Durham v. Vine, 7815SC337

• Decision Date: 03 April 1979
• Docket Number: No. 7815SC337,7815SC337
• Citation: 253 S.E.2d 316,40 N.C.App. 564
• Parties: Ruth Leigh DURHAM v. Louis L. VINE d/b/a Vine's Veterinary Hospital.
• Court: North Carolina Court of Appeals

Page 316

253 S.E.2d 316

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.

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 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...