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Bowlin v. Duke University12/1/1992
WELLS, Judge.
We note initially that the summary judgment below did not resolve all claims between all parties. Partial summary judgment is interlocutory and subject to dismissal. However, following our Supreme Court's reasoning and holding in Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976) and its progeny, we conclude that plaintiff had a substantial right to have all her claims tried at the same time before the same Judge and jury. We therefore will determine plaintiff's appeal on its merits.
Plaintiff sets forth four assignments of error for our review. First, plaintiff argues that the trial court erred in dismissing her first claim, in which she asserted that the doctrine of res ipsa loquitur should apply. Second, plaintiff contends partial summary judgment was improper because defendant Dr. Jones did not obtain her informed consent to the procedure. Third, plaintiff argues partial summary judgment was improper because defendant Dr. Jones' alleged misrepresentation of the status of Zachary Shpall, a fourth-year medical student, amounted to constructive fraud. Finally, plaintiff argues that the trial court erred in granting partial summary judgment because there was sufficient evidence of intentional misrepresentation on the part of defendant Dr. Jones. We find plaintiff's final assignment of error to be without merit, and we therefore do not address it.
"RES IPSA" CLAIM
We initially question whether it is acceptable practice under our Rules of Civil Procedure to "plead" the applicability of a rule of law or evidence as a separate claim for relief. Although in repealing
N.C. Gen. Stat. § 1-122 requiring a complaint to state "the facts constituting a cause of action" the legislature has adopted the more liberal concept of "notice pleading," the clear import of Rule 8(a), is to retain the idea of factual pleading; that is, to set forth those essential facts required to give adequate "notice" for preparation by the opponent. N.C. Gen. Stat. § 1-122 (repealed 1 January 1970). See generally Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970)(citing an explanation of the New York rules on notice pleading, the source of the North Carolina rules, providing guidance in interpretation of our Rule 8(a)). Furthermore, in testing the legal sufficiency of pleadings, using the Rule 12(b)(6) motion, well-pleaded material allegations of fact are taken as admitted, but Conclusions of law or unwarranted deductions of fact are not admitted. Id. Taken together, it appears that Rules 12(b)(6) and 8(a) suggest pleadings should be limited to those facts or descriptions of "transactions, occurrences, or series of transactions or occurrences, intended to be proved." North Carolina Rules of Civil Procedure, Rule 8(a). Nevertheless, we address plaintiff's res ipsa loquitur claim on its merits.
Res ipsa loquitur is a doctrine addressed to those situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of defendant. It is applicable when no proof of the cause of an injury is available, the instrument involved in the injury is in the exclusive control of defendant, and the injury is of a type that would not normally occur in the absence of negligence. Grigg v. Lester, 102 N.C. App. 332, 401 S.E.2d 657, cert. denied, 329 N.C. 788, 408 S.E.2d 520 (1991); See Brandis on North Carolina Evidence, 227 (3rd ed. 1988).
In this case, there was conflicting expert testimony as to the cause
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