Crawford v. Boyette ( 1995 )

464 S.E.2d 301 (1995)

John CRAWFORD, Plaintiff,
v.
Gary BOYETTE, Harry D. Stephenson, Cary Oil Co., Inc., A North Carolina Corporation, Ralph Waldo Thomasson and wife Ethel Thomasson, Defendants.

No. COA95-37.

Court of Appeals of North Carolina.

December 5, 1995.

Kenneth N. Barnes, Raleigh, for plaintiff-appellant.

Smith & Ransdell, Ransdell & Cline by Phillip C. Ransdell, Raleigh, for defendants-appellees.

WALKER, Judge.

Plaintiff's sole assignment of error is whether the trial court erred by granting defendants' motion for summary judgment. Summary judgment shall be rendered "if 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 that the party is entitled to a judgment as a matter of law." N.C.Gen.Stat. § 1A-1, Rule 56(c) (1990). A defendant who moves for summary judgment bears the burden of establishing that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law. A defendant may meet this burden by "(1) proving that an essential element of plaintiff's claim is nonexistent, or (2) showing through discovery that plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that plaintiff cannot surmount an affirmative defense which would bar the claim." Watts v. Cumberland County Hosp. System, 75 N.C.App. 1, 6, 330 S.E.2d 242, 247 (1985), reversed on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986).

Defendant argues that plaintiff's claims were barred by the statute of limitations and thus defendants were entitled to summary judgment. The statute of limitations having been pled, the burden is on the plaintiff to show that his cause of action accrued within the limitations period. Hooper v. Lumber Co., 215 N.C. 308, 311, 1 S.E.2d 818, 820 (1939). Plaintiff's cause of action for trespass, nuisance, and personal injury are all subject to the three-year statute of limitation set forth in N.C.Gen.Stat. § 1-52 (1994). In order to determine if plaintiff's action is within this three-year period, the Court must determine when the cause of action accrued. N.C.Gen.Stat. § 1-52(16) provides:

Unless otherwise provided by statute, for personal injury or physical damage to claimant's property, the cause of action, except in cases of actions referred to in G.S. 1-15(c), shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.

N.C.Gen.Stat. § 1-52(16) (1994). Thus, the Court must determine when plaintiff's bodily harm became apparent or ought reasonably to have become apparent.

Plaintiff contends that the three-year statute of limitations did not accrue until he received official notification by letter dated 6 April 1989 from the State that his well was contaminated with petroleum. In support of his argument, plaintiff relies on the Supreme Court case Wilson v. McLeod Oil Co., 327 N.C. 491, 398 S.E.2d 586 (1990), reh'g denied, 328 N.C. 336, 402 S.E.2d 844 (1991). In Wilson, plaintiffs sued defendants for gasoline contamination of their well water from underground storage tanks. Id. at 498, 398 S.E.2d at 588. Our Supreme Court reversed summary judgment against plaintiffs Hill and Wilson finding that such actions were not barred by the statute of limitations. There the evidence showed that plaintiffs Hill and Wilson did not discover the contamination until 1984, when tests by the Alamance County Health Department (ACHD) detected gasoline contamination. Id. at 512, 398 S.E.2d at 597. The defendants in Wilson argued that the claims of Hill and Wilson accrued when the families first began to notice there was something wrong with their well and stopped using the water in 1982. Id. at 512, 398 S.E.2d at 596. The Court held that "[p]rior to the determination by the ACHD that their water was contaminated the Hills and Wilsons did not know that they had a cause of action for the contamination of their water." Id. at 512, 398 S.E.2d at 597. The Court reversed summary judgment against these plaintiffs, finding that the action was "less than three years after they were notified by government agents in May 1984 that test results proved that their water was contaminated with gasoline." Id.

This decision was followed by this Court in the recent case James v. Clark, 118 N.C.App. 178, 454 S.E.2d 826 (1995), disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). In James, plaintiffs noticed something wrong with the well water as early as 1982. Id. at 182-83, 454 S.E.2d at 829. They stopped drinking the water in 1983 and stopped cooking with it the following year. Id. Plaintiffs filed a complaint against the defendants in 1988 that included claims of negligence, trespass, and nuisance for damages arising out of contamination of their well water. The evidence did not show that plaintiffs suspected their well was contaminated with gasoline until 1986 when they began to associate the water's bad taste with gasoline. Id. at 182-85, 454 S.E.2d at 829-830. This Court held that the plaintiffs did not know the water was contaminated until it was tested by the Department of Environment, Health and Natural Resources shortly after 1986. Therefore, the Court found that plaintiff's complaint, filed 9 December 1988, was not barred by the statute of limitations.

Upon examination of these cases, it is apparent that a mere suspicion of contamination will not begin the statute of limitations period. Id. at 183-85, 454 S.E.2d at 830. Rather, both cases used the date plaintiff received official notification of contamination as the date the cause of action accrued. To hold otherwise, would penalize a party for taking precautionary measures while awaiting action from state agencies.

Applying this rule to the facts in our case, the evidence shows that while plaintiff noticed the water tasted bad and smelled funny and did not use the water for drinking or cooking, he attributed the taste and odor of the water to the presence of lime in the well. Furthermore, plaintiff took reasonable steps to determine whether his well was contaminated. In October 1987, the plaintiff contacted the Wake County Health Department to determine if the water was suitable for showering. At this time, plaintiff was told that the water was "okay for use." A year later, the water was tested by an employee of the Division of Environmental Management, who told plaintiff that he could not determine whether the water was contaminated until the results of the analysis were collected. Plaintiff was not notified of the results until he received a letter dated 6 April 1989. No warnings were provided to plaintiff regarding petroleum contamination until plaintiff received the State's detailed findings dated 2 June 1989. At this stage of the proceedings, there is sufficient evidence to support the conclusion that the limitations period did not accrue prior to 6 April 1989 when plaintiff first received official notification that his well water was contaminated with benzene. Therefore, plaintiff's complaint, filed 3 April 1992, was within the limitations period.

Having found that plaintiff filed his complaint within the three-year period, we find that the trial court erred by granting summary judgment in favor of the defendants.

Reversed.

LEWIS and MARK D. MARTIN, JJ., concur.