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09/12/68 NORMA J. SHAW AND THOMAS SHAW v. HELEN A.

September 12, 1968

NORMA J. SHAW AND THOMAS SHAW
v.
HELEN A. MCCOOL AND JOSEPH J. MCCOOL



The opinion of the court was delivered by: Bifferato

VINCENT A. BIFFERATO, ASSOCIATE JUDGE

UNREPORTED OPINION

On September 6, 1968, oral arguments were heard on Defendants' Motion to Strike Paragraph 9 (j) of the Complaint.

Defendants seek to strike the following:

"9. That the carelessness and negligence of the defendant consisted of, among other things, the following:

(j) That said defendant was incompetent and unable to properly control and manage her said automobile and coudl not have had the said automobile under proper control from the manner in which she was then and there operating it."

Defendant contends that negligence alleged in Paragraph 9 (j) of plaintiff's Complaint is not alleged with particularity as required by Rule 9 (b). Defendant cites numerous cases to support his position.

Plaintiff contends that Paragraph 9 (j) of the Complaint alleges passive negligence, which according to PHILLIPS v. DELAWARE POWER & LIGHT CO. (Del. Sup. Ct.; 1963) 194 A. 2nd 690, does not have to be alleged with particularity.

I am of the opinion that Rule 9 (b) does not mare a distinction between active and passive negligence and that the pleadings alleging negligence must be with particularity.

Plaintiff argues further that the proper motion to be used by Defendant is one having a more definite statement under Rule 9 (b).

I must agree with Defendant that Plaintiff comply with Rule 9 (b) and allege negligence with particularity in their Complaint.

The Defendants' Motion to Strike Paragraph 9 (j) of the Complaint is granted; Plaintiff has leave to amend, if he so desires, within ten (10) days of date of this Order, unless otherwise stipulated by the parties.

IT IS SO ORDERED.

19680912 ...


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