McDevitt v. Stacy

• Decision Date: 05 February 2002
• Docket Number: No. COA01-15.,COA01-15.
• Parties: James McDEVITT, III, Plaintiff, v. Janice STACY and Larry Stacy, Defendants.
• Court: North Carolina Court of Appeals

559 S.E.2d 201

148 NC App. 448

James McDEVITT, III, Plaintiff, v. Janice STACY and Larry Stacy, Defendants.

No. COA01-15.

Court of Appeals of North Carolina.

February 5, 2002.

Jones, Martin, Parris, and Tessener, L.L.P., by Hoyt G. Tessener, Raleigh, for plaintiff-appellant.

Teague, Campbell, Dennis, & Gorham, LLP, by Mallory T. Underwood and Tara L. Davidson, Raleigh, for defendant-appellee. TYSON, Judge.

James McDevitt ("plaintiff") appeals from an order and judgment entered after the jury returned a verdict in favor of defendants. We find no error.

I. Facts

Janice Stacy (individually "defendant"), substituting for her husband Larry Stacy, (collectively "defendants") was delivering newspapers from their car at approximately 5:15 a.m. on the morning of 20 October 1998. Defendant was moving slowly along the shoulder of the wrong side of the road inserting newspapers into her customers' boxes. It was dark and virtually no other traffic was on the road. Defendant saw a car approaching in the distance with its headlights on. Defendant slowly pulled her car into a driveway parallel to the road. Defendant dimmed her high-beams and engaged the emergency flashers. Plaintiff approached, swerved, and collided into defendants' car. Both cars were damaged. Plaintiff and defendant walked away from the scene without medical assistance.

Plaintiff filed his complaint alleging that defendant was negligent on 28 June 1999. On or about 11 September 1999, defendants answered generally denying plaintiff's allegations and pleading "conditional contributory negligence." On 7 September 1999, plaintiff replied denying negligence, alleged defendant's conduct constituted gross negligence, and specifically pled the doctrine of last clear chance.

The trial commenced on 28 August 2000. Plaintiff moved in limine to exclude all evidence of contributory negligence based on defendants' pleading errors. Defendants responded and moved to amend their answer to include contributory negligence to the extent their pleadings were insufficient. After considering both motions simultaneously, the trial court expressly denied plaintiff's motion. The jury returned a verdict in favor of defendants on 1 September 2000 barring plaintiff's recovery based on his own contributory negligence.

II. Issues

Plaintiff argues that the trial court committed reversible error: (1) denying his motion in limine to exclude contributory negligence as an issue at trial based on defendants' inadequate pleadings, (2) instructing the jury that plaintiff leaving his lane to avoid the collision constituted contributory negligence, and (3) denying plaintiff's requested jury instructions.

At the outset we note that one of plaintiff's assignments of error does not comport with the transcript. Plaintiff's assignment of error number two in the record states "[t]he Court's denial of Plaintiff's Motion for a Directed Verdict on the issue of contributory negligence where the Defendants failed to move to amend their Answer to conform to the evidence pursuant to N.C.R.Civ.P. [sic] 15(b)." The trial transcript shows that plaintiff's motion was based on "insufficiency of the evidence" to establish contributory negligence, not based on plaintiff's failure to move to amend their answer. This assignment of error is dismissed. N.C.R.App.P. 10(c) (1999).

III. Contributory Negligence

Plaintiff argues that the issue of contributory negligence should have been excluded from trial because defendants failed to properly plead that affirmative defense, and that the trial court failed to rule on defendants' motion to amend their pleadings to include contributory negligence. We disagree.

A. Pleadings

The North Carolina Rules of Civil Procedure require a pleading setting forth an affirmative defense to include "a short and plain statement of any matter constituting an avoidance or affirmative defense sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved." N.C. Gen.Stat. § 1A-1, Rule 8(c) (1990). Under "notice theory" pleading, a pleading must give "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... 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 (1970). "Under our new Rules of Civil Procedure, the requirements for pleading an affirmative defense are no more stringent than those for pleading a cause of action." Bell v. Traders & Mechanics Ins. Co., Inc., 16 N.C.App. 591, 593, 192 S.E.2d 711, 712 (1972). Defendants answered the complaint and pled "conditional contributory negligence," stating that:

These defendants are informed and believe and [sic] evidence may be developed through the course of this litigation which may support the assertion of a defense of contributory negligence to the claim of the plaintiffs. Until these defendants have been provided the opportunity to conduct discovery in this case inquiring into those matters which may support such a defense, one cannot be pleaded. Accordingly, these defendants specifically reserve their right pursuant to provisions of North Carolina Rule of Civil Procedure 8(c) and put the plaintiff on notice of their intention to assert the affirmative defense of contributory negligence in the event that facts discovered in this action may support such a defense.

