Appeal by plaintiff-appellant from a judgment entered 8 March
2000 by Judge David Q. LaBarre in Caswell County Superior Court.
Heard in the Court of Appeals 28 September 2001.
George B. Daniel, P.A., by John M. Thomas, for plaintiff-
appellant.
Teague, Rotenstrich and Stanaland, L.L.P., by Stephen G.
Teague, for defendant-appellee Green.
BIGGS, Judge.
Plaintiff appeals an order granting summary judgment in favor
of defendant, Anthony Green in an action for personal injuries.
In addition to defendant, plaintiff sued Stacey and Houston
Hamlett. The trial against the Hamletts was severed from the trial
against Green and reported in a separate opinion. For the reasons
herein, we affirm the trial court's grant of summary judgment in
favor of Green.
The evidence at trial tended to show the following: On 30
June 1993, at approximately 3:00 a.m. plaintiff was traveling
easterly en route home to Providence, North Carolina from work in
Greensboro, North Carolina. She described the traveling conditions
as slightly foggy and dark. She was driving a 1984 Ford Escortthat she planned to purchase from a relative of defendant, Anthony
Green. Plaintiff explained that she had not had any past
mechanical problems with the vehicle; however, while driving
easterly on the highway, plaintiff began to experience problems
when the vehicle's stick shift kept “popping out of gear[.]” After
crossing Highway 86 onto Park Springs Road, the vehicle became
disabled forcing her to stop on the side of the two-lane road.
Shortly thereafter, plaintiff saw a vehicle approaching from
the opposite direction and recognized the vehicle as belonging to
defendant. Defendant, who was traveling westerly on the highway,
slowed down, pulled his vehicle onto the shoulder of the roadway
and parked it partially on the roadway in the lane opposite
plaintiff's disabled vehicle. Plaintiff emerged from her car and
walked across the roadway to defendant's car, while defendant
remained seated with the driver's door open and the engine running.
While engaged in conversation with defendant, plaintiff saw
the headlights of Stacey and Houston Hamlett's vehicle coming from
around the corner and approaching the roadway from approximately
“300 yards away[.]” The Hamletts, like defendant, were traveling
westerly on the highway. After telling defendant that a car was
approaching, plaintiff turned away and began to walk back across
the roadway towards her vehicle. The Hamletts' vehicle collided
first with defendant's vehicle, then struck and injured plaintiff,
before colliding with plaintiff's vehicle. Plaintiff sustained a
fractured left femur which required surgery.
Plaintiff filed an action on 30 October 1998, againstdefendant and the Hamletts for the injuries she suffered when she
was struck while crossing the roadway. In her complaint, plaintiff
alleged the following with respect to the defendant: (1) he was
negligent in that he parked, or left standing, his motor vehicle
that was not disabled on a public highway in violation of N.C.G.S.
§ 20-161(a) (1999); (2) he operated his vehicle in willful or
wanton disregard of the rights or safety of others, in violation of
N.C.G.S. § 20-140(a) (1999); and (3) the negligence of defendant
was concurrent and joined with the negligence of the Hamletts.
On 8 March 2000, the trial involving the Hamletts took place.
The trial court entered an order granting a directed verdict in
favor of the Hamletts, finding that the plaintiff was
contributorily negligent as a matter of law. The trial court
thereafter dismissed plaintiff's action against the Hamletts. From
the entry of the directed verdict and dismissal of her action
against the Hamletts, plaintiff gave notice of appeal to this
Court, which is now pending in a separate action (COA00-1110).
Following the dismissal of plaintiff's action against the
Hamletts, on 3 April 2000, defendant moved for summary judgment and
for judgment on the pleadings. On 1 May 2000, the trial court
granted defendant's motion for summary judgment based on its ruling
in the Hamlet's trial that plaintiff was contributorily negligent
as a matter of law. Plaintiff filed notice of appeal on 31 May
2000.
Plaintiff's sole assignment is that the trial court erred in
granting defendant's motion for summary judgment in that there were
existing genuine issues of material fact regarding the negligence
of defendant and the contributory negligence, if any, of plaintiff.
We disagree.
Summary judgment is proper when
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.G.S. § 1A-1, Rule 56(c)(1999);
DiOrio v. Penny, 331 N.C. 726,
417 S.E.2d 457 (1992). The party moving for summary judgment
“assumes the burden of positively and clearly showing there is no
genuine issue as to any material fact.”
Lewis v. Blackman, 116
N.C. App. 414, 417, 448 S.E.2d 133, 135 (1994). The record will be
reviewed in the light most favorable to the non-movant, and all
inferences will be drawn against the movant.
Caldwell v. Deese,
288 N.C. 375, 218 S.E.2d 379 (1975). In a ruling on a motion for
summary judgment, the trial court does not resolve issues of fact.
Ragland v. Moore, 299 N.C. 360, 363, 261 S.E.2d 666, 668 (1980).
