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Howard v. Parker9/5/1989
Plaintiff contends the trial court erred in granting summary judgment for the defendants. We disagree and affirm the court below.
I
Initially, we recognize this is an interlocutory appeal under both G.S. 1-277 and G.S. 7A-27. "Both G.S. 1-277 and G.S. 7A-27(d) provide for immediate appeal of a judicial order or determination that affects a substantial right." Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982). "Since the order of the trial court dismissing plaintiff's claim for punitive damages did affect a 'substantial right' of the plaintiff . . ." this appeal is properly before us. Newton v. Standard Fire Ins. Co., 291 N.C. 105, 109, 229 S.E.2d 297, 300 (1976).
II
Summary judgment is proper when there is no genuine issue as to any material fact and a party is entitled to judgment as a matter of law. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 252, 266 S.E.2d 610, 615 (1980). Summary judgment is "designed to allow a 'preview' or 'forecast' of the proof of the parties in order to determine whether a jury trial is necessary." Loy v. Lorm Corp., 52 N.C. App. 428, 437, 278 S.E.2d 897, 903-04 (1981). "The determination of what constitutes a 'genuine issue as to any material fact' is often difficult." Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). A genuine issue is one which can be maintained by substantial evidence. Koontz v. City Page 364} of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). A party may show that there is no genuine issue as to any material fact by showing that the party with the burden of proof in the action cannot produce substantial evidence which would allow that issue to be resolved in his favor. Best v. Perry, 41 N.C. App. 107, 109, 254 S.E.2d 281, 284 (1979).
The critical issue, then, is whether there is substantial evidence to support the plaintiff's punitive damage claim.
Punitive damages, as the descriptive name clearly implies, are awarded as a punishment. They are never awarded as compensation. . . . "They are given to the plaintiff in a proper case, not because they are due, but because of the opportunity the case affords the court to inflict punishment for conduct intentionally wrongful." [Citation omitted.] Punitive damages are never awarded merely because of a personal injury inflicted nor are they measured by the extent of the injury; they are awarded because of the outrageous nature of the wrongdoer's conduct.
Cavin's, Inc. v. Atlantic Mut. Ins. Co., 27 N.C. App. 698, 701-02, 220 S.E.2d 403, 406 (1975).
In personal injury cases sounding in negligence punitive damages cannot be awarded where the defendant's wrong amounted to no more than ordinary negligence; they can only be awarded where there is a higher level of misconduct, such as wilfulness, wantonness or recklessness that indicates at least an indifference to or a disregard for the rights and safety of others.
Hunt v. Hunt, 86 N.C. App. 323, 327, 357 S.E.2d 444, 447, aff'd, 321 N.C. 294, 362 S.E.2d 161 (1987).
Applying the foregoing principles of law to the instant case we believe the trial court correctly removed the
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