Frey v. Woodard, Civ. A. No. 79-1458

• Decision Date: 12 April 1983
• Docket Number: Civ. A. No. 79-1458,80-1533.
• Citation: 565 F. Supp. 386
• Parties: Woodrow and Betty FREY v. Gerald WOODARD, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

565 F. Supp. 386

Woodrow and Betty FREY
v.
Gerald WOODARD, et al.

Civ. A. Nos. 79-1458, 80-1533.

United States District Court, E.D. Pennsylvania.

April 12, 1983.

Charles J. Hair, Allentown, Pa., for plaintiffs.

Jackson M. Sigmon, Bethlehem, Pa., James G. Sheehan, Asst. U.S. Atty., Philadelphia, Pa., for respondents.

MEMORANDUM AND ORDER

TROUTMAN, District Judge.

In April, 1977, while traveling through Jacksonville, North Carolina, plaintiffs Woodrow and Betty Frey were struck by defendant Gerald Woodard's automobile while attempting to walk across a six-lane highway. Prior to being hit by Woodard's car, plaintiffs crossed in front of a government

565 F. Supp. 387

vehicle driven by defendant Sergeant McCracken. He allegedly stopped the fiveton truck which he was driving and both told and motioned to plaintiffs that it was safe to cross the highway. While plaintiffs were in front of the sergeant's vehicle, the truck suddenly and inexplicably "surged" or "bucked" forward. Plaintiffs, seeking to avoid being hit by the truck, jumped into the adjacent lane and were struck by Woodard's car

Defendant, United States, moves for summary judgment and argues that North Carolina¹ would not impose liability upon one who like McCracken, gave pedestrians, who were eventually struck by a car, a hand signal to proceed. Plaintiffs and defendant Woodard, opposing the motion, urge that the record evidence demonstrates that McCracken negligently indicated to plaintiffs that the road was free from traffic when, in fact, it was not and that the vehicle's unexplained lunge constitutes a breach of McCracken's duty of care.

We begin our analysis of the issue at bar with the observation that summary judgment is a drastic weapon which should only be used sparingly since it bars litigants from presenting their case to a jury. Tose v. First National Bank, 648 F.2d 879, 883 (3d Cir.1981). Additionally, Rule 56 motions are frequently precluded from favorable consideration in negligence actions because application of the "reasonable man standard" usually requires "full exposition of all the underlying facts and circumstances". Barron v. Honeywell, Inc., 69 F.R.D. 390, 392 (E.D.Pa.1975). Federal courts, applying North Carolina law, faithfully adhere to these precepts, Cook v. Baker Equipment Engineering Co., Inc., 582 F.2d 862, 865 (4th Cir.1978), but recognize that summary judgment nevertheless has a rightful place in negligence cases. Fidelity and Deposit Co. of Maryland v. Bank of...