Streib v. Hocutt
| Decision Date | 15 July 2003 |
| Docket Number | NO. COA02-1232.,COA02-1232. |
| Court | North Carolina Court of Appeals |
| Parties | VIRGINIA STREIB and NORMAN STREIB Plaintiffs v. MR. and MRS. BILLY HOCUTT, Defendants. |
Wallace W. Bradsher, Jr., for plaintiff-appellants.
Bailey & Dixon, L.L.P., by Gary S. Parsons and Jennifer D. Maldonado, for defendant-appellees.
Plaintiffs Virginia and Norman Streib appeal from the entry of summary judgment in favor of defendants Mr. and Mrs. Billy Hocutt. The materials before the trial court tended to show: On 18 December 1997, Billy Hocutt ("defendant") was leading his mules, each weighing 1,200 to 1,400 pounds, from his pasture to the barn when one spooked, startled the other, and both mules broke away from him. Giving chase, he stopped and asked his wife to follow with the car. They found the mules approximately one quarter of a mile away from the pasture, walking on Highway 96. As defendant attempted to capture his mules, Virginia Streib ("plaintiff") drove over a small rise north of the mules. One mule collided withplaintiff's car and was killed; plaintiff sustained back and neck fractures. Plaintiffs appeal.
By three assignments of error, plaintiffs argue (1) summary judgment was improper because there were genuine issues of material fact existing; (2) counsel properly moved for a voluntary dismissal without prejudice before summary judgment was entered; (3) the summary judgment hearing was unfair, impartial and the judgment was prejudicial to the fair administration of justice. We reject their arguments.
By their first assignment of error, plaintiffs contend there were sufficient genuine issues of material fact before the trial court to defeat defendant's motion for summary judgment. "The standard with respect to summary judgment is well-established." Sullivan v. Mebane Packaging Group, Inc., ___ N.C. App. ___, ___, ___ S.E.2d. ___, ___ (COA02-762, 20 May 2003). Where "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," summary judgment is proper. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). Construing "[t]he evidence and all reasonable inferences which may be drawn from it" in favor of the opposing party, the moving party bears the burden of showing that an essential element of the opposing party's claim is either non-existent or evidence is not available tosupport it. Meares v. Jernigan, 138 N.C. App. 318, 320, 530 S.E.2d 883, 885 (2000).
Negligence requires evidence beyond allegations and mere speculation, Roumillat v. Simplistic Enterprises, 331 N.C. 57, 414 S.E.2d 339 (1992), and although summary judgment is rarely appropriate in negligence cases, it may be granted if there are no genuine issues of material fact and the plaintiff fails to show one of the elements of negligence. Lavelle v. Schultz, 120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995), disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996). The plaintiff can overcome a motion for summary judgment by establishing a prima facie case of negligence showing the defendant's failure to exercise proper care, this failure proximately caused plaintiff's injury, and the injury was foreseeable to a reasonable person. Id. Based on our review of the record, plaintiff has failed to show these elements.
Plaintiffs allege defendant failed in his duty as the mules' owner and caretaker "to exercise ordinary care and the foresight of a prudent person in keeping them in restraint." Gardner v. Black, 217 N.C. 573, 576, 9 S.E.2d 10, 11 (1940). In Gardner, the Court held that the defendant could not be found negligent since the plaintiff did not show that defendant continued to let his mules roam once aware of their escape. Id. at 577, 9 S.E.2d at 12. See also, Herndon v. Allen, 253 N.C. 271, 273-74, 116 S.E.2d 728, 730- 31 (1960) (); Shaw v. Joyce, 249 N.C. 415, 416, 106 S.E.2d 459, 460 (1959) (); Kelly v. Willis, 238 N.C. 637, 640, 78 S.E.2d 711, 713 (1953) ().
Here, the evidence tended to show that defendant exercised proper care, pursuing his animals immediately after their escape, and he was not negligent in their restraint. Additionally, plaintiff offered no evidence as to the mules' escape being the proximate cause of her injury; in our review of the record and deposition testimony all we discover are plaintiff's allegations that defendants should be responsible because the mules were on "the highway where animals should not be." Further, there was testimony indicating the mules' actions were not foreseeable, they regularly came when called and had never escaped before. Plaintiffs arguments consist only of speculation that defendant Billy Hocutt had somehow been negligent in the manner in which he led the mules to the barn and other allegations concerning his credibility. These arguments are insufficient to show the existence of a genuine issue of material fact. Plaintiffs offer no arguments concerning Mrs. Hocutt's negligence. Accordingly, we overrule this assignment of error.
Plaintiffs next assign error to the trial court's refusal to allow them to submit to a voluntary dismissal without prejudice. Plaintiffs urge us to expand Wesley v. Bland, 92 N.C. App. 513, 374 S.E.2d 475 (1988), which upheld a plaintiff's oral request for voluntary dismissal immediately prior to the commencement of hisargument on the defendant's motion for summary judgment. The Wesley court carefully noted that the plaintiff had not presented any argument in defense of the motion. In the underlying case, the following exchange occurred after plaintiffs' counsel began his argument:
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