Appeal by plaintiffs from order entered 14 January 2002 by
Judge Gary E. Trawick in Superior Court, New Hanover County. Heard
in the Court of Appeals 13 November 2002.
Mako & Robinson, P.A., by Bruce H. Robinson, Jr., for
plaintiffs-appellant.
Marshall, Williams, & Gorham, L.L.P., by William Robert
Cherry, Jr., for defendant-appellee State Farm Mutual
Automobile Insurance Company.
Johnson & Lambeth, by Maynard M. Brown, for defendant-
appellee Nationwide Mutual Insurance Company.
McGEE, Judge.
Anna Eugenia Strickland (Anna) was struck by a vehicle
operated by an unknown driver (defendant) on Maple Avenue in
Wilmington, North Carolina at approximately 2:14 a.m. on 28 October
1997. Anna was walking across Maple Avenue after leaving a nearby
bar. Anna has no recollection of the accident or events
immediately preceding the accident. Defendant left the scene of
the accident and has never been identified.
Plaintiffs filed a complaint against defendant on 11 September
2000 alleging defendant was negligent in striking Anna withdefendant's vehicle. Plaintiffs allege that defendant's vehicle
struck Anna approximately 60 feet from the intersection of Maple
Avenue and South Kerr Avenue and dragged Anna under the vehicle for
approximately 53 feet. State Farm Mutual Automobile Insurance
Company (State Farm) and Nationwide Mutual Insurance Company
(Nationwide), the alleged uninsured motorist insurers, filed
answers alleging that Anna was contributorily negligent. State
Farm filed an amended answer dated 18 October 2000, alleging
additional contributory negligence defenses. Plaintiffs filed a
reply on 14 November 2000 alleging last clear chance. State Farm
and Nationwide filed motions for summary judgment on 17 December
2001 and 19 December 2001 respectively.
In support of their claim, plaintiffs submitted a letter from
their attorney to the attorneys for State Farm and Nationwide which
contained an unsigned summary of a private investigator who
interviewed Travis Kelly (Kelly), a young man who was with Anna at
the time of the accident. Kelly was not deposed, nor did he submit
an affidavit stating what he observed at the time of the accident.
The letter summarizing a report by the private investigator of what
Kelly told the investigator about the accident during an interview
was submitted as supplemental discovery. According to that letter,
Kelly told the investigator that after the vehicle struck Anna, it
continued down Maple Avenue with its brake lights jerking on and
off, and then turned into a carwash driveway. In the letter, the
investigator's summary said Kelly estimated that the vehicle wastraveling 20 to 25 miles per hour and that Kelly told the
investigator the car accelerated just before impact.
Plaintiffs also submitted an affidavit and police report of
the officer who arrived at the scene of the accident shortly after
it occurred. The investigating officer, Paul L. Nevitt (Officer
Nevitt), stated in an affidavit that Anna was struck by an unknown
motor vehicle while she was in the middle of Maple Avenue,
approximately 60 feet from an intersection; that the unknown
vehicle was straddling the center line; that there were no skid
marks prior to impact; that Anna was dragged by the unknown vehicle
approximately 53 feet; and that the weather was clear and the road
was dry at the time of the accident. Officer Nevitt also attached
a copy of the incident report to his affidavit.
Following a hearing, the trial court granted summary judgment
to State Farm and Nationwide on 14 January 2002. Plaintiffs appeal
from the order.
Plaintiffs' sole assignment of error is that the trial court
erred in granting State Farm's and Nationwide's motions for summary
judgment because there are genuine issues of material fact. In
order to survive a defendant's motion for summary judgment in a
negligence action, a plaintiff must set forth a prima facie case
(1) that defendant failed to exercise proper
care in the performance of a duty owed
plaintiff; (2) the negligent breach of that
duty was a proximate cause of plaintiff's
injury; and (3) a person of ordinary prudence
should have foreseen that plaintiff's injury
was probable under the circumstances.
