Durham v. Vine

253 S.E.2d 316 (1979)

40 N.C. App. 564

Ruth Leigh DURHAM v. Louis L. VINE d/b/a Vine's Veterinary Hospital.

No. 7815SC337.

Court of Appeals of North Carolina.

April 3, 1979.

*318 Levine & Stewart by Samuel M. Streit, Chapel Hill, for plaintiff-appellant.

Spears, Barnes, Baker & Hoof by Alexander H. Barnes, Durham, for defendant-appellee.

VAUGHN, Judge.

The question presented is whether the trial judge erred in granting defendant's motion for summary judgment. In general, summary judgment is appropriate when the pleadings, answers to interrogatories, affidavits and admissions show that no material issue of fact exists and the movant is entitled to summary judgment as a matter of law. Yount v. Lowe, 288 N.C. 90, 215 S.E.2d 563 (1975); Stonestreet v. Motors, Inc., 18 N.C.App. 527, 197 S.E.2d 579 (1973).

In order for the defendant to prevail on his motion, he must establish the absence of any material issue of fact. He may meet this burden by showing the nonexistence of an essential element of the plaintiff's cause of action or by showing, through discovery, that plaintiff cannot provide evidence to support an essential element. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). On a motion for summary judgment, all pleadings, affidavits, answers to interrogatories, and other materials offered must be viewed in the light most favorable to the party against *319 whom summary judgment is sought. Dickerson, Inc. v. Board of Transportation, 26 N.C.App. 319, 215 S.E.2d 870 (1975).

Summary judgment is rarely appropriate in a negligence action.

"`[I]t is generally conceded that summary judgment will not usually be as feasible in negligence cases where the standard of the prudent man must be applied.'. . . It is only in the exceptional negligence case that the rule should be invoked. . . . This is so because even in a case in which there may be no substantial dispute as to what occurred, it usually remains for the jury, under appropriate instructions from the court, to apply the standard of the reasonably prudent man to the facts of the case in order to determine where the negligence, if any, lay . . .." (Citations omitted.) Robinson v. McMahan, 11 N.C.App. 275, 280, 181 S.E.2d 147, 150, cert. den., 279 N.C. 395, 183 S.E.2d 243 (1971).

In negligence actions, therefore, the court should be particularly careful to remember that the purpose of summary judgment is not to provide a quick and easy method for clearing the docket. Indeed, a review of the reported negligence cases, wherein the trial courts have granted an early termination of the litigation by the entry of summary judgment, indicates that the opposite result is usually produced. After enduring the expensive and time-consuming effort involved in obtaining appellate review, the litigants usually find their cases returned for trial before the fact-finding body, where, but for the inappropriate entry of summary judgment, they might well have received a final disposition of the matter months earlier.

We were recently required to reverse a summary judgment in another premises liability case somewhat similar to the one at hand in Gladstein v. South Square Associates, 39 N.C.App. 171, 249 S.E.2d 827 (1978). Plaintiff slipped at defendants' mall and injured herself. She alleged that a terrazzo floor covering was slick when wet and, therefore, was unsafe. Plaintiff also alleged that the mat provided was insufficient to dry patrons' shoes and that other persons had fallen under similar circumstances. Defendants moved for summary judgment and supported this motion with the affidavit of their general manager. The manager only stated that the terrazzo flooring was used in other malls; he did not deny that the flooring was slick when wet. The defendants also failed to contradict the allegations that the mats were insufficient to dry shoes. This Court said that although the material facts in the record were not in dispute, there was evidence upon which reasonable men could differ as to whether the defendants exercised reasonable care. Summary judgment was, therefore, held to be inappropriate.

In the case at bar, defendant appears to take the position that the judgment must be affirmed unless plaintiff has offered evidence that she was injured as a result of his negligence. The plaintiff has no such burden when the case is being considered on defendant's motion for summary judgment. At this stage of the proceeding, defendant has the burden of showing that plaintiff was not injured as a result of his negligence. Plaintiff has alleged, among other things, that her fall was caused by the slippery surface defendant negligently allowed to exist. Defendant has offered no evidence to refute this allegation. That allegation, standing uncontradicted by evidence, is sufficient to require the denial of defendant's motion for summary judgment. Since defendant offered no evidence to refute the allegation, plaintiff was under no duty to come forward with proof of the allegation at the summary judgment stage. On a motion for summary judgment, the nonmovant is not required to come forward and make a prima facie case for the jury as he would on a motion for directed verdict at trial. He is only required to show that he has evidence to contest such evidentiary matters as the movant may have produced in support of the motion that would, standing alone, defeat the action. In Tolbert v. Tea Co., 22 N.C.App. 491, 206 S.E.2d 816 (1974), the defendant, in support of its motion for summary *320 judgment, filed plaintiff's deposition. Plaintiff's deposition revealed that, while pushing a grocery cart in defendant's store, he slipped and fell. After he fell he saw that he had slipped on strawberries that were on the floor. Defendant's motion for summary judgment was allowed. On appeal defendant argued that the summary judgment was proper because plaintiff had failed to show how the strawberries got on the floor or how long they had been there. This Court reversed the summary judgment saying:

"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 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." Tolbert v. Tea Co., supra, 22 N.C.App. at 494, 206 S.E.2d at 817, 818.

At trial, in order to survive a motion for directed verdict, plaintiff will have the burden of offering proof of every material fact. On this motion for summary judgment, however, defendant had the burden of showing the absence of a genuine issue as to any material fact. When the movant fails to carry this burden, summary judgment should be denied even though no opposing evidence is presented.

On a motion for summary judgment, it is only when the movant's evidence, considered alone, is sufficient to establish his right to judgment as a matter of law that the nonmovant must come forward with a forecast of his own evidence. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1978). Moreover, if different material conclusions can be drawn from the evidence, summary judgment should be denied even though that evidence is uncontradicted.

Defendant's motion for summary judgment should have been denied. The judgment, therefore, is reversed, and the case is remanded.

Reversed and Remanded.

HEDRICK and CLARK, JJ., concur.