Wilson Bros. v. Mobil Oil

• Decision Date: 19 July 1983
• Docket Number: No. 825SC789,825SC789
• Citation: 63 N.C.App. 334,305 S.E.2d 40
• Court: North Carolina Court of Appeals
• Parties: WILSON BROTHERS, a co-partnership; and Boney Wilson & Son, Inc., a North Carolina Corporation, v. MOBIL OIL, a foreign corporation; Mobil Chemical Corporation, a foreign corporation; Miller Building Corporation, a North Carolina Corporation; Graves Electric Corporation; and Mobil Oil Corporation, a foreign corporation.

Page 40

305 S.E.2d 40

63 N.C.App. 334

WILSON BROTHERS, a co-partnership; and Boney Wilson & Son Inc., a North Carolina Corporation, v. MOBIL OIL, a foreign corporation; Mobil Chemical Corporation, a foreign corporation; Miller Building Corporation, a North Carolina Corporation; Graves Electric Corporation; and Mobil Oil Corporation, a foreign corporation.

No. 825SC789.

Court of Appeals of North Carolina.

July 19, 1983.

Moore & Biberstein by R.V. Biberstein, Jr., Burgaw, and Lommen, Nelson, Sullivan & Cold by John P. Lommen and Daniel J. Buivid, Jr., Minneapolis, Minn., for plaintiffs-appellants.

Hogue, Hill, Jones, Nash & Lynch by David A. Nash, Wilmington, and Carr, Abney, Tabb & Schultz by W. Pitts Carr and David H. Pope, Atlanta, Ga., for Mobil defendants-appellees.

Crossley & Johnson by Robert W. Johnson, Wilmington, for defendant-appellee Graves Elec. Corp.

Marshall, Williams, Gorham & Brawley by Lonnie B. Williams, Wilmington, for the defendant-appellee Miller Bldg. Corp.

ARNOLD, Judge.

Summary judgment under G.S. 1A-1, Rule 56(c) is proper when there is "no genuine issue as to any material fact...." It is a "drastic remedy ... [that] must be used with due regard to its purposes and a cautious observance of its requirements in order that no person shall be deprived of a trial on a genuine disputed factual issue." Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). This remedy "does not authorize the court to decide an issue of fact. It authorizes the court to determine whether a genuine issue of fact exists." Vassey v. Burch, 301 N.C. 68, 72, 269 S.E.2d 137, 140 (1980) (emphasis in original). Summary judgment should be denied "[i]f different material conclusions can be drawn from the evidence." Spector Credit Union v. Smith, 45 N.C.App. 432, 437, 263 S.E.2d 319, 322 (1980).

In Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897, reh'g denied, 281 N.C. 516 (1972), the court defined two terms that are determinative on a summary judgment question.

An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action. The issue is denominated "genuine" if it may be maintained by substantial evidence.

280 N.C. at 518, 186 S.E.2d at 901 (emphasis added). To grant summary judgment, a court must find "that on the undisputed aspects of the opposing evidential forecasts the party given judgment is entitled to it as a matter of law." 2 McIntosh, N.C. Practice and Procedure § 1660.5 (2d ed., Phillips Supp.1970). See also, W. Shuford, N.C. Civil Practice and Procedure § 56-7 (2d ed. 1981). In ruling on a summary judgment motion, the record should be viewed in the light most favorable to the party opposing the motion. Brice v. Moore, 30 N.C.App. 365, 367, 226 S.E.2d 882, 883 (1976).

It is an accepted tenet of our jurisprudence that summary judgment is rarely proper in negligence cases. "Even where there is no dispute as to the essential facts, where reasonable people could differ with respect to whether a party acted with reasonable care, it ordinarily remains the province of the jury to apply the reasonable person standard." Moore v. Crumpton, 306 N.C. 618, 624, 295 S.E.2d 436, 441 (1982). But where there is no genuine issue of material fact and reasonable men could only conclude that the defendant was not negligent, entry of summary judgment is proper. Dendy v. Watkins, 288 N.C. 447, 455, 219 S.E. 214, 219 (1975).