Lavelle v. Schultz, 120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569
(1995),
disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996).
(citations omitted). While summary judgment is normally not
appropriate in negligence actions, where the forecast of evidence
shows that a plaintiff cannot establish one of these required
elements, summary judgment is appropriate.
Patterson v. Pierce,
115 N.C. App. 142, 143, 443 S.E.2d 770, 771,
disc. review denied,
337 N.C. 803, 449 S.E.2d 749 (1994) (citing
Roumillat v. Simplistic
Enters., 331 N.C. 57, 414 S.E.2d 339 (1992);
Lamb v. Wedgewood
South Corp., 308 N.C. 419, 302 S.E.2d 868 (1983)).
A party may not withstand a motion for summary judgment by
simply relying on its pleadings; the non-moving party must set
forth specific facts by affidavits or as otherwise provided by N.C.
Gen. Stat. § 1A-1, Rule 56(e), showing that there is a genuine
issue of material fact for trial.
G & S Business Services v. Fast
Fare, Inc., 94 N.C. App. 483, 486, 380 S.E.2d 792, 794,
appeal
dismissed and disc. review denied, 325 N.C. 546, 385 S.E.2d 497
(1989). The other methods for setting forth specific facts under
Rule 56 are through depositions, answers to interrogatories,
admissions on file, documentary materials, further affidavits, or
oral testimony in some circumstances.
Singleton v. Stewart, 280
N.C. 460, 464, 186 S.E.2d 400, 403 (1972);
Kessing v. Mortgage
Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971) (citations
omitted). "If [a party] does not so respond, summary judgment, if
appropriate, shall be entered against him." N.C. Gen. Stat. § 1A-
1, Rule 56(e) (2001). Affidavits submitted must meet the requirements of N.C.G.S. §
1A-1, Rule 56(e):
Supporting and opposing affidavits 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.
"The converse of this requirement is that affidavits or other
material offered which set forth facts which would not be
admissible in evidence should not be considered when passing on the
motion for summary judgment."
Borden, Inc. v. Brower, 17 N.C. App.
249, 253, 193 S.E.2d 751, 753,
rev'd on other grounds by, 284 N.C.
54, 199 S.E.2d 414 (1973).
Our Court recently applied this rule to an affidavit submitted
in support of a motion for summary judgment in
Williamson v.
Bullington, stating:
If an affidavit contains hearsay matters or
statements not based on an affiant's personal
knowledge, the court should not consider those
portions of the affidavit.
See Moore v.
Coachmen Industries, Inc., 129 N.C. App. 389,
499 S.E.2d 772 (1998). Similarly, if an
affidavit sets forth facts that would be
inadmissible in evidence . . ., such portions
should be struck by the trial court. See
Borden, Inc. v. Brower, 284 N.C. 54, 199
S.E.2d 414 (1973).
Portions of each of plaintiff's
affidavits were properly stricken as
inadmissible hearsay, irrelevant, or violative
of the parole evidence rule. The portions
that would remain after striking the improper
statements provide no support to plaintiff's
motion for summary judgment.
139 N.C. App. 571, 578, 534 S.E.2d 254, 258 (2000),
aff'd by an
equally divided court, 353 N.C. 363, 544 S.E.2d 221 (2001);
seealso Singleton, 280 N.C. at 467, 186 S.E.2d at 405 (holding that
portions of the submitted affidavit could not be considered for the
purpose of ruling on a motion for summary judgment when those
portions were not made on the affiant's personal knowledge);
Patterson v. Reid, 10 N.C. App. 22, 29, 178 S.E.2d 1, 6 (1970)
(statements in a party's affidavits based on hearsay should not be
considered in determining a motion for summary judgment).
In
addition, our Court has also held that an affiant's legal
conclusions, as opposed to facts "as would be admissible in
evidence," are not to be considered by the trial court on a motion
for summary judgment.
Singleton, 280 N.C. at 467, 186 S.E.2d at
405.
