James v. Clark

• Decision Date: 21 March 1995
• Docket Number: No. 9421SC481,9421SC481
• Citation: 454 S.E.2d 826,118 N.C.App. 178
• Parties: Walter M. JAMES, Nancy A. James, Debra A. Everidge, and Sharon D. James, Plaintiffs-Appellants, v. David CLARK, 1-Stop, Inc. or 1-Stop Food Stores, Inc., and Yoco, Inc., Defendants-Appellees.
• Court: North Carolina Court of Appeals

Page 826

454 S.E.2d 826

118 N.C.App. 178

Walter M. JAMES, Nancy A. James, Debra A. Everidge, and Sharon D. James, Plaintiffs-Appellants, v. David CLARK, 1-Stop, Inc. or 1-Stop Food Stores, Inc., and Yoco, Inc., Defendants-Appellees.

No. 9421SC481.

Court of Appeals of North Carolina.

March 21, 1995.

Allman Spry Humphreys & Leggett, P.A. by David C. Smith, and Linda L. Helms, Winston Salem, for plaintiffs-appellants.

Francisco & Merritt by George E. Francisco, Mount Airy, for defendant-appellee Yoco, Inc.

WALKER, Judge.

On 9 December 1988, Walter M. James, Nancy A. James and their daughters, Debra A. Everidge and Sharon D. James, sued defendants David Clark, 1-Stop, Inc. (1-Stop) and Yoco, Inc. (Yoco) for strict liability under the Oil Pollution and Hazardous Substances Control Act of 1978 (OPHSCA), N.C.Gen.Stat. § 143-215.75 et. seq., negligence, nuisance, and trespass arising from the contamination of the James' well water with gasoline. Plaintiffs have resided at 7210 Vance Road in Kernersville since before 1979. In 1979, David Clark purchased a gas station and convenience store located across the road from plaintiffs' home. Clark purchased the store from W.R. Shreve, who had operated the store and gas station since at least 1967. Since 1979, Clark has operated the store and the only gas station in the area under a lease to 1-Stop, his corporation. At the time of purchase, there were three gasoline pumps and underground storage tanks (USTs) located on the property which belonged to Barrow Oil. Defendant Yoco purchased the pumps, lines, and USTs from Barrow Oil in 1979 and began supplying gas to 1-Stop. Since 1979 defendant has maintained the pumps, lines, and USTs at 1-Stop and has been 1-Stop's sole supplier of gas.

In their complaint, plaintiffs allege that during the last few years they began to notice problems with their well water, including bad taste and other physical signs which "are the result of contamination of the plaintiffs' well water supply by oil, gasoline or petroleum products" which have escaped from the USTs at 1-Stop. As a result of this contamination, plaintiffs allege that plaintiffs' well water is no longer safe for drinking or other household uses, causing them to incur various expenses, including expenses for alternative sources of water. Moreover, plaintiffs contend that they have experienced pain and suffering, increased likelihood of future disease or physical problems, fear of future disease, diminished quality of life, mental distress, and a devaluation of their property value.

On 15 March 1990, pursuant to a settlement agreement among the parties, an order was entered placing the case on inactive status without prejudice to any party placing the case back on active status should the contingency in the settlement agreement not be resolved. Approximately three years later, on 5 April 1993, the case was reopened upon plaintiffs' request.

Plaintiffs were granted leave to amend their complaint and an amended and supplemental complaint was filed on 14 May 1993. Defendant Yoco answered, alleging as defenses, among other things, the applicable statutes of limitations and accord and satisfaction. Defendant Yoco's motion for summary judgment was granted by order entered 10 January 1994. Plaintiffs voluntarily dismissed the action against defendants David Clark and 1-Stop. (Hereinafter, defendant refers to Yoco only).

Summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... 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) (1990). A defendant who moves for summary judgment assumes the burden of positively and clearly showing that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law. "A defendant may meet this burden by: (1) proving that an essential element of the plaintiff's case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim." Watts v. Cumberland County Hosp. System, 75 N.C.App. 1, 6, 330 S.E.2d 242, 247 (1985), reversed on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986). In passing upon a motion for summary judgment, all materials filed in support or opposition to the motion must be viewed in the light most favorable to the party opposing the summary judgment and that party is entitled to the benefit of all inferences in his favor which may be reasonably drawn from that material. Whitley v. Cubberly, 24 N.C.App. 204, 206-207, 210 S.E.2d 289, 291 (1974).

