{ "id": 8553330, "name": "GILBERT ROGER HADDOCK, Administrator of the Estate of Adrian Gilbert Haddock v. RAYMOND EARL SMITHSON, MOORE-KING-SULLIVAN, INC., AND GLORIA MANNING HARRINGTON", "name_abbreviation": "Haddock v. Smithson", "decision_date": "1976-07-21", "docket_number": "No. 763SC261", "first_page": "228", "last_page": "231", "citations": [ { "type": "official", "cite": "30 N.C. App. 228" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "195 S.E. 2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "17 N.C. App. 554", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556253 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/17/0554-01" ] }, { "cite": "195 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558411, 8558446, 8558479, 8558427, 8558460 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0257-01", "/nc/283/0257-03", "/nc/283/0257-05", "/nc/283/0257-02", "/nc/283/0257-04" ] }, { "cite": "194 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "17 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555951 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/17/0445-01" ] }, { "cite": "190 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576386 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0697-01" ] }, { "cite": "190 S.E. 2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 525", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552012 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0525-01" ] } ], "analysis": { "cardinality": 401, "char_count": 7694, "ocr_confidence": 0.652, "pagerank": { "raw": 2.62723964642742e-07, "percentile": 0.8218828588075985 }, "sha256": "4edefb116e373c9dff040b582c95447add406e1b11325814cda1471fd6aac21a", "simhash": "1:27073ec58d7b2d67", "word_count": 1235 }, "last_updated": "2023-07-14T18:42:34.327987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Martin concur." ], "parties": [ "GILBERT ROGER HADDOCK, Administrator of the Estate of Adrian Gilbert Haddock v. RAYMOND EARL SMITHSON, MOORE-KING-SULLIVAN, INC., AND GLORIA MANNING HARRINGTON" ], "opinions": [ { "text": "BRITT, Judge.\nThe sole question presented is: Did the trial court err in entering summary judgment as to defendant Smithson and the corporate defendant? We hold that it did.\nDefendants are entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, showed that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. G.S. 1A-1, Rule 56. Summary judgment is an extreme remedy and is appropriate only where no genuine issue of material fact is presented. Long v. Long, 15 N.C. App. 525, 190 S.E. 2d 415 (1972).\nIt is only in exceptional negligence cases that summary judgment is appropriate because the rule of the prudent man or other standard of care must be applied, and ordinarily the jury should apply it under appropriate instructions from the court. Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E. 2d 638 (1973), cert. denied, 283 N.C. 257, 195 S.E. 2d 689 (1973); Roberts v. Whitley, 17 N.C. App. 554, 195 S.E. 2d 62 (1973).\nViewed in the light most favorable to plaintiff, the depositions, affidavits, and other materials presented at the hearing tended to show:\nOn the day in question intestate, a retarded fourteen-year-old boy, lived with his father, grandmother, and sister near a paved highway in rural Pitt County. Intestate could not read or write and had a serious impediment in his speech. He could, however, ride a bicycle. His uncle, W. R. Haddock, lived a short distance away, on the opposite side of the highway. The speed limit on the highway was 55 m.p.h.\nDefendant Smithson drove a fuel oil delivery truck for the corporate defendant. Prior to the day in question he had delivered fuel oil to the homes of intestate\u2019s father and uncle many times. On those occasions he would see and talk with intestate and they had become good friends. Defendant Smithson knew that intestate was retarded. When defendant Smithson would deliver oil at intestate\u2019s home he would give intestate the delivery ticket and intestate would take it to his grandmother.\nOn the day in question defendant Smithson was delivering oil to the uncle\u2019s home. During the course of the delivery intestate came up on a bicycle and proceeded to talk with Smithson. Intestate\u2019s uncle was across the highway working on a tractor or piece of equipment. When Smithson finished delivering oil, he made out a ticket, handed it to intestate, and told him to take it to his uncle. While attempting to ride the bicycle across the highway to where his uncle was, a car driven by defendant Harrington at about 55 m.p.h., struck intestate and killed him. Intestate had been told by his father and other members of the family on numerous occasions not to ride a bicycle on the highway.\nWe think the evidence was sufficient to raise a jury question with respect to the negligence of defendant Smithson, which negligence, if any, was imputable to the corporate defendant.