Hall v. Funderburk

208 S.E.2d 402 (1974)

23 N.C. App. 214

Cathy Janet HALL, By her guardian ad litem, Edward L. Powell v. Dr. Amon L. FUNDERBURK and Northern Hospital of Surry County. Jessie R. HALL v. Dr. Amon L. FUNDERBURK and Northern Hospital of Surry County.

No. 7421SC709.

Court of Appeals of North Carolina.

October 2, 1974.

*403 White & Crumpler by James G. White and Michael J. Lewis, Winston-Salem, for plaintiff appellant.

Hudson, Petree, Stockton, Stockton & Robinson by R. M. Stockton, Jr., and James H. Kelly, Jr., Winston-Salem, for defendant appellee.

BRITT, Judge.

The question presented here is whether the defendant has borne the burden which the law places upon a movant for summary judgment.

Authoritative decisions, both State and federal, interpreting and applying Rule 56, hold that "[t]he party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded." 6 Moore's Federal Practice, § 56.15[8], at 2439 (2d ed. 1971); Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972).

In the case at bar, the materials presented show that there is a genuine issue with respect to negligence on the part of defendant. It is well settled, however, that the negligence relied on must be shown to have a causal relationship to the injury in order to avail plaintiff. 6 Strong, N.C.Index 2d, Negligence § 8, pp. 17, 18 (1968). Defendant argues that there is no showing that Cathy's condition was any worse at 5:00 p. m. when she underwent surgery than it was the preceding midnight when defendant examined her. The question then arises, on defendant's motion for summary judgment, was it incumbent on plaintiffs to show causation, or was it incumbent on defendant to show lack of causation? We hold that the burden was on defendant.

A review of the cases cited by defendant reveals that the courts in those cases were passing upon motions interposed at trial for a directed verdict or nonsuit. Weatherman v. White, 10 N.C.App. 480, 179 S.E.2d 134 (1971); Gower v. Davidian, 212 N.C. 172, 193 S.E. 28 (1937); Sinkey v. Surgical Associates, 186 N.W.2d 658 (Iowa 1971); Skodje v. Hardy, 47 Wash. 2d 557, 288 P.2d 471 (1955); and, Jaeger v. Stratton, 170 Wis. 579, 176 N.W. 61 (1920). In those cases, the burden was on the plaintiff to show causation but in the instant case on defendant's motion for summary judgment, the plaintiff had alleged causation and it was incumbent upon the defendant as the movant to clearly establish that there was no causal relation between his act and Cathy's injury. This the defendant did not do.

For the reasons stated, the judgment is

Reversed.

HEDRICK and BALEY, JJ., concur.