Pembee Mfg. Corp. v. Cape Fear Const. Co., Inc.

Decision Date07 May 1985
Docket NumberNo. 457A84,457A84
Citation313 N.C. 488,329 S.E.2d 350
PartiesPEMBEE MFG. CORP. v. CAPE FEAR CONSTRUCTION CO., INC., T.R. Driscoll Sheet Metal Works, Inc., and Koonce, Noble and Associates, Inc.
CourtNorth Carolina Supreme Court

Hollowell & Silverstein, P.A. by Thaddeus B. Hodgdon, Everett E. Dodd, and Ward, Strickland & Kinlaw by Earl Strickland, for plaintiff-appellant Pembee Mfg. Corp.

McLean, Stacy, Henry & McLean by J. Dickson McLean, Jr., for defendant-appellee Cape Fear Const. Co., Inc.

Lee & Lee by David F. Branch, Jr., for defendants-appellees T.R. Driscoll Sheet Metal Works, Inc. and Noble & Associates, Inc.

MEYER, Justice.

The sole issue on appeal is whether the evidentiary forecast disclosed the existence of a genuine issue of material fact concerning whether the plaintiff knew or should reasonably have known of the defective condition more than three years prior to the filing of this action so as to preclude summary judgment in favor of defendants based on the applicable statute of limitations. 1 We hold that no triable issue of fact was so disclosed, and we affirm the decision of the Court of Appeals.

Upon motion, summary judgment is appropriately entered where "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.G.S. § 1A-1, Rule 56(c). A fact is material if it constitutes a legal defense, such as the bar of an applicable statute of limitations. See City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 268 S.E.2d 190 (1980). Once a defendant has properly pleaded the statute of limitations, the burden is then placed upon the plaintiff to offer a forecast of evidence showing that the action was instituted within the permissible period after the accrual of the cause of action. See Little v. Rose, 285 N.C. 724, 208 S.E.2d 666 (1974). However, the party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact. Texaco, Inc. v. Creel, 310 N.C. 695, 314 S.E.2d 506 (1984). In ruling on the motion, the court is to carefully scrutinize the moving party's papers and is to resolve all inferences against him. Id.; Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

Ordinarily, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. Ports Authority v. Roofing Co., 294 N.C. 73, 240 S.E.2d 345 (1978). However, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes one of law, Little v. Rose, 285 N.C. 724, 208 S.E.2d 666 (1974); Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126 (1964), and summary judgment is appropriate. See Ports Authority v. Roofing Co., 294 N.C. 73, 240 S.E.2d 345; Little v. Rose, 285 N.C. 724, 208 S.E.2d 666.

Under the common law, a cause of action accrues at the time the injury occurs, "even in ever so small a degree." Matthieu v. Gas Co., 269 N.C. 212, 215, 152 S.E.2d 336, 339 (1967). This is true even when the injured party is unaware that the injury exists. Wilson v. Development Co., 276 N.C. 198, 171 S.E.2d 873 (1970); Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957). This common law rule is modified by the provisions of N.C.G.S. § 1-52(1), (5), and (16), which provides:

Within three years an action--

(1) Upon a contract, obligation or liability arising out of a contract, express or implied, except those mentioned in the preceding sections or in G.S. 1-53(1).

* * *

* * *

(5) For criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated.

* * *

* * *

(16) Unless otherwise provided by statute, for personal injury or physical damage to claimant's property, the cause of action, except in causes of action referred to in G.S. 1-15(c), 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, whichever event first occurs. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.

Subsection 16, which became effective 1 October 1979, replaced N.C.G.S. § 1-15(b), (Repealed by Session Laws 1979, c. 654, s. 3 effective 1 October 1979), which similarly provided:

Except where otherwise provided by statute, a cause of action, other than one for wrongful death, having as an essential element bodily injury to the person or a defect in or damage to property which originated under circumstances making the injury, defect or damage not readily apparent to the claimant at the time of its origin, is deemed to have accrued at the time the injury was discovered by the claimant, or ought reasonably to have been discovered by him, whichever event first occurs; provided that in such cases the period shall not exceed 10 years from the last act of the defendant giving rise to the claim for relief.

Both of these statutes modify the sometimes harsh common law rule by protecting a potential plaintiff in the case of a latent injury by providing that a cause of action does not accrue until the injured party becomes aware or should reasonably have become aware of the existence of the injury. Raftery v. Construction Co., 291 N.C. 180, 230 S.E.2d 405 (1976). That is the extent to which the common law rule is changed; as soon as the injury becomes apparent to the claimant or should reasonably become apparent, the cause of action is complete and the limitation period begins to run. It does not matter that further damage could occur; such further damage is only aggravation of the original injury. Matthieu v. Gas Co., 269 N.C. 212, 152 S.E.2d 336.

The plaintiff in this case first complained of leaks in the roof within two months after occupying its newly built facility. The undisputed facts show that further complaints about leaks in many spots in the roof were made over five consecutive months in 1976 and 1977. These complaints clearly show that plaintiff, although perhaps not aware of the extent of damage, knew that its roof was defective at least as early as April 1977. The statute of limitations does not require plaintiff to be a construction expert. See Earls v. Link, Inc., 38 N.C.App. 204, 208, 247 S.E.2d 617, 619 (1978). However, it does require that plaintiff not sit on its rights. Plaintiff, knowing of the existence of leaks in the roof, was put on inquiry as to...

To continue reading

Request your trial
252 cases
  • Union Pacific Resources Co. v. State
    • United States
    • Wyoming Supreme Court
    • September 23, 1992
    ...of delinquent taxes--is a determination of law. Hall v. Romero, 141 Ariz. 120, 685 P.2d 757 (1984); Pembee Mfg. Corp. v. Cape Fear Const. Co., Inc., 313 N.C. 488, 329 S.E.2d 350 (1985); Smart v. Texas American Bank/Galleria, 680 S.W.2d 896 (Tex.App.1984); Kroeger v. Kroeger, 120 Wis.2d 48, ......
  • McDougal-Wilson v. Goodyear Tire and Rubber Co.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • March 31, 2006
    ...distress." Bryant v. Thalhimer Bros., Inc., 113 N.C.App. 1, 12, 437 S.E.2d 519, 525 (1993); Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 493, 329 S.E.2d 350, 354 (1985); N.C. Gen.Stat. § 1-52(16). Notably, Wilson admits that extreme emotional distress manifested shortly after t......
  • Richardson v. Bank of America
    • United States
    • North Carolina Court of Appeals
    • April 17, 2007
    ...moves for summary judgment has the burden of "establishing the lack of any triable issue of fact." Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). This burden may be met by "proving that an essential element of the opposing party's claim is nonexis......
  • Chisum v. Campagna
    • United States
    • North Carolina Supreme Court
    • March 12, 2021
    ...become apparent, the cause of action is complete and the limitation period begins to run." Pembee Mfg. Corp. v. Cape Fear Constr. Co., Inc. , 313 N.C. 488, 493, 329 S.E.2d 350 (1985). The Court recognized the validity of this principle in the breach of contract context in Christenbury Eye C......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT