Ray v. Lewis Hauling & Excavating, Inc.

549 S.E.2d 237, 145 N.C. App. 94, 2001 N.C. App. LEXIS 563
CourtCourt of Appeals of North Carolina
DecidedJuly 17, 2001
DocketNo. COA00-1009
StatusPublished
Cited by1 cases

This text of 549 S.E.2d 237 (Ray v. Lewis Hauling & Excavating, Inc.) 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
Ray v. Lewis Hauling & Excavating, Inc., 549 S.E.2d 237, 145 N.C. App. 94, 2001 N.C. App. LEXIS 563 (N.C. Ct. App. 2001).

Opinion

TYSON, Judge.

Lewis Hauling and Excavating, Inc. (“Lewis Hauling”) and Alan Edward Petty (“Petty”) (collectively “defendants”) appeal the trial court’s denial of their motion for summary judgment. We affirm the trial court’s order.

A.Facts

On 15 September 1996, defendant Petty was driving a 1996 Mack dump truck owned by his employer defendant Lewis Hauling. Vivian Hall Ray (“plaintiff’) was also driving her car when she and Petty collided as Petty was making a left hand turn. According to Petty, he had unloaded his dump truck and was en route to get another load when the accident occurred. Plaintiff and Petty disagree about who is at fault.

At the time of the accident, Lewis Hauling, a Florida Corporation, was under contract with Siboney Corporation of West Palm Beach, Florida to provide its dump trucks and employee operators to assist in clean-up efforts in the aftermath of Hurricane Fran.

Hurricane Fran passed through Raleigh on 4 and 5 September 1996. On 5 September 1996, the Governor of the State of North Carolina issued a Proclamation of State of Emergency pursuant to G.S. § 14-288.15 and G.S. § 166A-6.

Plaintiff filed her complaint on or about 14 April 1997 alleging that defendant, Petty, was negligent and that plaintiff suffered resulting injuries. On or about 14 May 1997, defendants answered. Defendants denied negligence and asserted plaintiff’s contributory negligence as a defense. After discovery, defendants moved for summary judgment on 22 October 1999. On or about 1 May 2000, defendants’ motion was denied. Defendants appeal.

B.Issue

The only issue on appeal is whether the trial court erred in not granting summary judgment in favor of defendants.

C.Defendants’ Contentions

Defendants argue that the trial court erred as a matter of law in denying defendants’ motion for summary judgment regarding plaintiff’s claim for relief alleging negligence. Defendants contend that [96]*96they are statutorily entitled to governmental immunity pursuant to G.S. 166A-14 and G.S. 166A-15. We are unable to decide as a matter of law whether defendants are entitled to statutory immunity. We hold defendants, as movants for summary judgement, have failed to proffer sufficient evidence to carry their burden of proving that there is no genuine issue of material fact.

Although not raised by defendants as an issue, we note initially that this appeal is from an interlocutory order which is generally not appealable. Tise v. Yates Const. Co., Inc., 122 N.C. App. 582, 584, 471 S.E.2d 102, 105 (1996), affirmed as modified and remanded, 345 N.C. 456, 480 S.E.2d 677 (1997) (citing Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). However, interlocutory orders have been held to be properly appealable in cases where defendant alleges governmental immunity. Id. A defense of governmental immunity affords its possessor the privilege of not having to answer a civil claim. See Thompson v. Town of Dallas, 142 N.C. App. 651, 543 S.E.2d 901 (2001); Corum v. University of North Carolina, 97 N.C. App. 527, 389 S.E.2d 596 (1990), affirmed in part, reversed in part, and remanded, 330 N.C. 558, 418 S.E.2d 664 (1992). Defendants’ appeal is properly before us.

Defendants claim the trial court erred in not granting to them the statutory governmental immunity afforded under the North Carolina Emergency Management Act (“EMA”) as a defense against plaintiffs claim of negligence. See N.C. Gen. Stat. Article 1 of Chapter 166A. Defendants argue that they were engaged in “recovery” efforts following Hurricane Fran which were covered by the immunity provisions of the EMA. Defendants claim that defendant, Petty, was an “emergency management worker” (“EMW”) performing “emergency management services” on behalf of the Army Corps of Engineer (“Army Corps”). “Emergency management worker” is defined in G.S. § 166A-14(d). The phrase “emergency management services” is used in G.S. § 166A-14(e), but it is not defined. “Emergency Management” is defined as “[t]hose measures taken by the populace and governments at federal, State, and local levels to minimize the adverse effect of any type of disaster, which include the never-ending preparedness cycle of prevention, mitigation, warning, movement, shelter, emergency assistance and recovery.” N.C. Gen. Stat. § 166A-4(1) (1995). EMW’s are accorded qualified immunity while performing the governmental functions as set out in the EMA. N.C. Gen. Stat. § 166A-14 (1995).

[97]*97D. Summary Judgment

A motion for summary judgment should not be granted if there are genuine issues of material fact. Summary judgment should be granted only 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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (1967). “Such evidence must be viewed in the light most favorable to the non-moving party with all reasonable inferences also drawn in favor of the non-movant.” Markham v. Nationwide Mut. Fire Ins. Co., 125 N.C. App. 443, 448-49, 481 S.E.2d 349, 353 (1997) (citing Whitley v. Cubberly, 24 N.C. App. 204, 206-07, 210 S.E.2d 289, 291 (1974)).

“ ‘Irrespective of who has the burden of proof at trial. . ., upon a motion for summary judgment the burden is upon the party moving therefor to establish that there is no genuine issue of fact... and that he is entitled to judgment as a matter of law.’ ” Whitley at 206, 210 S.E.2d at 291 (quoting First Federal Savings & Loan Assoc. v. Branch Banking & Trust Co., 282 N.C. 44, 51, 191 S.E.2d 683, 688 (1972)). “The burden does not shift to the non-moving party unless the movant proffers sufficient evidence to “ ‘negative [ ] [the non-movant’s] claim ... in its entirety.’ ” Id.

Our Supreme Court has maintained that “on a motion for summary judgment the burden of proving that there is no genuine issue as to any material fact is on the movant, and if he fails to carry that burden, summary judgment is not proper, whether or not the nonmoving party responds.” Goodman v. Wenco Foods, Inc., 333 N.C. 1, 27, 423 S.E.2d 444, 457 (citing Steel Creek Dev. Corp. v. James, 300 N.C. 631, 637, 268 S.E.2d 205, 209 (1980)). We analyze defendants’ contentions in light of the evidence presented to the trial judge who denied summary judgment.

E. N.C. Gen. Stat.. § 166A-14

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549 S.E.2d 237, 145 N.C. App. 94, 2001 N.C. App. LEXIS 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-v-lewis-hauling-excavating-inc-ncctapp-2001.