Tort/Negligence – Premises Liability – Equitable Indemnity – Trip & Fall – Fault

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For five years, neither a landowner nor its shopkeeper-tenant warned of or attempted to remedy a trip hazard that their own safety expert identified at trial. As such, the landowner and shopkeeper were not without fault, so they were not entitled to equitable indemnity from the contractor who built the store.

We reverse the Court of Appeals’ finding that the landowner and shopkeeper were without fault.

After settling with a store customer who tripped and fell on the sidewalk in front of the store, the landowner and the shopkeeper sought equitable indemnity from the general contractor who built the store and sidewalk.

For the landowner (which the lease made responsible for maintaining the parking lot and sidewalks) and shopkeeper to be entitled to equitable indemnity, they were required to show they were without fault in the incident: the customer tripped and fell after catching her toe on the sloped portion of the wheelchair ramp at the entrance of the store. We must analyze the “without fault” element through the lens of premises liability law, rather than construction defect law.

However, at trial, a safety expert proffered by the landowner and shopkeeper identified a trip hazard that had existed for five years before the incident, and he testified that merely painting such the curb yellow “can make a difference.”

Where neither the shopkeeper nor the landowner warned of or attempted to remedy the trip hazard identified by their own safety expert, it was error to conclude the shopkeeper and the landowner were without fault.

Reversed.

Fountain v. Fred’s, Inc. (Lawyers Weekly No. 010-009-22, 10 pp.) (John Kittredge, J.) Appealed from Barnwell County Circuit Court (Doyet Early, J.) Morgan Templeton for petitioner; Matthew Clark LaFave, Randi Lynn Roberts and Regina Hollins Lewis for respondents. S.C. S. Ct.