Thompson v. Three Guys Furniture Co.

• Decision Date: 07 May 1996
• Docket Number: No. COA95-444,COA95-444
• Citation: 122 N.C.App. 340,469 S.E.2d 583
• Court: North Carolina Court of Appeals
• Parties: Evelena Morrison THOMPSON, Administratrix of the Estate of Frederick Thompson, deceased, Plaintiff, v. The THREE GUYS FURNITURE COMPANY, Charles Hilliard Greene, d/b/a The Three Guys Furniture Company and/or Franklin Place, Charles Hilliard Greene, individually and Terry Paul Ray, Defendants.

Page 583

469 S.E.2d 583

122 N.C.App. 340

Evelena Morrison THOMPSON, Administratrix of the Estate of Frederick Thompson, deceased, Plaintiff, v. The THREE GUYS FURNITURE COMPANY, Charles Hilliard Greene d/b/a The Three Guys Furniture Company and/or Franklin Place, Charles Hilliard Greene individually and Terry Paul Ray, Defendants.

No. COA95-444.

Court of Appeals of North Carolina.

May 7, 1996.

Ferguson, Stein, Wallas, Adkins, Gresham and Sumter by James E. Ferguson, Noell P. Tin, and Anita Hodgkiss, Charlotte, for plaintiff-appellant.

Petree Stockton, L.L.P. by David B. Hamilton and Anne E. Essaye, Charlotte, for defendants-appellees.

JOHN C. MARTIN, Judge.

Plaintiff assigns error to the trial court's order granting summary judgment, contending there are genuine issues of material fact with respect to her claims that defendants Greene and TGF are liable (1) vicariously for Ray's negligence, (2) for their own negligent entrustment of the truck to Ray, and (3) for their own negligence per se in violating G.S. § 20-34. We agree with plaintiff's argument as to her claims based on agency and negligent entrustment and reverse summary judgment as to those claims. However, we affirm summary judgment as to plaintiff's claim based on the alleged statutory violation.

Summary judgment is proper "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. Gen.Stat. § 1A-1, Rule 56(c). The moving party has the burden of showing entitlement to summary judgment, Varner v. Bryan, 113 N.C.App. 697, 440 S.E.2d 295 (1994), and in ruling upon the motion, a court must consider the evidence in the light most favorable to the non-moving party, who is entitled to the benefit of all favorable inferences which may be drawn from the evidence. Averitt v. Rozier, 119 N.C.App. 216, 458 S.E.2d 26 (1995).

I.

Plaintiff first argues that summary judgment was improper as to her allegations that defendants Greene and TGF are vicariously liable for Ray's negligence because he was acting as their agent at the time of the accident. Plaintiff relies on G.S. § 20-71.1, which provides:

(a) In all actions to recover damages for injury to the person or to property or for the death of a person, arising out of an accident or collision involving a motor vehicle, proof of ownership of such motor vehicle at the time of such accident or collision shall be prima facie evidence that said motor vehicle was being operated and used with the authority, consent, and knowledge of the owner in the very transaction out of which said injury or cause of action arose.

(b) Proof of the registration of a motor vehicle in the name of any person, firm, or corporation, shall for the purpose of any such action, be prima facie evidence of ownership and that such motor vehicle was then being operated by and under the control of a person for whose conduct the owner was legally responsible, for the owner's benefit, and within the course and scope of his employment.

The purpose of this statute is "to establish a ready means of proving agency in any case where it is charged that the negligence of a nonowner operator causes damage to the property or injury to the person of another." Hartley v. Smith, 239 N.C. 170, 177, 79 S.E.2d 767, 772 (1954). See Taylor v. Parks, 254 N.C. 266, 271, 118 S.E.2d 779, 782 (1961); Scallon v. Hooper, 49 N.C.App. 113, 117, 270 S.E.2d 496, 499 (1980), disc. review denied, 301 N.C. 722, 276 S.E.2d 284 (1981) ("the plain and obvious purpose of G.S. 20-71.1 ... is to enable plaintiff to submit a prima facie case of agency to the jury which it can decide to accept or reject"). However, the prima facie showing of agency under the statute only permits, and does not compel, a finding for plaintiff on the issue of agency. DeArmon v. B. Mears Corp., 312 N.C. 749, 325 S.E.2d 223 (1985); Chappell v. Dean, 258 N.C. 412, 128 S.E.2d 830 (1963).