Defendant argues that plaintiffs' claims were barred by the satisfaction of the terms of the parties' settlement agreement and the applicable statutes of limitations and thus defendant was entitled to summary judgment. Defendant also argues that summary judgment was proper on each of plaintiffs' claims because plaintiffs failed to show that defendant's USTs were a source of the contamination. For the reasons discussed below, we hold that, as to each claim, defendant did not meet its burden of proving that there were no genuine issues of material fact and thus reverse.

I. SETTLEMENT AGREEMENT

We first consider whether plaintiffs' claims were barred by the satisfaction of the terms of the parties' February 1990 settlement agreement. The agreement, which is set forth in a letter written by plaintiffs' attorney at the time and addressed to defendant's attorneys, provided that defendant pay $15,000 to plaintiffs for damages and attempt to dig a new deep rock well on plaintiffs' property "in hopes that it will produce clean water." The agreement further provides that "[i]f [the new well] produces clean water, then the case is settled; if it does not produce clean water, then [the parties] negotiate again ... or remove the case from inactive status and place it back on a trial calendar" and that if the new well "comes up clean now but becomes contaminated with gasoline at a later date, the plaintiffs will be able to file a new action seeking [a] new source of clean water, but ... any claims for damages ... have been settled." Thus, the settlement was contingent upon payment of $15,000 and the drilling of a new well which provided "clean water."

Defendant argues that each of these contingencies was met and thus plaintiffs were not entitled to reopen the case. We disagree. First, the record shows that defendant did not tender payment of $15,000 to plaintiffs until three years later, after plaintiffs reopened the case. Defendant interprets the agreement as requiring it to pay $15,000 within a reasonable time after a determination that the new well water is clean. We agree with this interpretation and note that defendant's three-year delay in tendering payment undercuts its contention that the new well provided clean water. Defendant further argues that at least since September 1992 the well provided clean water. Even if we assume the latter to be true, defendant's tender of payment in 1993 was not made within a reasonable time.

Second, after reviewing the evidence in the record, we cannot conclude that defendant has met its obligation of providing a well which supplies "clean water." The evidence shows that DEHNR tested the new well water on seven occasions from August 1990 through February 1993. On four occasions, the presence of organic compounds commonly associated with gasoline were below the detection limit and on one occasion no volatile organic compounds were detected. However, on two occasions, 11 October 1990 and 15 June 1992, the tests revealed the presence of benzene and other organic compounds commonly associated with gasoline. The benzene levels, which were 2.2 ug/L(micrograms per liter) and 2.0 ug/L, exceeded the State standard for benzene of 1 ug/L. See N.C.Admin.Code tit. 15A, r.2L.0202(g)(5) (June 1979). In an evaluation of the 11 October 1990 test results, Dr. Kenneth Rudo, a State toxicologist, stated that "the water is probably contaminated with a petroleum product that may be gasoline, fuel oil, kerosine, or other."

Plaintiffs also introduced evidence tending to show that the well was not constructed in a manner sufficient to protect the water supply from contamination. Plaintiffs submitted the affidavit of Stephen L. Whiteside, a civil engineer specializing in environmental site investigations. Whiteside stated that the casing in the new well should have been seated several feet into bedrock and then grouted from the bottom of the borehold to the ground surface before the well was advanced below the casing in order to seal off all aquifers or zones with water of a poorer quality and that the new well was not double or triple cased in order to prevent the contamination from travelling deeper into the aquifer during or after installation. Whiteside further stated that benzene and other gasoline-related compounds have reached a lower aquifer, causing the intermittent contamination of the new well and opined that the threat of contamination at or above State groundwater and drinking standards was continuing and that it would be prudent to abandon the new well because of the potential threat it poses to the integrity of groundwater.

II. STATUTES OF LIMITATIONS

We next consider whether plaintiffs' OPHSCA and negligence claims were barred by the applicable statutes of limitations. These claims are governed by the three-year statute of limitations set forth in N.C.Gen.Stat. § 1-52(2) and (5) (1983). Unless otherwise provided by statute, a cause of action for personal injury or physical damage to claimant's property shall not accrue until "bodily harm to the claimant or physical damage to his property becomes apparent to the claimant or ought...