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Russell v. Adams3/18/1997
this case the plaintiff alleges that Dr. Adams negligently and intentionally caused her severe emotional distress when he stated to Ms. Johnson (in 1989) and to Miller (on 8 September 1992) that she was mentally ill with a borderline personality. The complaint is silent as to when plaintiff's alleged severe emotional distress manifested itself and we are thus unable to determine when the action accrued. The severe emotional distress may not have occurred until she was informed by Miller on 2 November 1994 of his 8 September 1992 conversation with Dr. Adams or at some later time, in which event the complaint was timely filed. The facts necessary to support Dr. Adams' statute of limitation plea are therefore not contained in the complaint and dismissal of the action on this basis cannot be sustained. We do not address whether the complaint otherwise alleges the necessary elements of these torts, as Dr. Adams confines his brief to this Court to the statute of limitation issue.
The plaintiff argues in her brief that she has alleged a claim for negligent misrepresentation and that the trial court erred in dismissing that claim. We disagree. Our reading of the complaint does not reveal a separate negligent misrepresentation claim. She only alleges misrepresentation as an element of her malpractice claim. She does allege a claim for libel and slander but has abandoned those claims because she has not argued those issues in her brief to this Court. N.C. R. App. P. 28(a).
In summary, the dismissal of plaintiff's emotional distress claims is reversed and remanded. The dismissal of plaintiff's other claims is affirmed.
Affirmed in part, reversed in part and remanded.
Judge MARTIN, John C., concurs.
Judge WYNN concurs in the result with separate opinion.
Judge WYNN Concurring in the result.
I disagree with the majority's position that a silent complaint may afford plaintiff the benefit of a discovery rule such as N.C.G.S. § 1-52(16). In my view, a complaint which indicates two specific acts occurring outside the statute of limitations, such as the complaint at hand which alleges that the acts causing severe emotional distress took place in June 1989 and on 8 September 1992, must further set forth in the pleadings facts sufficient to show when the "bodily harm to the claimant . . . [became] or ought reasonably to have become apparent to the claimant." N.C.G.S. § 1-52(16). Since the discovery rule of N.C.G.S. § 1-52(16) provides that the cause of action will not accrue until this time, the complaint should indicate the time the injury occurred or reasonably manifested itself to plaintiff.
Nevertheless, I concur with the result reached by the majority because the complaint in the subject case, taken as a whole, makes sufficient allegations to survive a Rule 12(b)(6) challenge that the statute of limitations has run. The complaint outlines the specific acts causing injury and then further alleges that plaintiff was unaware of these acts prior to 2 November 1994. It is inconceivable that plaintiff's emotional distress would arise before plaintiff became aware of Dr. Adams' alleged injurious acts. Thus, the face of the complaint shows that plaintiff's injury must have occurred after 2 November 1994 and within the applicable three year statute of limitations. Accordingly, I believe the trial court's dismissal of the action was inappropriate not because the necessary facts are missing from defendant's statute of limitations plea, but rather because the plaintiff's complaint, on its face, is sufficient to show that the statute of limitations is not a bar.
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