Dendy v. Watkins , 26 N.C. App. 81 ( 1975 )

VAUGHN, Judge.

The only question on appeal is whether defendant’s motion for summary judgment should have been granted by the trial court. Summary judgment is granted only where the moving party shows that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823.

Summary judgment is appropriate in negligence cases only in exceptional circumstances. In Page v. Sloan, 281 N.C. 697, 706, 190 S.E. 2d 189, 194, the Supreme Court wrote:

“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, 8 L.Ed. 2d 176, 82 S.Ct. 993 (1962).”

We hold that this case is not one of those exceptional negligence cases in which the judge, solely on the basis of the materials before him, could properly grant summary judgment. The judgment is reversed and the case is remanded.

Reversed and remanded.

Judges Morris and Clark concur.