Vernon v. Barrow

Court of Appeals of North Carolina

Vernon v. Barrow

383 S.E.2d 441, 95 N.C. App. 642, 1989 N.C. App. LEXIS 824

CourtCourt of Appeals of North Carolina

DecidedSeptember 19, 1989

Docket8918DC45

StatusPublished

Cited by12 cases

This text of 383 S.E.2d 441 (Vernon v. Barrow) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vernon v. Barrow, 383 S.E.2d 441, 95 N.C. App. 642, 1989 N.C. App. LEXIS 824 (N.C. Ct. App. 1989).

Pincite

Opinion

HEDRICK, Chief Judge.

The sole question presented on appeal is whether the trial court erred in holding that plaintiffs claim was barred by the one-year statute of limitations, G.S. 1-54(3). Plaintiff argues that defendant’s conduct in firing the gun gave rise to actions for assault and battery and also for negligence. We agree.

The remedy of summary judgment is a drastic one and should be used with caution. Billings v. Harris Co., 27 N.C. App. 689, 220 S.E.2d 361 (1975), aff'd, 290 N.C. 502, 226 S.E.2d 321 (1976). The party moving for summary judgment must show that no genuine issue of material fact exists and that, as a result, the movant is entitled to judgment as a matter of law. Watts v. Cumberland County Hosp. System, 317 N.C. 321, 345 S.E.2d 201 (1986). Review of summary judgment on appeal is limited to whether the trial court’s conclusions are correct as to the questions of whether there is a genuine issue of material fact and whether the movant is entitled to judgment. Ellis v. Williams, 319 N.C. 413, 335 S.E.2d 479 (1987).

This Court in Lail v. Woods, 36 N.C. App. 590, 592, 244 S.E.2d 500, 502, disc. rev. denied, 295 N.C. 550, 248 S.E.2d 727 (1978), stated that “[t]here are situations where the evidence presented raises questions of both assault and battery and negligence.” We find this to be true in the present case. Plaintiff’s forecast of evidence is sufficient to raise genuine issues of material fact regarding his negligence claim. While obviously an assault claim would be barred by the one-year statute of limitations, plaintiff has filed his claim well within the time prescribed for negligence actions. Defendant has failed to show that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Thus, *644 the judgment of the trial court must be reversed and the cause remanded to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

Judges ORR and LEWIS concur.

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HEDRICK, Chief Judge.

The sole question presented on appeal is whether the trial court erred in holding that plaintiffs claim was barred by the one-year statute of limitations, G.S. 1-54(3). Plaintiff argues that defendant’s conduct in firing the gun gave rise to actions for assault and battery and also for negligence. We agree.

The remedy of summary judgment is a drastic one and should be used with caution. Billings v. Harris Co., 27 N.C. App. 689, 220 S.E.2d 361 (1975), aff'd, 290 N.C. 502, 226 S.E.2d 321 (1976). The party moving for summary judgment must show that no genuine issue of material fact exists and that, as a result, the movant is entitled to judgment as a matter of law. Watts v. Cumberland County Hosp. System, 317 N.C. 321, 345 S.E.2d 201 (1986). Review of summary judgment on appeal is limited to whether the trial court’s conclusions are correct as to the questions of whether there is a genuine issue of material fact and whether the movant is entitled to judgment. Ellis v. Williams, 319 N.C. 413, 335 S.E.2d 479 (1987).

This Court in Lail v. Woods, 36 N.C. App. 590, 592, 244 S.E.2d 500, 502, disc. rev. denied, 295 N.C. 550, 248 S.E.2d 727 (1978), stated that “[t]here are situations where the evidence presented raises questions of both assault and battery and negligence.” We find this to be true in the present case. Plaintiff’s forecast of evidence is sufficient to raise genuine issues of material fact regarding his negligence claim. While obviously an assault claim would be barred by the one-year statute of limitations, plaintiff has filed his claim well within the time prescribed for negligence actions. Defendant has failed to show that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Thus, *644 the judgment of the trial court must be reversed and the cause remanded to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

Judges ORR and LEWIS concur.

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383 S.E.2d 441, 95 N.C. App. 642, 1989 N.C. App. LEXIS 824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vernon-v-barrow-ncctapp-1989.

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