Full Case Name:  Branks v. Paul Kern

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Country of Origin:  United States Court Name:  North Carolina Court of Appeals Primary Citation:  348 S.E.2d 815 (N.C.App.,1986) Date of Decision:  Tuesday, October 7, 1986 Judge Name:  WELLS, Judge. Jurisdiction Level:  North Carolina Alternate Citation:  348 S.E.2d 815 (1986) Judges:  and WEBB WELLS concur. J. Judge. HEDRICK C.J. Attorneys:  C. David Gantt, Asheville, for plaintiff-appellant. Harrell & Leake by Larry Leake, Asheville, for defendant-appellee Animal Emergency Clinic. Van Winkle, Buck, Wall, Starnes & Davis, P.A. by Russell P. Brannon and Michelle Rippon, Asheville, for defendant-appellee Dr. Paul Kern.

In this negligence action, a cat owner brought suit against veterinarian and veterinary clinic after she was bitten by her own cat while the cat was receiving treatment by the veterinarian. At issue, is whether the veterinarian owed a duty to the cat owner to exercise reasonable care in preventing the cat from harming the owner while the cat was being treated.  In review of the lower court’s grant of motion for summary judgment, the Court of Appeals held that substantial issues of material fact existed to preclude the grant of summary judgment. However, this was overturned on appeal at the Supreme Court. ( See , Branks v. Kern (On Appeal)   359 S.E.2d 780 (N.C.,1987)).

The trial court may grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that any party is entitled to judgment as a matter of law." N.C.Gen.Stat. § 1A-1, Rule 56(c), North Carolina Rules of Civil Procedure. As our Supreme Court explained in Lowe v. Bradford :

A party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party's claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim. (Citations omitted.) Generally this means that on "undisputed aspects of the opposing evidential forecast," where there is no genuine issue of fact, the moving party is entitled to judgment as a matter of law. 2 McIntosh, North Carolina Practice and Procedure § 1160.5, at 73 (2d ed. Supp.1970).

305 N.C. 366, 289 S.E.2d 363 (1982). The primary issue in the case at bar is whether the plaintiff was injured by the defendant's negligence, a claim for relief which our courts have traditionally been reluctant to keep from the jury. See Gladstein v. South Square Assoc., 39 N.C.App. 171, 249 S.E.2d 827 (1978), cert. denied, 296 N.C. 736, 254 S.E.2d 178 (1979). Negligence consists of a number of elements, and in order to survive a motion for summary judgment, plaintiff's forecast of the evidence must support the conclusion that the defendant had a duty of care to the plaintiff; that defendant breached his duty; that his lack of due care was the proximate cause of some injury to plaintiff, an important aspect of proximate cause being that the injury was reasonably forseeable. See Pittman v. Frost, 261 N.C. 349, 134 S.E.2d 687 (1964). See also Meyer v. McCarley and Co., 288 N.C. 62, 215 S.E.2d 583 (1975). The first question, then, is to what standard of care the defendant veterinarian will be held.

Defendants assert that the proper duty of care in this case is that exercised by skilled veterinarians, similarly situated, engaged in the same type of work--a breach of which is medical malpractice as opposed to ordinary negligence. We disagree. Plaintiff does not allege that her cat was harmed by the defendant's actions. Rather, she asserts that the veterinarian's negligent restraint of her pet and his failure to warn her of any danger allowed the cat to bite her. This is clearly not a case of veterinary medical malpractice, but one of ordinary negligence. Plaintiff was a business invitee of defendant Clinic, see Goldman v. Kossove, 253 N.C. 370, 117 S.E.2d 35 (1960), and as such defendant owed her a duty to exercise due care for her safety while she was on its premises. See Sibbett v. Livestock, Inc., 37 N.C.App. 704, 247 S.E.2d 2, cert. denied, 295 N.C. 735, 248 S.E.2d 864 (1978). We hold that under the forecast of evidence in this case, Dr. Kern owed plaintiff a duty to exercise reasonable care in preventing the cat from harming the plaintiff. We now consider whether plaintiff's forecast is sufficient to establish a genuine issue of fact as to whether Dr. Kern breached that duty.

