Spivey v. White Motor Corp. , 46 N.C. App. 313 ( 1980 )

264 S.E.2d 772 (1980)

Frederick Alan SPIVEY
v.
WHITE MOTOR CORPORATION.

No. 7921SC765.

Court of Appeals of North Carolina.

April 15, 1980.

Wilson & Redden by W. M. Speaks, Jr., Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice by Daniel W. Donahue, Winston-Salem, for defendant-appellee.

ERWIN, Judge.

"In ruling on a motion for summary judgment, the Court does not resolve issues of fact but goes beyond the pleadings to determine whether there is a genuine issue of material fact. The moving party has the burden of establishing the absence of any triable issue, and the Court in considering the motion carefully scrutinizes the papers of the moving party and, on the whole, regards those of the opposing party with indulgence. This burden may be carried by movant by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim. 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, 29, 209 S.E.2d 795, 798 (1974). In the instant case, defendant presented evidence that it had inspected the brake system, but had discovered no defects. Plaintiff did not produce any evidence that defendant failed to use reasonable care in its inspection or that the specific, alleged defect was discoverable. Once defendant came forward with its evidence, it became incumbent for plaintiff to come forward with some specific evidence to support his claim, Moore v. Fieldcrest Mills, 296 N.C. 467, 251 S.E.2d 419 (1979), and he could not rest upon the bare allegations in his complaint. Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865 (1971). Moreover, plaintiff was required to prove the prior existence of some specific defect in the brake system, which was the proximate cause of his injury. Wyatt v. Equipment Co., 253 N.C. 355, 117 S.E.2d 21 (1960); Coakley v. Motor Co., 11 N.C.App. 636, 182 S.E.2d 260, cert. denied, 279 N.C. 393, 183 S.E.2d 244 (1971). The affidavit of Walter Kivett is not sufficient. It merely alleges that there had been prior problems with the computer portion of the braking system. It does not intimate that a defect in the computer portion of the brake system was the immediate cause of brake failure and the proximate cause of plaintiff's injury. Plaintiff's allegations as to lack of reasonable maintenance of the brake system are deficient for the same reason. The truck was repaired only once for a problem with the brake system. The specific problem, the staying on of an anti-skid light, was remedied. Assuming, as we must, that reports were made concerning problems of the computer portions of the brake system, there is still no evidence that this defect was the proximate cause of plaintiff's injury or the brake's failure, as required. See Funeral Home v. Pride, 261 N.C. 723, 136 S.E.2d 120 (1964); Wyatt v. Equipment Co., supra; Coakley v. Motor Co., supra.

The judgment is

Affirmed.

ROBERT M. MARTIN and CLARK, JJ., concur.