Haddock v. Smithson

*230 BRITT, Judge. The sole question presented is: Did the trial court err in entering summary judgment as to defendant Smithson and the corporate defendant? We hold that it did. Defendants are entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, showed that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. G.S. 1A-1, Rule 56. Summary judgment is an extreme remedy and is appropriate only where no genuine issue of material fact is presented. Long v. Long, 15 N.C. App. 525, 190 S.E. 2d 415 (1972). It is only in exceptional negligence cases that summary judgment is appropriate because the rule of the prudent man or other standard of care must be applied, and ordinarily the jury should apply it under appropriate instructions from the court. Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E. 2d 638 (1973), cert. denied, 283 N.C. 257, 195 S.E. 2d 689 (1973); Roberts v. Whitley, 17 N.C. App. 554, 195 S.E. 2d 62 (1973). Viewed in the light most favorable to plaintiff, the depositions, affidavits, and other materials presented at the hearing tended to show: On the day in question intestate, a retarded fourteen-year-old boy, lived with his father, grandmother, and sister near a paved highway in rural Pitt County. Intestate could not read or write and had a serious impediment in his speech. He could, however, ride a bicycle. His uncle, W. R. Haddock, lived a short distance away, on the opposite side of the highway. The speed limit on the highway was 55 m.p.h. Defendant Smithson drove a fuel oil delivery truck for the corporate defendant. Prior to the day in question he had delivered fuel oil to the homes of intestate’s father and uncle many times. On those occasions he would see and talk with intestate and they had become good friends. Defendant Smithson knew that intestate was retarded. When defendant Smithson would deliver oil at intestate’s home he would give intestate the delivery ticket and intestate would take it to his grandmother. On the day in question defendant Smithson was delivering oil to the uncle’s home. During the course of the delivery intes *231 tate came up on a bicycle and proceeded to talk with Smithson. Intestate’s uncle was across the highway working on a tractor or piece of equipment. When Smithson finished delivering oil, he made out a ticket, handed it to intestate, and told him to take it to his uncle. While attempting to ride the bicycle across the highway to where his uncle was, a car driven by defendant Harrington at about 55 m.p.h., struck intestate and killed him. Intestate had been told by his father and other members of the family on numerous occasions not to ride a bicycle on the highway. We think the evidence was sufficient to raise a jury question with respect to the negligence of defendant Smithson, which negligence, if any, was imputable to the corporate defendant. Defendant Smithson and the corporate defendant argue that the materials presented at the hearing establish contributory negligence on the part of intestate as a matter of law and for that reason summary judgment was proper. We disagree. In the first place, these defendants did not plead contributory negligence as required by G.S. 1A-1, Rule 8(c). It is true that defendant Harrington pleaded it, but these defendants, having filed a separate answer, cannot take advantage of an affirmative defense pleaded by defendant Harrington. Furthermore, considering the mental retardation of intestate, we do not think the materials established contributory negligence as a matter of law. Finally, defendant Smithson and the corporate defendant cross assign as error the admission and consideration of an affidavit made by plaintiff’s attorney. Assuming, arguendo, that the affidavit was improper, we think the other materials presented at the hearing were sufficient to establish genuine issues of material fact. For the reasons stated, the summary judgment in favor of defendant Smithson and the corporate defendant is Reversed. Judges Hedrick and Martin concur.