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Haney v. Greene Construction1/18/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Plaintiff appeals the ruling of the trial court granting defendant's motion for summary judgment which dismissed plaintiff's action. For the reasons discussed herein, we affirm.
Defendants, Greene Construction, Inc. and Watauga Ready-Mix Corporation are the same legal entity, Watauga Ready-Mix Corporation having changed its corporate name to Greene Construction, Inc. following the events giving rise to plaintiff's complaint. They are hereinafter referred to as "defendant." Defendant was the general contractor on a construction project for Watauga Medical Center (Watauga), where an existing building was being converted into a kidney dialysis center. Plaintiff was an employee of Watauga. Part of the construction project was the addition of a concrete pad which was to serve as a loading dock. After the project commenced, Watauga decided to add a mechanical lift to the loading dock. On 11 February 2000, plaintiff and two truck drivers went to the loading dock to determine exactly where the mechanical lift should be located.
The concrete pad of the loading dock was sixteen inches above the asphalt parking area on the east side and twenty inches above the asphalt parking area on the west side. There were three cinder blocks on the asphalt next to the concrete pad on the west side. The cinder blocks were stacked in a triangular formation, with two blocks on the bottom and one on the top, parallel to the concrete pad. When plaintiff approached the loading dock, he saw the three cinder blocks on the west side of the concrete pad.
The three men stepped onto the concrete pad from the east side. After examining the pad and discussing the placement of the mechanical lift, the three men stepped off of the concrete pad on the west side, using the cinder blocks as steps. The two truck drivers preceded the plaintiff and descended without incident. When plaintiff attempted to descend in the same manner, he fell, resulting in personal injury . Plaintiff testified that the cinder blocks shifted, resulting in his fall. Plaintiff filed thisaction, asserting that his injuries were proximately caused by the negligence of defendant.
In his only assignment of error, plaintiff contends that the trial court erred in granting defendant's motion for summary judgment. We disagree.
Summary judgment is proper when "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 judgment as a matter of law." N.C. Gen. Stat. ยง 1A-1, Rule 56(c) (2004). On appeal from summary judgment, the record is reviewed in the light most favorable to the non-movant. See Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). Summary judgment is rarely appropriate in a negligence action. DiOrio v. Penny, 331 N.C.726, 729, 417 S.E.2d 457, 459 (1992).
The party moving for summary judgment bears the burden of establishing that there is no triable issue of material fact. This burden may be met "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." Once the moving party satisfies these tests, the burden shifts to the nonmoving party to "produce a for
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