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SNOW v. CITY OF COLUMBIA9/23/1991
Inc. v. Joe Harden Builder, Inc., 297 S.C. 74, 374 S.E.2d 897 (Ct. App. 1988), cert. dismissed, Order No. 89-OR-229 (filed February 27, 1989), questioned on other grounds, Kennedy v. Columbia Lumber Co., Inc., 299 S.C. 335, 384 S.E.2d 730 (1989), overruled in part on other grounds, Beachwalk Villas Condominium
The plaintiff has the burden of proving each element of negligence, including the defendant's lack of due care. See South Carolina State Ports Authority v. Booz-Allen & Hamilton, 289 S.C. 373, 346 S.E.2d 324 (1986); Carter v. Columbia Gas & Railway Co., 19 S.C. 20 (1883). This burden of proof cannot be met by relying on the theory that the thing speaks for itself or that the very fact of injury indicates a failure to exercise reasonable care. King v. J.C. Penney Co., 238 S.C. 336, 120 S.E.2d 229 (1961); Gilland v. Peter's Dry Cleaning Co., 195 S.C. 417, 11 S.E.2d 857 (1940). No inference of negligence arises from the mere fact of injury. Covington v. Atlantic Coast Line Railway Co., 158 S.C. 194, 155 S.E. 438 (1930), cert. denied, 282 U.S. 858, 51 S.Ct. 33, 75 L.Ed. 759 (1930). The defendant is not required to present evidence to refute the plaintiff's allegations; he may elect to put the plaintiff to strict proof of all the elements of his cause of action. See, Carter v. Columbia Gas & Railway Co., supra.
Upon reviewing the record, we conclude the Snows have not shown, to the exclusion of all other reasonable inferences, that the City ought to have known about and repaired the leaking pipe joint before Mr. Snow reported a problem. Moreover, there is no evidence of any neglect of the City to perform a reasonable program of maintenance on its water mains. The Snows also failed to establish why the flange joint leaked. For these reasons, we cannot hold the City was negligent as a matter of law.
On the other hand, the Snows have shown more than the mere fact of damage to their property from the leaking water main. There was testimony that the bolts on the flange joint needed tightening when the City's maintenance crew located the leak. The mere tightening of the bolts did not, however, stop the leak. From these facts competing inferences might reasonably be drawn as to the City's failure to exercise due
For the reasons stated, we reverse the judgment of the circuit court and remand the case for a new trial solely on the cause of action for negligence.
Reversed and remanded.
GARDNER, J., and LITTLEJOHN, A.J., concur.
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