Assault--summary judgment--genuine issue of material fact of defendant's intent and
whether equitable estoppel applies
The trial court erred by granting summary judgment in favor of defendant based on the
one-year statute of limitations for assault and battery claims, because: (1) there is a question of
material fact on the issue of defendant's intent; and (2) there is a question of material fact as to
whether equitable estoppel applies to bar defendant from asserting the one-year statute of
limitations defense.
Ward and Smith, P.A., by Lynwood P. Evans and John M. Martin,
for plaintiff-appellant.
Battle Winslow Scott & Wiley, P.A., by M. Greg Crumpler, for
defendant-appellee.
HUNTER, Judge.
William V. Keech (“plaintiff”) appeals the trial court's grant
of summary judgment in favor of William G. (Willie) Hendricks
(“defendant”) based on the one-year statute of limitations for
assault and battery claims. Because the record before us gives
rise to actions for (1) assault and battery and (2) negligence, we
hold the trial court erred in granting defendant's summary judgment
motion. Therefore, we reverse and remand for a jury trial.
On 9 December 1995, when plaintiff entered the lobby of Pitt
County Memorial Hospital (“hospital”), defendant was already there.
Upon recognizing defendant (who is plaintiff's nephew), plaintiff
approached defendant and offered to shake defendant's hand. Inresponse, defendant either hit or shoved plaintiff so that
plaintiff fell backwards and hit his head on the floor. As a
result, plaintiff suffered “serious, permanent personal injuries,
including, . . . back injury, groin injury, left inguinal hernia,
neck injury and a closed head injury . . . .” Shortly “[a]fter the
incident and investigation, [but well before the one-year
limitations period for intentional torts had run, defendant] was
charged with assault inflicting serious injury pursuant to N.C.
Gen. Stat. § 14-33(b)(1).”
At defendant's criminal trial, plaintiff testified that
defendant assaulted him for no reason. However, before judgment
was rendered, defendant's attorney wrote a letter to plaintiff's
attorney inquiring as to whether plaintiff might be willing to
dismiss the criminal charges against defendant, since “this case
has always been a civil case and never a criminal matter.
Certainly, Willie never had criminal intent, and . . . this case
[does not] warrant[] criminal prosecution.” Because plaintiff had
no idea as to why defendant pushed him, plaintiff accepted
defendant's representation that he had not intended to injure
plaintiff. Therefore plaintiff requested and the court granted
dismissal of the criminal charges against defendant.
On 30 November 1998, after the one-year statute of limitations
for intentional tortious acts had run but before the three-year
statute of limitations expired on negligence actions, plaintiff
filed this civil action against defendant. In his answer,
defendant stated that he “intentionally pushed Plaintiff and that
Plaintiff fell. . . . [However, he] did not intend to cause injuryto the Plaintiff.” Additionally in his answer, defe
ndant moved
the court for dismissal pursuant to N.C. Gen. Stat. § 1A-1, Rule
12(b)(6), arguing that plaintiff's “cause of action is therefore
barred by the [one-year] statute of limitations” set out in N.C.
Gen. Stat. § 1-54(3) for the tortious acts of assault and battery.
On 2 June 1999, defendant moved for summary judgment, and on 12
July 1999, the trial court granted defendant's request finding
“that there is no genuine issue as to any material fact and that
Defendant is entitled to Judgment as a matter of law dismissing all
claims by the Plaintiff against him.”
It has long been the law in North Carolina that:
This Court's standard of review on appeal
from summary judgment requires a two-step
analysis. Summary judgment is appropriate if
(1) 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 (2) the moving party is entitled to
judgment as a matter of law. N.C.R. Civ. P.
56(c) (1999). Once the movant makes the
required showing, the burden shifts to the
non-moving party to produce a forecast of
evidence demonstrating specific facts, as
opposed to allegations, establishing at least
a prima facie case at trial. Gaunt v.
Pittaway, 135 N.C. App. 442, 447, 520 S.E.2d
603, 607 (1999). . . .
Stephenson v. Warren, 136 N.C. App. 768, 771-72, 525 S.E.2d 809,
811-12, disc. review denied, 351 N.C. 646, ___ S.E.2d ___ (2000).
