 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
McCarver v. Blythe12/4/2001
ion had caused the roof to leak. Plaintiff found leaks in the roof in 1973, 1976 and 1977. Plaintiff argued that these leaks were not of the same nature as those discovered in 1980. Therefore, under G.S. § 1-52 (16), a cause of action did not accrue until the defect could have reasonably been apparent. This Court ruled that the leaks in 1973, 1976, and 1977 should have made it apparent that the roof was defective. Thus by 1976, plaintiff's cause of action for the property damage accrued. The Court further stated that "this statute serves to delay the accrual of a cause of action in the case of latent damages until the plaintiff is aware he has suffered damage, not until he is aware of the full extent of the damages suffered." Id.
Similarly, in the case sub judice, defendant was aware of the deterioration occurring to the property before and after Lena's death in 1992. In his deposition, defendant testified that he knew as early as 1992 that the property was deteriorating and causing permanent damage to his remainder interest. He admitted visiting the home in 1992 and noticing that the porches and the roof were rotting, noting that the boards needed replacing and roof needed "sheathing." Defendant conceded that "little things could have been done early that would have kept the big things from happening." The evidence clearly establishes that defendant knew of damage to the property in 1992. Any further damage discovered in 1999, "does not permit [defendant] to circumvent the bar of the statute of limitations." Pembee at 509, 317 S.E.2d at 43. By failing to institute this action within three years of discovering the alleged waste in 1992, defendant is barred by the three-year statute of limitations for permissive waste. Defendant is therefore not entitled to the protection of the discovery rule outlined in N.C. Gen. Stat. § 1-52 (16).
Therefore, summary judgment in favor of plaintiff was appropriate. Based on the foregoing analysis, the trial court's decision is affirmed.
Affirmed.
Chief Judge EAGLES and Judge THOMAS concur.
|