APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE MERTON B. TICE, JR. Judge.
The opinion of the court was delivered by: Zinter, Justice
CONSIDERED ON BRIEFS ON JANUARY 11, 2010
[¶1.] Susan Johnson tripped and fell on a stairway at a store owned by Matthew J. Batchelder Co., Inc. (Batchelder). Johnson and her husband brought this action alleging that Batchelder failed to exercise reasonable care to keep the premises safe and failed to warn of a dangerous condition. Batchelder moved for summary judgment on the grounds that Johnson could not articulate in her deposition what caused her to fall and how Batchelder failed to exercise reasonable care. Johnsons opposed the motion and submitted post-deposition affidavits containing additional facts suggesting that uneven carpet runners on the stairway were the probable cause for the fall. The circuit court granted summary judgment, stating it was satisfied that the evidence did not support a breach of duty. Because this is a jury question, we reverse.
Facts and Procedural History
[¶2.] We recite the facts in a light most favorable to Johnsons. Batchelder operates a music store in Rapid City. In addition to selling musical instruments, Batchelder provides music lessons. The retail music store is located on the ground floor, and the music lessons are provided on the second floor. Customers enter the store at the street-level ground floor, and a carpeted stairway provides access to the second floor.
[¶3.] There are plastic runners on the stairs. Each runner is approximately two feet wide and several feet long. The runners are placed side by side and run the length of the stairs from the ground floor to the second floor. There is only one continuous handrail on this stairway, and that handrail is located on the north wall. A handrail on the south wall stops about halfway up the stairs. There is no handrail or support in the center of the stairway.
[¶4.] In May 2006, Johnson arrived at Batchelder's store for organ lessons. She walked part of the way up the stairs holding the north handrail with her left hand. She held her music books in her right hand. When she reached the sixth or seventh step, she turned to her right and began to go down the steps to wait for the instructor to arrive. She testified in her deposition that at this point, she pivoted to her right and let go of the handrail with her left hand. As she turned, her foot "caught," she fell and was injured.
[¶5.] Johnson was, however, unable to articulate exactly how her foot "caught." When first asked, "[w]hat facts do you rely upon to support your claim that the Defendants failed to exercise reasonable care in the inspection of the premises," Johnson conceded: "Well, I know that there's runners going down and that they met evenly and was kept from lifting up." On the other hand, she also testified it was "a possibility" that the runners were "out of sorts that day," or that something was stuck in the runners that caused her to trip. Additionally, Johnson testified that after her fall, one of Batchelder's employees, Tabitha Jo Broman, immediately came to her assistance. According to Johnson, Broman recalled "somebody else nearly having a fall on those stairs."*fn1
[¶6.] Batchelder subsequently moved for summary judgment, arguing that "Johnson [could] not articulate what, exactly, caused her to fall, or how the Defendant failed to exercise... 'reasonable care.'" Johnson and her husband filed post-deposition affidavits opposing the motion. According to Johnson's affidavit, she returned to Batchelder's after her deposition and closely inspected the plastic runners on the stairway. She then noticed that the edges of the plastic runners were not secured to the stairs and could be easily lifted. She also noticed that if a person stepped on one plastic runner at its edge, the adjacent plastic runner would be slightly higher and would pose a trip hazard. Johnson's husband (Ron) also indicated that "[t]he difference in height between the two adjacent runners [was] enough to catch the sole of a shoe[.]" Ron attached photographs of the plastic runners showing edges of the runners that were not securely attached to the steps and how one's shoe could "catch." Finally, Ron's affidavit alleged that Batchelder employee, Curtis Binder, informed Ron that Binder had experienced problems with the plastic runners before Johnson's fall, and that he had stopped wearing certain types of shoes because the runners were "sticky."
[¶7.] In response to Batchelder's statement of material facts supporting summary judgment, Johnsons' reiterated the foregoing, specifically asserting the following facts and allegations:
* Johnson's "foot caught and that is what caused her to [f]all."
* "There is only one handrail that runs the length of these stairs."
* "[T]here was no handrail in the center of the stairway for her to grab onto."
* "Two of Mr. Batchelder's employees had knowledge that others had experienced problems on these ...