Caldwell v. Deese , 288 N.C. 375 ( 1975 )

218 S.E.2d 379 (1975) 288 N.C. 375

Ola Deese CALDWELL
v.
Davis W. DEESE.

No. 47.

Supreme Court of North Carolina.

October 7, 1975.

Myers & Collie by George C. Collie, Charlotte, for defendant appellant.

Mraz, Aycock,. Casstevens & Davis by Frank B. Aycock, III, Charlotte, for plaintiff appellee.

HUSKINS, Justice:

A party moving for summary judgment under Rule 56 has the burden of "clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded." 6 Moore's Federal Practice (2d ed. 1971) § 56.15[8], at 2439-40; Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). The movant must show (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. Rule 56(c); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).

The movant is held by most courts to a strict standard, and "all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion." 6 Moore's Federal Practice (2d ed. 1971) § 56.15[3], at 2337; accord, United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

Rule 56 does not authorize the court to decide an issue of fact, but rather to determine whether a genuine issue of fact exists. The rule "is for the disposition of cases where there is no genuine issue of fact and its purpose is to eliminate formal trials where only questions of law are involved." Kessing v. Mortgage Corp., supra. The rule is designed to permit penetration of an unfounded claim or defense in advance of trial and to allow summary disposition for either party when a fatal weakness in the claim or defense is exposed. "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, North Carolina Practice and Procedure, § 1660.5 (2d ed. Phillip's Supp.1970).

We now apply these legal principles to the record properly before us to determine the propriety of summary judgment for defendant in this case.

Was plaintiff injured and her property (dog) damaged by the negligence of the defendant? This is the paramount overriding issue of fact which plaintiff must establish at trial before any other issue can be reached. To support his motion for summary judgment and establish the nonexistence of negligence on his part, defendant offered plaintiff's sworn testimony contained in her deposition taken on 19 July 1974. In that deposition plaintiff described the occurrence when her dog was struck as follows:

"Q. If you would, then, go ahead and tell us what occurred as you remember it when you were in the yard there this afternoon?

"A. Well, when the children had come through the house and ran out into the yard and let the dog out and ran to the back of the car where Mrs. Laurent was standing and I was standing. The bus was coming up the hill, well, it's not, say, a hill, it's a grade. So when the children stopped the bus was right on the edge of the road and there was no other traffic there and so it hit the dog and he didn't make no attempt to stop. I ran between the dog and the children, because he was biting at just midair and when I reached down to grab my baby and my grandbaby to push them back, she caught me in the other hand.

"... Stratford Drive is a paved street ... inside the city limits ... a little over two cars wide.... Two trucks can go down it."

Viewing plaintiff's deposition in the light most favorable to her and drawing all inferences of fact against defendant, we conclude that defendant's "evidentiary forecast" was such that, if offered by plaintiff at the trial, without more, would compel a directed verdict in defendant's favor. It established a total lack of negligence on defendant's part and entitled him to judgment as a matter of law unless forestalled by a forecast of evidence by plaintiff sufficient to counter the effect of her deposition by showing some negligent act on defendant's part proximately causing injury to her and her dog. Plaintiff offered nothing—no counter-affidavits, admissions in pleadings, depositions, answers to interrogatories, or any other evidentiary material permitted by Rule 56(c). In that setting, we are constrained to hold that the supporting evidence offered and relied on by defendant establishes that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972); Martin B. Louis, Federal Summary Judgment Doctrine: A Critical Analysis, 83 Yale L.J. 745 (1974).

The rescue doctrine, pleaded in plaintiff's unverified reply, is accurately expressed in the following excerpt from Alford v. Washington, 238 N.C. 694, 78 S.E.2d 915 (1953): "The rule is well settled that one who sees a person in imminent and serious peril caused by the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attempting to effect a rescue, provided the attempt is not recklessly or rashly made." Although plaintiff's deposition shows that she "ran between the dog and the children, because he was biting at just midair" and was bitten when she attempted to rescue the children from danger, the rescue doctrine does not apply unless it be shown that the peril was caused by the negligence of another, I.e., in this case, the negligence of defendant.

We are not unmindful of the general proposition "that issues of negligence are ordinarily not susceptible of summary adjudication either for or against claimant, but should be resolved by trial in the ordinary manner." 6 Moore's Federal Practice (2d ed. 1971) § 56.17[42] at 2583; 3 Barron and Holtzoff, Federal Practice and Procedure (Wright ed. 1958) § 1232.1 at 106. We said in Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972): "It is only in exceptional negligence cases that summary judgment is appropriate. [Citations omitted.] This is so 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. Gordon, The New Summary Judgment Rule in North Carolina, 5 Wake Forest Intra.L.Rev. 87 (1969)." Our holding here in no way negates the sound principles there enunciated. Where, as here, a motion for summary judgment is supported by evidentiary matter showing a total lack of negligence on movant's part, and no evidence is offered in opposition thereto, no issue is raised for the jury to consider under appropriate instructions. Such is the posture of this case.

For the reasons stated the decision of the Court of Appeals reversing the entry of summary judgment in favor of defendant is

Reversed.