 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Beck v. City of Durham12/3/2002
In North Carolina, claims against defendants alleging personal injury are governed by a three-year statute of limitations. N.C. Gen. Stat. § 1-52(5) (2001). This limitations period also applies to emotional distress claims, claims arising from the alleged wrongful conduct of public officials, and claims of alleged negligence. See Fowler v. Valencourt, 334 N.C. 345, 435 S.E.2d 530 (1993); Waddle v. Sparks, 331 N.C. 73, 85, 414 S.E.2d 22, 28 (1992). "The trial court has no discretion when considering whether a claim is barred by the statute of limitations." Staley, 134 N.C. App. at 299, 517 S.E.2d at 396.
All parties in the present case agree on the applicability of a three-year statute of limitations to plaintiff's first six claims; their only dispute is when that three-year period began to run with respect to several of the claims plaintiff raised against the City, McNeil, and Powell. Defendants filed a motion to dismiss these claims alleging that they were entitled to such because " laintiff's claims are clearly barred by . . . applicable statutes of limitations." Our courts have held that " nce 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." Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). When forecasting evidence, plaintiff "may not rest upon the mere allegations or denials of his pleading," but must instead "set forth specific facts showing that there is a genuine issue for trial." N.C. Gen. Stat. § 1A-1, Rule 56(e) (2001).
In his complaint, plaintiff alleged that his injuries did not finally accrue or become known to him until 31 October 1996, which presumably gave him until Monday, 1 November 1999, to file his action. See N.C. Gen. Stat. § 1A-1, Rule 6(a) (2001). However, since defendants properly pled a statute of limitations defense in their motion to dismiss, the allegations in plaintiff's complaint alone were insufficient to establish a genuine issue for trial. See Staley, 134 N.C. App. at 299, 517 S.E.2d at 396 (recognizing that a statute of limitations defense is properly pled when raised by a defendant in a Motion for Summary Judgment instead of in a responsive pleading). Plaintiff cannot meet his burden of forecasting evidence by simply filing an amended, unverified complaint that contains additional allegations to support his claims. Thus, the court did not err in granting summary judgment on plaintiff's claims against (1) the City and Powell for negligent promotion, supervision, and retention; (2) McNeil and Powell for NIED; and (3) McNeil for IIED. Plaintiff failed to set forth specific facts establishing that these claims were not barred by the statute of limitations.
III.
Third, this Court must determine whether plaintiff's remaining claims against any or all of the remaining defendants were properly dismissed due to governmental immunity.
"Under the doctrine of governmental immunity, a municipality is not liable for the torts of its officers and employees if the torts are committed while they are performing a governmental function . . . ." Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 278 (1993). However, " ny city may . . . waive its immunity from civil tort liability by purchasing liability insurance." Id. "Immunity is waived only to the extent that the city or town is indemnified by the insurance contract from liability for the acts alleged." Combs v. Town of Belhaven, 106 N.C. App. 71, 73, 415 S.E.2d 91, 92 (1992).
In the case sub judice, plaintiff argues that his
Page 1 2 3 4 5 6 7 8 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|