Tuesday, May 20, 2008, 4:42 PM

COA Applies "Evidentiary Admission" To Affirm Summary Judgment

Today in Hash v. Estate of Paige Walton Hensley the Court of Appeals confronted this situation: plaintiff, a passenger in defendant's vehicle at the time of an accident, was alleging in her complaint and in her affidavit opposing summary judgment that the defendant was negligent; but plaintiff had previously testified, in an earlier criminal trial against another party to the accident (Gordon), and in a deposition in an earlier civil case against Gordon, that it was Gordon who was at fault, and that defendant was not negligent. Plaintiff sought to repudiate that testimony in her case against defendant. The Court would have none of that. Applying the doctrine of evidentiary admission (not to be confused with judicial admission), see Woods v. Smith, 255 S.E.2d 174 (N.C. 1979), the Court held that defendant was entitled to summary judgment, because plaintiff's prior testimony (in the criminal and civil cases against Gordon) unequivocably repudiated the allegations in her complaint and affidavit in this case.

The key to this doctrine is that the party's prior testimony must unequivocably and unambiguously contradict the contentions in her present complaint or affidavit. Otherwise, "when a party gives adverse testimony in a deposition or at trial, that testimony should not, in most instances, be conclusively binding on him to the extent that his opponent may obtain either summary judgment or a directed verdict." Woods, 297 N.C. at 374.

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