Long v. Long

190 S.E.2d 415 (1972) 15 N.C. App. 525

Macy Almond LONG, Jr.
v.
Linda Kay LONG.

No. 7213DC328.

Court of Appeals of North Carolina.

August 2, 1972.

R. C. Soles, Jr., Tabor City, for plaintiff appellant.

Powell & Powell, by Frank M. Powell, Whiteville, for defendant appellee.

MORRIS, Judge.

We are aware that summary judgment is an extreme remedy which should only be used where no genuine issue of material fact is presented, Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971); and that it is generally conceded summary judgment will not usually be feasible in negligence cases where the standard of the prudent man must be applied, Pridgen v. Hughes, 9 N. C.App. 635, 177 S.E.2d 425 (1970), and Robinson v. McMahan, 11 N.C.App. 275, 181 S.E.2d 147 (1971), cert. denied 279 N. C. 395, 183 S.E.2d 243 (1971). The court's sole function in ruling on a motion for summary judgment is to determine whether there exists any genuine issue of material fact to be tried, not to decide issues of fact. Lee v. Shor, 10 N.C.App. 231, 178 S.E.2d 101 (1970). Because the burden is on the moving party to establish the lack of a triable issue of fact, the motion may only be granted where he shows he is entitled to a judgment as a matter of law. Singleton v. Stewart, 280 N.C. 460, 186 S. E.2d 400 (1972). Applying the above-mentioned principles to the facts of the case at bar, we find no error in granting defendant's motion for summary judgment since it appears that even if the facts as claimed by plaintiff are proved, there can be no recovery.

Negligence must be a proximate cause of injury or damage in order to constitute the basis for a cause of action, and foreseeability of injury is an essential element of proximate cause. 6 Strong, N.C. Index 2d, Negligence, §§ 8, 9, pp. 17, 22; Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

In the case before us, plaintiff testified by deposition that he had enough mechanical knowledge to install a transmission in an automobile but that he did not know what part of the motor the fire was coming from and neither did the defendant. Defendant testified that she had no automobile mechanical training, could not explain the process of internal combustion, did not know how gasoline gets from the tank into the carburetor and the ignition, did not know what a piston was or how a carburetor operates, and could not even change a tire. Defendant in her deposition related how she had trouble starting the automobile about a week before it burned but did not tell plaintiff about it. She could get it "to go" by patting on the gas pedal, and it would "spit and sputter" but didn't catch on fire. "I might have smelled it (smoke) or when I pumped the gas I could smell some gasoline but I didn't pay it too much attention." The trouble defendant experienced and which she described as "spit and sputter" was a noise coming from the motor, and she never saw any fire. As for smoke, "I might have seen some coming up under the hood but it was a little bit, nothing, you know, not thought it was supposed to be anything." Defendant corroborated her husband's assessment that she did not know where the fire came from which caused the injuries ". . . unless it came from under the dash where he said." Under these facts, if presented at trial, defendant would be entitled to a directed verdict in her favor. Thus defendant, as moving party, has sufficiently met her burden of proving there was no genuine issue as to any material fact, and the unsupported allegations in the complaint are not sufficient to overcome the motion for summary judgment.

Affirmed.

BROCK and HEDRICK, JJ., concur.