Appeal by plaintiff from McLelland, Judge. Judgment entered 17 April 1981 in Superior Court, Alamance County. Heard in the Court of Appeals 8 April 1982.
Martin (Robert M.), Judge. Judges Vaughn and Arnold concur.
A party moving for summary judgment has the burden of "'clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.' 6 Pt. 2 Moore's Federal Practice, § 56.15,
at 642 (2d ed. 1976);" Moore v. fieldcrest Mills, Inc., 296 N.C. 467, 469-70, 251 S.E.2d 419, 421 (1979). The language of Rule 56, N.C. Rules Civ. Proc., conditions the rendition of summary judgment upon a showing by the movant that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The court is not authorized by Rule 56 to decide an issue of fact. It is authorized to determine whether a genuine issue of fact exists. "The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary judgment for either party when a fatal weakness in the claim or defense is exposed." Moore v. Fieldcrest Mills, Inc., supra at 470, 251 S.E.2d 422; Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). Moore v. Fieldcrest Mills, Inc., supra at 470, 251 S.E.2d 422, continues its analysis of summary judgment stating:
"The device used is one whereby a party may in effect force his opponent to produce a forecast of evidence which he has available for presentation at trial to support his claim or defense. A party forces his opponent to give this forecast by moving for summary judgment. Moving involves giving a forecast of his own which is sufficient, if considered alone, to compel a verdict or finding in his favor on the claim or defense. In order to compel the opponent's forecast, the movant's forecast, considered alone, must be such as to establish his right to judgment as a matter of law." 2 McIntosh, N.C. Practice and Procedure, § 1660.5 (2d ed. Phillips Supp. 1970). "If there is any question as to the credibility of witnesses or the weight of evidence, a summary judgment should be denied. . . ." 3 Barron and Holtzoff, Federal Practice and Procedure, § 1234 (Wright ed. 1958).
We now determine the propriety of summary judgment for defendants in this case by applying these legal principles to the record properly before us.
Was plaintiff's intestate killed because of the negligence of either of the defendants? This is the overriding issue of fact which plaintiff must establish at trial in order to prevail on her cause of action. Plaintiff asserts that the Burlington Police Department failed to adequately train Officer J. R. Griffeth in the
proper techniques and decision-making processes of high speed police pursuit and the alternative uses of the warrant arrest procedure in lieu of high-speed pursuit. She further asserts that the conduct of Officer Griffeth while pursuing a suspect created an unreasonable risk of harm to plaintiff's decedent, Roberson. To support their motions for summary judgment and establish the non-existence of negligence on the part of either defendant, movants offered the affidavits and depositions of Raymond F. Shelton, James Elbie Conklin and James Robert Griffeth.
Defendant James Griffeth gave the following affidavit concerning the pursuit of the McGee vehicle:
At approximately 1:50 a.m. on the morning of July 12, 1978, I was on patrol duty in the City of Burlington in the vicinity of the intersection of Graham-Hopedale Road and Hanover Road. While stopped at this intersection facing north on Graham-Hopedale Road, Officer M.O. Wall of the Burlington Police Department communicated by radio the direction of travel of a vehicle which he stated had been driving left of center and had almost run him off of Hanover Road. Both Officer Wall and the vehicle were within my sight heading east on Hanover Road towards my position at the intersection of Hanover Road and Graham-Hopedale Road. The vehicle passed directly in front of my patrol car and I was able to identify that the driver was Terry Lee McGee. I personally knew that Terry Lee McGee had had his driver's license revoked and had a very serious and extensive negligent driving record. I had apprehended him while he was driving the same vehicle approximately a week earlier for driving while his license was revoked and possession of marijuana. When the vehicle passed in front of my patrol car, I recognized Terry Lee McGee and his vehicle. The weather was clear, visibility was good, the road was dry, and, since it was an early weekday morning, there was no other traffic on Hanover Road.
Once Terry Lee McGee's vehicle passed my patrol car heading east on Hanover Road and I made a visual identification, I turned right from my position facing north at the intersection of Graham-Hopedale Road and Hanover. I turned on my high beams and the blue revolving lights on top of my
patrol car. Once my blue lights were turned on, Terry Lee McGee increased his speed to 50 m.p.h. or more. When he increased the speed of his vehicle, I turned on my police siren; but Terry Lee McGee rapidly accelerated his vehicle. Both his vehicle and my patrol car were then heading east on Hanover Road. At the beginning of my pursuit, I had radioed police headquarters in Burlington that I was in pursuit of a vehicle on Hanover Road heading east towards Graham, North Carolina.
The pursuit proceeded east on Hanover Road through the intersection of Hanover Road and Sellars Mill Road and in the direction of the city limits of Graham. As the McGee vehicle approached the intersection of Hanover and Sellars Mill Road, the stop light was red. Terry Lee McGee, however, proceeded through the red light at the intersection. After crossing the intersection of Hanover and Sellars Mill Road, I radioed Burlington Police headquarters of my position and my continued pursuit of Terry Lee McGee. I again reported my location to the Burlington Police headquarters when my vehicle passed the back entrance to Cummings High School on Hanover Road. I estimated that the speed of the fleeing McGee vehicle at that point was in excess of 100 m.p.h.
Because of the speed of the McGee vehicle, it began to pull away from me once we passed the back entrance to Cummings High School on Hanover Road. At this time I discontinued the pursuit because the McGee vehicle was going too fast and I was aware that we were heading in the direction of, and soon would enter, a series of very sharp curves in the road and that I would not be able to overtake him or negotiate these curves. I lost sight of Terry Lee McGee's vehicle as I was breaking off the pursuit and as his vehicle entered the first curve still heading east on Hanover Road. Shortly after McGee's vehicle disappeared around the curve on Hanover Road, and while slowing down, I heard the voice of Corporal James Conklin of the Burlington City Police Department over the radio say that there had been a wreck in the curve. I drove to the scene and saw that Terry Lee McGee's vehicle had collided head-on with a City of Graham
patrol car. I did not know until I got out at the scene of the accident who was driving ...