Hall Ex Rel. Powell v. Funderburk

Court of Appeals of North Carolina

Hall Ex Rel. Powell v. Funderburk

208 S.E.2d 402, 23 N.C. App. 214, 1974 N.C. App. LEXIS 2053

CourtCourt of Appeals of North Carolina

DecidedOctober 2, 1974

Docket7421SC709

StatusPublished

Cited by4 cases

This text of 208 S.E.2d 402 (Hall Ex Rel. Powell v. Funderburk) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hall Ex Rel. Powell v. Funderburk, 208 S.E.2d 402, 23 N.C. App. 214, 1974 N.C. App. LEXIS 2053 (N.C. Ct. App. 1974).

Pincite

Opinion

BRITT, Judge.

The question presented here is whether the defendant has borne the burden which the law places upon a movant for summary judgment.

Authoritative decisions, both State and federal, interpreting and applying Rule 56, hold that “[t]he party moving for a summary judgment has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.” 6 Moore’s Federal Practice, § 56.15 [8], at 2439 (2d ed. 1971) ; Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972).

In the case at bar, the materials presented show that'there is a genuine issue with respect to negligence on the part of defendant. It is well settled, however, that the negligence relied on must be shown to have a causal relationship to the, injury in order to avail plaintiff. 6 Strong, N. C. Index 2d, Negligence § 8, pp. 17, 18 (1968). Defendant argues that there is no showing that Cathy’s condition was any worse at 5:00 p.m. when she underwent surgery than it was the preceding midnight when defendant examined her. The question then arises, on defendant’s motion for summary judgment, was it incumbent on plaintiffs to show causation, or was it incumbent on defendant to show lack of causation? We hold that the burden was on defendant.

A review of the cases cited by defendant reveals that the courts in those cases were passing upon motions interposed at trial for a directed verdict or nonsuit. Weatherman v. White, 10 N.C. App. 480, 179 S.E. 2d 134 (1971) ; Gower v. Davidian, 212 N.C. 172, 193 S.E. 28 (1937) ; Sinkey v. Surgical Associates, *217 186 N.W. 2d 658 (Iowa 1971) ; Skodje v. Hardy, 47 Wash. 2d 557, 288 P. 2d 471 (1955) ; and, Jaeger v. Stratton, 170 Wis. 579, 176 N.W. 61 (1920). In those cases, the burden was on the plaintiff to show causation but in the instant case on defendant’s motion for summary judgment, the plaintiff had alleged causation and it was incumbent upon the defendant as the mov-ant to clearly establish that there was no causal relation between his act and Cathy’s injury. This the defendant did not do.

For the reasons stated, the judgment is

Reversed.

Judges Hedrick and Baley concur.

Free access — add to your briefcase to read the full text and ask questions with AI

BRITT, Judge.

The question presented here is whether the defendant has borne the burden which the law places upon a movant for summary judgment.

Authoritative decisions, both State and federal, interpreting and applying Rule 56, hold that “[t]he party moving for a summary judgment has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.” 6 Moore’s Federal Practice, § 56.15 [8], at 2439 (2d ed. 1971) ; Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972).

In the case at bar, the materials presented show that'there is a genuine issue with respect to negligence on the part of defendant. It is well settled, however, that the negligence relied on must be shown to have a causal relationship to the, injury in order to avail plaintiff. 6 Strong, N. C. Index 2d, Negligence § 8, pp. 17, 18 (1968). Defendant argues that there is no showing that Cathy’s condition was any worse at 5:00 p.m. when she underwent surgery than it was the preceding midnight when defendant examined her. The question then arises, on defendant’s motion for summary judgment, was it incumbent on plaintiffs to show causation, or was it incumbent on defendant to show lack of causation? We hold that the burden was on defendant.

A review of the cases cited by defendant reveals that the courts in those cases were passing upon motions interposed at trial for a directed verdict or nonsuit. Weatherman v. White, 10 N.C. App. 480, 179 S.E. 2d 134 (1971) ; Gower v. Davidian, 212 N.C. 172, 193 S.E. 28 (1937) ; Sinkey v. Surgical Associates, *217 186 N.W. 2d 658 (Iowa 1971) ; Skodje v. Hardy, 47 Wash. 2d 557, 288 P. 2d 471 (1955) ; and, Jaeger v. Stratton, 170 Wis. 579, 176 N.W. 61 (1920). In those cases, the burden was on the plaintiff to show causation but in the instant case on defendant’s motion for summary judgment, the plaintiff had alleged causation and it was incumbent upon the defendant as the mov-ant to clearly establish that there was no causal relation between his act and Cathy’s injury. This the defendant did not do.

For the reasons stated, the judgment is

Reversed.

Judges Hedrick and Baley concur.

Cite This Page — Counsel Stack

Bluebook (online)

208 S.E.2d 402, 23 N.C. App. 214, 1974 N.C. App. LEXIS 2053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-ex-rel-powell-v-funderburk-ncctapp-1974.

Opinion

Related

Cite This Page — Counsel Stack