Ola Deese CALDWELL
v.
Davis W. DEESE.
No. 7526SC254.
Court of Appeals of North Carolina.
July 2, 1975.*454 Mraz, Aycock, Casstevens & Davis by Frank B. Aycock, III, Charlotte, for plaintiff appellant.
Myers & Collie by George C. Collie and Charles T. Myers, Charlotte, for defendant appellee.
HEDRICK, Judge.
The sole question for resolution on this appeal is whether the trial court erred in allowing defendant's motion for summary judgment.
Although the trial judge in entering summary judgment for the defendant declared in the language of Rule 56 that there were no genuine issues of material fact, the findings made by him (findings being unnecessary in passing on a motion *455 for summary judgment, Wall v. Wall, 24 N.C.App. 725, 212 S.E.2d 238 (1975), cert. denied 287 N.C. 264, 214 S.E.2d 437 (1975)) indicate that the court felt that the plaintiff's complaint failed to state a claim upon which relief could be granted. It may be helpful, therefore, to repeat the rule regarding the sufficiency of the allegations in a complaint to state a claim for relief. A complaint fails to state a claim upon which relief can be granted "`if clearly without any merit; and this want of merit may consist in an absence of law to support a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim.' But a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Pleadings are to be liberally construed. Mere vagueness or lack of detail is not ground for a motion to dismiss, but should be attacked by a motion for a more definite statement." 2A Moore's Federal Practice § 12.08 (1974). Accord, Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Viewing plaintiff's complaint in the light of the foregoing principles, we think it is sufficient to state a claim for relief for damages allegedly resulting from the defendant's negligent operation of the bus. Sutton v. Duke, supra.
The answer filed by the defendant denying negligence and pleading contributory negligence creates genuine issues of material fact as to whether any damages suffered by plaintiff were proximately caused by the negligence of the defendant as alleged in the complaint. These issues must be determined at trial unless the defendant, the party moving for summary judgment, carries his burden of producing evidence of the necessary certitude to negative plaintiff's claim in its entirety and thereby demonstrates a lack of genuine issues of material fact. G.S. § 1A1, Rule 56, Rules of Civil Procedure; Sanders v. Davis, 25 N.C.App. 186, 212 S.E.2d 554 (1975); Whitley v. Cubberly, 24 N.C.App. 204, 210 S.E.2d 289 (1974); Tolbert v. Tea Co., 22 N.C.App. 491, 206 S.E.2d 816 (1974). If the defendant produces such evidence, the plaintiff may not rest upon the mere allegations of her complaint but must respond with affidavits or other evidentiary matter which sets forth specific facts showing that there is a genuine issue for trial. Rule 56(e).
In the instant case the only evidentiary matter filed by the defendant in support of his motion was the deposition of the plaintiff wherein she merely reiterated the allegations in her complaint. This deposition does not negate plaintiff's claim in its entirety. Thus, there are genuine issues of material fact to be determined at trial, where the burden will be on the plaintiff to produce whatever evidence she can in support of the allegations in the complaint. Then and then only can the court test and determine the sufficiency of such evidence. At the present stage of the proceedings, the court can only test the sufficiency of the record to support summary judgment for the defendant.
Since the record here consists only of a complaint sufficient to state a claim upon which relief could be granted, an answer denying the material allegations of the complaint and pleading contributory negligence, and plaintiff's deposition which reiterates the allegations of the complaint, summary judgment for defendant was inappropriate.
Reversed and remanded.
BROCK, C. J., dissents.
PARKER, J., concurs.
BROCK, Chief Judge (dissenting):
Defendant's motion for summary judgment is based in part upon his earlier Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. The trial judge ruled upon the motion to dismiss and treated it as a motion for summary judgment, as is permitted under *456 Rule 12(b). Upon this view of the trial court's ruling, I would affirm in part and reverse in part.
In my opinion the factual allegations by the plaintiff and her testimony by deposition disclose, as a matter of law, that the negligence of defendant, if any, was not a proximate cause of the injury to plaintiff's hand. Therefore, there is an absence of law to support her claim for damages to her hand. To this extent, I vote to affirm the dismissal of her action.
I vote to reverse the dismissal of plaintiff's action insofar as it relates to her claim for damages to her property (her dog).