Pridgen v. Hughes, 7026DC449

Citation9 N.C.App. 635,177 S.E.2d 425
Decision Date18 November 1970
Docket NumberNo. 7026DC449,7026DC449
PartiesEnnie Mae PRIDGEN v. William HUGHES and wife, Jerlene Hughes.
CourtCourt of Appeal of North Carolina (US)

Chambers, Stein, Ferguson & Lanning by James E. Lanning, Charlotte, for plaintiff appellant.

Marvin K. Gray, Charlotte, for defendants appellees.

MORRIS, Judge.

Summary judgment procedure was first used in England under a rule adopted in 1855 and was applicable only to actions upon bills of exchange and promissory notes. Apparently, New York was the first State in the United States to adopt the procedure, following the English model. Clark, Summary Judgments, 2 F.R.D. 364 (1943). The New York rule originally applied only to a debt or liquidated demand arising on either contract or judgment for a stated sum. Subsequent amendments enlarged the categories of actions available for motion for summary judgment by plaintiff and allowed a defendant to move for dismissal in any tupe of case without being limited to the actions specified in the rule to which a plaintiff is limited. Clark, Summary Judgments, Supra. Several states adopted a summary judgment rule several years prior to the adoption of the federal rules, but in most cases the rule was restricted in its application. All but New York and Michigan seem to restrict the remedy to the plaintiff. Chadbourn, A Summary Judgment Procedure for North Carolina, 14 N.C.L.R. 211. Among the jurisdictions having the summary judgment procedure, there is considerable divergence as to the kinds of cases in which it may be used, but the most frequent limitation is restriction to claims for liquidated damages and to contract transactions. A Summary Judgment Procedure for North Carolina, Supra. The adoption of the new Federal Rules of Civil Procedure in 1938 typified the trend of extending the scope of the procedure. Rule 56 of the federal rules eliminated earlier restrictions and made the procedure of summary judgment available to both plaintiff and defendant in all types of cases to which the federal rules are applicable. Gordon, The New Summary Judgment Rule in North Carolina, 5 Wake Forest Intramural Law Review 87 (1969). The text of Rule 56 of the North Carolina Rules of Civil Procedure and Rule 56 of the Federal Rules of Civil Procedure are practically the same. Like the federal rule, our new rule is not limited in its application to any particular type or types of action and the procedure is available to boty plaintiff and defendant.

While neither the federal rules nor the North Carolina rule excludes the use of the procedure in negligence actions, it is generally conceded that summary judgment will not usually be as feasible in negligence cases where the standard of the prudent man must be applied. Barron and Holtzoff, Federal Practice and Procedure, (Wright Ed.) Vol. 3, § 1232.1; Gordon, The New Summary Judgment Rule in North Carolina, Supra. But summary judgment is proper where it appears that even if the facts as claimed by the plaintiff are proved, there can be no recovery. Barron and Holtzoff, Federal Practice and Procedure, Supra, thus providing a device for identifying the factually groundless claim or defense.

In Bland v. Norfolk and Southern Railroad Co., Inc., 406 F.2d 863 (4th Cir.) (1969), it was said: 'Summary judgment is to avoid a useless trial. It is a device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts. * * * While a day in Court may be a constitutional necessity when there are disputed questions of fact, the function of the motion of summary judgment is to smoke out if there is any case, i.e., any genuine dispute as to any material fact, and, if there is no case, to conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy and efficient summary disposition.' There the action was for personal injuries and property damage sustained by plaintiff when her car collided with a train at a railroad crossing. Defendant, by use of interrogatories, obtained plaintiff's version of the accident. She said she had good visibility, the road was dry, she was familiar with the crossing, became aware of the train when she was traveling 30 to 35 m.p.h., that the train was about the same distance from the crossing as her car when she first saw the train, that sh...

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47 cases
    • United States
    • Court of Appeal of North Carolina (US)
    • August 29, 2000
    ...139, 308 S.E.2d 504 (1983). The moving party bears the burden of establishing the lack of a triable issue of fact. Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970). The motion must be denied where the non-moving party shows an actual dispute as to one or more material issues. Page v......
  • Gladstein v. South Square Associates, 7814SC107
    • United States
    • Court of Appeal of North Carolina (US)
    • December 19, 1978
    ...Robinson v. McMahan, 11 N.C.App. 275, 181 S.E.2d 147 (1971), Cert. den., 279 N.C. 395, 183 S.E.2d 243 (1971); Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970); See generally 10 Wright and Miller, Federal Practice and Procedure: Civil § 2729. The propriety of summary judgment does no......
  • Loy v. Lorm Corp., 801SC771
    • United States
    • Court of Appeal of North Carolina (US)
    • June 16, 1981
    ...questions of fact in issue. Nasco Equipment Co. v. Mason; Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972); Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970). Rule 56(c) of the North Carolina Rules of Civil Procedure specifically The judgment sought shall be rendered forthwith if t......
  • Cockerham v. Ward, 7818SC1141
    • United States
    • Court of Appeal of North Carolina (US)
    • February 5, 1980
    ...denied, 279 N.C. 393, 183 S.E.2d 244 (1971); Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865 (1971); Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970). To rebut his opponent's claim that there is no genuine issue of material fact presented, plaintiff may not rest on th......
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1 books & journal articles
  • Is Administrative Summary Judgment Unlawful?
    • United States
    • Harvard Journal of Law & Public Policy Vol. 44 No. 1, January 2021
    • January 1, 2021
    ...(147.) Robert H. Hall, Effective Use of Motions for Summary Judgment in Georgia, 23 Ga. B.J. 439, 439 (1961). (148.) Pridgen v. Hughes, 177 S.E.2d 425, 426 (N.C. Ct. App. (149.) See, e.g., Sunstein, supra note 89, at 1652-56 (examining "post-1946 practice" as part of self-described "APA Ori......

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