Appeal by plaintiffs from judgment entered 25 March 2002 by
Judge Evelyn W. Hill in Granville County Superior Court. Heard in
the Court of Appeals 11 June 2003.
Wallace W. Bradsher, Jr., for plaintiff-appellants.
Bailey & Dixon, L.L.P., by Gary S. Parsons and Jennifer D.
Maldonado, for defendant-appellees.
MARTIN, Judge.
Plaintiffs Virginia and Norman Streib appeal from the entry of
summary judgment in favor of defendants Mr. and Mrs. Billy Hocutt.
The materials before the trial court tended to show: On 18
December 1997, Billy Hocutt (“defendant”) was leading his mules,
each weighing 1,200 to 1,400 pounds, from his pasture to the barn
when one spooked, startled the other, and both mules broke away
from him. Giving chase, he stopped and asked his wife to follow
with the car. They found the mules approximately one quarter of a
mile away from the pasture, walking on Highway 96. As defendant
attempted to capture his mules, Virginia Streib (“plaintiff”) drove
over a small rise north of the mules. One mule collided withplaintiff's car and was killed; plaintiff sustained back and neck
fractures. Plaintiffs appeal.
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By three assignments of error, plaintiffs argue (1) summary
judgment was improper because there were genuine issues of material
fact existing; (2) counsel properly moved for a voluntary dismissal
without prejudice before summary judgment was entered; (3) the
summary judgment hearing was unfair, impartial and the judgment was
prejudicial to the fair administration of justice. We reject their
arguments.
By their first assignment of error, plaintiffs contend there
were sufficient genuine issues of material fact before the trial
court to defeat defendant's motion for summary judgment. “The
standard with respect to summary judgment is well-established.”
Sullivan v. Mebane Packaging Group, Inc., ___ N.C. App. ___, ___,
___ S.E.2d. ___, ___ (COA02-762, 20 May 2003). Where “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,” summary judgment is
proper. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). Construing
“[t]he evidence and all reasonable inferences which may be drawn
from it” in favor of the opposing party, the moving party bears the
burden of showing that an essential element of the opposing party's
claim is either non-existent or evidence is not available tosupport it.
Meares v. Jernigan, 138 N.C. App. 318, 320, 530 S.E.2d
883, 885 (2000).
Negligence requires evidence beyond allegations and mere
speculation,
Roumillat v. Simplistic Enterprises, 331 N.C. 57, 414
S.E.2d 339 (1992), and although summary judgment is rarely
appropriate in negligence cases, it may be granted if there are no
genuine issues of material fact and the plaintiff fails to show one
of the elements of negligence.
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).
The plaintiff can overcome a
motion for summary judgment by establishing a
prima facie case of
negligence showing the defendant's failure to exercise proper care,
this failure proximately caused plaintiff's injury, and the injury
was foreseeable to a reasonable person.
Id. Based on our review
of the record, plaintiff has failed to show these elements.
Plaintiffs allege defendant failed in his duty as the mules'
owner and caretaker “to exercise ordinary care and the foresight of
a prudent person in keeping them in restraint.”
Gardner v. Black,
217 N.C. 573, 576, 9 S.E.2d 10, 11 (1940). In
Gardner, the Court
held that the defendant could not be found negligent since the
plaintiff did not show that defendant continued to let his mules
roam once aware of their escape.
Id. at 577, 9 S.E.2d at 12.
See
also,
Herndon v. Allen, 253 N.C. 271, 273-74, 116 S.E.2d 728, 730-
31 (1960) (defendant not negligent even when his ill mule escaped
and search was not resumed for six hours);
Shaw v. Joyce, 249 N.C.
415, 416, 106 S.E.2d 459, 460 (1959) (negligence when defendantknew mule escaped three times shortly before the collision);
Kelly
v. Willis, 238 N.C. 637, 640, 78 S.E.2d 711, 713 (1953) (negligence
where defendant knew mule “wandered unattended, uncontrolled, and
unrestrained” four times in the previous two weeks).
