Harrison v. City of Sanford

• Decision Date: 04 April 2006
• Docket Number: No. COA05-1001.,COA05-1001.
• Citation: 627 S.E.2d 672
• Parties: Richard HARRISON and Kathy Harrison, Plaintiffs, v. CITY OF SANFORD, A municipal corporation, Defendant.
• Court: North Carolina Court of Appeals

627 S.E.2d 672

Richard HARRISON and Kathy Harrison, Plaintiffs, v. CITY OF SANFORD, A municipal corporation, Defendant.

No. COA05-1001.

Court of Appeals of North Carolina.

April 4, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by plaintiffs from judgment entered 4 April 2005 by Judge Gregory A. Weeks in Lee County Superior Court. Heard in the Court of Appeals 23 February 2006.

Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp, Pinehurst, for plaintiff appellants.

Cranfill Sumner & Hartzog, LLP, by Norwood P. Blanchard, III, Wilmington, for defendant appellee.

McCULLOUGH, Judge.

Plaintiffs appeal from the granting of a motion for summary judgment where there was no genuine issue of material fact and defendant was entitled to judgment as a matter of law.

Richard and Kathy Harrison ("the Harrisons") own a residence located at 528 Summit Drive in Sanford, North Carolina, which is serviced by a main sewer line and manhole maintained and operated by the City of Sanford ("the City"). The Harrisons allege that on 8 August 2003 a large rain storm occurred in which the manhole located on the Harrisons' property and operated and maintained by the City, begin emitting untreated sewage from the City's sewage system causing the untreated sewage to flow onto the Harrison's property. The Harrisons further allege that the City was informed of the sewage overflow; however, the City took no action. The overflow of sewage from the manhole caused 39 inches of untreated sewage to enter the Harrisons' basement causing damage to personal property located in the basement totaling approximately $49,000.00 and further property damage totaling approximately $20,000.

Prior to 8 August 2003, sewage from the City's sewer lines and manhole had entered the Harrisons' yard and a small concrete area of their basement beginning sometime around 1992. Beginning in 1996, the Harrisons contacted the City on numerous occasions regarding problems with sewage discharge onto their property. The North Carolina Department of Environment and Natural Resources ("NCDENR") issued a notice of violations in February 2002 stating that it is illegal under our statutes to "discharge wastewater without a permit" which could result in assessment of monetary penalties "per day per violation." The City failed to correct the problems causing the sewer system and manhole to continue to discharge untreated sewage.

In January 2004, the Harrisons filed a complaint against the City alleging negligence, private nuisance, and trespass. The City filed a motion for summary judgment on 18 February 2005 for failure to state a claim upon which relief may be granted, failure to file the claim within the applicable statutory periods, and claims barred by immunity. On 4 April 2005 the trial court entered an order granting the City's motion for summary judgment.

Plaintiff appeals.

We now address the Harrisons' argument on appeal that the trial court erred in granting summary judgment. We agree.

Summary judgment is proper "if 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." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2005). On a motion for summary judgment, "[t]he evidence is to be viewed in the light most favorable to the nonmoving party." Moore v. Coachmen Industries, Inc., 129 N.C.App. 389, 394, 499 S.E.2d 772, 775 (1998). When determining whether the trial court properly ruled on a motion for summary judgment, this Court conducts a de novo review. Va. Electric and Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 191, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986).

There is no genuine issue of material fact where a party demonstrates that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Vares v. Vares, 154 N.C.App. 83, 86, 571 S.E.2d 612, 615 (2002), disc. review denied, 357 N.C. 67, 579 S.E.2d 576 (2003). In regard to the accrual of a cause of action, our statutes state, "for personal injury or physical damage to claimant's property, the cause of action, . . . shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant." N.C. Gen.Stat. § 1-52(16) (2005). Appellee's argument relies on the interpretation of N.C. Gen.Stat. § 1-52(16) in Robertson v. City of High Point, 129 N.C.App. 88, 497 S.E.2d 300, disc. review denied, 348 N.C. 500, 510 S.E.2d 654 (1998), and Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 329 S.E.2d 350 (1985). However, the instant case is easily distinguished from each of these cases, and therefore the application of the statute must also differ.

In Pembee, the defendant constructed a roof for plaintiff which was later determined to be defective. The plaintiff discovered the defect in the roof when it began to leak two months after occupying the building in 1977; however, in 1980, an engineer discovered blistering throughout the entire roof which was determined to be caused by the entrapment of moisture in the roof. Our Supreme Court rejected plaintiff's contention that the blistering of the roof was a separate injury from the original leaks. The Court held that as soon as an injury becomes apparent, a cause of action accrues and that further damage caused because of the injury does not give rise to a new cause of action, but is rather a mere aggravation of the original injury. Pembee, 313 N.C. at 493-94, 329 S.E.2d at 354.

In Robertson, the plaintiffs filed a suit alleging negligence, nuisance, trespass and infringement of constitutional rights based on damage caused by the operation of a landfill in the dumping of solid waste. The City of High Point began dumping solid waste onto property adjacent to plaintiffs' property in October 1993 and suit was not filed until December 1996. This Court held that plaintiffs knew or reasonably should have known of the injury to their property in October 1993, and the fact that further injury was caused was insufficient to give rise to a new cause of action. Robertson, 129 N.C.App. at 91, 497 S.E.2d at 302.

It was clear in Pembee that there was one single injury, leaks in the roof, which was only further exacerbated by entrapment of the moisture from the leaks in the roof. Moreover, in Robertson the injury caused by the landfill recurred each and every day from October 1993 until December 1996 without interruption. In stark contrast to both of these cases, the injury in the instant case of which the Harrisons complain was not a continuing injury but rather one of a separate and distinct nature. Before 8 August 2003, when sewage was discharged and entered into the Harrisons' home, the damage consisted of broken pipes and concrete. However, on 8 August 2003, the injury caused by sewage discharge into the home...