Roumillat v. Simplistic Enterprises, Inc.

Citation331 N.C. 57,414 S.E.2d 339
Decision Date05 March 1992
Docket NumberNo. 373A91,373A91
PartiesJo Ann ROUMILLAT v. SIMPLISTIC ENTERPRISES, INC. d/b/a Bojangles Famous Chicken N' Biscuits.
CourtUnited States State Supreme Court of North Carolina

Appeal as of right by defendant pursuant to N.C.G.S. § 7A-30(2) of the decision of a divided panel of the Court of Appeals, 103 N.C.App. 440, 406 S.E.2d 10 (1991), reversing the judgment of Morgan, J., entered in Superior Court, Forsyth County, on 20 July 1990. Heard in the Supreme Court 12 February 1992.

Frye and Kasper, by Leslie G. Frye and Granice L. Geyer, Winston-Salem, for plaintiff-appellee.

Hutchins, Tyndall, Doughton & Moore, by Laurie L. Hutchins, Winston-Salem, for defendant-appellant.

Womble Carlyle Sandridge & Rice, by William F. Womble, Jr., Winston-Salem, for North Carolina Ass'n of Defense Attys., amicus curiae.

Maxwell & Hutson, P.A., by Monica Umstaedt Rossman and Alice Neece Moseley, Durham, and Marjorie Putnam, Gen. Counsel, Raleigh, for North Carolina Academy of Trial Lawyers, amicus curiae.

MEYER, Justice.

The issues before the Court are whether the Court of Appeals applied the proper test in reviewing the trial court's entry of summary judgment for defendant in the instant case and whether summary judgment was appropriate under the facts before the trial court at the time it was entered. We conclude that the Court of Appeals applied the wrong test and further conclude that the Court of Appeals erred in holding that the trial court improperly granted summary judgment in favor of defendant. Accordingly, we reverse the decision of the Court of Appeals and remand this case to that court for further remand to the Superior Court, Forsyth County, for reinstatement of the summary judgment originally entered 20 July 1990.

The evidence before the trial court tended to show the following. On 21 December 1987 at approximately 8:15 p.m., plaintiff and her husband and son exited the Bojangles restaurant located on Peters Creek Parkway in Winston-Salem, North Carolina. Plaintiff, forty-eight years old at the time of the accident, crossed the entrance walkway, traversed the drive-thru lane, and walked the "couple of steps" over a concrete traffic island that separated the drive-thru lane from the parking spaces intended for restaurant patrons. Plaintiff then walked across the empty parking space adjacent to her auto, taking three steps toward the driver's side door. Plaintiff's left foot slipped on a substance on the asphalt parking space, and she fell on her right knee. Plaintiff was taken to Forsyth Memorial Hospital where X rays revealed that she had sustained a broken knee cap, which required surgery. Plaintiff suffers a twenty percent permanent partial disability of the knee as a result of the fall.

In her deposition, plaintiff stated that the parking lot was "basically" a well-lit area that "slopes" downward away from the restaurant and that on the evening of the accident she was wearing a skirt, sweater, and casual dress shoes with three-quarter inch heels. She also described the substance on which she slipped as being from an automobile, "[b]lack," "[t]hick, mucky like," "[m]ore like grease rather than oil," and two and one-half or three feet in "circular" dimension. The deposition made no mention of any other material on the parking lot surface. The complaint, however, describes the substance differently, as it refers to a "slick, greasy substance and other debris." Plaintiff stated in her deposition that the substance measured in thickness "as much as a sixteenth of an inch." Plaintiff was unable to say whether the greasy substance was located across from the restaurant entrance. Plaintiff also related in her deposition that she returned to the accident scene some two and one-half weeks after the accident, and in response to defense counsel's inquiry as to whether the parking lot space was in "exactly the same" condition as on the day of the accident, plaintiff replied "Yes."

On 25 June 1990, defendant moved for summary judgment. At the hearing, defendant produced plaintiff's deposition, three sets of interrogatories answered by plaintiff, and seven photos of the parking lot taken approximately two months after plaintiff fell. Plaintiff produced no affidavits or anything else in response to defendant's motion. The trial court entered summary judgment in favor of defendant.

