Opinion
No. 8421SC1038
Filed 4 June 1985
Municipal Corporations 17.1 — injury from sidewalk collapse — res ipsa loquitur — summary judgment for defendant improper Summary judgment was improper for defendant City where plaintiff was walking along a sidewalk which was under the City's exclusive control, plaintiff was injured when the sidewalk collapsed, and none of the evidence tended to give an explanation for the giving way of the concrete sidewalk. Plaintiff's evidence was sufficient to invoke the doctrine of res ipsa loquitur, and that doctrine raises genuine issues of material fact as to negligence and proximate cause.
APPEAL by plaintiff from Albright, Judge. Order entered 22 August 1984 in Superior Court, FORSYTH County. Heard in the Court of Appeals 8 May 1985.
The Law Firm of Billy D. Friende, Jr., by Donald R. Buie, for plaintiff, appellant.
Womble Carlyle Sandridge Rice, by Roddey M. Ligon, Jr., and Gusti W. Frankel, for defendant, appellee.
Judge WHICHARD dissenting.
This is a civil action wherein plaintiff seeks to recover damages for personal injuries allegedly resulting when a public sidewalk under defendant's control collapsed under plaintiff's weight.
Defendant filed an answer denying the material allegations in plaintiff's complaint and alleging contributory negligence on the part of the plaintiff.
Defendant filed a motion for summary judgment which it supported with the pleadings, defendant's answers to plaintiff's interrogatories and plaintiff's testimony upon deposition. Plaintiff responded in opposition to the motion relying upon the pleadings, defendant's answers to plaintiff's interrogatories, plaintiff's testimony upon deposition and affidavits.
From summary judgment for defendant plaintiff appealed.
Although the question is not raised or discussed by either party, we hold the evidentiary matter offered in evidence by plaintiff in opposition to defendant's motion for summary judgment is sufficient to invoke the doctrine of res ipsa loquitur, and such doctrine raises genuine issues of material fact as to negligence and proximate cause requiring us to reverse summary judgment for the defendant.
In order to invoke the doctrine of res ipsa loquitur plaintiff must show, "(1) that there was an injury, (2) that the occurrence causing the injury is one which ordinarily doesn't happen without negligence on someone's part, (3) that the instrumentality which caused the injury was under the exclusive control and management of the defendant." Jackson v. Gin Co., 255 N.C. 194, 197, 120 S.E.2d 540, 542 (1961). Where the plaintiff's evidence justifies the application of the doctrine of res ipsa loquitur, the nature of the occurrence itself and the inferences drawn from the evidence are sufficient to enable plaintiff, without direct proof of negligence, to make out a prima facie case and carry the case to the jury. Young v. Anchor Co., 239 N.C. 288, 79 S.E.2d 785 (1954). If more than one inference can be drawn from the facts, when defendant's negligence is the most likely cause of the injury, the doctrine of res ipsa loquitur should apply. McPherson v. Hospital, 43 N.C. App. 164, 258 S.E.2d 410 (1979).
In the present case the forecast of evidence for plaintiff is that the sidewalk along which plaintiff was walking was under the exclusive control of the City of Winston-Salem, Husketh v. Convenient Systems, 295 N.C. 459, 245 S.E.2d 507 (1978), and plaintiff was injured when the sidewalk collapsed. None of the evidence contained in support of and in opposition to the motion for summary judgment tends to give an explanation for the giving way of the concrete sidewalk. We are of the opinion that the evidence is sufficient to raise genuine issues of material fact as to defendant's negligence and as to whether such negligence was the proximate cause of plaintiff's injury.
Reversed and remanded.
Judge WEBB concurs.
Judge WHICHARD dissents.