Vassey v. Burch , 301 N.C. 68 ( 1980 )

269 S.E.2d 137 (1980) 301 N.C. 68

Benny G. VASSEY
v.
William H. BURCH, M.D., Roy L. Morgan, M.D. and St. Luke's Hospital, Inc.

No. 122.

Supreme Court of North Carolina.

August 15, 1980.

Hamrick & Hamrick by J. Nat Hamrick, Rutherfordton, William H. Miller, Tryon, for plaintiff-appellant.

Hedrick, Parham, Helms, Kellam, Feerick & Eatman by Richard T. Feerick and Hatcher B. Kincheloe, Charlotte, for defendant-appellee, St. Luke's Hospital, Inc.

R. E. Harrell, Ashville, for Burch.

HUSKINS, Justice:

Did the Court of Appeals err in upholding summary judgment for St. Luke's Hospital, Inc.? For reasons which follow, we answer in the affirmative and reverse.

Rule 56, Rules of Civil Procedure, authorizes the rendition of summary judgment upon a showing by the movant that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The rule does not authorize the court to decide an issue of fact. It authorizes the court to determine whether a genuine issue of fact exists. Summary judgment is designed to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). "The device used is one whereby a party may in effect force his opponent to produce a forecast of evidence which he has available for presentation at trial to support his claim or defense. A party forces his opponent to give this forecast by moving for summary judgment. Moving involves giving a forecast of his own which is sufficient, if considered alone, to compel a verdict or finding in his favor on the claim or defense. In order to compel the opponent's forecast, the movant's forecast, considered alone, must be such as to establish his right to judgment as a matter of law." 2 McIntosh, N.C. Practice & Procedure § 1660.5 (2d ed. Phillips Supp.1970).

Accordingly, the party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court and his entitlement to judgment as a matter of law. Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978). "His papers are carefully scrutinized and those of the opposing party are on the whole indulgently regarded." 6 Pt. 2 Moore's Federal Practice, § 56.15[8] at 642 (2d ed. 1980). Accord, Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). "If the moving party meets this burden, the party who opposes the motion for summary judgment must either assume the burden of showing that a genuine issue of material fact for trial does exist or provide an excuse for not so doing." Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). If the evidentiary materials filed by the parties indicate that a genuine issue of material fact does exist, the motion for summary judgment must be denied, as "the motion may be granted only where there is no such issue and the moving party is entitled to judgment as a matter of law." Id.

As a general proposition, issues of negligence are ordinarily not susceptible of summary adjudication either for or against the claimant "but should be resolved by trial in the ordinary manner." 6 Pt. 2 Moore's Federal Practice, § 56.17[42] at 946 (2d ed. 1980). Hence, it is only in exceptional negligence cases that summary judgment is appropriate because the rule of the prudent man, or other applicable standard of care, must be applied, and ordinarily the jury should apply it under appropriate instructions from the court. Caldwell v. Deese, supra; Gordon, The New Summary Judgment Rule in North Carolina, 5 Wake Forest Intra. L.Rev. 87, 92 (1969). Nevertheless, if a motion for summary judgment is supported by evidentiary matter showing a lack of negligence on the part of the movant and there is no question as to the credibility of witnesses and no evidence is offered in opposition thereto, no issue is raised for the jury to consider under appropriate instructions and summary judgment for the movant should be allowed. See Moore v. Fieldcrest Mills, Inc., supra; 6 Pt. 2 Moore's Federal Practice, § 56.17[42] at 948-49 (2d ed. 1980).

We now turn to the propriety of summary judgment for St. Luke's Hospital, Inc., applying the foregoing legal principles to the record properly before us.

At the outset we note that the record on appeal does not indicate what evidentiary materials, if any, were offered by defendant Hospital in support of its motion for summary judgment. The record does indicate that after giving notice of appeal in open court, plaintiff was allowed sixty days in which to make up and serve a proposed record on appeal, and that such record was duly served on defendant Hospital within the allotted time. The Hospital filed no objections, amendments, or a proposed alternative record on appeal. See Rule 11(c), Rules of Appellate Procedure. Accordingly, the proposed record on appeal became the record on appeal. Rule 11(b), Rules of Appellate Procedure. This record was certified by the Clerk of Superior Court on 1 June 1979 as the official record on appeal in this action. See Rule 11(e), Rules of Appellate Procedure.