(Emphasis supplied). Plaintiff filed a reply to defendants' answer wherein he stated that:

Plaintiff responds to Defendants' answer which alleges conditional contributory negligence, as follows:

Responding to Defendants' defense of "Conditional Contributory Negligence," Plaintiff denies the allegations of negligence contained therein and denies that any negligence on the part of Plaintiff contributed to or was the cause of his injury.

Responding to the same defense, Plaintiff alleges that if plaintiff's conduct amounts to contributory negligence, then Defendants' [sic] conduct constituted gross negligence, which would defeat any contributory negligence which Defendants ascribes to Plaintiff.

Plaintiff also specifically pleads the doctrine of last clear chance in avoidance to the affirmative defense of contributory negligence, and alleges as follows:

1. That Plaintiff, at the time of the accident described in the Complaint, was in a position of peril from which he could not remove himself;

2. That thereafter Defendants [sic] discovered, or in the exercise of reasonable care should have discovered, Plaintiff's position of peril, and Defendant ... had the time and means to avoid the injury to Plaintiff, but negligently failed to exercise ordinary care to do so;

3. That such failure on the party of Defendant... proximately caused Plaintiff's injuries as described in the Complaint.

We conclude that plaintiff's detailed reply to defendants' answer shows that plaintiff received notice that contributory negligence was an issue in the case.

Plaintiff correctly points out that "[a] defendant's failure to plead an affirmative defense ordinarily results in waiver thereof, unless the issue is tried by the express or implied consent of the parties." Sloan v. Miller Building Corp., 128 N.C.App. 37, 43, 493 S.E.2d 460, 464 (1997) (emphasis supplied) (citing N.C. Gen.Stat. § 1A-1, 15(b) (1990); Nationwide Mut. Ins. Co. v. Edwards, 67 N.C.App. 1, 312 S.E.2d 656 (1984)). We do not decide whether "conditional" pleading of affirmative defenses satisfies the requirements of Rule 8(c). The record reveals that defendants moved to amend any alleged defect in their pleadings, and the trial court granted by implication that motion when it simultaneously denied plaintiff's motion in limine to exclude the issue of plaintiff's contributory negligence.

B. Motion to Amend

Rule 15(b) provides in pertinent part that:

Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, either before or after judgment.... If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when ... the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.

N.C. Gen.Stat. § 1A-1, Rule 15(b) (1967). "Liberal amendment of pleadings is encouraged by the Rules of Civil Procedure in order that decisions be had on the merits and not avoided on the basis of mere technicalities." Phillips v. Phillips, 46 N.C.App. 558, 560-61, 265 S.E.2d 441, 443 (1980) (citing N.C. Gen. Stat. § 1A-1, 15; Mangum v. Surles, 281 N.C. 91, 187 S.E.2d 697 (1972)); see also Mauney v. Morris, 316 N.C. 67, 340 S.E.2d 397 (1986)

. Plaintiff recognizes in his brief that "[t]he trial judge is allowed broad discretion in ruling on such motions." Auman v. Easter, 36 N.C.App. 551, 555, 244 S.E.2d 728, 730,

cert. denied,

295 N.C. 548, 248 S.E.2d 725 (1978) (citation omitted). "The objecting party has the burden of satisfying the trial court that he would be prejudiced by the granting or denial of a motion to amend.... The exercise of the court's discretion is not reviewable absent a clear showing of abuse thereof." Watson v. Watson, 49 N.C.App. 58, 60-61, 270 S.E.2d 542, 544 (1980) (citations omitted). "The objecting party must meet these requirements in order to avoid `litigation by consent' or allowance of motion to amend." Roberts v. Memorial Park, 281 N.C. 48, 58, 187 S.E.2d 721, 727 (1972).

Plaintiff did not argue during the hearing of his and defendants' motions, and does not argue here, any prejudice in the preparation, presentation, or result of his case. Plaintiff has failed to satisfy his burden that the trial court...