Lilly v Virginia Electric & Power Co., (03-889) 05/18/2004

Appeal by plaintiff from orders and judgments entered 31 January 2003 by Judge W. Russell Duke, Jr., in Pasquotank County Superior Court. Heard in the Court of Appeals 15 March 2004.

    The Jernigan Law Firm, by Leonard T. Jernigan, Jr., N. Victor Farah and Lauren R. Trustman, for plaintiff-appellant.

    Ventker & Associates, PLLC, by David N. Ventker, for defendant-appellee Virginia Electric and Power Company d/b/a Dominion North Carolina Power.

    Hornthal, Riley, Ellis & Maland, L.L.P., by L. Phillip Hornthal, III, and Clayton W. Cheek, for defendant-appellees Majkas.

    THORNBURG, Judge.

    Plaintiff appeals from orders and judgments granting summary judgment in favor of defendants and denying several discovery motions filed by the plaintiff. We affirm.
    On 2 July 2002, plaintiff filed a complaint alleging negligence by defendants stemming from an alleged injury sustained on the Majkas' property on 3 July 1999. Plaintiff alleged that on 3 July 1999, while repairing a sewer line on the Majkas' property,he received an electrical shock from an improperly installed power line running beneath the sewer line. Plaintiff further alleged that the shock caused him to suffer a heart attack that has resulted in his permanent physical injury. Discovery by the parties was conducted throughout the last half of 2002. On 6 January 2003, defendant Virginia Electric and Power Company, d/b/a Dominion North Carolina Power (“VEPCO”), filed a motion for summary judgment. On 7 January 2003, defendants Majkas filed their motion for summary judgment. On 10 January 2003, plaintiff filed his motion to compel, motion to reconvene the deposition of defendants Majkas, motion to enter property and motion for a discovery order. A hearing on the matter was conducted on 21 January 2003. Summary judgment was granted as to all defendants and plaintiff's discovery motions were denied.
    Plaintiff appeals and argues: (1) the trial court erred in granting defendants' motions for summary judgment, (2) the trial court erred in hearing the summary judgment motions where discovery was not yet complete, and (3) the trial court abused its discretion in denying plaintiff's discovery related motions.
    Plaintiff argues that summary judgment was not appropriate in this case. Summary judgment is appropriate “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) (2003). “A party moving for summary judgment may prevail if itmeets the burden (1) of proving an essential element of the opposing party's claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim.” Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). “Only after a moving party meets this burden must the nonmovant 'produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.'” Goodman v. Wenco Foods, Inc., 333 N.C. 1, 21, 423 S.E.2d 444, 454 (1992) (citing Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). Plaintiff asserts that defendants did not carry their burden of proof on the summary judgment motion. Plaintiff also argues that if defendants are found to have met this burden, that the evidence plaintiff presented at the summary judgment hearing was sufficient to rebut defendants' showing. We conclude that defendants did meet their burden in this case and that plaintiff did not.
    “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.” Strickland v. Doe, 156 N.C. App. 292, 294, 577 S.E.2d 124, 128, disc. review denied, 357 N.C. 169, 581 S.E.2d 447 (2003) (citing Lavelle v. Schultz, 120N.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)). “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.” Strickland at 294, 577 S.E.2d at 128. In the instant case, the forecast of admissible evidence showed that the plaintiff could not establish the element of proximate cause.
    The plaintiff and defendants all presented affidavits, depositions, and answers to interrogatories, including the plaintiff's medical records, as evidence before the court. The plaintiff is unable to remember what happened on the day in question and could offer no personal recollection of being shocked. There were no witnesses who were able to testify that they saw the plaintiff being shocked or that they were shocked themselves. The plaintiff presented no medical evidence that indicated that the heart attack was caused by an electrical shock. Plaintiff's medical records contain no reference to possible electrocution. Plaintiff's treating physicians do not confirm plaintiff's contention that his heart attack was the result of an electrical shock. Further, plaintiff offered no expert testimony to support his claim of injury due to contact with electricity. The only item that plaintiff references in support of his contention that an electrical shock was the cause of his heart attack is a letter from an individual, Dr. Raymond Fish, termed by the plaintiff as an expert. This individual allegedly reviewed the plaintiff's medicalrecords but recites no facts to support his conclusions. Dr. Fish never examined the plaintiff and did not submit a sworn statement regarding his opinion. The trial court correctly excluded this letter from evidence. Plaintiff has presented no forecast of evidence that would support a finding that his heart attack was caused by contact with electricity.
    While defendants argue several other possible reasons why summary judgment was appropriate, we do not address those arguments given our conclusion that the plaintiff failed to meet the causation element of his prima facie case. Thus, we affirm the trial court's grant of defendants' motions for summary judgment as plaintiff failed to set forth a prima facie case of negligence.     Plaintiff asserts that it was improper for the trial court to entertain defendants' motions for summary judgment while discovery proceedings were still being conducted. Plaintiff argues that it was too early to consider summary judgment because the defendants had failed to answer discovery concerning pertinent information necessary to proving negligence.
    “Ordinarily it is error for a court to hear and rule on a motion for summary judgment when discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending and the party seeking discovery has not been dilatory in doing so.” Ussery v. Taylor, 156 N.C. App. 684, 686, 577 S.E.2d 159, 161 (2003) (quoting Conover v. Newton and Allman v. Newton and In re Annexation Ordinance, 297 N.C. 506, 512, 256 S.E.2d 216, 220 (1979)). However, this rule presupposes that any informationgleaned from the discovery will be useful. Manhattan Life Ins. Co. v. Miller Machine Co., 60 N.C. App. 155, 159, 298 S.E.2d 190, 193 (1982).
    The trial judge here found that the defendants had provided the plaintiff with all information in their care, custody and control. Also, none of the information being sought by plaintiff in discovery was of such a nature that it would have aided plaintiff in establishing proximate cause. Thus, summary judgment would have been appropriate in this case even if plaintiff had obtained the information sought in the outstanding discovery requests. We further note that the plaintiff failed to move for a continuance of the summary judgment proceeding under N.C. Gen. Stat. § 1A-1, Rule 56(f) (2003), to obtain time to complete further discovery. Plaintiff's assignment of error fails.
    Plaintiff also argues that it was error for the trial court to deny their discovery motions. Shortly after the defendants made motions for summary judgment, plaintiff filed motions to compel, to reconvene the deposition of defendants Majkas, to enter property and to obtain a discovery order. “It is a general rule that orders regarding matters of discovery are within the discretion of the trial court and will not be upset on appeal absent a showing of abuse of discretion.” Hudson v. Hudson, 34 N.C. App. 144, 145, 237 S.E.2d 479, 480, disc. rev. denied, 293 N.C. 589, 239 S.E.2d 264 (1977). As the discovery sought by the plaintiff would not have been helpful in overcoming defendants' motions for summary judgment, we do not find an abuse of discretion in denyingplaintiff's motions for further discovery. Plaintiff's assignment of error fails.
    Affirmed.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***