Keech v. Hendricks12/29/2000
orecast of evidence demonstrating specific facts, as opposed to allegations, establishing at least a prima facie case at trial. Gaunt v. Pittaway, 135 N.C. App. 442, 447, 520 S.E.2d 603, 607 (1999). . . . Stephenson v. Warren, 136 N.C. App. 768, 771-72, 525 S.E.2d 809, 811-12, disc. review denied, 351 N.C. 646, ___ S.E.2d ___ (2000). Furthermore, "the evidence presented by the parties must be viewed in the light most favorable to the non-movant." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).
Plaintiff brings forward only one assignment of error, that the trial court erred in granting defendant's summary judgment motion because there is a genuine issue of material fact as to defendant's intent or state of mind when he pushed plaintiff. Contrarily, defendant argues that because, in his answer, he admitted he pushed plaintiff "intentionally," plaintiff's claim against him must fail.
North Carolina courts have consistently held that "` here are situations where the evidence presented raises questions of both assault and battery and negligence.'" Vernon v. Barrow, 95 N.C. App. 642, 643, 383 S.E.2d 441, 442 (1989) (quoting Lail v. Woods, 36 N.C. App. 590, 592, 244 S.E.2d 500, 502, disc. review denied, 295 N.C. 550, 248 S.E.2d 727 (1978)). Additionally, our Supreme Court has stated that " s a general proposition, issues of negligence are ordinarily not susceptible summary adjudication either for or against the claimant `but should be resolved by trial in the ordinary manner.'" Vassey v. Burch, 301 N.C. 68, 73, 269 S.E.2d 137, 140 (1980) (quoting 6 James W. Moore et al., Moore's Federal Practice 56.17 , at 946 (2d. ed. 1980)). Furthermore, our Supreme Court has held that "summary judgment is particularly inappropriate where issues such as motive, intent, and other subjective feelings and reactions are material and where the evidence is subject to conflicting interpretations." Creech v. Melnik, 347 N.C. 520, 530, 495 S.E.2d 907, 913 (1998) (emphasis added). Instead, " he better practice is for the trial court to submit the case to the jury and enter a judgment notwithstanding the verdict if the evidence is insufficient to support the verdict." Freeman v. Sugar Mountain Resort, Inc., 134 N.C. App. 73, 76, 516 S.E.2d 616, 618, reversed on other grounds, 351 N.C. 184, 522 S.E.2d 582 (1999).
Therefore, in order for this Court to uphold the trial court's grant of the present defendant's summary judgment motion, we must find that the evidence in the record before us supports no other conclusion "as to any material fact" but that defendant intended to push plaintiff, thereby making defendant entitled to summary judgment "as a matter of law." N.C. Gen. Stat. ยง 1A-1, Rule 56(c) (1999). A finding otherwise requires that we reverse the trial court because " t is for the trier of fact to resolve issues of credibility and to determine the relative strength of competing evidence." Upchurch v. Upchurch, 128 N.C. App. 461, 464, 495 S.E.2d 738, 740, review denied, 348 N.C. 291, 501 S.E.2d 925 (1998). See also Lawing v. Lawing, 81 N.C. App. 159, 177, 344 S.E.2d 100, 112 (1986).
In the present case, the record plainly reflects that defendant (through his attorney) approached plaintiff during the criminal suit stating that he did not intend the injurious act against plaintiff. Conversely, now in the civil suit, defendant argues that he did intend the actions against plaintiff. Yet defendant can point to nothing, save his own contradictory statements, to show that he intended the act and should not now be held negligently liable. Therefore, because the entire basis of plaintiff's complaint depends on defendant's intent (which thereby determines the appl
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