Appeals by plaintiffs from Collier, Judge. Judgment entered 13 January 1981 in Superior Court, Guilford County. Heard in the Court of Appeals 23 September 1981.
Becton, Judge. Judge Martin (Robert M.) and Judge Martin (Harry C.) concur.
The Coxes argue that the trial court improperly granted summary judgment to the Hospital because (1) Dr. Haworth, their privately retained physician, was an agent of the Hospital; and (2) the Hospital was liable to them under both corporate negligence and battery theories since the Hospital was under a duty to, but never did, obtain Mr. Cox's informed consent before Dr. Hawroth performed the myelogram. We reject these arguments.
We note initially that on a motion for summary judgment the moving party has the burden of proving that there are no issues of material fact; all "papers" will be viewed in a light most favorable to the non-movant. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974); G.S. 1A-1, Rule 56(c).
if a party moving for summary judgment presents, by affidavits or otherwise, materials which would require a directed verdict in his favor, if presented at trial, then he is entitled to summary judgment unless the opposing party either shows that affidavits are then unavailable to him, or he comes forward with some materials, by affidavits or otherwise, that show there is a triable issue of material fact.
Page 330} Askew's, Inc. v. Cherry, 11 N.C. App. 369, 372, 181 S.E.2d 201, 203 (1971) (citations omitted).
We address the respondeat superior issue first. The Coxes alleged in their Complaints that Dr. Haworth was an employee of the Hospital engaged in the regular scope of his employment during the time he performed the myelogram. The Hospital not only denied that allegation in its Answer, but also filed affidavits showing that Dr. Haworth was not an employee of the Hospital at the time the myelogram was performed. The Coxes did not respond to the Hospital's affidavits with counter affidavits or other proof as required by our Rules of Civil Procedure. G.S. 1A-1, Rule 56(e).
Rule 56(e) provides for the filing of "[s]upporting and opposing affidavits" in summary judgment proceedings and states, in relevant part, that:
The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
G.S. 1A-1, Rule 56(e). See Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978).
The Hospital, having filed affidavits to support its motion for summary judgment, was entitled to summary judgment on the issue of liability based on respondeat superior because the Coxes did not offer competent evidence to show that Dr. Haworth was an agent of the Hospital. They chose instead to "rest ...