An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-131


Filed: 15 February 2005



v .                         Randolph County
                            No. 03 CVS 618


    Appeal by plaintiff from judgment entered 17 October 2003 by Judge Andy J. Cromer in Randolph County Superior Court. Heard in the Court of Appeals 13 October 2004.

    Benjamin Spence Albright for plaintiff-appellant.

    Brotherton Ford Yeoman & Worley, P.L.L.C., by Steven P. Weaver, for defendant-appellee.

    ELMORE, Judge.

    Plaintiff appeals from an order granting defendant's motion to dismiss based on the grounds that plaintiff's action was barred by the applicable statute of limitations. For the reasons stated herein, we affirm.
    In January of 2000, Randall Humble (plaintiff) purchased a package of smoked sausages which defendant Sara Lee Corporation (Sara Lee) had produced, manufactured, and packaged within the same month. Upon biting into a sausage, plaintiff “heard a crunch and had excruciating pain in his teeth.” Plaintiff alleged that the sausage contained a steel bird shot which caused injury to histooth, requiring a root canal and crowning. Approximately three years and four months after the incident, on 9 April 2003, plaintiff filed an action against Sara Lee for breach of express and implied warranties. Plaintiff sought recovery for personal injuries, including pain and suffering, medical bills, and loss of a body part (tooth).
    Sara Lee subsequently moved to dismiss the action, raising the three-year statute of limitations under N.C. Gen. Stat. § 1-52 (16) as an affirmative defense. Plaintiff argued that the applicable statute of limitations for an action for breach of express and implied warranties involving the sale of goods governed by the Uniform Commercial Code is four years. See N.C. Gen. Stat. § 25-2- 725. The trial court declined to apply a four-year limitation period and dismissed plaintiff's action as time-barred. Plaintiff now appeals.
        Whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. However, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes a question of law, and summary judgment is appropriate.

McCarver v. Blythe, 147 N.C. App. 496, 498, 555 S.E.2d 680, 682 (2001) (citation omitted). Here, the parties stipulated that the alleged injury to plaintiff occurred more than three years and less than four years prior to the filing of plaintiff's complaint. Thus, whether plaintiff's action was time-barred is a question of law.     Defendant contends that the three-year statute of limitations period set forth in N.C. Gen. Stat. § 1-52 governs plaintiff's action. Plaintiff, on the other hand, urges this Court to apply the four-year statute of limitations found in N.C. Gen. Stat. § 25- 2-725 because the injury arises from a sale of goods. However, our Supreme Court has held that where bodily injury or a defect in property is an “essential element of the plaintiff's cause of action,” N.C. Gen. Stat. § 1-52 is the appropriate statute of limitations. See Bernick v. Jurden, 306 N.C. 435, 444-45, 293 S.E.2d 405, 411-12 (1982). Following Bernick, this Court has declined to apply the four-year statute of limitations in N.C. Gen. Stat. § 25-2-725 to an action for breach of express or implied warranties where property damage was an essential element of the action. See Hanover Ins. v. Amana Refrigeration, 106 N.C. App. 79, 415 S.E.2d 99 (where plaintiff seeks to recover for property damage and not for value or replacement of the defective good, N.C. Gen. Stat. § 1-52 is applicable statute of limitations), disc. review denied, 332 N.C. 344, 421 S.E.2d 147 (1992).
    Here, plaintiff's claims are clearly based on bodily injury; plaintiff argues that he endured pain and ultimately lost his tooth as a result of biting into a foreign object misplaced within a food product. He is requesting neither recovery for the cost of, nor the replacement of, a package of smoked sausages. Rather, plaintiff seeks damages for permanent loss of a body part. As plaintiff's action seeks recovery for personal injury, N.C. Gen. Stat. § 1-52 provides the appropriate statute of limitations periodof three years. Bernick, 306 N.C. at 444-45, 293 S.E.2d at 411-12. Plaintiff filed his action more than three years after the date of accrual. Thus, plaintiff's action was time-barred and the trial court properly granted summary judgment on this basis.
    Judges McGEE and McCULLOUGH concur.
    Report per Rule 30(e).

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