“the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial” (citation omitted)
How later courts described this case
- “the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial” (citation omitted)
Written by the judges who cited it.
The opinion
WYNN, Judge
dissenting.
The record in this case shows convincingly that defendants failed to sustain their initial burden of proving that an essential element of plaintiff’s negligence claim was either non-existent or unsupported. Accordingly, plaintiff was not required to forecast any additional evidence to support her claim. As this appears to be the only basis for the trial court’s grant of summary judgment, and the majority’s affirmation of this judgment, I must dissent.
Fundamentally, the majority affirms the trial court’s grant of summary judgment because Ms. Draughon failed to carry her “burden ... to produce a forecast of evidence demonstrating specific facts . . . showing that [she] can . . . establish a prima facie case at trial.” However, this burden only arises after defendants sustain their burden of proving, through discovery or affidavits, that an essential element of plaintiff’s case was either non-existent or unsupported. “If the defendant fails to meet this initial burden of proof, the motion must fail even though the plaintiff does not submit any affidavits or other supporting materials in opposition to the motion.” Watts v. *216 Cumberland, Co. Hosp. Sys., 75 N.C. App. 1, 6 , 330 S.E.2d 242, 247 (1985), rev’d in part on other grounds, 317 N.C. 321 , 345 S.E.2d 201 (1986). See also Best v. Perry, 41 N.C. App. 107, 110 , 254 S.E.2d 281, 284 (1979); Edwards v. Bank, 39 N.C. App. 261, 269 , 250 S.E.2d 651, 657 (1979). Consequently, “[t]he plaintiff is not required to present evidence to support his or her claim unless the defendant meets the initial burden of proof.” Watts, 75 N.C. App. at 6 , 330 S.E.2d at 247 .
The majority opinion fails to address what evidence, if any, the defendants produced to prove that an essential element of plaintiff’s claim was either non-existent or unsupported. Notwithstanding this lack of analysis, it is apparent from the record that defendants substantially relied upon the affidavit of Marshall Hinson, a parent who attended the football practice in which Max Draughon collapsed from heat stroke. According to Mr. Hinson’s affidavit, “when [he] found out that Max [Draughon] died, [he] simply could not believe that anything that [he] saw at practice . . . caused [him] to die. From what [Mr. Hinson] could tell, the coaches did not do anything wrong.” Furthermore, “it never occurred to [Mr. Hinson] that it was too hot or humid for football practice or running at the end of practice.” Most assuredly, this evidence was insufficient, particularly in a negligence case, to meet defendants’ initial burden of “proving” that an essential element of plaintiff’s claim was either nonexistent or unsupported.
Under well-settled principles, summary adjudications are disfavored in negligence cases “because application of the prudent [person] test, or any other applicable standard of care, is generally for the jury.” McFetters v. McFetters, 98 N.C. App. 187, 191 , 390 S.E.2d 348, 350 (1990). See e.g., Camalier v. Jeffries, 340 N.C. 699, 710 , 460 S.E.2d 133, 138 (1995); Page v. Sloan, 281 N.C. 697, 706 , 190 S.E.2d 189, 194 (1972). “Hence it is only in exceptional negligence cases that summary judgment is appropriate because the . . . applicable standard of care must be applied, and ordinarily the jury should apply it under appropriate instructions from the court.” Easter v. Lexington Memorial Hospital, Inc., 303 N.C. 303, 305 , 278 S.E.2d 253, 255 (1981) (citations omitted). Nevertheless, the majority affirms the trial court’s summary judgment on one fundamental basis: “Plaintiff failed to rebut defendants’ affidavit supporting no breach of fiduciary duty by defendants.”
The majority will not allow a jury to consider undisputed facts— and disputed facts that should be resolved in favor of the non- *217 movant — sufficient to establish a prima facie case of negligence ostensibly because the affidavit of one parent suggested that defendants did not breach the duty of reasonable care and supervision. I note, the verified complaint of Ms. Draughon, the mother of Max Draughon and the personal representative of his estate, shows (1) she entrusted her son to the coaches of the high school football team, (2) her son complained to the coaches that he was “burning up” and asked for water before and between “wind-sprints,” (3) the coaches refused his request and required him to continue running “wind sprints”, and (4) as a result of this intense exercise in the heat and humidity of early August, her son collapsed on the field and later died from heat exhaustion.
The ultimate issue of negligence is a matter for a jury to decide; it should not be decided based upon the opinion of a lay witness. In my view, notwithstanding the affidavit, questions of fact remain for a properly instructed jury to decide. Therefore, I respectfully dissent.