Millsaps v. Wilkes Contracting Co.

• Decision Date: 24 May 1972
• Docket Number: No. 7230SC26,7230SC26
• Court: North Carolina Court of Appeals
• Parties: W. Arthur MILLSAPS and wife, Jean Millsaps, Plaintiff-Appellants, v. WILKES CONTRACTING COMPANY, Defendant-Appellee, v. NORTH CAROLINA STATE HIGHWAY COMMISSION and Ray Spangler, Third-PartyDefendant-Appellees.

Page 663

188 S.E.2d 663

14 N.C.App. 321

W. Arthur MILLSAPS and wife, Jean Millsaps, Plaintiff-Appellants, v. WILKES CONTRACTING COMPANY, Defendant-Appellee, v. NORTH CAROLINA STATE HIGHWAY COMMISSION and Ray Spangler,

Third-PartyDefendant-Appellees.

No. 7230SC26.

Court of Appeals of North Carolina.

May 24, 1972 Certiorari Denied by Supreme Court July 31, 1972.

Williams, Morris & Golding, by James W. Williams, Asheville, for plaintiff appellants.

William J. Cocke, Asheville, for defendant appellee Wilkes Contracting Company.

Atty. Gen. Robert Morgan, by H. A. Cole, Jr., Asst. Atty. Gen., for the state.

BRITT, Judge.

Although a brief was filed on behalf of third-party defendants State Highway Commission and Spangler, no appeal was perfected from the summary judgment in their favor. Therefore, the question for determination is: 'Did the trial court err in entering summary judgment in favor of defendant Wilkes? We hold that it did not.

In Moore v. Clark, 235 N.C. 364, 70 S.E.2d 182 (1952), opinion by Ervin, Justice, quoted with approval in State Highway Commission v. L. A. Reynolds Co., 272 N.C. 618, 624, 159 S.E.2d 198, 203 (1968), we find the following:

'A contractor who is employed by the State Highway and Public Works Commission to do work incidental to the construction or maintenance of a public highway and who performs such work with proper care and skill cannot be held liable to an owner for damages resulting to property from the performance of the work. The injury to the property in such a case constitutes a taking of the property for public use for highway purposes, and the only remedy available to the owner is a special proceeding against the State Highway and Public Works Commission under G.S. § 136--19 to recover compensation for the property taken or damaged. (Citations.) But if the contractor employed by the State Highway and Public Works Commission performs his work in a negligent manner and thereby proximately injures the property of another, he is personally liable to the owner therefor. (Citations.)'

It is thoroughly established in the instant case that defendant Wilkes was a contractor employed by the State Highway Commission to perform work incidental to the construction of a public highway. The question then arises, did defendant Wilkes perform its work in a negligent manner and thereby proximately injure the property of plaintiffs.

Negligence is never presumed from the mere fact of an accident or injury, except in the narrow class of cases to which the doctrine of Res ipsa loquitur is applicable. Coakley v. Ford Motor Co., 11 N.C.App. 636, 182 S.E.2d 260 (1971), cert. den. 279 N.C. 393, 183 S.E.2d 244. Plaintiffs do not argue nor do we think that said doctrine is applicable in this case. 20 A.L.R.2d 1372, 1397 (1951).

As was said by Judge Parker in speaking for this court in Patterson v. Reid, 10 N.C.App. 22, 28, 178 S.E.2d 1, 5 (1970): 'The motion for summary judgment under Rule 56 of the Rules of Civil Procedure (G.S § 1A--1, Rule 56) is a procedure new to the courts of this State. * * * The purpose of the rule is not to resolve a disputed material issue of fact, if one exists, but to provide an expeditious method for determining whether any such issue does actually exist.'

In Pridgen v. Hughes, 9 N.C.App. 635, 639--640, 177 S.E.2d 425, 428 (1970), Judge Morris, speaking for this court, said: 'The burden is on the moving party to establish the lack of a triable issue of fact. The evidentiary matter supporting the moving party's motion may not be sufficient to satisfy his burden of proof, even though the opposing party fails to present any competent ounter-affidavits or other materials. Griffith v. William Penn Broadcasting Co. (E.D.Pa.1945) 4 F.R.D. 475. 'But if the moving party by affidavit or otherwise presents materials which would require a directed verdict in his favor, if presented at trial, then he is entitled to summary judgment unless the opposing party either shows that affidavits are then unavailable to him, or he comes forward with some materials, by affidavit or otherwise, that show there is a trible issue of material fact. He need not, or course, show that the issue would be decided in his favor. But he may not hold back his evidence until trial; he must present sufficient materials to show that there is a triable issue.' Moore's, Federal Practice, 2d Ed., Vol. 6, § 56.11(3), p. 2171.'

When the motion for summary judgment is supported as provided by Rule 56, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth Specific facts showing that there is a genuine issue for trial. Patterson v. Reid, Supra.

At the hearing on its motion for summary judgment, defendant Wilkes presented, along with other documents and materials, the affidavit of its president, J. C. Critcher, III. Pertinent parts of this affidavit are summarized as follows: In performing the contract with the State Highway Commission, defendant encountered solid rock and blasting was required to attain the correct grade specified in the contract. In blasting the rock, defendant used approved methods in general use. Plaintiffs' structure allegedly damaged was only two hundred feet from the center line of the grading and was below the grade at an angle of declivity of at least 45 degress. Any damage to the structure was done by rocks rolling down the incline. The resident engineer and inspectors of the State Highway Commission were continually on the project during construction and during the blasting and knew of the difficulties encountered.

Defendant Wilkes also presented the affidavit of Leland L. Cochrane, pertinent parts of which are summarized thusly: Mr. Cochrane is a certified blaster (licensed in certain other states) with fifteen years experience. He did the drilling to go through the rock that was blasted. Regular 40% Dynamite was used to move the rock and the charges were set in the best way to avoid any damage to any property. Two State inspectors were on the job at all times during the blasting; they observed the holes drilled, the amount of charges used, were fully informed as to the...