We now consider the defendants separately.

GRAVES ELECTRIC

The plaintiffs contend that there is a fact issue as to whether Graves installed the wiring that caused the fire. Graves denies that it installed the wiring in question. It contends that its material lists did not show any of the type of conduit which caused the fire and that it was not the electrical contractor when the building was built in 1965. The conduit which caused the fire was connected to panels that were installed in 1965.

The plaintiffs' evidence raises a fact issue on this point. They submitted affidavits of three people who were plaintiff's employees in 1972. All three stated that their "best recollection" was that Graves installed the conduit which caused the fire.

Graves attacks these affidavits as insufficient under G.S. 1A-1, Rule 56(e). That rule states in part:

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 requirements of the rule were met here.

The affidavits were based on personal knowledge. The phrase "best recollection" is equivalent to the phrase "to the best of my knowledge" that was held to be on personal knowledge in Faulk v. Dellinger, 44 N.C.App. 39, 259 S.E.2d 782 (1979). As Faulk commented, "[I]n the case at hand, we do not have a situation of manufactured fact but merely a self-imposed limitation to the affiant's personal knowledge which is all the rule requires." 44 N.C.App. at 42, 259 S.E.2d at 784. The affiants were competent to testify on what they stated in their affidavits.

Although there is a fact issue as to whether Graves installed the conduit in question, it must also be shown that there is a fact issue as to Graves' negligence for the plaintiff's case to survive a summary judgment motion.

Graves argues that offering Berkowitz's testimony about how the fire started, when his conclusions were based on photographs of the conduit after the fire, was not sufficient. It contends that because his testimony was not based on a personal examination of the burned conduit, he was not speaking from personal knowledge and thus, was not competent to testify. We reject these arguments.

It should first be remembered that there is a presumption against granting summary judgment in negligence cases. It is a jury question if a defendant met the reasonable man standard. See, e.g., Williams v. Carolina Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979).

The pertinent portion of Berkowitz's deposition is as follows:

Q. ... do you have any explanation for why it [the conduit] arced at this particular time?

A. ... I have seen cables that will be pulled into a conduit and will be damaged and will sit there for years until the insulation finally breaks down.... It may not fail immediately. It may sit there for a period of years under a condition of tension and then ultimately break down.

Also, because of the localized nature of this arcing, I have the feeling that that cable was bent while it was being pulled in. That is, that it had a crimp in it and that this ultimately broke down.

Q. You are saying that the insulating material was under tension while it was there in the conduit?

A. That is correct.

Q. Which would cause it to break down in one particular point?

A. That is correct.

Q. Where it had a crimp; is that correct?

A. That is correct.

Q. Is that all theory? Do you have any facts to support that?

A. I didn't have the conduit itself or the cable. What I am going by is my own experience in having found cable under that condition that did fail as a consequence of that, of that kind of condition.

Q. Now, assuming that this point in the conduit which has the hole in it was caused by arcing of the nature that you have described, do you have an opinion as to how the heat spread from that point and started a fire?

A. Yes, sir, the molten metal and the sparks falling from the arc point would have fallen into combustible material that was stored beneath it.

This testimony raises questions of whether Graves was negligent in installation and if such negligence could have caused the fire. Although Berkowitz did not personally examine the conduit in question, his opinion was based on a personal examination of the burned building, photographs of the melted conduit, and his experience in other cases, and was therefore competent to testify as to the cause of the fire.

MILLER BUILDING CORPORATION

The plaintiffs argue that there is a fact issue on whether an employer-employee or contractor-subcontractor relationship existed between Miller and Graves so as to make Miller liable for any possible negligence of Graves. We agree.

The law in North Carolina on the relationship between master and servant was outlined in Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944). The Supreme Court found the vital test to be if "the employer has or has not retained the right of control or superintendence over the contractor or employee as to details." Id. at 15, 29 S.E.2d at 140. Hayes enunciated a number of elements to consider in the determination.

The person...