Kiser v. Snyder , 17 N.C. App. 445 ( 1973 )

194 S.E.2d 638 (1973) 17 N.C. App. 445

Steve W. KISER
v.
H. F. SNYDER et al.

No. 7321SC162.

Court of Appeals of North Carolina.

February 28, 1973. Certiorari Denied April 2, 1973.

White & Crumpler by James G. White, Michael J. Lewis and G. Edgar Parker, Winston-Salem, for plaintiff appellant.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter, Winston-Salem, for defendants appellees.

Certiorari Denied by Supreme Court April 2, 1973.

MALLARD, Chief Judge.

Rendition of summary judgment is, by the rule itself, conditioned upon a showing by the movant (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. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). "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." Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972). "``The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact. . . . His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.'" Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).

In Page v. Sloan, supra, it is said:

"While our Rule 56, like its federal counterpart, is available in all types of litigation to both plaintiff and defendant, ``we start with the general proposition that 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 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. It is only in exceptional negligence cases that summary judgment is appropriate. Rogers v. Peabody Coal Co., 342 F.2d 749 (C.A.6th 1965); Stace v. Watson, 316 F.2d 715 (C.A.5th 1963). 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).

Moreover, the movant is held by most courts to a strict standard in all cases; 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; United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)."

Nonetheless, summary judgment is proper in negligence actions where it appears that there can be no recovery even if the facts as claimed by plaintiff are true. McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972); Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425 (1970). When the facts are admitted or established, negligence is a question of law and the court must say whether it does or does not exist. McNair v. Boyette, supra; Hudson v. Transit Co., 250 N.C. 435, 108 S.E.2d 900 (1959).

The facts in this case are not admitted and neither are they agreed. Portions of the deposition of the plaintiff offered by the defendants in support of their motion are in conflict with other portions of the deposition, as well as portions of plaintiff's affidavit offered by the plaintiff in opposition to the motion. These conflicts, although they appear in plaintiff's statements, when carefully scrutinized and "indulgently regarded" in favor of the plaintiff, raise material issues of fact as to whether plaintiff was properly instructed as to the use of the metal shearing machine before being directed to use it.

Thus, when all the evidence is properly considered and all inferences of fact from the proofs proffered at the hearing are drawn against the movant (defendant) and in favor of the party opposing the motion (plaintiff), genuine issues of fact as to negligence, contributory negligence and damages were raised, and the defendants failed to carry the burden of showing that there was a lack of any triable issue of fact and that they were therefore entitled to judgment as a matter of law.

The entry of summary judgment was error.

Reversed.

MORRIS and HEDRICK, JJ., concur.