Moore v. Fieldcrest Mills, Inc., 43

• Citation: 296 N.C. 467, 251 S.E.2d 419
• Case Date: February 05, 1979
• Court: United States State Supreme Court of North Carolina

Page 419

251 S.E.2d 419 296 N.C. 467 Floyd MOORE
v.
FIELDCREST MILLS, INC. and Monsanto Company. No. 43. Supreme Court of North Carolina. Feb. 5, 1979.

Narron, Holdford, Babb, Harrison & Rhodes, P.A. by William H. Holdford, Wilson, attys., for plaintiff-appellant.

Young, Moore, Henderson & Alvis by R. Michael Strickland, Raleigh, attys., for Fieldcrest Mills, Inc., defendant-appellee.

Connor, Lee, Connor, Reece & Bunn by John M. Reece, Wilson, attys., for Monsanto Co., defendant-appellee.

HUSKINS, Justice:

Legal principles applicable to summary judgment are discussed in Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971), and have been applied in many cases by this Court. Authoritative decisions, both state and federal, interpreting and applying Rule 56 hold that the party moving for summary judgment has the burden of "clearly establishing the lack of any [296 N.C. 470] triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded." 6 Pt. 2 Moore's Federal Practice, § 56.15(8), at 642 (2d ed. 1976); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). "This burden may be carried by movant by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim. If the moving party meets this burden, the party who opposes the motion for summary judgment must either assume the burden of showing that a genuine issue of material fact for

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trial does exist or provide an excuse for not so doing." Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974).

The language of the rule itself conditions the rendition of summary judgment upon a showing by the movant that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The court is not authorized by Rule 56 to decide an issue of fact. It is authorized to determine whether a genuine issue of fact exists. The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). "The device used is one whereby a party may in effect force his opponent to produce a forecast of evidence which he has available for presentation at trial to support his claim or defense. A party forces his opponent to give this forecast by moving for summary judgment. Moving involves giving a forecast of his own which is sufficient, if considered alone, to compel a verdict or finding in his favor on the claim or defense. In order to compel the opponent's forecast, the movant's forecast, considered alone, must be such as to establish his right to judgment as a matter of law." 2 McIntosh, N. C. Practice and Procedure, § 1660.5 (2d ed. Phillips Supp.1970). "If there is any question as to the credibility of witnesses or the weight of evidence, a summary judgment should be denied. . . ." 3 Barron and Holtzoff, Federal Practice and Procedure, § 1234 (Wright ed. 1958).

[296 N.C. 471] We now determine the propriety of summary judgment for defendants in this case by applying these legal principles to the record properly before us.

Was plaintiff injured by the negligence of the defendants or either of them? This is the overriding issue of fact which plaintiff must establish at trial in order to prevail on his cause of action. To support their motions for summary judgment and establish the non-existence of negligence on the part of either defendant, movants offered the depositions of William M. Boyd and plaintiff Floyd Moore.

Boyd stated in his deposition that it was his duty to unload the trailer; that he used a Clark tow-motor, squeeze type, to lift the bales and transport them from the trailer into the warehouse; that plaintiff Floyd Moore delivered the load of acrylic fiber bales on 5 May 1975 and backed the tractor-trailer into the ramp which slopes downward to the unloading dock; that when the vehicle came to rest the rear of the trailer was approximately level with the unloading dock but lower than the front end of the trailer due to the incline on which it rested; that the cargo consisted of Monsanto fiber in bales about three feet wide, three and one-half feet long, and weighing 490 to 525 pounds; that each bale was wrapped in a clear plastic fiber; that the trailer was sealed and the seal was broken...