Furthermore, “the evidence presented by the parties must be viewed
in the light most favorable to the non-movant.” Bruce-Terminix Co.
v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577
(1998). Plaintiff brings forward only one assignment of error, that
the trial court erred in granting defendant's summary judgment
motion because there is a genuine issue of material fact as to
defendant's intent or state of mind when he pushed plaintiff.
Contrarily, defendant argues that because, in his answer, he
admitted he pushed plaintiff “intentionally,” plaintiff's claim
against him must fail.
North Carolina courts have consistently held that “'[t]here
are situations where the evidence presented raises questions of
both assault and battery and negligence.'” Vernon v. Barrow, 95
N.C. App. 642, 643, 383 S.E.2d 441, 442 (1989) (quoting Lail v.
Woods, 36 N.C. App. 590, 592, 244 S.E.2d 500, 502, disc. review
denied, 295 N.C. 550, 248 S.E.2d 727 (1978)). Additionally, our
Supreme Court has stated that “[a]s a general proposition, issues
of negligence are ordinarily not susceptible [to] summary
adjudication either for or against the claimant 'but should be
resolved by trial in the ordinary manner.'” Vassey v. Burch, 301
N.C. 68, 73, 269 S.E.2d 137, 140 (1980) (quoting 6 James W. Moore
et al., Moore's Federal Practice ¶ 56.17[42], at 946 (2d. ed.
1980)). Furthermore, our Supreme Court has held that “summary
judgment is particularly inappropriate where issues such as motive,
intent, and other subjective feelings and reactions are material
and where the evidence is subject to conflicting interpretations.”
Creech v. Melnik, 347 N.C. 520, 530, 495 S.E.2d 907, 913 (1998)
(emphasis added). Instead, “[t]he better practice is for the trialcourt to submit the case to the jury and enter a judgment
notwithstanding the verdict if the evidence is insufficient to
support the verdict.” Freeman v. Sugar Mountain Resort, Inc., 134
N.C. App. 73, 76, 516 S.E.2d 616, 618, reversed on other grounds,
351 N.C. 184, 522 S.E.2d 582 (1999).
Therefore, in order for this Court to uphold the trial court's
grant of the present defendant's summary judgment motion, we must
find that the evidence in the record before us supports no other
conclusion “as to any material fact” but that defendant intended to
push plaintiff, thereby making defendant entitled to summary
judgment “as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(1999). A finding otherwise requires that we reverse the trial
court because “[i]t is for the trier of fact to resolve issues of
credibility and to determine the relative strength of competing
evidence.” Upchurch v. Upchurch, 128 N.C. App. 461, 464, 495
S.E.2d 738, 740, review denied, 348 N.C. 291, 501 S.E.2d 925
(1998). See also Lawing v. Lawing, 81 N.C. App. 159, 177, 344
S.E.2d 100, 112 (1986).
In the present case, the record plainly reflects that
defendant (through his attorney) approached plaintiff during the
criminal suit stating that he did not intend the injurious act
against plaintiff. Conversely, now in the civil suit, defendant
argues that he did intend the actions against plaintiff. Yet
defendant can point to nothing, save his own contradictory
statements, to show that he intended the act and should not now be
held negligently liable. Therefore, because the entire basis ofplaintiff's complaint depends on defendant's intent (which thereby
determines the applicable statute of limitations), the issue of
intent is “material” and the contradiction renders summary judgment
inappropriate. Smith v. Currie, 40 N.C. App. 739, 742-43, 253
S.E.2d 645, 647, disc. review denied, 297 N.C. 612, 257 S.E.2d 219
(1979). Thus, considering the evidence in the light most favorable
to plaintiff, we hold the trial court erred in granting defendant's
motion for summary judgment based on intent, because defendant's
intent is a question for the jury.
However, our analysis cannot stop at this juncture for we
recognize that upon submission to the jury, should the jury find
(from the evidence presented) that defendant did intend the
injurious act, plaintiff's claim would then be barred by the one-
year statute of limitations for intentional torts, unless an
intervening theory of law is present. Therefore, we feel it
necessary to address plaintiff's argument that defendant should be
equitably estopped from asserting the statute of limitations as a
defense to his intentional tort.