The information before the trial court in this case consisted
of the parties' pleadings, the deposition of Anna, plaintiffs'
answers to interrogatories, the affidavit of Officer Nevitt and the
attached incident report, and a letter from plaintiffs' attorney
containing an unsigned summary of a private investigator which
related what the investigator was told by Kelly. Plaintiffs'
answers to interrogatories and Anna's deposition show that Anna has
no recollection of the accident.
The supplemental discovery, in the form of a letter by
plaintiffs' attorney containing an unsigned summary of a report by
a private investigator as to what the investigator was told by
Kelly, is not the type of evidence that may be relied on by the
trial court in deciding a motion for summary judgment. As stated
above, parties are required to set forth facts in affidavits or "asotherwise provided." The form of this supplemental discovery does
not meet the requirements of Rule 56 as discussed above, and
therefore should not have been considered by the trial court.
See
Singleton, 280 N.C. at 464, 186 S.E.2d at 403;
Kessing, 278 N.C. at
533, 180 S.E.2d at 829;
G & S Business Services, 94 N.C. App. at
486, 380 S.E.2d at 794. We recognize that in limited cases, our
Court has also allowed the trial court to consider avenues outside
the previously cited methods of proof. Oral testimony at a hearing
on a motion for summary judgment may be offered; however, the trial
court is only to rely on such testimony in a supplementary
capacity, to provide a "small link" of required evidence, but not
as the main evidentiary body of the hearing.
Insurance Co. v.
Chantos, 21 N.C. App. 129, 132, 203 S.E.2d 421, 424 (1974) (citing
N.C. Gen. Stat. § 1A-1, Rule 43(e); 6 Moore's Federal Practice 2042
(2d ed.). The trial court may also consider arguments of counsel
as long as the arguments are not considered as facts or evidence.
Gebb v. Gebb, 67 N.C. App. 104, 107, 312 S.E.2d 691, 694 (1984);
see also Huss v. Huss, 31 N.C. App. 463, 466, 230 S.E.2d 159, 161
(1976) ("Information adduced from counsel during oral arguments
cannot be used to support a motion for summary judgment under Rule
56(c)."). However, supplemental discovery, as submitted by
plaintiffs, has not been recognized as an accepted method of proof
in determining a motion for summary judgment and we decline to do
so in this case.
The second problem with the supplemental discovery submitted
by plaintiffs, specifically the portion of the letter summarizingthe report of the private investigator as to what he was told by
Kelly, is that it constitutes inadmissible hearsay and would not
satisfy the requirements for admissibility as required under Rule
56.
See Williamson, 139 N.C. App. at 578, 534 S.E.2d at 258;
Patterson, 10 N.C. App. at 29, 178 S.E.2d at 6. Plaintiffs argue
that the statement of the private investigator falls within an
exception to the hearsay rule because Kelly is an unavailable
witness.
See N.C. Gen. Stat. § 8C-1, Rule 804(b)(5) (2001).
However, plaintiffs have made no showing that Kelly is unavailable.
Plaintiffs' attorney's single statement that, "Unfortunately, we
are unable to locate James Travis Kelly. If you know where he is,
I would appreciate your letting us know[,]" does not satisfy this
burden.
The degree of detail required in the
finding of unavailability will depend on the
circumstances of the particular case. For
example, in the present case, the declarant is
dead. The trial judge's determination of
unavailability in such cases must be supported
by a finding that the declarant is dead, which
finding in turn must be supported by evidence
of death.
Situations involving out-of-state
or ill declarants or declarants invoking their
fifth amendment right against self-
incrimination may require a greater degree of
detail in the findings of fact.
State v. Triplett, 316 N.C. 1, 8, 340 S.E.2d 736, 740-41 (1986)
(citations omitted).
