Appeal by plaintiff from order entered 8 May 2002 by Judge
Clarence E. Horton, Jr. in Rowan County Superior Court. Heard in
the Court of Appeals 10 September 2003.
J. Stephen Gray for plaintiff-appellant.
Teague, Rotenstreich & Stanaland, LLP, by Stephen G. Teague
and Paul A. Daniels, for defendants-appellees.
MARTIN, Judge.
Plaintiff filed her complaint in this action on 7 January 2002
seeking damages for personal injuries allegedly sustained when she
was struck by defendants' automobile in a Walmart parking lot on 4
January 1999. Defendants answered, asserting, inter alia, that the
complaint was barred by the statute of limitations. The trial
court granted defendants' motion for judgment on the pleadings,
determining that plaintiff's claims were barred by the statute of
limitations. Plaintiff appeals.
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On appeal, plaintiff contends the trial court erred in
granting judgment on the pleadings because it (1) misapplied G.S.
§ 1-52 (16), prematurely deciding the issue of whether plaintiff's
bodily harm was apparent on the day of the accident, and (2) failed
to recognize G.S. § 7A-39, which permits the extension of the
statute of limitations in the event of catastrophic conditions. We
affirm the judgment of the trial court.
Initially we note that because the trial court considered, in
addition to the pleadings, affidavits and other materials submitted
by the parties, the motion must be “treated as one for summary
judgment and disposed of as provided in Rule 56 . . . .” N.C. Gen.
Stat. § 1A-1, Rule 12(c) (2001);
see also Minor v. Minor, 70 N.C.
App. 76, 78, 318 S.E.2d 865, 867 (1984). Summary judgment is
appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that any party is entitled to a judgment as a
matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). “[T]he
evidence presented by the parties must be viewed in the light most
favorable to the non-movant.”
Bruce-Terminex Co. v. Zurich Ins.
Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).
The statute of limitations applicable to plaintiff's claims is
G.S. § 1-52 (16), which provides that an action for personal
injuries shall be brought within three years, except that such
action “shall not accrue until bodily harm to the claimant . . .
becomes apparent or ought reasonably to have become apparent to theclaimant, whichever event first occurs.” N.C. Gen. Stat. § 1-52
(16) (2001). This statute delays the accrual of a cause of action
for personal injury until the time a physical injury should be
reasonably discovered.
See McCarver v. Blythe, 147 N.C. App. 496,
499, 555 S.E.2d 680, 683 (2001) (noting that the common law rule
was modified to provide an extension for latent injuries). “[O]nce
some physical damage has been discovered, the [damage or] the
injury springs into existence and completes the cause of action.”
Id. (citation omitted)
. Plaintiff contends there is a genuine
issue of fact as to the date her claims accrued, precluding summary
judgment based upon the statute of limitations. We disagree.
In her complaint, plaintiff alleged that the accident occurred
on 4 January 1999 and that she sustained injuries as a result of
being hit, “thrown up onto the hood of defendant's vehicle, and
rolled off the side of the vehicle.” Defendants admitted the date
of the accident. In opposition to defendants' motion to dismiss on
the pleadings, plaintiff submitted an affidavit in which she
asserted “[a]s of January 4, 2002 [sic] [she] did not realize that
[she] had sustained serious injuries from being struck by
defendant's vehicle.” She asserted that despite experiencing some
pain immediately after the accident and being transported to the
hospital by ambulance at the scene, she was unaware of her
injuries' severity, believing the pain resulted from “an
aggravation of pre-existing conditions.” Even considered in the
light most favorable to the plaintiff, her materials do not show
that her injuries were latent or unknown to plaintiff, only thatshe did not realize the seriousness of such injuries until a later
date. Thus, there was no genuine issue of fact as to the date
plaintiff's claims accrued, and the trial court did not err in its
conclusion that such claims accrued on the date of the accident and
that her complaint was filed more than three years thereafter.
However, plaintiff further contends the provisions of G.S. §
7A-39(b) excuse her failure to file her action prior to the
expiration of the statute of limitations. G.S. § 7A-39(b) permits
an extension of the statute of limitations when the Chief Justice
of the North Carolina Supreme Court determines catastrophic
conditions exist, including snow and ice storms. N.C. Gen. Stat.
§ 7A-39(b) (2001). An order can be entered “any time after
catastrophic conditions have ceased to exist” and “shall become
effective for each affected county upon being filed in the office
of the clerk of superior court of that county.”
Id. Supporting
her contentions with copies of various news articles concerning
snow and ice storms which occurred on Thursday, 3 January 2002, and
Friday, 4 January 2002, plaintiff contends her complaint, filed on
Monday, 7 January 2002, was timely. Plaintiff concedes, however,
that no order was issued pursuant to this statute, and that the
Rowan County courthouse was open on 4 January 2002, although not
“during the regular scheduled hours.” Without an order issued by
the Chief Justice, neither the trial court nor this Court has
authority, pursuant to G.S. § 7A-39(b), to extend the time within
which plaintiff's complaint might be timely filed. Summary judgment dismissing plaintiff's complaint must be
affirmed.
Affirmed.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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