Patterson Ex Rel. Jones v. Reid

178 S.E.2d 1 (1970) 10 N.C. App. 22

Deborah Jones PATTERSON, by Next Friend, Bobby Jones
v.
Ralph Conner REID and wife, Nancy L. Reid.

No. 7026SC472.

Court of Appeals of North Carolina.

December 16, 1970.

James H. Morton, Charlotte, for plaintiff-appellee.

Helms, Mulliss & Johnston by E. Osborne Ayscue, Jr., and Robert B. Cordle, Charlotte, for defendants-appellants.

PARKER, Judge.

The motion for summary judgment under Rule 56 of the Rules of Civil Procedure (G.S. § 1A-1, Rule 56) is a procedure new to the courts of this State. (For an excellent discussion of the history and purpose of the summary judgment procedure, see opinion by Morris, Judge, in Pridgen v. Hughes, N.C.App., 177 S.E.2d 425, filed November 18, 1970.) The purpose of the rule is not to resolve a disputed material issue of fact, if one exists, but to provide an expeditious method for determining whether any such issue does actually exist. The rule provides that "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Rule 56(c). When motion for summary judgment is made, the court must look at the record in the light most favorable to the party opposing the motion. Crest Auto Supplies, Inc. v. Ero Manufacturing Company, 360 F.2d 896 (7th Cir. 1966). However, when the motion is supported as provided in the rule, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Rule 56(e). The affidavits comtemplated by the rule, both those supporting and those opposing the motion, "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e).

In the case before us, plaintiff alleged in her pleading a claim against defendants for injuries received by her from an animal with known vicious propensities. To recover for injuries inflicted by a domestic animal, a claimant must show (1) that the animal was in fact vicious, and (2) that the owner or keeper knew or should have known of its vicious propensities. The basis of the claim in this event is not negligence, but rather the wrongful keeping of the animal with knowledge of its viciousness. Swain v. Tillett, 269 N.C. 46, 152 S.E.2d 297. Here, plaintiff does not contend that the defendants owned the animal; she alleged it belonged to another. She does assert that defendants were the keepers of the animal. "The keeper is one who, either with or without the owner's permission, undertakes to manage, control, or care for the animal as owners in general are accustomed to do." Swain v. Tillett, supra.

Defendants' affidavits disclose they are prepared to offer competent evidence to show that their only connection with the horse in this case was that they permitted its owner, their tenant, to pasture it in their pasture, that they did not at any time "manage, control, or care for the animal as owners in general are accustomed to do," and that the horse was not in fact vicious and defendants neither knew nor had any reason to know of any vicious propensity on its part. These facts, if established, would defeat plaintiff's claim. Defendants' affidavits are, therefore, sufficient to require summary judgment in their favor unless plaintiff is prepared to show that there is a genuine issue as to these facts. To do so, she may not rest upon the mere allegations in her pleading, but her response, by affidavits or otherwise as provided in Rule 56, "must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e).

Turning to plaintiff's affidavits, we find that some of the statements therein are based on hearsay. These would not be admissible in evidence and should not be considered in passing on the motion for summary judgment. Rule 56(e). Considering such of the facts stated in plaintiff's affidavits as would be admissible in evidence, and construing these in the light most favorable to plaintiff, we find plaintiff has failed to show that she can offer any competent evidence to prove that the defendants were the "keepers" of the animal here involved, within the definition of that word as contained in Swain v. Tillett, supra. Furthermore, even if a liberal construction of plaintiff's affidavits show that she can produce some competent evidence from which a jury might permissibly find that the horse here involved was a vicious animal, they completely fail to disclose that she has any competent evidence to show that defendants either knew or had any reasonable cause to know of any such vicious propensities. Her affidavits, therefore, fail to "set forth specific facts showing that there is a genuine issue for trial."

We note that a liberal construction of the allegations in plaintiff's complaint might support the contention that she has stated a valid claim for relief on the theory that defendants, even though being neither owners nor keepers of the horse, were nevertheless liable for her injuries in that they negligently encouraged plaintiff to ride the horse by allowing her to use saddles and other riding equipment owned by defendants without adult supervision or protection. However, here again, in order to recover on such a theory, it would be necessary for plaintiff to prove that defendants knew or should have known that the animal was in fact vicious. In addition, plaintiff would have to produce evidence that defendants actively encouraged plaintiff to ride. Her affidavits fail to show that she can produce any competent evidence to prove these facts.

Plaintiff having failed to show that there is a genuine issue for trial, defendants' motion for summary judgment in their favor should have been allowed. The judgment denying defendants' motion is

Reversed.

MALLARD, C. J., and HEDRICK, J., concur.