Plaintiffs admit in their reply brief that they had not made
a sufficient showing at the hearing on the motion for summary
judgment as to Kelly's unavailability. However, plaintiffs argue
that they should not be required to do so at the summary judgmentstage of proceedings. While we agree that plaintiffs are not
required to establish beyond doubt that declarant is unavailable at
the summary judgment stage of the proceedings, plaintiffs must at
least put forth some evidence of declarant's unavailability. In
the case before us, plaintiffs have simply made a conclusory
statement that Kelly is unavailable, without any showing of what
plaintiffs did in an effort to locate Kelly.
We do not believe that
plaintiffs should be allowed to
circumvent the rules of evidence without any evidence of
unavailability. We agree with the analysis engaged in by other
jurisdictions that have found an inquiry into the availability of
a declarant for Rule 404(b) purposes to be appropriate at the
summary judgement stage, and that have refused to consider hearsay
statements where no evidence of a declarant's unavailability has
been presented at that stage.
See Ellis v. Jamerson, 174 F. Supp.
2d 747, 753 (E.D. Tenn. 2001) (holding that where no evidence of
unavailability was presented at the summary judgment stage, hearsay
statements could not be considered pursuant to 804(b)(3));
Overton
v. City of Harvey, 29 F. Supp. 2d 894, 904 (N.D. Ill. 1998)
(refusing to consider hearsay statements by a declarant under Rule
804 where no showing as to unavailability of the declarant was made
at summary judgment);
Biggers ex rel. Key v. Southern Ry. Co., 820
F. Supp. 1409, 1415 (N.D. Ga. 1993) (refusing to consider hearsay
statements by a declarant under Rule 804(b)(1) where at summary
judgment no evidence had been produced as to declarant's
unavailability).
Therefore, we hold that plaintiffs must make atleast a minimum showing of a declarant's unavailability at summary
judgment before a statement can be considered by the trial court
pursuant to N.C.G.S. § 8C-1, Rule 804(b)(5).
Plaintiffs also argue that the supplemental discovery should
be considered under N.C. Gen. Stat. § 8C-1, Rule 803(24). This
exception is almost identical to the exception in N.C.G.S. § 8C-1,
Rule 804(b)(5), except that a party may invoke N.C.G.S. § 8C-1,
Rule 803(24) even if the declarant is available.
Triplett, 316
N.C. at 7, 340 S.E.2d at 740.
While our inquiry under N.C.G.S. §
8C-1, Rule 804(b)(5) ended when there was no evidence of the
declarant's unavailability, under N.C.G.S. § 8C-1, Rule 803(24) we
must engage in the six-part inquiry set forth by our Supreme Court
in
State v. Smith, 315 N.C. 76, 92-97, 337 S.E.2d 833, 844-47
(1985). In order to meet the residual hearsay exception found in
N.C.G.S. § 8C-1, Rule 803(24), this six-part inquiry
must be
satisfied.
Smith at 92-97, 337 S.E.2d at 844-47.
[F]irst, that proper notice was given of the
intent to offer hearsay evidence under, Rules
803(24) or 804(b)(5); second, that the hearsay
evidence is not specifically covered by any of
the other hearsay exceptions; third, that the
hearsay evidence possesses certain
circumstantial guarantees of trustworthiness;
fourth, that the evidence is material to the
case at bar; fifth, that the evidence is more
probative on an issue than any other evidence
procurable through reasonable efforts; and
sixth, that admission of the evidence will
best serve the interests of justice.
State v. Agubata, 92 N.C. App. 651, 656, 375 S.E.2d 702, 705 (1989)
(setting forth the six-part
Smith inquiry, 315 N.C. at 92-97, 337
S.E.2d at 844-47).
As in the case of the unavailability of adeclarant at the summary judgment stage, while a party need not
establish beyond doubt that the six-prong test is satisfied, a
party must at least put forth some evidence that these six
requirements will be met. Otherwise, the requirement under
N.C.G.S. § 1A-1, Rule 56(e), that statements not based on personal
knowledge or not admissible into evidence shall not be considered
by the trial court in ruling on a motion for summary judgment,
could be circumvented with minimal effort. In fact, the residual
hearsay exception in N.C.G.S. § 8C-1, Rule 803(24) is disfavored
and should be invoked "very rarely and only in exceptional
circumstances."
