 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Draughon v. Harnett County Board of Education6/3/2003
PUBLISHED
Lynetta Draughon ("plaintiff"), personal representative of the Estate of Max Draughon, appeals from summary judgment entered in favor of Stephen Ausley ("Ausley"), Raymond McCall ("McCall"), Jason Spell ("Spell"), and Don Wilson, Jr. ("Wilson"), collectively ("defendants"). We affirm.
I. Background
On 8 August 1998, Max Draughon ("decedent") participated in a morning football practice at Triton High School. The practice was the first "contact" practice of the football season. Practices held during the week prior to the practice at issue involved "conditioning" and not "contact." Outdoor temperatures exceeded 78 degrees Farenheit and the humidity exceeded 70% on the morning of 8 August 1998.
Decedent and the other players ran wind sprints at the practice. Water breaks were scheduled and taken, but allegedly, some were not given to decedent when he requested them during the wind sprints. Decedent continued to run until he collapsed onto the field. Decedent's coaches rendered first aid until an ambulance arrived. Decedent arrived unconscious at Good Hope Hospital in Erwin and was diagnosed as suffering from heat stroke. Decedent was airlifted to University of North Carolina Memorial Hospital where he died the next day from complications of heat stroke.
Plaintiff filed a wrongful death action on 3 August 2000 and voluntarily dismissed the complaint without prejudice on 6 July 2001. Plaintiff refiled her claim the same day against Harnett County Board of Education, Barry Honeycutt, Jackie Samuels, Stephen Ausley, Jason Spell, Anthony Barbour, Perry Saenz, Don Wilson, Jr., Raymond McCall, and Brian Strickland in their individual and official capacities. All defendants filed a collective answer, asserting affirmative defenses on 10 September 2001. Plaintiff filed responses to defendants' affirmative defenses on 20 September 2001. The parties stipulated on 2 October 2001 to incorporate by reference all depositions conducted during the initial dismissed action. On 9 November 2001, defense counsel moved for summary judgment on behalf of Defendants Ausley, McCall, Wilson, and Spell, (collectively "defendants") and noticed that motion for hearing on 26 November 2001. Defendants included the affidavit of Marshall Hinson, a parent who observed the football practice, in support of their motion for summary judgment and supported their motion with the stipulated depositions. Plaintiff allegedly filed a motion to continue, although no written motion is found in the record. Plaintiff filed no affidavits to oppose defendants' summary judgment motion. The trial court heard arguments on defendants' motion on 26 November 2001 and indicated orally that it would rule in favor of defendants Ausley, Spell, and Wilson. On 17 December 2001, the trial court entered summary judgment in favor of Ausley, McCall, Spell, and Wilson. Plaintiff appeals.
II. Issues
The issues are (1) whether this interlocutory appeal affects a substantial right and (2) whether a question of fact exists precluding summary judgment in favor of each of the defendants.
III. Interlocutory Issue and Substantial Right
The four defendants at bar are among ten defendants in plaintiff's suit. The judgment appealed from is not a final judgment on this case, but it is a final judgment with respect to four of the defendants.
When summary judgment is allowed for less than all defendants and the judgment contains no certification for immediate appeal by the trial court pursuant to N.C. Rule of Civil Procedure 54(b), the plaintiff's appeal is premature and interlocutory unless the order affects a substantial right. See N.C. Dept. of Transp
Page 1 2 3 4 5 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|