Plaintiff asserts that Dr. Kern was negligent in two respects: (1) in his failure to properly restrain the animal and (2) in permitting the plaintiff to remain in the room with no instructions. On the question of duty to warn, plaintiff in her deposition testified that the defendant asked her to bring the cat in and allowed her to remain in the room; he never gave her any direction as to where she should or should not stand. Nor, she contends, did he at any time warn her that the cat might bite her. However, in his own deposition Dr. Kern stated that, after the cat had snapped at the assistant, he told the plaintiff, "Don't let him bite you." This evidence raises a genuine issue of material fact as to the breach of Dr. Kern's duty upon which a jury must pass.

On the restraint issue, however, the parties are in essential agreement as to the facts: (1) that there are a number of ways in which a cat can be restrained; (2) that the defendant Dr. Kern chose to have his assistant grasp the cat and hold him by the scruff of the neck; and (3) that at one point, Dr. Kern tried to put a muzzle on the animal but abandoned the idea when the muzzle fell off. These facts are not in dispute; yet, as Chief Judge Morris wrote in Gladstein v. South Square Assoc. :

... it has often been said by the courts of this and many other jurisdictions that only in exceptional cases involving the question of negligence or reasonable care will summary judgment be an appropriate procedure to resolve the controversy. (Citations omitted.) The propriety of summary judgment does not always revolve around the elusive distinction between questions of fact and law. Although there may be no question of fact, when the facts are such that reasonable men could differ on the issue of negligence courts have generally considered summary judgment improper. (Citations omitted.) Judge Parker for this Court explained:

This is so because even in a case in which there may be no substantial dispute as to what occurred, it usually remains for the jury, under appropriate instructions from the court, to apply the standard of the reasonably prudent man to the facts of the case in order to determine where the negligence, if any, lay and what was the proximate cause of the aggrieved party's injuries. Robinson v. McMahan, 11 N.C.App. [275] at 280, 181 S.E.2d [147] at 150 [ (1971) ]; see also Edwards v. Means [36 N.C.App. 122, 243 S.E.2d 161 (1978) ], supra.

The jury has generally been recognized as being uniquely competent to apply the reasonable man standard. See generally Prosser, Torts § 37 at 207 (4th Ed.1971). Because of the peculiarly elusive nature of the term 'negligence', the jury generally should pass on the reasonableness of conduct in light of all the circumstances of the case. This is so even though in this State '[w]hat is negligence is a question of law, and when the facts are admitted or established, the court must say whether it does nor does not exist.' McNair v. Boyette, 282 N.C. 230, 236, 192 S.E.2d 457, 461 (1972).

Gladstein, supra. In the case at bar, the forecast of evidence before the trial court was sufficient to allow a trier of fact to reasonably find that plaintiff was a business invitee of defendants; that defendant Kern owed plaintiff a duty to exercise reasonable care to restrain plaintiff's cat during the operation and to adequately warn plaintiff of the risk of remaining in close proximity to the cat during the operation; that defendant Kern breached that duty in both respects; that plaintiff was injured and damaged; and that Kern's breach was the proximate cause of plaintiff's injury and damages.

The final question is whether summary judgment is proper on the issue of contributory negligence. Defendant contends that the plaintiff caused her own injury by continuing to pet her cat even though she knew he was in great pain and in fact had seen the cat attempt to bite the assistant. We disagree. Issues of contributory negligence, like those of ordinary negligence, are rarely appropriate for summary judgment. Meadows v. Lawrence, 75 N.C.App. 86, 330 S.E.2d 47 (1985). Only where plaintiff's own evidence discloses contributory negligence so clearly that no other reasonable conclusion may be reached is summary judgment to be granted. Izard v. Hickory City Schools Bd. of Education, 68 N.C.App. 625, 315 S.E.2d 756 (1984). In the case at bar, reasonable men could differ as to whether, in light of all the circumstances, plaintiff's failure to keep out of harm's way constituted contributory negligence.

The judgment of the trial court must be and is Reversed.

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