Case Number: NC061813 Hearing Date: February 14, 2019 Dept: S27

INTRODUCTION

Plaintiff Doyle O’Neal Blaney moves for summary adjudication of Defendant Golden Care Living’s 3rd, 5th, 6th, 7th, 9th, 12th, and 13th affirmative defenses.

Defendant concedes as to the 12th Affirmative Defense only.

ALLEGATIONS

The complaint concerns elder neglect of Plaintiff’s decedent, a resident at Defendant’s facility. The details are not material to this motion which is directed to affirmative defenses.

DISCUSSION

Third Affirmative Defense

Defendant’s third affirmative defense is that Decedent’s own negligence was the sole or a contributing cause of his injuries, and that he failed to take reasonable precautions for his own safety.

Defendant answered with an unqualified admission to Plaintiff’s Request for admission No. 52, which requested that Defendant admit that it was “aware of no facts which [Defendant] contend[s] support the allegations of [its] third affirmative defense alleging that the Plaintiff’s negligence, “was the sole or a contributing cause to injuries complained of in the operative Complaint.”

Defendant argues that it has only admitted to not knowing of any facts supporting its third affirmative defense at the time the responses were served, but Plaintiff has not proven that Defendant cannot reasonably obtain evidence to support this defense.

This argument misapprehends the function of summary judgment/adjudication motions – piercing the pleadings in order to eliminate unsupported claims. If Defendant has evidence to support the defense, this was the time to present it. It is purely speculative that evidence might appear in the future. As it stands, the unqualified admission was sufficient to shift the initial burden. The shifted burden has not been met. If evidence later appears, the remedy is to seek leave to amend based on newly acquired evidence.

The motion is granted as to the 3rd affirmative defense.

Fifth Affirmative Defense

Defendant’s Fifth Affirmative Defense alleges that it “did not have a duty to warn Plaintiff.”

Defendant admitted in Request for Admission No. 56 to not knowing of any third party who may have caused the injuries to decedent alleged by Plaintiff in the complaint.

This admission does not address the issue of whether Defendant had a duty to warn or not, and provides no basis on which Plaintiff would be entitled to a judgment as a matter of law. Plaintiff has not shown that Defendant cannot reasonably obtain evidence that would support Defendant’s 5th affirmative defense.

The motion for summary adjudication is denied as to Defendant’s 5th Affirmative Defense.

Sixth Affirmative Defense

Defendant’s Sixth Affirmative Defense alleges that “the dangerous condition alleged to have existed at the time and place alleged in the Complaint was open and obvious to any reasonable person in the Plaintiff’s position.”

Defendant answered with an unqualified admission to Plaintiff’s Request for Admission No. 57, which requested that Defendant admit that it was “aware of no facts which [Defendant] contend[s] support the allegations of [its] sixth affirmative defense alleging that the ‘dangerous condition alleged to have existed at the time and place alleged in the Complaint was open and obvious to any reasonable person in the Plaintiffs position.’”

For the same reasons stated above, the admission is dispositive unless some evidence was presented in opposition. None was presented and the shifted burden was not met.

The motion is granted as to the 5th affirmative defense.

Seventh Affirmative Defense

Defendant’s Seventh Affirmative Defense alleges that Plaintiff failed to mitigate his damages.

Defendant answered with an unqualified admission to Plaintiff’s Request for Admission No. 58, which requested that Defendant admit that it was aware of no facts which [it] contends support the allegations of [its] seventh affirmative defense alleging that the Plaintiff failed to mitigate his damages.”

For the same reasons stated above, the admission is dispositive unless some evidence was presented in opposition. None was presented and the shifted burden was not met.

The motion is granted as to the 7th affirmative defense.

Ninth Affirmative Defense

Defendant’s Ninth Affirmative Defense alleges that “the damages sustained by Plaintiff were the result of an unavoidable accident insofar as these answering Defendants are concerned, and occurred without any negligence, want of care, fault, or other breach of duty to Plaintiff on the part of these answering Defendants.”

For the same reasons stated above, the admission is dispositive unless some evidence was presented in opposition. None was presented and the shifted burden was not met.

The motion is granted as to the 9th affirmative defense.

Twelfth Affirmative Defense

Defendant’s counsel concedes the 12th Affirmative Defense.

Thirteenth Affirmative Defense

Defendant’s Thirteenth Affirmative Defense alleges that “Plaintiffs damages, if any, were caused by the negligence and/or acts or omissions of parties other than the Defendants, whether or not parties to this action. By reason thereof, Plaintiffs damages, if any, as against the Defendants, must be reduced by the proportion of fault attributable to such other parties, and to the extent that this is necessary, Defendants may be entitled to partial indemnity from others on a comparative fault basis.”

For the same reasons stated above, the admission is dispositive unless some evidence was presented in opposition. None was presented and the shifted burden was not met.

The motion is granted as to the 13th affirmative defense.