684 S.E.2d 566, 569 (S.C. Ct. App. 2009) (quoting

Dixon v. Besco Eng’g, Inc., 463 S.E.2d 636, 640 (S.C. Ct. App.

1995).    Although admitting that “Mr. and Mrs. Graham’s decision

to    illuminate     their        home    with     candle    light        following     their

termination of power services for non-payment may certainly have

been foreseeable,” Progress contends that “their going to sleep

with   the     candles      lit    or    otherwise      failing      to    attend     to   the

candles so as to prevent them from falling was certainly by no

means so.”      Appellee’s Br. at 17.

       Progress’s      approach          misconstrues        the        relevant     inquiry

because      South   Carolina       law    does     not     require       that   particular

events be foreseeable.                  For instance, the conduct of falling

asleep    without         extinguishing           candles     need        not    have      been

foreseeable.         See J.T. Baggerly, 635 S.E.2d at 101 (“[W]hile

foreseeability       of     some    injury       from   an   act     or    omission     is    a

prerequisite to establishing proximate cause, the plaintiff need

not    prove    that      the     defendant       should     have       contemplated       the

                                              6
particular event which occurred.”); Childers v. Gas Lines, Inc.,

149 S.E.2d 761, 765 (S.C. 1966) (“If the actor’s conduct is a

substantial factor in the harm to another, the fact that he

neither foresaw nor should have foreseen the extent of harm or

the   manner    in     which      it   occurred    does     not   negative     his

liability.”); see also Mellen v. Lane, 659 S.E.2d 236, 248 (S.C.

Ct. App. 2008) (“The original actor need not contemplate the

particular intervening act responsible for the injury.” (citing

Oliver v. S.C. Dep’t of Highways and Pub. Transp., 422 S.E.2d

128, 131 (S.C. 1992))).           Instead, only the general harm (injury

during a house fire) and general intervening cause (careless

misuse of candles) need to have been foreseeable.

      Progress concedes that “Mr. and Mrs. Graham’s decision to

illuminate     their    home      with    candle    light     following      their

termination of power services” was foreseeable.                   Appellee’s Br.

at 17.     This seems obvious because people who have suddenly lost

electricity will naturally try to illuminate their home without

it, and candles are frequently used for this purpose.                     Common

sense and ordinary experience reveal that people are sometimes

careless     when    they   use    candles. *      Because    candle    use    was

      *
       The Grahams also support this with evidence: The National
Fire Protection Association’s research shows that from 1999 to
2001 “[o]ne-third (34%) of all home candle fires occurred after
candles   were  left  unattended,   abandoned,  or  inadequately
controlled.” J.A. 152.


                                         7
foreseeable,        a    reasonable     jury       could   therefore       conclude      that

some amount of candle misuse was also foreseeable.                                 Progress

also concedes that the Grahams’ house fire foreseeably resulted

from their using candles carelessly.                       See Appellee’s Br. at 16

(asserting     that        “the    direct    and    proximate      cause    of    the    fire

resulted from the lit candles Mr. and Mrs. Graham had forgotten

to extinguish prior to their having fallen asleep”).                             This means

that, assuming careless misuse of candles was foreseeable, the

Grahams’      house      fire     arising    from    careless      misuse    of     candles

would also have been foreseeable.

       The    evidence       presented       also     provides      support       for     the

conclusion that the alleged harm might have been foreseeable.

Progress’s      website         describes     how    people    should      handle       power

outages during severe weather.                    Among items people should have

ready, the website mentions “[c]andles and lantern[s].”                                  J.A.

217.         More       importantly,        the     website    provides       a     warning

indicating that people should exercise special care when using

candles: “If possible, avoid using candles – using a camping

lantern is safer.            If you must use candles, remember that open

windows and gusty winds can knock them over or blow flammable

materials into them, so be careful about where you place them.”

J.A.   218.         From    this    evidence,       one    could   easily    infer       that

Progress recognized that people who have just lost electricity

might cause a house fire by using candles carelessly.

                                              8
       Our precedent Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th

Cir.    1971),   also    forecloses      the    argument   that   the   Grahams’

negligence in falling asleep without extinguishing the candles

insulates Progress from liability.                Gardner involved paraffin-

filled hair rollers that, once boiled in water for 15 minutes,

could be used to create curls.                  A nurse dressing for church

after   her   night     shift   placed    the    hair   rollers   inside   a   pot

containing water and activated the stove.                  She then started a

bath but fell asleep in the bathtub.                When the unattended pot

boiled over, the hair rollers caused a fire which burned down

her apartment building.         The building owner sued the hair-roller

manufacturer and seller for negligence and breach of warranty

under South Carolina law, but the district court dismissed the

action at summary judgment.              On appeal, we held that “[t]he

district judge was in error . . . in his apparent conclusion

that . . . falling asleep was an act of intervening negligence

which, as a matter of law, was the proximate cause of the fire

and thereby insulated defendants from any liability on their

part which the jury might have found had the case been submitted

to it.”    Id. at 243.



                                      III.

       For all the above reasons, we hold that a reasonable jury

could conclude that the Grahams’ alleged harm was foreseeable.

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We   therefore   reverse    the   grant     of   summary    judgment     on   that

ground.     Because    the      district    court    found      that    proximate

causation   could   not    be   established,      the   court    never    reached

Progress’s claim that relief should be barred under the doctrine

of   comparative    negligence.       The    district      court   is    free   to

consider that claim on remand.

                                                        REVERSED AND REMANDED




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