The law has long been that
in determining whether the doctrine of
estoppel applies in any given situation, the
conduct of both parties must be weighed in the
balances of equity and the party claiming the
estoppel no less than the party sought to be
estopped must conform to fixed standards of
equity. . . . [T]he essential elements of an
equitable estoppel as related to the party
estopped are: (1) Conduct which amounts to a
false representation or concealment of
material facts, or, at least, which is
reasonably calculated to convey the impression
that the facts are otherwise than, and
inconsistent with, those which the partyafterwards attempts to assert; (2) intention
or expectation that such conduct shall be
. . . relied and acted upon; (3) knowledge,
actual or constructive, of the real facts. As
related to the party claiming the estoppel,
they are: (1) lack of knowledge and the means
of knowledge of the truth as to the facts in
question; (2) reliance upon the conduct of the
party sought to be estopped; and (3) action
based thereon of such a character as to change
his position prejudicially.
Hawkins v. Finance Corp., 238 N.C. 174, 177-78, 77 S.E.2d 669, 672
(1953). Additionally:
Where there is but one inference that can
be drawn from the undisputed facts of a case,
the doctrine of equitable estoppel is to be
applied by the court. However, . . . where
the evidence raises a permissible inference
that the elements of equitable estoppel are
present, but where other inferences may be
drawn from contrary evidence, estoppel is a
question of fact for the jury, upon proper
instructions from the trial court.
Creech, 347 N.C. at 528, 495 S.E.2d at 913 (citations omitted).
Looking to defendant's conduct, we have already established
that the record in the present case plainly reflects defendant's
contradicting assertions of intent. By gaining a dismissal in
criminal court due to his assertion that he “never had criminal
intent,” and then claiming that he “intentionally pushed”
plaintiff, defendant at bar is clearly attempting to preclude
plaintiff from seeking any remedy at all, in our courts, for the
injuries suffered. Accordingly, plaintiff argues that defendant
should be estopped from asserting either the one-year statute of
limitations for intentional torts or intent as a defense to the
claim of negligence. Looking to plaintiff's conduct, the record
reflects plaintiff did not even know what happened. Plaintifftestified in his deposition that defendant “was right behind the
wheelchair, and I just reached my hand up to shake -- [his hand].”
“Well, the next thing I knew I was laying on the floor.” Neither
does plaintiff remember (nor does defendant contend) that defendant
said anything to establish defendant's state of mind at the time.
Yet plaintiff relinquished his right to any remedy in criminal
court, based solely on defendant's assertion that he had no
criminal intent.
Therefore, in applying the law to the facts of this case, we
hold that “it would be against the principles of equity and good
conscience” to disallow plaintiff from asserting equitable estoppel
against defendant while allowing defendant to assert a statute of
limitations defense or, in the alternative, intent as a defense to
plaintiff's negligence claim. Transit, Inc. v. Casualty Co., 285
N.C. 541, 550, 206 S.E.2d 155, 161 (1974). We note however, that
our holding by no means is intended to say that as a matter of law
the defendant is equitably estopped from asserting the statute of
limitations as a defense. Instead, we find that because “the
evidence raises a permissible inference that the elements of
equitable estoppel are present, but [also raises] other inferences
[by] contrary evidence, estoppel [in this case] is a question of
fact for the jury, upon proper instructions from the trial court.”
Creech, 347 N.C. at 528, 495 S.E.2d at 913.
We urge the General Assembly to reexamine the one-year statute
of limitations for intentional torts and determine whether it is in
the interest of justice to have a one-year statute of limitationsfor an “intentional” act yet, conversely, a three-year statute of
limitations for a “negligent” act. The shorter statute of
limitations for the intentional tort is often a trap for laymen and
lawyers alike. What is even more confusing is that very often the
act resulting in harm (as in the case sub judice) is difficult to
categorize; and we know that rarely, if ever, will a defendant
assert that his act was intentional before the one-year statute of
limitations has run on the intentional tort. The interest of
justice may be better served by having a three-year statute of
limitations for both torts.
Nevertheless, having held that there is a question of material
fact with regard to the present defendant's intent and as to
whether equitable estoppel applies, we hold that summary judgment
was improper and the trial court erred in granting it. Therefore,
we reverse and remand to the superior court for trial.
Reversed and remanded.
Judges LEWIS and WALKER concur.
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