\nDefendant Smithson and the corporate defendant argue that the materials presented at the hearing establish contributory negligence on the part of intestate as a matter of law and for that reason summary judgment was proper. We disagree.\nIn the first place, these defendants did not plead contributory negligence as required by G.S. 1A-1, Rule 8(c). It is true that defendant Harrington pleaded it, but these defendants, having filed a separate answer, cannot take advantage of an affirmative defense pleaded by defendant Harrington. Furthermore, considering the mental retardation of intestate, we do not think the materials established contributory negligence as a matter of law.\nFinally, defendant Smithson and the corporate defendant cross assign as error the admission and consideration of an affidavit made by plaintiff\u2019s attorney. Assuming, arguendo, that the affidavit was improper, we think the other materials presented at the hearing were sufficient to establish genuine issues of material fact.\nFor the reasons stated, the summary judgment in favor of defendant Smithson and the corporate defendant is\nReversed.\nJudges Hedrick and Martin concur.", "type": "majority", "author": "BRITT, Judge." } ], "attorneys": [ "James, Hite, Cavendish & Blount, by Robert D. Rome III, for plaintiff appellant.", "Smith, Anderson, Blount & Mitchell, by C. Ernest Simons, Jr., for defendant appellees." ], "corrections": "", "head_matter": "GILBERT ROGER HADDOCK, Administrator of the Estate of Adrian Gilbert Haddock v. RAYMOND EARL SMITHSON, MOORE-KING-SULLIVAN, INC., AND GLORIA MANNING HARRINGTON\nNo. 763SC261\n(Filed 21 July 1976)\n1. Negligence \u00a7 29\u2014 retarded intestate crossing highway \u2014 instruction from defendant to do so \u2014 sufficiency of evidence of negligence\nIn an action for the wrongful death of plaintiff's intestate, a 14 year old retarded boy, the trial court erred in entering summary judgment for defendant employee and the corporate defendant where the evidence tended to show that defendant employee was a good friend of intestate, he delivered oil to the homes of intestate\u2019s father and uncle, defendant knew intestate was retarded, when defendant delivered oil at intestate\u2019s home he would give intestate the delivery ticket and intestate would take it to his grandmother, on the day in question defendant delivered oil to intestate\u2019s uncle\u2019s home, intestate rode up on his bicycle, defendant gave him a delivery ticket and instructed him to take it to his uncle who was across the highway, and intestate was struck and killed by a vehicle while he was attempting to ride his bicycle across the highway.\n2. Negligence \u00a7 35\u2014 contributory negligence \u2014 failure to plead \u2014 retarded intestate \u2014 no contributory negligence as matter of law\nIn an action for the wrongful death of a 14 year old retarded intestate, defendants cannot contend on appeal that evidence presented at the hearing on their summary judgment motion established intestate\u2019s contributory negligence as a matter of law, since defendants did not \"plead contributory negligence as required by G.S. 1A-1, Rule 8(c); furthermore, considering the mental retardation of intestate, the evidence did not establish contributory negligence as a matter of law.\nAppeal by plaintiff from Browning, Judge. Judgment entered 10 November 1975 in Superior Court, Pitt County. Heard in the Court of Appeals 17 June 1976.\nThis is an action for the wrongful death of plaintiff\u2019s intestate. Pertinent allegations of the complaint are summarized as follows:\nOn or about 16 October 1973 defendant Smithson was employed by corporate defendant and at the time complained of was acting in the course and scope of his employment. On said date defendant Smithson requested intestate, who was mentally retarded, to carry a fuel oil ticket across a highway to intestate\u2019s uncle. Pursuant to the request intestate took the ticket, mounted his bicycle and started across the highway to where his uncle was working. As intestate was crossing the highway he was struck and killed by an automobile driven by defendant Harrington.\nDefendant Smithson and the corporate defendant filed an answer denying material allegations of the complaint relating to them. Defendant Harrington filed a separate answer in which she denied material allegations of the complaint relating to her and pleaded contributory negligence.\nThereafter, defendant Smithson and corporate defendant moved for summary judgment pursuant to Rule 56. Defendant Harrington filed a similar motion. Following a hearing the trial court allowed the motions and from judgments dismissing the actions, plaintiff appealed.\nThe record on appeal was filed on 29 March 1976. On 30 April 1976 this court allowed plaintiff\u2019s motion to withdraw the appeal as to defendant Harrington.\nJames, Hite, Cavendish & Blount, by Robert D. Rome III, for plaintiff appellant.\nSmith, Anderson, Blount & Mitchell, by C. Ernest Simons, Jr., for defendant appellees." }, "file_name": "0228-01", "first_page_order": 256, "last_page_order": 259 }