The Court of Appeals held that the trial court erred in granting summary judgment for defendant. While conceding that there is no evidence in the record that defendant knew or should have known of the existence of the substance, the Court of Appeals nevertheless concluded that this lack of evidence did not entitle defendant to summary judgment. The majority of the panel below held that defendant is entitled to summary judgment "only if it meets its burden of showing that it did not know, and should not have known," of the presence of the substance in the parking lot; because the record was bereft of such evidence, defendant failed to carry its burden, and therefore summary judgment was inappropriate. Roumillat, 103 N.C.App. at 442, 406 S.E.2d at 12.

In her dissenting opinion, Judge Parker contended that the majority employed the wrong test in assessing the propriety of the summary judgment granted in favor of defendant. We agree. Under Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 376 S.E.2d 425 (1989), defendant could have succeeded by showing that plaintiff was incapable of producing evidence of an essential element of her claim. According to the dissent, defendant in the instant case had demonstrated that plaintiff could not produce evidence to prove an essential element of her case--that defendant knew or should have known of the existence of the substance in the parking lot.

The North Carolina Rules of Civil Procedure provide 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 a judgment as a matter of law." N.C.R.Civ.P. 56(c). The burden of establishing a lack of any triable issue resides with the movant. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 329 S.E.2d 350 (1985); Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). In Collingwood v. G.E. Real Estate Equities, we characterized this burden as follows:

The movant may meet this burden 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 or cannot surmount an affirmative defense which would bar the claim.

324 N.C. at 66, 376 S.E.2d at 427; see also Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982); Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). Once a moving party meets its burden, then the nonmovant must "produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial." Collingwood, 324 N.C. at 66, 376 S.E.2d at 427. In order to meet its burden, "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." N.C.R.Civ.P. 56(e). All inferences of fact must be drawn against the movant and in favor of the nonmovant. Collingwood, 324 N.C. at 66, 376 S.E.2d at 427.

The standard employed by the Court of Appeals in the instant case is not in accord with our well-established rule. Defendant was entitled to summary judgment if it was able either to show the nonexistence of an essential element of plaintiff's claim or to show that plaintiff could not produce evidence of an essential element of her claim. Id. Contrary to the view of the Court of Appeals, defendant was not required to produce evidence showing that it did not know or should not have known of the substance in its parking lot. Such a requirement lacks support in our law and is indeed erroneous. Language to the same effect appears in Durham v. Vine, 40 N.C.App. 564, 567-68, 253 S.E.2d 316, 319 (1979), and Tolbert v. Tea Co., 22 N.C.App. 491, 494, 206 S.E.2d 816, 817 (1974), and is hereby disapproved.

Further, the Court of Appeals erred in its application of the burdens of proof between the respective parties in the summary judgment proceeding. Under N.C.R.Civ.P. 56(e), after defendant met its burden by showing that plaintiff could not come forward with a forecast of evidence that defendant knew or should have known of the presence of the substance and, having sufficient time to do so, negligently failed to remove it, the burden then was upon the plaintiff to make a contrary showing. Plaintiff's reliance on her complaint does not suffice. The trial court must go "beyond the pleadings to determine whether there is a genuine issue of material fact." Zimmerman, 286 N.C. at 29, 209 S.E.2d at 798; see also Pitts v. Village Inn Pizza, Inc., 296 N.C. 81, 85, 249 S.E.2d 375, 378 (1978) ("Thus, plaintiff here cannot rely on his complaint alone to defeat defendant's motion for summary judgment since the motion is accompanied by competent evidentiary matters in support of it."). To hold otherwise, as the Court of Appeals did in the case at bar, would be to allow plaintiffs to rest on their pleadings, effectively neutralizing the useful and efficient procedural tool of summary judgment.

Finally, we disagree with the conclusion reached by the Court of Appeals that summary judgment for defendant was inappropriate in the instant case. In a premises liability case involving injury to an invitee, the owner of the premises has a duty to exercise "ordinary care to keep in a reasonably safe condition those portions of its premises which it may expect will be used by its customers during...

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