Here, the evidence tended to show that defendant exercised
proper care, pursuing his animals immediately after their escape,
and he was not negligent in their restraint. Additionally,
plaintiff offered no evidence as to the mules' escape being the
proximate cause of her injury; in our review of the record and
deposition testimony all we discover are plaintiff's allegations
that defendants should be responsible because the mules were on
“the highway where animals should not be.” Further, there was
testimony indicating the mules' actions were not foreseeable, they
regularly came when called and had never escaped before.
Plaintiffs arguments consist only of speculation that defendant
Billy Hocutt had somehow been negligent in the manner in which he
led the mules to the barn and other allegations concerning his
credibility. These arguments are insufficient to show the
existence of a genuine issue of material fact. Plaintiffs offer no
arguments concerning Mrs. Hocutt's negligence. Accordingly, we
overrule this assignment of error.
Plaintiffs next assign error to the trial court's refusal to
allow them to submit to a voluntary dismissal without prejudice.
Plaintiffs urge us to expand
Wesley v. Bland, 92 N.C. App. 513, 374
S.E.2d 475 (1988), which upheld a plaintiff's oral request for
voluntary dismissal immediately prior to the commencement of hisargument on the defendant's motion for summary judgment. The
Wesley court carefully noted that the plaintiff had not presented
any argument in defense of the motion. In the underlying case, the
following exchange occurred
after plaintiffs' counsel began his
argument:
THE COURT: Well, Counselor, you have to have
evidence of negligence, not speculation . . .
. If we could all come into court on
speculation of negligence, we wouldn't have to
prove negligence.
MR. BRADSHER: I understand, Your Honor.
THE COURT: And it seems very clear to the
Court that your negligence in this case is
based on the fact the mule was loose.
MR. BRADSHER: No, Your Honor.
THE COURT: Well, if you will wind up your
argument, I will keep my mouth shut until you
are finished. I see that I am making no
progress, so just go ahead and finish your
argument and we will just move right on with
that.
MR. BRADSHER: Your Honor, at this point the
plaintiff will take a voluntary dismissal
without prejudice.
THE COURT: I don't think so, sir. We are here
in the middle of a summary judgment hearing
and we are going to finish the summary
judgment hearing.
Unlike
Wesley, defendants attempt to take a voluntary
dismissal came after plaintiff had argued in response to the motion
and could be “deemed to have 'rested [their] case' for the purpose
of summary judgment.”
Wesley, 92 N.C. App. at 515, 374 S.E.2d at
477 (citation omitted). Plaintiffs argued in open court, the trial
court questioned their evidence, and in response they sought to
take a voluntary dismissal. Allowing plaintiffs to take avoluntary dismissal without prejudice after the trial court
revealed the weakness of their argument makes “'a mockery of
summary judgment proceedings,'”
id. at 515, 374 S.E.2d at 476
(citation omitted), and defeats their role in conserving judicial
resources by preventing litigation “where only questions of law
remain and where an unmistakable weakness in a party's claim or
defense exists.”
Liberty Mutual Insurance Co. v. Pennington, 356
N.C. 571, 579, 573 S.E.2d 118, 123 (2002).
Finally, plaintiffs maintain the trial court's hearing was
prejudicial to the fair administration of justice. Plaintiffs urge
us to apply the “abuse of discretion standard” from
Blackmon v.
Bumgardner, 135 N.C. App. 125, 519 S.E.2d 335 (1999). In
Blackmon,
this Court reviewed the denial of attorney's fees and explained
that if the trial court's ruling is arbitrary or “'manifestly
unsupported by reason,'” then there was an abuse of discretion and
noted that “the trial court should consider all the circumstances
of the case” when exercising its discretion.
Id. at 130, 519
S.E.2d at 338 (citation omitted).
Blackmon is inapplicable to the
present case because the trial court determined, as a matter of
law, that there were no genuine issues of material fact before
granting summary judgment. N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2003). We have sustained its legal ruling. For the forgoing
reasons, the judgment of the trial court is affirmed.
Affirmed.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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