Defendants Greene and TGF contend that plaintiff's prima facie showing of agency pursuant to the statute was overcome in this case, and that summary judgment was appropriate on this issue because of "clear and convincing evidence" that the agency relationship between Greene and Ray had been terminated. Citing DeArmon, 312 N.C. 749, 325 S.E.2d 223, and Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976), defendants assert the trial court could determine issues of credibility at the summary judgment stage and "concluded that Ray's affidavit could not be believed." We reject their argument.

In DeArmon, the Supreme Court essentially agreed with the decision reached in this Court, DeArmon v. B. Mears Corp., 67 N.C. App. 640, 314 S.E.2d 124 (1984), that plaintiff's prima facie showing of agency under the statute and defendant's evidence to the contrary created a genuine issue of material fact for the jury on the agency issue. DeArmon, 312 N.C. at 759, 325 S.E.2d at 230. Kidd holds that courts are entitled to assign credibility as a matter of law to a moving party's affidavit when a party opposing a motion for summary judgment has failed to submit affidavits or other supporting material pursuant to Rule 56(e) or (f) to cast doubts as to the existence of a material fact or upon the credibility of a material witness. Kidd, 289 N.C. 343, 222 S.E.2d 392. In this case, however, plaintiff has submitted affidavits pursuant to Rule 56(e), and thus has presented evidence in addition to the prima facie showing of agency provided by G.S. § 20-71.1. Moreover, as this Court noted in Burrow v. Westinghouse Electric Corp., 88 N.C.App. 347, 363 S.E.2d 215, disc. review denied, 322 N.C. 111, 367 S.E.2d 910 (1988), "where matters of the credibility and weight of the evidence exist, summary judgment ordinarily should be denied." Id. at 351, 363 S.E.2d at 218 (citation omitted). Defendant Ray's affidavit gives rise to genuine issues of material fact about whether Greene gave Ray a specific time to return the truck, and whether at the time of the collision Ray was in the course of his duties as Greene's agent. Summary judgment was thus not proper on this issue. See N.C. Gen.Stat. § 1A-1, Rule 56(c).

II.

Plaintiff also alleged that defendants Greene and TGF negligently entrusted the truck to Ray. Negligent entrustment occurs when the owner of an automobile "entrusts its operation to a person whom he knows, or by the exercise of due care should have known, to be an incompetent or reckless driver" who is "likely to cause injury to others in its use." As a result of his own negligence, the owner is liable for any resulting injury or damage proximately caused by the borrower's negligence.

Swicegood v. Cooper, 341 N.C. 178, 180, 459 S.E.2d 206, 207 (1995) (citations omitted). A plaintiff is not required to show actual knowledge of unfitness, incompetence, or recklessness; the cases require that the owner exercise due care in determining whether the person entrusted with the vehicle is fit. Id.; Heath v. Kirkman, 240 N.C. 303, 82 S.E.2d 104 (1954). In McIlroy v. Akers Motor Lines, 229 N.C. 509, 50 S.E.2d 530 (1948), cited by defendants, the Supreme Court found that evidence of negligent entrustment was insufficient to go to the jury when an employer performed only a "perfunctory" investigation to determine a person's fitness as a truck driver before hiring him, and failed to discover that the person had previously been convicted of drunkenness and drunken driving. Id. However, in that case the Court found as dispositive evidence that, before the accident giving rise to the suit, the employee "drove [the] truck regularly in defendant's service for eight months, during which time his conduct was under observation, without evidence of accident or of drinking or addiction to...