Draughon v. Harnett County Bd. of Educ., COA02-1142.

• Decision Date: 01 July 2003
• Docket Number: No. COA02-1142.,COA02-1142.
• Citation: 158 NC App. 705,582 S.E.2d 343
• Court: North Carolina Court of Appeals
• Parties: Lynetta DRAUGHON, Personal Representative of the Estate of Max Draughon, Deceased, Plaintiff, v. HARNETT COUNTY BOARD OF EDUCATION and Barry Honeycutt, Jackie Samuels, Stephen Ausley, Jason Spell, Anthony Barbour, Perry Saenz, Don Wilson, Jr., Raymond McCall, and Brian Strickland, In their Individual and Official Capacities, Defendants.

582 S.E.2d 343

158 NC App. 705

Lynetta DRAUGHON, Personal Representative of the Estate of Max Draughon, Deceased, Plaintiff, v. HARNETT COUNTY BOARD OF EDUCATION and Barry Honeycutt, Jackie Samuels, Stephen Ausley, Jason Spell, Anthony Barbour, Perry Saenz, Don Wilson, Jr., Raymond McCall, and Brian Strickland, In their Individual and Official Capacities, Defendants.

No. COA02-1142.

Court of Appeals of North Carolina.

July 1, 2003.

Keith A. Bishop, PLLC, by Keith A. Bishop; and Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, by Linda E. Capobianco, Durham, for plaintiff appellant.

Tharrington Smith, L.L.P., by Jonathan Blumberg, Raleigh, for Brian Strickland defendant appellee.

McCULLOUGH, Judge.

Plaintiff Lynetta Draughon personal representative of the Estate of Max Draughon, appeals from an order granting summary judgment in favor of defendant Brian Strickland. We affirm. Previously, another panel of this Court affirmed summary judgment on behalf of defendants Stephen Ausley, Raymond McCall, Jason Spell and Don Wilson, Jr. See Draughon v. Harnett County Board of Education, ___ N.C.App. ___, 580 S.E.2d 732 (COA02-646)

(2003).

The facts pertinent to an understanding of this appeal are as follows: The decedent was a football player at Triton High School in Harnett County, North Carolina, who collapsed during a morning practice session on 8 August 1998 and died the next day at UNC Memorial Hospital from complications of heatstroke. A more detailed discussion of the facts and procedural history of the case can be found in this Court's earlier opinion filed on 3 June 2003. Like the other defendants, Strickland filed a motion for summary judgment which was granted by the trial court on 4 March 2002. Plaintiff appeals.

Interlocutory Appeal

As this appeal concerns only one of the defendants and the trial court did not certify the judgment pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b) (2001), we must first determine whether this appeal affects a substantial right. As defendant Harnett County Board of Education's liability depends on the individual defendants' joint and several liability, plaintiff faces the possibility of having to undergo two trials on the same issue. The right to avoid two trials on the same or overlapping issues does constitute a substantial right, thus plaintiff's appeal is not interlocutory. See Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982)

; and Liggett Group v. Sunas, 113 N.C.App. 19, 437 S.E.2d 674 (1993). A prior panel of this Court reached the same conclusion. See Draughon, ___ N.C.App. at ___, 580 S.E.2d at 734-35. We therefore turn to the merits of the appeal.

Summary Judgment

The standard of review on appeal from the granting of a motion for summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. N.C. Gen.Stat. § 1A-1, Rule 56(c) (2001); Willis v. Town of Beaufort, 143 N.C.App. 106, 108, 544 S.E.2d 600, 603, disc. review denied, 354 N.C. 371, 555 S.E.2d 280 (2001). The moving party has the burden of establishing the lack of any triable issue of fact. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). A defendant may show entitlement to summary judgment by "(1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense." James v. Clark, 118 N.C.App. 178, 181, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979).

"Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial." Gaunt v. Pittaway, 139 N.C.App. 778, 784-85, 534 S.E.2d 660, 664 (2000). "To hold otherwise ... would be to allow plaintiffs to rest on their pleadings, effectively neutralizing the useful and efficient procedural tool of summary judgment." Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342 (1992).

To establish error on the part of the trial court, plaintiff must show that defendant Strickland failed to exercise proper care in the performance of a legal duty which resulted in the wrongful death of decedent.

"In an action for recovery of damages for wrongful death, resulting from alleged actionable negligence, the plaintiff must show: First, that there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed plaintiff's intestate under the circumstances in which they were placed; and second, that such negligent breach of duty was the proximate cause of the injury which produced the death—a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed."

Harris v. Wright, 268 N.C. 654, 658, 151 S.E.2d 563, 566 (1966) (quoting Reeves v. Staley, 220 N.C. 573, 582, 18 S.E.2d 239, 245 (1942)). With these principles in mind, we turn to the record in the case sub judice.

Here, plaintiff attempts to rely on the complaint and the depositions of record. However, the complaint was not verified and thus cannot be relied upon as sworn testimony. The allegations in the complaint also rest upon the personal knowledge of third parties and not that of the complainant. Whether it was verified or not, the complaint could not overcome the evidence of record. See Talbert v. Choplin, 40 N.C.App. 360, 253 S.E.2d 37 (1979) (verified complaint not suitable to rebut summary judgment motion where complainant lacked personal knowledge). Plaintiff also attempts to create an issue of fact by relying on conclusory allegations, unsworn statements or inadmissible hearsay. Such evidence cannot be relied upon to overcome evidence showing that defendant is entitled to summary judgment. See Eagle's Nest, Inc. v. Malt, 70 N.C.App. 397, 399, 319 S.E.2d 685, 687 (1984).

In the present case the complaint alleged that defendant Strickland, an Assistant Coach,...