Summary judgment is improper if any material fact is subject to
dispute.
Id.
To prevail on a motion for summary judgment, the defendant
must show either that: (1) an essential element of the plaintiff'sclaim is nonexistent; or (2) the plaintiff is unable to produce
evidence that supports an essential element of his claim; or, (3)
the plaintiff cannot overcome affirmative defenses raised against
him.
Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835
(2000). To survive a summary judgment motion, an adverse party may
not rest upon the mere allegation of its pleadings.
Nicholson v.
County of Onslow, 116 N.C. App. 439, 441, 448 S.E.2d 140 (1994);
see also, N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990). A response,
by affidavits or as otherwise provided by Rule 56, must set forth
specific facts showing that there is a genuine issue for trial.
Id. Our Supreme Court in
Roumillat v. Simplistic Enterprises,
Inc., 331 N.C. 57, 414 S.E.2d 339 (1992), held that once the
defendant shows the plaintiff's inability to prove an element, the
burden shifts to the plaintiff for a contrary showing.
Id. at 64,
414 S.E.2d at 342. If the plaintiff does not meet this burden,
summary judgment is proper.
Nicholson, 116 N.C. at 441, 448 S.E.2d
at 141.
In the instant case, defendant contends that he is entitled to
summary judgment in that the trial court in plaintiff's action
against the Hamletts ruled that plaintiff was contributorily
negligent as a matter of law and that the doctrine of
res judicata
precludes her for re-litigating that issue. Under the doctrine of
res judicata, when a court of competent jurisdiction has reached a
decision on facts in issue, neither of the parties are allowed tocall that decision into question and have it tried again.
Green v.
Dixon, 137 N.C. App. 305, 308, 528 S.E.2d 51, 53 (2000). The
essential elements of
res judicata are: (1) a final judgment on the
merits in an earlier lawsuit; (2) identity of the cause of action
in the prior suit and the later suit; and (3) an identity of the
parties or their privies in both suits.
Green, 137 N.C. App. 305,
528 S.E.2d 51;
see also, Hogan v. Cone Mills Corp., 315 N.C. 127,
135, 337 S.E.2d 477, 482 (1985).
In the case
sub judice, plaintiff filed a complaint arising
out of the 30 June 1993 accident alleging negligence on the part of
defendant and the Hamletts. The matter was calendared for trial,
however due to a delay in the provision of discovery, the Court
granted a continuance of the trial as to defendant Green, and
severed issues as to co-defendants Hamletts. The claim against the
Hamletts proceeded to jury trial before the Honorable David
LaBarre. At the close of plaintiff's evidence, the court directed
a verdict against the plaintiff and concluded, in part, that
plaintiff was contributorily negligent as a matter of law.
Defendant Green then filed his motion for summary judgment based on
the trial court's ruling that plaintiff was contributorily
negligent as a matter of law. We conclude that the doctrine of
res
judicata does preclude a re-litigation of whether plaintiff was
contributorily negligent as a matter of law in that both law suits
arose out of a single action, involved the same set of facts andinvolve identical issues related to plaintiff's contributory
negligence.
Our Supreme Court reached a similar conclusion in
Stancil v.
McIntyre, 237 N.C. 148, 74 S.E.2d 345 (1953). In that case a truck
and automobile were involved in an accident resulting in the death
of a passenger in the automobile. The driver of the automobile was
denied recovery because she was found to have been contributorily
negligent. In a subsequent suit for wrongful death against the
truck driver, he filed a claim for contribution against the driver
of the automobile. The Court held that the earlier judgment was
res judicata on the issue of the automobile driver's negligence.
Morever, the Court held that it was not necessary that precisely
the same parties were plaintiffs and defendant in the two suits.
Lastly, a cause of action determined by an order for directed
verdict is a final judgment on the merits.
See generally, Evan v.
Cowan, 122 N.C. App. 181, 183, 468 S.E.2d 575, 577,
aff'd per
curiam, 345 N.C. 177, 477 S.E.2d 926 (1996) (citation omitted).
Having determined that the doctrine of
res judicata precludes
the re-litigation of the issue of plaintiff's contributory
negligence, defendant has met its burden to prevail on his motion
for summary judgment. To survive the motion, the burden shifts to
plaintiff to show that there is a genuine issue for trial.
Plaintiff has failed to offer any evidence or counter-affidavits
contesting the grounds for summary judgment set forth by defendant. The trial court was left with the bare allegations of plaintiff's
complaint and such inferences as could be gathered for the court's
adverse examination offered by the defendant. While we recognize
that summary judgment is an extreme remedy and rarely granted in
negligence actions, we hold that the trial court did not err in
granting defendant's motion based on the facts of this case.
Accordingly, we affirm the trial court's grant of summary
judgment in favor of defendant.
Affirmed.
Judges MCGEE and TIMMONS-GOODSON concur.
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