Roberts v. Whitley , 17 N.C. App. 554 ( 1973 )

195 S.E.2d 62 (1973) 17 N.C. App. 554

Beatrice W. ROBERTS
v.
Peggy Buffaloe WHITLEY and Dwight Avery Whitley.

No. 7311SC101.

Court of Appeals of North Carolina.

March 14, 1973.

Stewart & Hayes by Gerald Hayes, Jr., Dunn, for plaintiff appellant.

Bryan, Jones, Johnson, Hunter & Greene by Robert C. Bryan, Dunn, for defendants appellees.

GRAHAM, Judge.

We find the complaint, although sparse in detail, sufficient to meet the requirements of G.S. § 1A-1, Rule 8. Fact pleading is no longer required. "A pleading complies with the rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and—by using the rules provided for obtaining pretrial discovery—to get any additional information he may need to prepare for trial." Sutton v. Duke, 277 N.C. 94, 104, 176 S.E.2d 161, 167. See also Roberts v. Memorial Park, 281 N.C. 48, 187 S.E.2d 721; Acceptance Corp. v. Samuels, 11 N.C. App. 504, 181 S.E.2d 794; Cassels v. Motor Co., 10 N.C.App. 51, 178 S.E.2d 12.

We further find that defendants, as the moving parties, failed to carry their burden of establishing the lack of a triable issue of fact. We therefore reverse the entry of summary judgment. As stated in Page v. Sloan, 281 N.C. 697, 706, 190 S.E.2d 189, 194:

"`. . . [I]ssues of negligence. . . are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner.' 6 Moore's Federal Practice (2d ed. 1971) § 56.17[42] at 2583; 3 Barron and Holtzoff, Federal Practice and Procedure (Wright ed. 1958) § 1232.1, at 106. It is only in exceptional negligence cases that summary judgment is appropriate. Rogers v. Peabody Coal Co., 342 F.2d 749 (C.A.6th 1965); Stace v. Watson, 316 F.2d 715 (C.A.5th 1963). This is so because the rule of the prudent man (or other applicable standard of care) must be applied, and ordinarily the jury should apply it under appropriate instructions from the court. . . .

Moreover, the movant is held by most courts to a strict standard in all cases; and `all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion.' 6 Moore's Federal Practice (2d ed. 1971) § 56.15[3], at 2337; United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)."

The fact there was no contact between the car defendant was driving and plaintiff's car is not decisive. Plaintiff's theory is that the loss of control which she experienced over her vehicle was caused solely by the emergency, and her reaction thereto, arising when feme defendant passed the approaching truck without seeing that she could do so in safety and operated her car in the plaintiff's lane and toward a "head-on collision with plaintiff's vehicle." Whether plaintiff's loss of control of her car under these circumstances constituted actionable negligence on her part is a triable issue. See Davis v. Connell, 14 N.C. App. 23, 187 S.E.2d 360.

On the question of whether plaintiff was following the preceding vehicle too closely, it is noted that the evidence, when considered in the light most favorable to her, would indicate that she was traveling 150 feet behind her husband's vehicle at approximately 50 miles per hour. This evidence, standing alone, does not put to rest the question of whether plaintiff was following her husband's car at a closer distance than was reasonable and prudent under conditions existing, or whether, assuming she was guilty of following too closely, such negligence was a proximate cause of plaintiff's injuries.

Reversed.

BROCK and VAUGHN, JJ., concur.