Haithcock v. Chimney Rock Company , 10 N.C. App. 696 ( 1971 )

179 S.E.2d 865 (1971) 10 N.C. App. 696

Vera Julian HAITHCOCK
v.
CHIMNEY ROCK COMPANY.

No. 7119SC204.

Court of Appeals of North Carolina.

March 31, 1971.

Ottoway Burton, Asheboro, for plaintiff-appellant.

Charles T. Myers, Myers & Collie, Charlotte, for defendant-appellee.

BROCK, Judge.

The purpose of the Summary Judgment procedure provided by Rule 56 of the Rules of Civil Procedure is to ferret out those cases in which there is no genuine issue as to any material fact and in which, upon such undisputed facts, a party is entitled to judgment as a matter of law. The burden is upon the moving party to establish the lack of a triable issue of fact. The test is whether the moving party, by affidavit or otherwise, presents materials which would require a directed verdict in his favor if presented at trial. Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425. If the defendant successfully carries his burden of proof, the plaintiff may not rely upon the bare allegations of his complaint to establish triable issues of fact, but must, by affidavits or otherwise, as provided by Rule 56, set forth specific facts showing that there is a genuine issue for trial. Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1. The question presented to us, therefore, is whether the pleadings and plaintiff's own testimony, as contained in her adverse examination, would have required a directed verdict for defendant.

Plaintiff's status in relation to defendant, we may assume, was that of a business invitee. The defendant was not an insurer of plaintiff's safety; rather, the duty owed to plaintiff was to exercise ordinary care to keep in reasonably safe condition the areas where she was expected to go and to warn of unsafe conditions of which the defendant was charged with knowledge. Redding v. Woolworth Co., 9 N.C.App. 406, 176 S.E.2d 383. Although plaintiff alleged that the cause of her fall was a rock in the path, her own testimony shows that it could as well have been some object unwittingly dropped or deliberately discarded by a fellow tourist, perhaps scant moments prior to her unfortunate mishap. Upon such weak evidence, a jury could not be permitted to speculate as to the nature of the object or the duration of its presence. Cf. Powell v. Deifells, Inc., 251 N.C. 596, 112 S.E.2d 56; Waters v. Harris, 250 N.C. 701, 110 S.E.2d 283. The materials produced by defendant in support of its motion amply demonstrate that plaintiff cannot bear her burden of proof to show a breach of duty. In the face of such materials, plaintiff chose to rest upon the unsupported allegations of her complaint. Summary Judgment was properly granted.

Affirmed.

MORRIS and VAUGHN, JJ., concur.