UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VICTOR FOGGIE,
Plaintiff-Appellant,

v.
                                                                    No. 99-1821
EMHART POWERS MANUFACTURING
DIVISION-EMHART INDUSTRIES,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Margaret B. Seymour, District Judge.
(CA-98-1278-6-24)

Submitted: February 15, 2000

Decided: March 2, 2000

Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephan R. H. Lewis, COVINGTON, PATRICK, HAGINS, STERN
& LEWIS, P.A., Greenville, South Carolina, for Appellant. William
M. Grant, Jr., Langdon Cheves, III, GRANT & LEATHERWOOD,
P.A., Greenville, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Victor Foggie appeals the district court's order granting summary
judgment to Emhart Powers Manufacturing Division-Emhart Indus-
tries, Inc. ("Emhart") on Foggie's strict liability, breach of warranty,
and negligence claims in this products liability action. We affirm.

Summary judgment is appropriate when there is no genuine issue
of material fact, given the parties' burdens of proof at trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In
determining whether the moving party has shown that there is no gen-
uine issue of material fact, a court must assess the factual evidence
and all inferences to be drawn therefrom in the light most favorable
to the non-moving party. However, the non-moving party may not
rely upon mere allegations. Rather his response must, with affidavits
or other verified evidence, set forth specific facts showing that there
is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The appellate standard of review
of a grant of summary judgment is de novo. See Chisolm v. TranSouth
Fin. Corp., 95 F.3d 331, 334 (4th Cir. 1996).

Under South Carolina law, a plaintiff in an action for strict liability
must demonstrate "(1) that he was injured by the product; (2) that the
product, at the time of the accident, was in essentially the same condi-
tion as when it left the hands of the defendant; and (3) that the injury
occurred because the product was in a defective condition unreason-
ably dangerous to the user." Oglesby v. General Motors Corp., 190
F.3d 244, 251 (4th Cir. 1999) (quoting Allen v. Long Mfg. NC, Inc.,
505 S.E.2d 354, 356 (S.C. App. 1998)). Similarly, to prove a breach
of warranty claim, a plaintiff must demonstrate that the goods were
defective "at the time the sale was completed." Oglesby, 190 F.3d at
251 (quoting Doty v. Parkway Homes Co., 368 S.E.2d 670, 671 (S.C.
1988)). And when pursuing recovery under a negligence theory, a

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plaintiff must prove, in addition to the three conditions described
under a strict liability cause of action, "proof that the manufacturer
breached its duty to exercise reasonable care to adopt a safe design."
Oglesby, 190 F.3d at 251 (quoting Allen, 505 S.E.2d at 356).

South Carolina has adopted the doctrine of comparative negligence
in assessing damages in tort actions. See Nelson v. Concrete Supply
Co., 399 S.E.2d 783 (S.C. 1991). South Carolina has modified the
doctrine, however, such that the plaintiff's recovery is reduced by the
percentage of fault proportioned to the plaintiff, as long as the plain-
tiff's fault is "not greater than" that of the defendant. See id. at 784.
Accordingly, if a jury finds that a plaintiff is more than fifty percent
at fault, the plaintiff recovers nothing. See id.

In this case, the district court granted Emhart's motion for sum-
mary judgment on the grounds that (1) Foggie failed to provide suffi-
cient evidence that Emhart manufactured the machine that injured
him; (2) assuming Foggie could provide sufficient evidence that
Emhart manufactured the machine, Foggie failed to provide sufficient
evidence to withstand summary judgment that the machine was in the
same condition as it was when it was manufactured; and (3) with
regard to Foggie's negligence theory, Foggie's own negligence,
greater than that of Emhart's, was the proximate cause of his injury,
thereby barring his claim under South Carolina law. (J.A. at 168-70).
We have reviewed the formal briefs, the materials submitted in the
joint appendix and supplemental joint appendix, and the transcript of
the hearing on Emhart's motion for summary judgment, and agree
with the district court's conclusions.

Accordingly, we affirm the district court's order granting Defen-
dant's motion for summary judgment in this action. 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.

AFFIRMED

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