Strickland v. Doe, COA02-399.

CourtCourt of Appeal of North Carolina (US)
Citation577 S.E.2d 124,156 NC App. 292
Decision Date04 March 2003
Docket NumberNo. COA02-399.,COA02-399.
PartiesAnna B. STRICKLAND, individually, and Anna B. Strickland, as guardian of the person of Anna Eugenia Strickland, an incompetent person, Plaintiffs-Appellants, v. John DOE, an unknown driver, Defendant-Appellee.

Mako & Robinson, P.A., by Bruce H. Robinson, Jr., Wilmington, for plaintiffs-appellant.

Marshall, Williams, & Gorham, L.L.P., by William Robert Cherry, Jr., Wilmington, for defendant-appellee State Farm Mutual Automobile Insurance Company. Johnson & Lambeth, by Maynard M. Brown, Wilmington, for defendant-appellee Nationwide Mutual Insurance Company.

McGEE, Judge.

Anna Eugenia Strickland (Anna) was struck by a vehicle operated by an unknown driver (defendant) on Maple Avenue in Wilmington, North Carolina at approximately 2:14 a.m. on 28 October 1997. Anna was walking across Maple Avenue after leaving a nearby bar. Anna has no recollection of the accident or events immediately preceding the accident. Defendant left the scene of the accident and has never been identified.

Plaintiffs filed a complaint against defendant on 11 September 2000 alleging defendant was negligent in striking Anna with defendant's vehicle. Plaintiffs allege that defendant's vehicle struck Anna approximately 60 feet from the intersection of Maple Avenue and South Kerr Avenue and dragged Anna under the vehicle for approximately 53 feet. State Farm Mutual Automobile Insurance Company (State Farm) and Nationwide Mutual Insurance Company (Nationwide), the alleged uninsured motorist insurers, filed answers alleging that Anna was contributorily negligent. State Farm filed an amended answer dated 18 October 2000, alleging additional contributory negligence defenses. Plaintiffs filed a reply on 14 November 2000 alleging last clear chance. State Farm and Nationwide filed motions for summary judgment on 17 December 2001 and 19 December 2001 respectively.

In support of their claim, plaintiffs submitted a letter from their attorney to the attorneys for State Farm and Nationwide which contained an unsigned summary of a private investigator who interviewed Travis Kelly (Kelly), a young man who was with Anna at the time of the accident. Kelly was not deposed, nor did he submit an affidavit stating what he observed at the time of the accident. The letter summarizing a report by the private investigator of what Kelly told the investigator about the accident during an interview was submitted as supplemental discovery. According to that letter, Kelly told the investigator that after the vehicle struck Anna, it continued down Maple Avenue with its brake lights jerking on and off, and then turned into a carwash driveway. In the letter, the investigator's summary said Kelly estimated that the vehicle was traveling 20 to 25 miles per hour and that Kelly told the investigator the car accelerated just before impact.

Plaintiffs also submitted an affidavit and police report of the officer who arrived at the scene of the accident shortly after it occurred. The investigating officer, Paul L. Nevitt (Officer Nevitt), stated in an affidavit that Anna was struck by an unknown motor vehicle while she was in the middle of Maple Avenue, approximately 60 feet from an intersection; that the unknown vehicle was straddling the center line; that there were no skid marks prior to impact; that Anna was dragged by the unknown vehicle approximately 53 feet; and that the weather was clear and the road was dry at the time of the accident. Officer Nevitt also attached a copy of the incident report to his affidavit.

Following a hearing, the trial court granted summary judgment to State Farm and Nationwide on 14 January 2002. Plaintiffs appeal from the order.

Plaintiffs' sole assignment of error is that the trial court erred in granting State Farm's and Nationwide's motions for summary judgment because there are genuine issues of material fact. In order to survive a defendant's motion for summary judgment in a negligence action, a plaintiff must set forth a prima facie case

(1) that defendant failed to exercise proper care in the performance of a duty owed plaintiff; (2) the negligent breach of that duty was a proximate cause of plaintiff's injury; and (3) a person of ordinary prudence should have foreseen that plaintiff's injury was probable under the circumstances.

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). (citations omitted). While summary judgment is normally not appropriate in negligence actions, where the forecast of evidence shows that a plaintiff cannot establish one of these required elements, summary judgment is appropriate. Patterson v. Pierce, 115 N.C.App. 142, 143, 443 S.E.2d 770, 771, disc. review denied, 337 N.C. 803, 449 S.E.2d 749 (1994) (citing Roumillat v. Simplistic Enters., 331 N.C. 57, 414 S.E.2d 339 (1992); Lamb v. Wedgewood South Corp., 308 N.C. 419, 302 S.E.2d 868 (1983)).

