Tolbert v. GREAT ATLANTIC AND PACIFIC TEA CO., INC.

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206 S.E.2d 816 (1974)

22 N.C. App. 491

Harold TOLBERT v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC.

No. 7427SC354.

Court of Appeals of North Carolina.

July 17, 1974.

*817 Basil L. Whitener and Anne M. Lamm, Gastonia, for plaintiff appellant.

Hollowell, Stott & Hollowell by L. B. Hollowell, Jr., Gastonia, for defendant appellee.

VAUGHN, Judge.

The deposition filed by defendant tends to show that plaintiff was injured by reason of an unsafe condition existing on the floor of an aisle in defendant's store. Defendant does not contend that contributory negligence, as a matter of law, has been shown.

The thrust of defendant's argument in support of the trial court's action is that there is no evidence to show how the strawberries got on the floor or whether the unsafe condition had been allowed to exist for such time that defendant by the exercise of reasonable care should have known of its existence.

Assuming, without deciding, that defendant's impression of the testimony it elicited from plaintiff when the deposition was taken is correct, the argument is irrelevant to the question presented for decision on this appeal.

Defendant, moving for summary judgment, assumes the burden of producing evidence, of the necessary certitude, which negatives plaintiff's claim.

Plaintiff, opposing defendant's motion for summary judgment, does not have the burden of coming forward with the evidence until defendant, as movant, has produced his evidentiary material tending to show that he is entitled to judgment as a matter of law.

It was defendant's duty to produce evidence that the unsafe condition was not caused by its failure to exercise reasonable care. It was defendant who left the record silent, if it is, concerning its exercise of reasonable care to prevent or to *818 discover and remove the peril to plaintiff and others invited to shop on its premises.

Where, as here, the movant for summary judgment does not offer evidence to establish the absence of a genuine issue as to any material fact, summary judgment should be denied even though no opposing evidence is presented.

It was error to allow defendant's motion for summary judgment.

Reversed.

PARKER and HEDRICK, JJ., concur.