dissenting.
The majority opinion erroneously reverses the trial court’s grant of summary judgment for TDY Industries, Inc. d/b/a Allvac (“Allvac”) and remands the case for further proceedings. The trial court correctly ruled there are no genuine issues of material fact and Allvac is entitled to judgment as a matter of law. The trial court’s judgment should be affirmed. I respectfully dissent.
I. Standard of Review
Summary judgment is proper if 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 a judgment as a matter of law. The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.
A defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff’s case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense. Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist.
Once the party seeking summary judgment makes the required showing, 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.
We review an order allowing summary judgment de novo. If the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.
*567Wilkins v. Safran, 185 N.C. App. 668, 671-72, 649 S.E.2d 658, 661 (2007) (internal citations and quotations omitted).
II. Analysis
The majority’s opinion holds that “an issue of material fact remains as to which party bore the responsibility for the loading of the truck.” I disagree.
The Code of Federal Regulations provides:
A driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless—
(1) The commercial motor vehicle’s cargo is properly distributed and adequately secured as specified in §§ 393.100 through 393.142 of this subchapter.
49 C.F.R. § 392.9(a) (2005).
This Federal Regulation is consistent with N.C. Gen. Stat. § 20-116(g)(l) (2005), which provides:
No vehicle shall be driven or moved on any highway unless the vehicle is constructed and loaded to prevent any of its load from falling, blowing, dropping, shifting, leaking, or otherwise escaping therefrom, and the vehicle shall not contain any holes, cracks, or openings through which any of its load may escape.
Both the Federal Regulation and our State place the liability for securing the load on a vehicle upon the carrier and driver of the vehicle, not the shipper.
The United States Court of Appeals for the Fourth Circuit has stated:
The primary duty as to the safe loading of property is therefore upon the carrier. When the shipper assumes the responsibility of loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper.
United States v. Savage Truck Line, 209 F.2d 442, 445 (4th Cir. 1953), cert. denied, 347 U.S. 952, 98 L. Ed. 1098 (1954); see also Franklin Stainless Corp. v. Mario Transport Corp., 748 F.2d 865, 868 (4th Cir. *5681984) (“Responsibility for obviously improper loading generally rests on the carrier, and it must indemnify the shipper even though the shipper loaded the truck.” (Citing General Electric Co. v. Moretz, 270 F.2d 780 (4th Cir. 1959); Savage Truck Line, 209 F.2d at 442)).
Here, Allvac showed “entitlement to summary judgment” when plaintiff could not establish Allvac owed plaintiffs decedent any duty to load or transport the coils safely, “an essential element of [plaintiffs] claim____” Wilkins, 185 N.C. App. at 672, 649 S.E.2d at 661; see also Petty v. Print Works, 243 N.C. 292, 298, 90 S.E.2d 717, 721 (1956) (“To recover damages for actionable negligence, plaintiff must establish (1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach.” (Citation omitted)).
There is no genuine issue of material fact that Robert Smith, the driver who picked up the load at Allvac,: (1) instructed the forklift operator on where to place the coils on the truck; (2) instructed the forklift operator to take the coils off the truck and to band them; (3) instructed the forklift driver on where to replace the coils on his truck after banding; (4) inspected the load before leaving Allvac; (5) was satisfied that the truck had been loaded in accordance with his standards and his instructions; (6) signed two bills of lading, both of which acknowledged that the truck had been “loaded and braced in accordance with [his] instructions[;]” and (7) acknowledged that it was his job, his duty, and his responsibility, as the driver of the truck, to be sure that the coils were properly loaded with his instructions.
Once Allvac established its “entitlement to summary judgment[,]” “the burden shift[ed] to [plaintiff] to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that [s]he can at least establish a prima face' case at trial.” Wilkins, 185 N.C. App. at 672, 649 S.E.2d at 661. Plaintiff failed to produce any forecast of genuine issues of material fact to show that Allvac had retained or assumed any responsibility for the manner of or oversight over the loading or transporting of the coils.
The incident where plaintiffs decedent was killed, occurred five days and hundreds of miles after the shipment left Allvac’s facility. Plaintiff failed to carry her burden “to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that [s]he can at least establish aprima facie case at trial.” Id. The trial court properly granted Allvac’s motion for summary judgment and its judgment should be affirmed.
*569III. Conclusion
After Allvac showed entitlement to summary judgment, plaintiff failed “to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that [s]he can at least establish a prima face case at trial.” Id. An essential element of her claim is absent. Under our standard of review, the trial court properly granted Allvac’s motion for summary judgment. Id. at 671-72, 649 S.E.2d at 661. I vote to affirm the trial court’s order and respectfully dissent.