City of Thomasville v. Lease-Afex, Inc.

• Decision Date: 15 July 1980
• Docket Number: No. 107,INC,LEASE-AFE,107
• Citation: 268 S.E.2d 190,300 N.C. 651
• Parties: CITY OF THOMASVILLE, v.
• Court: North Carolina Supreme Court

Page 190

268 S.E.2d 190

300 N.C. 651

CITY OF THOMASVILLE, v. LEASE-AFEX, INC.

No. 107.

Supreme Court of North Carolina.

July 15, 1980.

Richard M. Pearman, Jr., Greensboro, for plaintiff-appellant.

Hudson, Petree, Stockton, Stockton & Robinson by W. Thompson Comerford, Jr., Winston-Salem, for defendant-appellee.

CARLTON, Justice.

The sole question on this appeal is whether defendant, in this products liability case, is entitled to summary judgment. The Court of Appeals held that summary judgment was proper. We reverse.

Rule 56(c) of the North Carolina Rules of Civil Procedure provides that summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law."

An issue is genuine if it "may be maintained by substantial evidence." Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). See also Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).

An issue is material if, as alleged, facts "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 v. City of Winston-Salem, supra, 280 N.C. at 518, 186 S.E.2d at 901. See also Singleton v. Stewart, supra; Kessing v. National Mortgage Corporation, 278 N.C. 523, 180 S.E.2d 823 (1971). More succinctly, a fact is material if it would constitute or would irrevocably establish any material element of a claim or defense. See M. Louis, A Survey of Decisions Under the New North Carolina Rules of Civil Procedure, 50 N.C.L.Rev. 729, 736 (1972).

A party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party's claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim. Moore v. Fieldcrest Mills, Incorporated, 296 N.C. 467, 251 S.E.2d 419 (1979); Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). Generally this means that on "undisputed aspects of the opposing evidential forecasts," where there is no genuine issue of fact, the moving party is entitled to judgment as a matter of law. 2 McIntosh, North Carolina Practice and Procedure § 1660.5 at 73 (emphasis added).

If the moving party meets this burden, the nonmoving party must in turn either show that a genuine issue of material fact exists for trial or must provide an excuse for not so doing. Moore v. Fieldcrest, supra; Zimmerman v. Hogg & Allen, supra.

If the moving party fails in his showing, summary judgment is not proper regardless of whether the opponent responds. See generally McIntosh, supra.

The goal of this procedural flux is to allow penetration of an unfounded claim or defense before trial. McIntosh, supra. However, it is widely acknowledged that there are certain claims or defenses not well suited to summary judgment. This is because determination of essential elements of these claims or defenses rests within the peculiar expertise of fact finders. Thus if there is any question as to the credibility of affiants in a summary judgment motion or if there is a question which can be resolved only by the weight of the evidence, summary judgment should be denied. Moore v. Fieldcrest, supra citing 3 Barron & Holtzoff, Federal Practice and Procedure § 1234 (Wright ed. 1958). Negligence actions, particularly, are rarely suited for summary disposition because one essential element of the action the standard of care of a reasonably prudent person is thought to be a matter within the special competence of the jury. 10 Wright and Miller, Federal Practice and Procedure § 2729 (1973). See also Moore v. Fieldcrest, supra; Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975).

To return to the very first step in the summary judgment process with respect to the negligence claim, defendant as the moving party here must initially (1) prove that an essential element of plaintiff's claim of negligence is nonexistent or (2) show that a forecast of the opposing party's evidence here the plaintiff's indicates plaintiff will not be able to prove facts giving rise at trial to all essential elements of the claim of negligence. Moore v. Fieldcrest, supra.

Defendant asserts here that, as to the claim of negligence in the manufacture and installation of the system, plaintiff's own expert witness testified by deposition that the system was installed according to the schematics provided by the defendant. Apparently on its face, the inference is that plaintiff's evidence shows no negligence. As to the claim of negligent design, defendant points to that portion of the expert's testimony where he discussed the possibility of using a different seal on the CO 2 cylinder. At that time, the witness also stated, "I've made no contention that anyone was negligent because they did not use an o-ring seal." Again the inference is that plaintiff's own evidence shows a lack of negligence. Finally, defendant points to evidence in the depositions that plaintiff itself maintained the equipment and did not seek defendant's help in recharging the CO 2 cannisters as showing plaintiff itself was contributorily negligent. In all these arguments, defendant is alleging that a forecast of plaintiff's own evidence shows it cannot prove facts to support essential elements of a claim of negligence.

As in any action for negligence, the essential elements of a suit for products liability sounding in tort must include

(1) evidence of a standard of care owed by the reasonably prudent person in similar circumstances;

(2) breach of that standard of care;

(3) injury caused directly or proximately by the breach, and;

(4) loss because of the injury.

W. Prosser, Hornbook of the Law of Torts § 30 (4th ed. 1971).

Viewing, as we must, the documents submitted at the hearing on the motion for summary judgment in a light indulgent to the plaintiff, Kessing v. National Mortgage Corporation, supra, we believe that the defendant has failed to meet its burden of showing undisputed aspects of plaintiff's evidentiary forecast, see McIntosh, supra at § 1660.5, page 73, do not support the essential elements of negligence.

First, as to the standard of care, the manufacturer of a chattel is under a duty to the purchaser to use reasonable care in its manufacture and when reasonable care so requires to give adequate direction for its use. Any injury to persons or property caused by a failure to follow this standard renders the manufacturer liable. Corprew v. Geigy Chemical Corporation, 271 N.C. 485, 157 S.E.2d 98 (1967).

Here, plaintiff's expert witness Smith stated in his deposition that the purpose of having a fire suppression system was to have it function properly. The fair inference for the plaintiff from this evidence is that the standard of care of a reasonably prudent fire suppression system manufacturer is to manufacture a system which functions properly. While this inference may be successfully challenged at trial, at summary judgment stage there is sufficient evidence of the standard to forestall immediate disposition of the case and defendant has presented no other forecast of the evidence to undermine this.

Indeed, if as the Court in Corprew v. Geigy Chemical Corporation, supra, suggests, the duty of a manufacturer is to provide adequate direction for a product's use, then the deposition of five of plaintiff's employees that they were never instructed by the defendant to weigh the CO 2 cylinder to measure loss of CO 2 is more than sufficient to withstand summary judgment. Defendant's allegations to the contrary, we find nothing that suggests that the plaintiff cannot establish a requisite standard of care, or that plaintiff's own evidence shows the...