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Keech v. Hendricks12/29/2000
Appeal by plaintiff from an order and judgment entered 20 July 1999 by Judge Richard B. Allsbrook in Pitt County Superior Court. Heard in the Court of Appeals 13 September 2000.
William V. Keech ("plaintiff") appeals the trial court's grant of summary judgment in favor of William G. (Willie) Hendricks ("defendant") based on the one-year statute of limitations for assault and battery claims. Because the record before us gives rise to actions for (1) assault and battery and (2) negligence, we hold the trial court erred in granting defendant's summary judgment motion. Therefore, we reverse and remand for a jury trial.
On 9 December 1995, when plaintiff entered the lobby of Pitt County Memorial Hospital ("hospital"), defendant was already there. Upon recognizing defendant (who is plaintiff's nephew), plaintiff approached defendant and offered to shake defendant's hand. In response, defendant either hit or shoved plaintiff so that plaintiff fell backwards and hit his head on the floor. As a result, plaintiff suffered "serious, permanent personal injuries, including, . . . back injury , groin injury, left inguinal hernia, neck injury and a closed head injury . . . ." Shortly " fter the incident and investigation, [but well before the one-year limitations period for intentional torts had run, defendant] was charged with assault inflicting serious injury pursuant to N.C. Gen. Stat. § 14-33(b)(1)."
At defendant's criminal trial, plaintiff testified that defendant assaulted him for no reason. However, before judgment was rendered, defendant's attorney wrote a letter to plaintiff's attorney inquiring as to whether plaintiff might be willing to dismiss the criminal charges against defendant, since "this case has always been a civil case and never a criminal matter. Certainly, Willie never had criminal intent, and . . . this case [does not] warrant criminal prosecution." Because plaintiff had no idea as to why defendant pushed him, plaintiff accepted defendant's representation that he had not intended to injure plaintiff. Therefore plaintiff requested and the court granted dismissal of the criminal charges against defendant.
On 30 November 1998, after the one-year statute of limitations for intentional tortious acts had run but before the three-year statute of limitations expired on negligence actions, plaintiff filed this civil action against defendant. In his answer, defendant stated that he "intentionally pushed Plaintiff and that Plaintiff fell. . . . [However, he] did not intend to cause injury to the Plaintiff." Additionally in his answer, defendant moved the court for dismissal pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), arguing that plaintiff's "cause of action is therefore barred by the [one-year] statute of limitations" set out in N.C. Gen. Stat. § 1-54(3) for the tortious acts of assault and battery. On 2 June 1999, defendant moved for summary judgment, and on 12 July 1999, the trial court granted defendant's request finding "that there is no genuine issue as to any material fact and that Defendant is entitled to Judgment as a matter of law dismissing all claims by the Plaintiff against him."
It has long been the law in North Carolina that:
This Court's standard of review on appeal from summary judgment requires a two-step analysis. Summary judgment is appropriate if (1) 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 (2) the moving party is entitled to judgment as a matter of law. N.C.R. Civ. P. 56(c) (1999). Once the movant makes the required showing, the burden shifts to the non-moving party to produce a f
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