Too Many Cooks in the Kitchen
| Jurisdiction | South Carolina,United States |
| Pages | 50 |
| Citation | Vol. 35 No. 4 Pg. 50 |
| Publication year | 2024 |
By Vordman Carlisle Traywick, III
For years, the Bar has been abuzz about the drawbacks, virtues and potential impending doom of the "mere scintilla" standard governing motions for summary judgment in state court. Late this summer, the Supreme Court of South Carolina tolled the final death knell, opting instead to enforce the plain language of Rule 56(c) of the South Carolina Rules of Civil Procedure.
By tracing the origins, application, tension among the rules and precedent, and ultimate demise of the scintilla standard, this article seeks to give it a proper funeral. The article will also discuss what i this means for summary judgment motions going forward when j viewed through the Court's corrective lenses.
History of summary judgment
Before diving into the legal etymology of scintilla, it is important to trace the history of summary judgment in South Carolina.
"On July 1, 1985, the South Carolina Rules of Civil Procedure went into effect."[1] The Court amended the rules the following year, and those amendments took "effect on May 1, 1986."[2] "Prior to the adoption of the new South Carolina Rules of Civil Procedure, Circuit Court Rule 44 provided the means by which a party could pierce the allegations in the pleadings and obtain relief by introducing outside evidence showing that there were no issues of fact requiring trial."[3]
Circuit Court Rule 44 was in effect from 1969 until 1985.[4] "Under former South Carolina Circuit Court Rule 44(c), as under new Rule 56(c) of the South Carolina Rules of Civil Procedure, summary judgment may be granted only when the pleadings and admissions on file show that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law."[5]
Indeed, the current text of the rule provides that summary "judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."[6]
Although defendants more commonly utilize this tool, it is important to note that Rule 56 allows either party to file a motion for summary judgment: subsection (a) explains the circumstances under which a claimant can move for summary judgment, while subsection (b) governs a defending party's motion.[7] As explained below, however, the "yardstick"[8] used to review motions for summary judgment has not been a model of consistency over the last few decades.
History of scintilla
The first reported use of scintilla, at least according to Westlaw, was in 1798. In Frost v. Brown, the Constitutional Court of Appeals of South Carolina observed that "[n]ot one scintilla of evidence has been offered, to prove or substantiate any one of these important facts: so far then he was bold to say, that the existence and loss of this pretended deed was totally unaccounted for, by any one known and established rule of law."[9] Since then, a Westlaw search revealed that around 521 reported cases have used the word scintilla.
Under the "scintilla rule" applied throughout the twentieth century, "if there is any relevant testimony, amounting to a scintilla, it must be left to the jury to determine its force and effect. The meaning of the rule is that there must be some evidence arising out of the testimony which elucidates the issues of fact, and which enables the jury to form an intelligent conclusion. It does not authorize the admission of speculative, theoretical, and hypothetical views."[10]
The word scintilla has appeared as a legal concept in numerous settings. But it largely appears in two areas of appellate court decisions: (1) when discussing what is insufficient to demonstrate substantial evidence in the administrative context and (2) in articulating what is sufficient to defeat a motion for summary judgment in state court.[11] Both contexts concern the sufficiency of the evidence.
So what exactly is a scintilla? Its definition has varied over the years. In the early 1900s, our Supreme Court said "a scintilla of evidence is any material evidence which, taken as true, would tend to establish the issue in the mind of a reasonable juror."[12] A decade later, the Court explained a "scintilla of evidence must be something from which you can draw a reasonable inference."[13]
In 1935, the Supreme Court— relying on a treatise—indicated a scintilla is "'a gleam,' 'a glimmer,' 'a spark,' 'the least particle,' 'the smallest trace.'"[14] The Court, in announcing that definition, acknowledged that "[s]aying [] there 'may be a scintilla of evidence' to go to the jury . . . is certainly a very weak contention."[15] In practice, that statement turned out to be true.
While, at first blush, the former articulations of scintilla seem consistent with the standard for summary judgment, in practice, courts generally applied a lower standard more akin to the latter. That especially rang true after a pivotal decision from our Supreme Court in 2009.
Adoption of the mere scintilla standard for summary judgment
In 2006, the Court of Appeals affirmed the circuit court's decision granting summary judgment in a premises liability case.[16] Notably, the word scintilla is not mentioned in the Court of Appeals' opinion in Hancock. And the court recited the familiar standard, at least until that time, for "reviewing the grant of a summary judgment" motion.[17]
Our Supreme Court granted certiorari and reversed.[18] Before reaching the issues, the Court cited the normal standard of review governing motions for summary judgment.[19] In its legal analysis section, however, the Court "first address[ed] Respondent's argument that Petitioner must present more than a mere scintilla of evidence to withstand a motion for summary judgment."[20] As the Supreme Court noted, in federal court, "a 'mere scintilla of evidence' is not sufficient to withstand the challenge."[21] The Court then observed "the court of appeals has been somewhat inconsistent on whether a mere scintilla of evidence will overcome a motion for summary judgment."[22]
According to the Supreme Court, it had "consistently held that where the federal standard applies or where a heightened burden of proof is required, there must be more than a scintilla of evidence . . . to defeat a motion for summary judgment."[23] But the Court found the same cannot be said in all cases.[24] Thus, the Court articulated its infamous holding "that in cases applying the preponderance of evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence . . . to withstand a motion for summary judgment."[25]
Viewed in that prism, the Supreme Court held "that the court of appeals erred in affirming the trial court's grant of summary judgment because a genuine issue of material fact exist[ed] regarding whether [the plaintiff's] injuries resulted from a dangerous condition and, if so, whether [the defendant] should have anticipated this type of harm."[26]
Summary judgment motions post-Hancock
Since our Supreme Court formally adopted the "mere scintilla" standard in 2009, a Westlaw search reveals at least 75 published appellate opinions have applied it in the context of summary judgment. But courts at every level have struggled to apply a guiding principle. As a practical matter, the presence or absence of a "mere scintilla" often seemed to turn on the "I know it when I see it" standard first coined by Justice Potter Stewart when trying to define obscenity.[27]
To be sure, our appellate courts have included scores of helpful articulations of the summary judgment standard over the years. The most digestible articulation of a "mere scintilla" in the context of summary judgment came in 2019 from now-Justice Gary Hill. In Gibson v. Epting, he wrote that "[t] he summary judgment standard governing Gibson's claims requires her to produce only a 'scintilla' of evidence to avoid judgment as a matter of law, but a scintilla is a perceptible amount. There still must be a verifiable spark, not something conjured by shadows."[28] In practice, however, judges and lawyers still struggled to apply the mere scintilla standard to motions for summary judgment.
On the one hand, you had case law saying courts cannot "cherry pick[]" or "single out some one morsel of evidence and attach to it great significance. [29] You also had case law saying a party cannot simply show some "metaphysical doubt as to the material facts" to defeat summary judgment.[30] On the other hand, you had case law saying...
To continue reading
Request your trial