Wallace v. Haserick , 105 N.C. App. 315 ( 1992 )

EAGLES, Judge.

The sole issue raised on appeal is whether the trial court improperly allowed the defendants to inject into the case an affirmative defense that had not been raised in the pleadings. We hold that the trial court did not err.

Plaintiff contends that the trial court erred when it allowed counsel for defendants Prevo Drugs and Haserick to argue that the Reveo pharmacist “misread” the prescription when Reveo was not a party to the action and neither defendant alleged in the pleadings that Reveo was in any way negligent. Plaintiff contends that “the arguments raise the issue of insulating negligence of Reveo.” We disagree.

In discussing insulating negligence, the Supreme Court has said:

“An efficient intervening cause is a new proximate cause which breaks the connection with the original cause and becomes itself solely responsible for the result in question. It must be an independent force, entirely superseding the original action and rendering its effect in the causation remote.”

“The test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another, is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury.”

Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 236-37, 311 S.E.2d 559, 566-67 (1984) (quoting Harton v. Forest City Telephone Co., 141 N.C. 455, 462, 54 S.E. 299, 301-02 (1906) and Riddle v. Artis, 243 N.C. 668, 671, 91 S.E.2d 894, 896-97 (1956)). The statements of defendants’ counsel about the Reveo pharmacist misreading the prescription do not raise a question of insulating negligence. Defendants here do not concede that Dr. Haserick was negligent or argue that Reveo committed a second unforeseeable negligent act in “misreading” the prescription. They contend, and the jury agreed, that Dr. Haserick was not negligent. Additionally, as to Reveo, any negligence on the part of Prevo occurred after the acts of Reveo. Accordingly, the actions of Reveo could not constitute a subsequent intervening act. At trial both defendants contended that they were not negligent and that their actions were not the actual cause of plaintiff’s injuries. The statements regarding the Reveo pharmacist misreading the prescription address the cause-in-fact element of plaintiff’s prima facie case of negligence against defendants Haserick and Prevo Drugs.

Because defendants’ statements regarding the Reveo pharmacist related to plaintiff’s prima facie negligence claim, defendants were not required to plead them as an affirmative defense under Rule of Civil Procedure 8(c).

Generally, a defense which contests one of the material allegations of the complaint is not an affirmative defense since it involves an element of the plaintiff’s prima facie case. Any other defense, especially if it introduces new matter in attempt to avoid the plaintiffs claim regardless of the truth or falsity of the allegations in the complaint, must be considered an affirmative defense.

W. Shuford, North Carolina Civil Practice and Procedure § 8-7 (1988). Accordingly, this assignment of error is overruled.

Because we hold that the trial court did not err in entering judgment for the defendants, we need not reach defendant Haserick’s cross-assignment of error. For the reasons stated, we find no error.

No error.

Judges JOHNSON and Orr concur.