Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc. , 69 N.C. App. 164 ( 1984 )

316 S.E.2d 318 (1984)

SOUTHERN WATCH SUPPLY COMPANY, INC.
v.
REGAL CHRYSLER-PLYMOUTH, INC. and Chrysler Corporation.

No. 8326SC652.

Court of Appeals of North Carolina.

June 19, 1984.

Levine, Goodman & Carr by Miles S. Levine, Charlotte, for plaintiff-appellant.

John B. Yorke and Mark T. Sumwalt, Charlotte, for defendant-appellee.

ARNOLD, Judge.

Plaintiff contends that the trial court erred in granting defendant's motion for summary judgment in that plaintiff's evidence does present a genuine issue of material fact as to whether the negligence of defendant proximately caused plaintiff's loss. We agree with this contention and reverse the order of the trial court.

Summary judgment is proper only where there are no material facts in issue. Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). However, summary judgment is a drastic remedy and should be exercised with caution. Moore v. Bryson, 11 N.C.App. 260, 181 S.E.2d 113 (1971).

This cautionary approach is particularly appropriate with negligence cases. Because the typical negligence case requires a determination of negligence and causation, "[i]t is only in the exceptional negligence case that summary judgment should be invoked. Even where there is no substantial dispute as to what occurred, it usually remains for the jury to apply the standard of the reasonably prudent man to the facts of the case." Roberson v. Griffeth, 57 N.C.App. 227, 238, 291 S.E.2d 347, 354, disc. rev. denied 306 N.C. 558, 294 S.E.2d 224 (1982). Generally, summary judgment is a proper remedy only where it appears that there can be no recovery even if the facts as claimed by plaintiff are accepted as true. Whitaker v. Blackburn, 47 N.C.App. 144, 266 S.E.2d 763 (1980). Similarly, where it is clearly established that defendant's negligence was not the proximate cause of plaintiff's injury, summary judgment is appropriate. Edwards v. Akion, 52 N.C.App. 688, 279 S.E.2d 894, aff'd, 304 N.C. 585, 284 S.E.2d 518 (1981). Applying these principles, we find that the trial court erred in granting summary judgment for defendant.

"Negligence is the failure to exercise that degree of care for the safety of others that a reasonably prudent person would exercise under the same circumstances," but "[t]o be actionable the conduct complained of must be the proximate cause of the injury." Bogle v. Duke Power Co., 27 N.C.App. 318, 321, 219 S.E.2d 308, 310, (1975), disc. rev. denied 289 N.C. 296, 222 S.E.2d 695 (1976). An essential element of proximate cause is that the harm be foreseeable. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Moreover, "[i]t is not necessary that a defendant anticipate the particular consequences which ultimately result from his negligence. It is required only ``that a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable under the facts as they existed.'" Id. at 107, 176 S.E.2d at 169 (quoting Adams v. Board of Education, 248 N.C. 506, 103 S.E.2d 854 (1958).

Plaintiff's evidence tended to show that Paul Yandle had dealt with defendant Regal Chrysler-Plymouth for over 20 years before he bought the automobile in 1978. A reasonably prudent person could find that an automobile dealership owes a duty to its customers not to divulge serial numbers over the telephone without the authorization of the customer, and that a reasonably prudent dealer would know that with the correct serial numbers keys can be duplicated. The evidence here establishes at the very least a genuine question as to whether defendant failed to meet the requisite standard of care and, thus, breached its duty to plaintiff.

Defendant contends, however, that summary judgment was proper in that plaintiff has failed to establish the essential element of proximate cause, but, instead, advances an argument based on mere speculation and conjecture. Again, plaintiff's evidence showed that on 21 February 1980 defendant's bookkeeper gave out the serial numbers over the telephone and that, on the very next day, Paul Yandle's trunk was entered and plaintiff's jewelry was stolen, ostensibly by the use of a key. Taken in the light most favorable to plaintiff, this evidence presents a genuine issue of material fact as to whether defendant's negligence proximately caused the loss of the jewelry. Certainly, it is reasonably foreseeable that the unauthorized act of giving the serial numbers to the caller could have been the cause of the theft. In any event, defendant has not shown that plaintiff's negligence was not the proximate cause of the injury. As the North Carolina Supreme Court stated in Williams v. Carolina Power and Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979), "it is only in exceptional cases, in which reasonable minds cannot differ as to foreseeability of injury, that a court should decide proximate cause as a matter of law. ``[P]roximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in the consideration of the evidence of each particular case.'" Id. at 403, 250 S.E.2d at 258 (quoting W. Prosser, Torts § 45 (4th ed. 1971).

We find that the evidence introduced by plaintiff does establish a genuine question as to whether the negligence of defendant was the proximate cause of plaintiff's loss. This question should be answered by a jury. The order of the trial court granting defendant's motion for summary judgment is, therefore,

Reversed.

HEDRICK and PHILLIPS, JJ., concur.