In addition, having allowed plaintiff's motion to amend the record, filed 10 May 2000, to include a general assignment of error as to the trial court's ruling, such review is appropriate. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. 116 N.C. App. The record will be reviewed in the light most favorable to the non-movant, and all inferences will be drawn against the movant. In ruling on a motion for summary judgment, the trial court does not resolve issues of fact.
Summary judgment is improper if any material fact is subject to dispute.
The complaint in this case alleged that Bradley's negligence as a driver caused the collision that claimed Thompson's life. Negligence is the failure to exercise proper care in the performance of a legal duty owed by a defendant to a plaintiff under the circumstances. This duty of care was breached if, as alleged in the complaint, Bradley operated her car in a careless and reckless manner, drove at an unsafe speed, failed to decrease speed to avoid a collision, and generally failed to keep the car under proper control. Bradley's deposition testimony was that she lost control of her car because Thompson had put his foot on top of hers. This evidence raised the affirmative defense of contributory negligence.