A party may not withstand a motion for summary judgment by simply relying on its pleadings; the non-moving party must set forth specific facts by affidavits or as otherwise provided by N.C. Gen.Stat. § 1A-1, Rule 56(e), showing that there is a genuine issue of material fact for trial. G & S Business Services v. Fast Fare, Inc., 94 N.C.App. 483, 486, 380 S.E.2d 792, 794, appeal dismissed and disc. review denied 325 N.C. 546, 385 S.E.2d 497 (1989)

. The other methods for setting forth specific facts under Rule 56 are through depositions, answers to interrogatories, admissions on file, documentary materials, further affidavits, or oral testimony in some circumstances. Singleton v. Stewart, 280 N.C. 460, 464, 186 S.E.2d 400, 403 (1972); Kessing v. Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971) (citations omitted). "If [a party] does not so respond, summary judgment, if appropriate, shall be entered against him." N.C. Gen. Stat. § 1A-1, Rule 56(e) (2001).

Affidavits submitted must meet the requirements of N.C.G.S. § 1A-1, Rule 56(e):

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

"The converse of this requirement is that affidavits or other material offered which set forth facts which would not be admissible in evidence should not be considered when passing on the motion for summary judgment." Borden, Inc. v. Brower, 17 N.C.App. 249, 253, 193 S.E.2d 751, 753, rev'd on other grounds by, 284 N.C. 54, 199 S.E.2d 414 (1973)

.

Our Court recently applied this rule to an affidavit submitted in support of a motion for summary judgment in Williamson v. Bullington, stating:

If an affidavit contains hearsay matters or statements not based on an affiant's personal knowledge, the court should not consider those portions of the affidavit. See Moore v. Coachmen Industries, Inc., 129 N.C.App. 389, 499 S.E.2d 772 (1998)

. Similarly, if an affidavit sets forth facts that would be inadmissible in evidence ..., such portions should be struck by the trial court. See Borden, Inc. v. Brower, 284 N.C. 54, 199 S.E.2d 414 (1973).

Portions of each of plaintiff's affidavits were properly stricken as inadmissible hearsay, irrelevant, or violative of the parole evidence rule. The portions that would remain after striking the improper statements provide no support to plaintiff's motion for summary judgment.

139 N.C.App. 571, 578, 534 S.E.2d 254, 258 (2000), aff'd by an equally divided court, 353 N.C. 363, 544 S.E.2d 221 (2001); see also Singleton, 280 N.C. at 467,

186 S.E.2d at 405 (holding that portions of the submitted affidavit could not be considered for the purpose of ruling on a motion for summary judgment when those portions were not made on the affiant's personal knowledge); Patterson v. Reid, 10 N.C.App. 22, 29, 178 S.E.2d 1, 6 (1970) (statements in a party's affidavits based on hearsay should not be considered in determining a motion for summary judgment). In addition, our Court has also held that an affiant's legal conclusions, as opposed to facts "as would be admissible in evidence," are not to be considered by the trial court on a motion for summary judgment. Singleton, 280 N.C. at 467,

186 S.E.2d at 405.

The information before the trial court in this case consisted of the parties' pleadings, the deposition of Anna, plaintiffs' answers to interrogatories, the affidavit of Officer Nevitt and the attached incident report, and a letter from plaintiffs' attorney containing an unsigned summary of a private investigator which related what the investigator was told by Kelly. Plaintiffs' answers to interrogatories and Anna's deposition show that Anna has no recollection of the accident.

The supplemental discovery, in the form of a letter by plaintiffs' attorney containing an unsigned summary of a report by a private investigator as to what the investigator was told by Kelly, is not the type of evidence that may be relied on by the trial court in deciding a motion for summary judgment. As stated above, parties are required to set forth facts in affidavits or "as otherwise provided." The form of this supplemental discovery does not meet the requirements of Rule 56 as discussed above, and therefore should not have been considered by the trial court. See Singleton, 280 N.C. at 464,

186 S.E.2d at 403; Kessing, 278 N.C. at 533,

180 S.E.2d at 829; G & S Business Services,

94 N.C.App. at 486,

380 S.E.2d at 794. We recognize that in limited cases, our Court has also allowed the trial court to consider avenues outside the previously cited methods of proof. Oral testimony at a hearing on a motion for summary judgment may be offered; however, the trial court is only to rely on such testimony in a supplementary capacity, to provide a "small link" of required evidence, but not as the main evidentiary body of the hearing....

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    • James Publishing Practical Law Books Archive Is It Admissible? - 2015 Part I - Testimonial Evidence
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