Caldwell v. Deese
Decision Date | 07 October 1975 |
Docket Number | No. 47,47 |
Citation | 288 N.C. 375,218 S.E.2d 379 |
Court | North Carolina Supreme Court |
Parties | Ola Deese CALDWELL v. Davis W. DEESE. |
Myers & Collie by George C. Collie, Charlotte, for defendant appellant.
Mraz, Aycock, Casstevens & Davis by Frank B. Aycock, III, Charlotte, for plaintiff appellee.
A party moving for summary judgment under Rule 56 has the burden of 6 Moore's Federal Practice (2d ed. 1971) § 56.15(8), at 2439--40; Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). The movant must show (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. Rule 56(c); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).
The movant is held by most courts to a strict standard, and 'all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion.' 6 Moore's Federal Practice (2d ed. 1971) § 56.15(3), at 2337; Accord, United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
Rule 56 does not authorize the court to decide an issue of fact, but rather to determine whether a genuine issue of fact exists. The rule 'is for the disposition of cases where there is no genuine issue of fact and its purpose is to eliminate formal trials where only questions of law are involved.' Kessing v. Mortgage Corp., supra. The rule is designed to permit penetration of an unfounded claim or defense in advance of trial and to allow summary disposition for either party when a fatal weakness in the claim or defense is exposed. 2 McIntosh, North Carolina Practice and Procedure, § 1660.5 (2d ed. Phillip's Supp.1970).
We now apply these legal principles to the record properly before us to determine the propriety of summary judgment for defendant in this case.
Was plaintiff injured and her property (dog) damaged by the negligence of the defendant? This is the paramount overriding issue of fact which plaintiff must establish at trial before any other issue can be reached. To support his motion for summary judgment and establish the nonexistence of negligence on his part, defendant offered plaintiff's sworn testimony contained in her deposition taken on 19 July 1974. In that deposition plaintiff described the occurrence when her dog was struck as follows:
Viewing plaintiff's deposition in the light most favorable to her and drawing all inferences of fact against defendant, we conclude that defendant's 'evidentiary forecast' was such that, if offered by plaintiff at the trial, without more, would compel a directed verdict in defendant's favor. It established a total lack of negligence on defendant's part and entitled him to judgment as a matter of law unless forestalled by a forecast of...
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Boyd v. Robeson County
..."`all inferences of fact ... must be drawn against the movant and in favor of the party opposing the motion.'" Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 James W. Moore, Moore's Federal Practice § 56-15[3], at 2337 (2d ed. 1971)). On appeal, this Court condu......
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Flippin v. Jarrell
...is not authorized "to decide an issue of fact, but rather to determine whether a genuine issue of fact exists." Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). Further, "all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in......
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Boyd v. Robeson County
..."`all inferences of fact . . . must be drawn against the movant and in favor of the party opposing the motion.'" Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 James W. Moore, Moore's Federal Practice § 56-15[3], at 2337 (2d ed. 1971)). On appeal, this Court con......