Branks v. Kern

• Decision Date: 03 September 1987
• Docket Number: No. 662PA86,662PA86
• Parties: , 68 A.L.R.4th 817 Karen Clodfelter BRANKS v. Dr. Paul KERN and Animal Emergency Clinic, P.A.
• Court: North Carolina Supreme Court

Page 780

359 S.E.2d 780

320 N.C. 621, 68 A.L.R.4th 817

Karen Clodfelter BRANKS v. Dr. Paul KERN and Animal Emergency Clinic, P.A.

No. 662PA86.

Supreme Court of North Carolina.

Sept. 3, 1987.

C. David Gantt, Asheville, for plaintiff-appellee.

Van Winkle, Buck, Wall, Starnes and Davis, P.A. by Russell P. Brannon and Michelle Rippon, Asheville, for defendant-appellant Kern.

Harrell and Leake, P.A. by Larry Leake, Asheville, for defendant-appellant Animal Clinic.

FRYE, Justice.

Plaintiff sued her veterinarian after she was bitten by her own cat while it was being treated by the veterinarian. The Court of Appeals held that plaintiff had shown a sufficient forecast of evidence to enable a jury to find that the veterinarian violated a duty of due care to the plaintiff. We disagree and reverse the Court of Appeals' decision.

The plaintiff in the instant case owned a cat named Sam. Sam suffered from feline urethral syndrome, a condition common in neutered male cats, marked by inflammation of the bladder and the production of stones. These stones can completely block the cat's urethra and cause the cat's death if the blockage is not treated. The normal treatment is to catheterize the cat. Sam unfortunately suffered three or four such blockages. His last attack occurred on 21 April 1984. Plaintiff took him to defendant clinic for treatment. Plaintiff and Sam were shown into an examining room, where defendant Dr. Kern examined the cat. Dr. Kern determined that Sam needed to be catheterized once again.

Dr. Kern decided to attempt the catheterization without the use of an anesthetic. Plaintiff contends that the decision was the veterinarian's alone; defendants contend that plaintiff's reluctance to spend any more money on the cat entered into the decision to attempt the procedure without anesthesia. In any event, plaintiff does not contend that this decision was in any way medically improper. More importantly, plaintiff admits that Dr. Kern informed her beforehand of the decision. Thus, it is uncontroverted that plaintiff knew that no anesthetic was being used.

Dr. Kern instructed an assistant to hold the cat and began the catheterization. Sam kept squirming and trying to get away. Plaintiff testified in her deposition that she realized from his behavior that Sam was in pain, and moreover was in more pain than he had been during the two previous catheterizations. Plaintiff put her hands over Sam's paws to try to soothe him. As she described it, about five minutes into the procedure the assistant "let go" of Sam, ¹ who promptly tried to bite the assistant. Dr. Kern stopped and made an unsuccessful attempt to put a muzzle on Sam. When this attempt failed, the assistant renewed his grip on the cat. Dr. Kern resumed his task, and plaintiff once more placed her hands over Sam's paws, a mere three inches away from the cat's face. About five minutes later, according to the plaintiff, the veterinarian's assistant once again "let go" of the squirming cat. This time, Sam snapped at the plaintiff and bit her hand.

Plaintiff's bite did not appear serious. The receptionist bandaged her hand. Dr. Kern meanwhile completed the catheterization. The treatment was successful, and the plaintiff took Sam home with her. During the night, her hand began to throb. She went to the emergency room for relief; there, the doctor discovered that Sam had severed a tendon in her hand. Plaintiff was hospitalized and treated for the severed tendon. While she was in the hospital, she decided to have Sam put to sleep to avoid any possible recurrence of the blockages.

Plaintiff initiated this action on 15 April 1985 by filing a complaint that alleged that her bite was the result of the defendants' negligence. Defendants each answered. They denied any negligence and asserted plaintiff's contributory negligence and assumption of the risk as further defenses. On 18 November 1985, each defendant moved for summary judgment. A hearing on these motions was held at the 9 December 1985 Session of Superior Court, Buncombe County, before Judge Lamm, who entered summary judgment for defendants. Plaintiff appealed to the Court of Appeals, which reversed the trial judge's decision. Defendants allege that Dr. Kern warned the plaintiff not to let the cat bite her after the animal snapped at the veterinarian's assistant; plaintiff denied receiving any such warning. The Court of Appeals held, inter alia, that defendants' failure to restrain the cat and the factual controversy over the issuance of a warning were sufficient to take the case to the jury. We disagree.

The party moving for summary judgment must establish the lack of any triable issue by showing that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975); Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972). As this Court remarked in Koontz, "An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action." Koontz, 280 N.C. at 518, 186 S.E.2d at 901. All inferences are to be drawn against the moving party and in favor of the opposing party. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379; Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897.

Defendants in the instant case have met their burden of showing that they are entitled to judgment as a matter of law.

Plaintiff contends, and defendants concede, that she was a business invitee. As such, defendants owed her a duty to exercise ordinary care for her safety while she was on the premises. Little v. Oil Co., 249 N.C. 773, 107 S.E.2d 729 (1959). This duty includes a duty to maintain the premises in a condition reasonably safe for the contemplated use and a duty to warn of hidden dangers known to or discoverable by the defendants. Hedrick v. Tigniere, 267 N.C. 62, 147 S.E.2d 550 (1966); ...