State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1A > GS_1A-1__Rule_9

Rule 9. Pleading specialmatters.

(a)        Capacity. – Anyparty not a natural person shall make an affirmative averment showing its legalexistence and capacity to sue. Any party suing in any representative capacityshall make an affirmative averment showing his capacity and authority to sue.When a party desires to raise an issue as to the legal existence of any partyor the capacity of any party to sue or be sued or the authority of a party tosue or be sued in a representative capacity, he shall do so by specificnegative averment, which shall include such supporting particulars as arepeculiarly within the pleader's knowledge.

(b)        Fraud, duress,mistake, condition of the mind. – In all averments of fraud, duress or mistake,the circumstances constituting fraud or mistake shall be stated withparticularity. Malice, intent, knowledge, and other condition of mind of aperson may be averred generally.

(c)        Conditionsprecedent. – In pleading the performance or occurrence of conditions precedent,it is sufficient to aver generally that all conditions precedent have beenperformed or have occurred. A denial of performance or occurrence shall be madespecifically and with particularity.

(d)        Official documentor act. – In pleading an official document or official act it is sufficient toaver that the document was issued or the act done in compliance with law.

(e)        Judgment. – Inpleading a judgment, decision or ruling of a domestic or foreign court,judicial or quasi‑judicial tribunal, or of a board or officer, it is sufficientto aver the judgment, decision or ruling without setting forth matter showingjurisdiction to render it.

(f)         Time and place. –For the purpose of testing the sufficiency of a pleading, averments of time andplace are material and shall be considered like all other averments of materialmatter.

(g)        Special damage. –When items of special damage are claimed each shall be averred.

(h)        Private statutes.In pleading a private statute or right derived therefrom it is sufficient torefer to the statute by its title or the day of its ratification if ratifiedbefore January 1, 1996, or the date it becomes law if it becomes law on orafter January 1, 1996, and the court shall thereupon take judicial notice ofit.

(i)         Libel and slander.–

(1)        In an action for libelor slander it is not necessary to state in the complaint any extrinsic factsfor the purpose of showing the application to the plaintiff of the defamatorymatter out of which the claim for relief arose, but it is sufficient to stategenerally that the same was published or spoken concerning the plaintiff, andif such allegation is controverted, the plaintiff is bound to establish ontrial that it was so published or spoken.

(2)        The defendant may inhis answer allege both the truth of the matter charged as defamatory, and anymitigating circumstances to reduce the amount of damages; and whether he provesthe justification or not, he may give in evidence the mitigating circumstances.

(j)         Medicalmalpractice. – Any complaint alleging medical malpractice by a health careprovider as defined in G.S. 90‑21.11 in failing to comply with theapplicable standard of care under G.S. 90‑21.12 shall be dismissedunless:

(1)        The pleadingspecifically asserts that the medical care has been reviewed by a person who isreasonably expected to qualify as an expert witness under Rule 702 of the Rulesof Evidence and who is willing to testify that the medical care did not complywith the applicable standard of care;

(2)        The pleadingspecifically asserts that the medical care has been reviewed by a person thatthe complainant will seek to have qualified as an expert witness by motionunder Rule 702(e) of the Rules of Evidence and who is willing to testify thatthe medical care did not comply with the applicable standard of care, and themotion is filed with the complaint; or

(3)        The pleading allegesfacts establishing negligence under the existing common‑law doctrine ofres ipsa loquitur.

Upon motion by the complainantprior to the expiration of the applicable statute of limitations, a residentjudge of the superior court for a judicial district in which venue for thecause of action is appropriate under G.S. 1‑82 or, if no resident judgefor that judicial district is physically present in that judicial district,otherwise available, or able or willing to consider the motion, then anypresiding judge of the superior court for that judicial district may allow amotion to extend the statute of limitations for a period not to exceed 120 daysto file a complaint in a medical malpractice action in order to comply withthis Rule, upon a determination that good cause exists for the granting of themotion and that the ends of justice would be served by an extension. Theplaintiff shall provide, at the request of the defendant, proof of compliancewith this subsection through up to ten written interrogatories, the answers towhich shall be verified by the expert required under this subsection. Theseinterrogatories do not count against the interrogatory limit under Rule 33.

(k)        Punitive damages. –A demand for punitive damages shall be specifically stated, except for theamount, and the aggravating factor that supports the award of punitive damagesshall be averred with particularity. The amount of damages shall be pled inaccordance with Rule 8. (1967, c. 954, s. 1; 1995, c. 20, s. 10; c. 309, s. 2; c. 514, s. 3;1998‑217, s. 61; 2001‑121, s. 1.)