Smith, 315 N.C. at 91 n.4, 337 S.E.2d at 844 n.4
(citations omitted). In addition, any evidence proffered under
this exception "must be carefully scrutinized."
Id. at 92, 337
S.E.2d at 844. Although N.C.G.S. § 8C-1, Rule 803(24) is an
exception to the hearsay rule where availability of the witness is
immaterial, "[t]he availability of a witness to testify at trial is
a crucial consideration under [both of] the residual hearsay
exception[s]" found at N.C.G.S. § 8C-1, Rules 803(24) and
804(b)(5).
State v. Fearing, 315 N.C. 167, 171, 337 S.E.2d 551,
554 (1985). As stated above, plaintiffs have offered no evidence
of declarant's unavailability. Further, plaintiffs have offered no
evidence that the proffered statement possesses "certain
circumstantial guarantees of trustworthiness" that would justify
its admission.
Agubata, 92 N.C. App. at 656, 375 S.E.2d at 705.
We therefore hold that the supplemental discovery containing
statements by a private investigator of what Kelly told him aboutthe incident does not meet the requirements of Rule 56(e) and thus
could not properly be considered by the trial court in determining
the motions for summary judgment by State Farm and Nationwide.
Plaintiffs also offered the affidavit of Officer Nevitt in
opposition to State Farm's and Nationwide's motions for summary
judgment. Plaintiffs neither tendered Officer Nevitt as an expert
in accident reconstruction nor contended he was such an expert.
Our Court has consistently held that a non-expert may not testify
as to the speed of a vehicle involved in an accident if that
individual did not actually witness the accident.
Coley v. Garris,
87 N.C. App. 493, 495, 361 S.E.2d 427, 428 (1987),
disc. review
denied, 321 N.C. 742, 366 S.E.2d 859 (1988);
Hicks v. Reavis, 78
N.C. App. 315, 323, 337 S.E.2d 121, 126 (1985),
cert. denied, 316
N.C. 553, 344 S.E.2d 7 (1986);
Short v. Short, 36 N.C. App. 260,
262, 243 S.E.2d 432, 433-34 (1978). Further, while an expert in
accident reconstruction may in some situations be able to testify
as to the circumstances of an accident from examination of the
evidence,
State v. Holland, 150 N.C. App. 457, 463, 566 S.E.2d 90,
94 (2002), plaintiffs never contended that Officer Nevitt was such
an expert, nor was Officer Nevitt ever tendered as an expert.
Therefore, as a non-expert witness, any facts or statements in
Officer Nevitt's affidavit dealing with any aspect of accident
reconstruction would not be entitled to consideration by the trial
court on a motion for summary judgment as they would be
inadmissable at trial.
See Borden, Inc., 284 N.C. at 59, 199
S.E.2d at 418. Further, the trial court could not consider anystatements in the affidavit attempting to draw conclusions instead
of stating facts otherwise admissible.
Singleton, 280 N.C. at 467,
186 S.E.2d at 405. As a result, the second misnumbered statement
(3), statement (4), and statement (5) in Officer Nevitt's affidavit
concerning the circumstances of the accident could not be
considered by the trial court. Plaintiffs acknowledge that they
know of no person who has personal knowledge of the events in
question.
Considering answers to interrogatories and admissible
statements in Anna's deposition and in Officer Nevitt's affidavit,
and construing these in the light most favorable to plaintiffs, we
find plaintiffs have failed to show that they can offer competent
evidence of how the accident occurred, and therefore cannot make a
prima facie case of negligence against defendant. We affirm the
trial court's grant of summary judgment to uninsured motorist
carriers State Farm and Nationwide.
Affirmed.
Chief Judge EAGLES and Judge HUDSON concur.
*** Converted from WordPerfect ***