Moore v. Fieldcrest Mills, Inc.

244 S.E.2d 208 (1978) 36 N.C. App. 350

Floyd MOORE
v.
FIELDCREST MILLS, INC., and Monsanto Company.

No. 777SC478.

Court of Appeals of North Carolina.

May 16, 1978.

Narron, Holdford, Babb, Harrison & Rhodes by William H. Holdford, Wilson, for plaintiff-appellant.

Young, Moore, Henderson & Alvis by R. Michael Strickland, Raleigh, for defendant-appellee Fieldcrest Mills, Inc.

Connor, Lee, Connor, Reece & Bunn by John M. Reece, Wilson, for defendant-appellee Monsanto Co.

MORRIS, Judge.

Plaintiff's cause of action is grounded upon negligence. Paragraphs VII and VIII of his complaint specifically allege the negligence of the defendants. In his brief, plaintiff relies heavily upon Honeycutt v. Bryan, 240 N.C. 238, 81 S.E.2d 653 (1954), which deals with a shipper's duty to load cargo in a safe manner. It is clear, however, that this duty is nothing more than the normal duty of due care. Also, plaintiff's brief characterizes his status as that of an "invitee". Again, the landowner's duty is nothing more than the duty of due care. Thus, plaintiff's complaint states only a cause of action for negligence.

Upon defendants' motion for summary judgment, they must show that there is no genuine issue as to any material fact and that they, as movants, are entitled to judgment as a matter of law. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972).

In the present case there is no genuine issue as to any material fact. The only potential conflict in the present case is whether Fieldcrest's employee Mr. Boyd "knew . . . that where the length of the bales ran with the width of the trailer as the defendant, Monsanto Company, had loaded these bales the stacks of bales were unstable and would tumble over". Plaintiff examined Boyd, and Boyd testified that the occasion of plaintiff's injury "was the only time they [a stack of bales] had fell [sic]." Boyd did testify that "bales of acrylic fiber with the plastic exterior coating are a little slippery". Otherwise, the record is devoid of any suggestion that Boyd knew the stacks were "unstable and would tumble over".

This Court, as well as our Supreme Court, has frequently warned parties that "when the moving party presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party's case, or otherwise suffer a summary judgment." Frank H. Connor Co. v. Spanish Inns Charlotte, Limited et al., 294 N.C. 661, ___, 242 S.E.2d 785, 793 (1978). In this case, plaintiff only has mere allegations to support his claim. He offers no facts whatsoever to establish negligence. Where the moving party offers facts and the opposing party only offers mere allegations, there is no genuine issue as to a material fact.

Save for the general unsupported allegations in the complaint, nowhere is there even a suggestion as to how that method of stacking bales amounts to negligence. Plaintiff cannot rely upon mere allegations. He must offer facts which support his claim for relief. Frank H. Connor Co. v. Spanish Inns Charlotte, Limited et al., supra.

Plaintiff argues strongly that summary judgment is inappropriate in negligence cases. However, in this instance, his argument is groundless. True, in some cases, the case should go to the jury so that the jury can apply the reasonable man standard to the facts even if the facts are not disputed. See Robinson v. McMahan, 11 N.C.App. 275, 181 S.E.2d 147 (1971), cert. den. 279 N.C. 395 (1971). In this case, the application of the reasonable man standard by the jury is unnecessary, because we find no facts even suggesting negligence. Here, there simply are no facts upon which to base the allegations of negligence. Summary judgment was properly entered against plaintiff.

Affirmed.

ARNOLD, J., concurs.

MARTIN, J., dissents.