Summary judgment is properly granted 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 ajudgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2005). In ruling on the motion, the court must consider the
evidence in the light most favorable to the nonmovant, who is
entitled to the benefit of all favorable inferences which may
reasonably be drawn from the facts proffered. Averitt v. Rozier
119 N.C. App. 216, 218, 458 S.E.2d 26, 28 (1995).
The burden is
on the party moving for summary judgment to show the absence of any
genuine issue of fact and his entitlement to judgment as a matter
of law. Bolick v. Bon Worth, Inc
., 150 N.C. App. 428, 429, 562
S.E.2d 602, 603 (2002) (citation omitted). 'The movant may meet
this burden by proving that an essential element of the opposing
party's claim is nonexistent, or by showing through discovery that
the opposing party cannot produce evidence to support an essential
element of his claim or cannot surmount an affirmative defense
which would bar the claim.' Id.
(quoting Roumillat v. Simplistic
., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992))
In a negligence action, to survive a motion for summary
judgment, plaintiff must establish a prima facie
case by showing:
'(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.' Bolick,
150 N.C.App. at 430, 562 S.E.2d at 603 (quoting Lavelle v. Schultz
N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995)).
In the instant case, it is undisputed that the school system
owned the school yard and constructed the boardwalk on which
plaintiff fell. The owners and occupiers of land . . . [have] the
duty to exercise reasonable care in the maintenance of their
premises for the protection of lawful visitors. Nelson v.
, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998). However,
because defendant [neither] owned nor operated the [school] in
which plaintiff's injury occurred and the plaintiff failed to
allege in her complaint that [defendants] were agents of [the
school system] the defendant has no duty to plaintiff and . . .
may not be held liable under a theory of premises liability.
Freeman v. Food Lion, LLC,
__ N.C. App. __, __, 617 S.E.2d 698,
Nor have plaintiffs articulated any legal theory, or produced
any evidence, upon which defendant might be liable for the actions
of its subcontractor Old South. As a matter of law, [defendant]
cannot be held liable for the negligence of an employee of its
subcontractor [Old South,] if there is no evidence of [defendant's]
control of [Old South's] operations. . . . Since [plaintiff] did
not come forward with evidence tending to prove that [defendant]
controlled [Old South] and its employees, the negligence of [OldSouth] or its employees could not be imputed to [defendant].
Britt v. American Hoist and Derrick Co.
, 97 N.C. App. 442, 446, 388
S.E.2d 613, 616 (1990)
(citing Rivenbark v. Atlantic States Const.
., 14 N.C. App. 609, 188 S.E.2d 747 (1972)).
Because there is no evidence that defendant was either the
landowner of the school grounds, or the employer of the
subcontractor, defendant's liability, if any, must be based on
evidence of acts or omissions by defendant
. Plaintiffs' theory is
that defendant drove construction equipment or other vehicles over
the wood boardwalk, and that this created a dangerous condition.
We conclude that plaintiffs failed to produce any admissible
evidence to support this contention.
Plaintiffs produced no competent evidence that defendant ever
drove a vehicle over the walkway. Plaintiff testified to seeing
defendant's vehicles in the general area
of the construction, but
produced no testimony or other evidence that defendant's vehicles
drove over the walkway. Plaintiffs cite a memo by Dr. Miller,
maintenance director for the school system, as evidence that
construction vehicles had driven over the boardwalk. However,
Miller testified that (1) he had no personal knowledge about the
condition of the boardwalk at the time of plaintiff's accident, or
about whether vehicles had driven over the walkway; and (2) to
prepare the memo, Miller simply wrote down what others told him. Therefore, this memo is not competent evidence in a summary
judgment proceeding. See
N.C. Gen. Stat. § 1A-1, Rule 56(e)
(2005). (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.);
Howerton v. Arai Helmet, Ltd
., 358 N.C. 440, 467, 597 S.E.2d 674,
692 (2004) (In a motion for summary judgment, the evidence
presented to the trial court must be admissible at trial.).
Because plaintiffs produced no evidence that defendant drove
vehicles over the walkway, we do not need to address the question
of whether driving over
four by eight foot plywood boards would
create a dangerous condition.
We conclude that plaintiffs failed to produce evidence of a
case of negligence against defendants, and that the
trial court's summary judgment order should be affirmed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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