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Sloan v. Miller Building Corp.12/2/1997
MARTIN, John C., Judge.
Defendant Miller Building Corporation appeals from a judgment entered upon a jury verdict finding that plaintiff, Landon W. Sloan, Jr., was injured by defendant's willful or wanton negligence and awarding him damages of $454,000 for his personal injuries and his wife, Phyllis Fay Sloan, damages of $40,000 for loss of consortium. This case has been previously considered by this Court upon plaintiffs' appeal from an order granting defendant's motion for summary judgment; summary judgment was reversed and the case was remanded for trial. Sloan v. Miller Bldg. Corp., 119 N.C. App. 162, 458 S.E.2d 30, disc. review denied, 341 N.C. 652, 462 S.E.2d 517 (1995).
Briefly summarized, and only to the extent necessary to an understanding of the issues raised on appeal, the evidence at trial tended to show that defendant was the general contractor for the Campus Edge Phase II Condominium Project in Wilmington, N.C.; plaintiff was hired by defendant as a subcontractor to complete the exterior carpentry trim on the building. On Monday, 21 October 1985, plaintiff was working on the third floor of the structure. In order to remove himself from the path of other workers who were carrying construction materials, plaintiff backed up and sat on a scaffold at the open edge of the floor while he talked with some other carpenters about the work they were doing. The scaffold collapsed and plaintiff fell three floors to the ground, sustaining serious injuries.
The evidence showed that defendant had not placed any standard barrier protection around the perimeter of the third floor as required by OSHA standards; the only barrier protection which had ever been provided consisted of ropes tied to each post around the third floor perimeter. Those ropes had been removed on Saturday, 19 October 1985, by the painting contractor so that the posts could be painted. Neither the painting contractor nor defendant had replaced the ropes or erected any other barrier protection around the perimeter. When plaintiff arrived at work on the following Monday morning, 21 October 1985, he noticed that the ropes had been removed, but he made no effort to replace the ropes nor did he ask defendant to replace them. There was also evidence tending to show that defendant had been cited by OSHA compliance officers on multiple occasions for its failure to provide adequate barrier protection on open sided floors.
I.
Plaintiff Landon Sloan originally filed his complaint against Miller Building Corporation on 11 July 1986; Phyllis Fay Sloan was not a party to that action. Landon Sloan submitted to a voluntary dismissal without prejudice of his claim on 10 October 1988. On 6 October 1989, plaintiffs filed their complaint in this action, which included a claim on behalf of Phyllis Fay Sloan for loss of consortium. Defendant moved to dismiss Phyllis Fay Sloan's claim on the grounds that the claim was barred by the statute of limitations. Defendant's Assignment of Error No. 1 is to the denial of its motion to dismiss Phyllis Fay Sloan's action for loss of consortium.
G.S. ยง 1-52(5) is the statute of limitations applicable to a spouse's claim for loss of consortium and requires that the claim be brought within three years from the time the cause of action accrues. Under North Carolina law, a spouse's claim for loss of consortium must be joined with the other spouse's claim for personal injury. Nicholson v. Hugh Chatham Memorial Hospital, Inc., 300 N.C. 295, 266 S.E.2d 818 (1980). Our Supreme Court has held that a spouse's cause of action for loss of consortium is not barred by the statute of limitations so long as the original negligence claim of the injured spouse is not so bar
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