It is axiomatic that a properly certified record on appeal imports verity. 1 N.C. Index 3d, Appeal and Error § 42, and cases cited therein. The appellate courts in this State are bound by the record as certified and can judicially know only what appears of record. Griffin v. Barnes, 242 N.C. 306, 87 S.E.2d 560 (1955); Tomlins v. Cranford, 227 N.C. 323, 42 S.E.2d 100 (1947). An appellate court will not speculate as to the content of evidentiary matters in support of a summary judgment motion which the record fails to show were offered in evidence in the trial court. Compare, Equipment Co. v. Hertz Corp., 256 N.C. 277, 123 S.E.2d 802 (1962); Ingram v. Easley, 227 N.C. 442, 42 S.E.2d 624 (1947); Wallace v. Longest, 226 N.C. 161, 37 S.E.2d 112 (1946). In determining whether a movant has met his burden of proof on a summary judgment motion, this Court can rely only upon evidentiary materials appearing of record.

In the instant case, the record contains no evidentiary materials submitted by defendant Hospital in support of its motion for summary judgment. The record contains only the Hospital's unverified answer filed in response to plaintiff's verified pleading. If the record served on defendant Hospital did not contain all pertinent evidentiary matters offered by the Hospital in support of the motion, it was the duty of the Hospital to file objections, amendments or serve a counter case on the plaintiff appellant. Rule 11, Rules of Appellate Procedure. Here, the defendant Hospital did nothing. Therefore, we assume the record on appeal is complete and correct. In that posture, defendant's motion for summary judgment should have been denied, even if nonmovant had offered no evidence in opposition. See Bank v. Evans, 296 N.C. 374, 250 S.E.2d 231 (1979); Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972).

But if defendant Hospital had succeeded in showing prima facie its entitlement to summary judgment, we note that the verified complaint, the affidavits and other evidentiary materials submitted by plaintiff in opposition to the motion would negate such a showing and establish the existence of triable issues of material fact. Viewed in its most favorable light, plaintiff's evidence tends to show, in pertinent part, that on 21 December 1974 plaintiff became so violently ill that his parents took him to the emergency room at St. Luke's Hospital. Plaintiff and his mother informed the nurse in attendance that plaintiff had severe pains in his right lower abdomen and was violently ill. Plaintiff's mother twice asked the nurse whether her son might be suffering from appendicitis. The nurse replied in the negative and called Dr. Morgan, plaintiff's regular doctor. In that discussion, she told Dr. Morgan that plaintiff had no symptoms of appendicitis. As a result, Dr. Morgan prescribed some medication and directed that defendant be sent home if he appeared to be better in thirty minutes. Accordingly, plaintiff was subsequently dismissed from the hospital without the taking of a blood count and without being otherwise checked for appendicitis. Plaintiff's condition deteriorated overnight. The next morning Dr. Morgan instantly recognized plaintiff's symptoms as acute appendicitis and sent him to St. Luke's for an immediate appendectomy. During the course of the surgery, it was discovered that his appendix had ruptured and severe peritonitis had developed.

Viewed indulgently, and given every reasonable inference to be drawn therefrom, plaintiff's evidence indicates that a genuine issue of material fact exists on the question of whether defendant Hospital breached its duty to exercise due care for the safety of its patient. See generally, Rabon v. Hospital, 269 N.C. 1, 152 S.E.2d 485 (1967).

In summary, we conclude that the Hospital failed to carry its burden as movant by showing that no triable issues of fact exist and that it is entitled to judgment as a matter of law. We further conclude that plaintiff's evidentiary showing in opposition to defendant's motion for summary judgment indicates that there are triable issues of material fact. Accordingly, we hold that the trial court erred in granting summary judgment for St. Luke's Hospital.

For the reasons stated the decision of the Court of Appeals upholding summary judgment for St. Luke's Hospital, Inc., is reversed. This case is remanded for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.