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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
DAVID JONES, T/A ROYAL CLEANERS AND LAUNDRY, Plaintiff, v. TOWN
OF ANGIER; and ANGIER & BLACK RIVER FIRE DEPARTMENT, INC.,
Filed: 2 January 2007
1. Statutes of Limitation and Repose_provision of dirty water to dry
The statute of limitations had run and the trial court did not err by granting defendants'
motions for summary judgment on a negligence claim that involved the flushing of water pipes
and the provision of water with sediments which stained clothes at plaintiff's dry cleaning
business. The injury was a continuing one that was apparent to plaintiff for more than three
2. Warranties; Statute of Limitations_municipal water supply_dirty water furnished
to dry cleaner
The trial court erred by granting summary judgment for defendant town on a claim for
breach of implied warranty of merchantability arising from the provision of water which
damaged the clothes at plaintiff's dry cleaning business. The claim is not completely barred
because plaintiff could not determine whether the water was fit for use prior to purchase.
However, the two-year statute of limitations for contract claims against local governments limits
plaintiff to seeking damages for the two years preceding the lawsuit. N.C.G.S. § 1-53.
Appeal by plaintiff from judgments entered 20 September 2005
and 21 October 2005 by Judge D. Jack Hooks, Jr., in Harnett County
Superior Court. Heard in the Court of Appeals 6 December 2006.
Bain, Buzzard & McRae, LLP, by Edgar R. Bain and L. Stacy
Weaver III, for plaintiff appellants.
Little & Little, PLLC, by Cathryn M. Little, for Town of
Angier defendant appellee.
Cranfill, Sumner & Hartzog, LLP, by Robert W. Sumner and
Meredith T. Black, for Angier and Black River Fire Department,
Inc., defendant appellee.
Plaintiff appeals from judgments granting defendants' motions
for summary judgment. We affirm in part and reverse and remand in
Plaintiff David Jones (plaintiff) operates a business under
the name of Royal Cleaners and Laundry. Royal Cleaners and Laundry
is located in the Town of Angier, North Carolina (Angier), a
named defendant. Defendant Black River Fire Department, Inc. (Fire
Department) is a non-profit corporation existing pursuant to the
laws of North Carolina that provides fire protection and emergency
medical services to the citizens and residents of Angier and the
Black River Township.
On 25 April 2005, plaintiff filed an amended complaint against
Angier and Fire Department asserting negligence against both
defendants and breach of the implied warranty of merchantability
against Angier. The basis of the claims against Angier are that
plaintiff was provided water by Angier that was often filled with
mud, dirt, rust, or other impediments which left brown spots or
discoloration on clothing or garments which had been brought to
plaintiff's place of business by its customers for washing or
cleaning. The basis of the claim against Fire Department is that in
flushing the fire hydrants, Fire Department stirred up mud, clay,
and other sediments in the line which were transported through the
water lines to plaintiff's business which eventually stained
customers clothes and damaged plaintiff's business. Plaintiff
claims that he has on numerous occasions attempted to get Angierand Fire Department to desist from continuing to provide unclean
water and stirring up water in the lines, but that both defendants
have done nothing to assist in solving plaintiff's problem. On 22
July 2005, Fire Department and Angier filed motions for summary
judgment. Then on 20 September 2005 and 21 October 2005, the trial
court granted Fire Department and Angier's motions for summary
Plaintiff contends that the trial court erred in granting
defendants' motions for summary judgment. We disagree regarding
plaintiff's negligence claims, but we agree regarding plaintiff's
breach of the implied warranty of merchantability claim.
Granting summary judgment is appropriate only 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) (2005). There is no genuine issue of material fact
where a party demonstrates that the claimant cannot prove the
existence of an essential element of his claim or cannot surmount
an affirmative defense which would bar the claim. Harrison v.
City of Sanford, 177 N.C. App. 116, 118, 627 S.E.2d 672, 675
(2006). On appeal from a grant of summary judgment, this Court
reviews the trial court's decision de novo. Falk Integrated Tech.,Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 573-74
Here, plaintiff asserted two causes of action based on
negligence, one against Fire Department and one against Angier, and
one cause of action based on the implied warranty of
merchantability against Angier.
 Plaintiff contends that the instant case is similar to the
case of Harrison, and that his negligence claims are not barred by
the statute of limitations. In Harrison, the plaintiffs owned a
residence which was serviced by a sewer line and manhole maintained
and operated by the City of Sanford. Harrison, 177 N.C. App. at
117, 627 S.E.2d at 674. Beginning in 1992, the Harrisons had
problems with sewage from the sewer line and manhole entering their
yard and a small concrete area of the basement. Id. Beginning in
1996, the Harrisons contacted the City of Sanford on several
occasions regarding the problems with the sewage discharge, but the
City failed to correct the problems. Id. Then on 8 August 2003,
a large rain storm occurred which caused 39 inches of sewage to
enter the Harrisons' basement causing personal property damage of
approximately $49,000 and other property damage totaling
approximately $20,000. Id. The Harrisons filed a lawsuit against
the City of Sanford alleging, among other things, negligence. Id.
The City of Sanford filed a motion for summary judgment. Id. Thetrial court entered an order granting the City of Sanford's motion
for summary judgment, and the Harrisons appealed. Id. We
determined that the trial court erred in granting summary judgment
and noted that the lawsuit was not barred by the three-year statute
of limitations found in N.C. Gen. Stat. § 1-52(16) (2005), because
of the separate and distinct nature of the different property
damage events complained of by the Harrisons. Id. at ___, 627
S.E.2d at 675. We noted there was a difference between the damage
that occurred before 8 August 2003 consisting of broken pipes and
concrete, and the damage which occurred on 8 August 2003 which
caused a loss of approximately $69,000. Id. We stated that Harrison
was not a case of a continuing injury nor was it one involving an
exacerbated injury. Id. at 119, 627 S.E.2d at 676.
Defendant asserts that the instant case is not like Harrison,
but is like Robertson v. City of High Point, 129 N.C. App. 88, 497
S.E.2d 300, disc. review denied, 348 N.C. 500, 510 S.E.2d 654
(1998). In Robertson, the plaintiffs filed a suit alleging, among
other things, negligence based on damage caused by the operation of
a landfill in the dumping of solid waste. Id. at 90, 497 S.E.2d at
301-02. The plaintiffs alleged that the City's landfill operation
caused damage to their property beginning 9 October 1993, but their
complaint was not filed until 23 December 1996. Id. at 91, 497
S.E.2d at 302. We held that the claims were barred by the statute
of limitations. Id. In so holding, we stated, where plaintiffs
clearly know more than three years prior to bringing suit about
damages, yet take no legal action until the statute of limitationshas run, the fact that further damage is caused does not bring
about a new cause of action. Id.
After reviewing the record and depositions, we determine the
instant case to be like Robertson. Here, the injury was a
continuing injury which was apparent to plaintiff for more than
three years. Plaintiff admits in his amended complaint that the
dirty water had been periodically furnished to him over a period of
more than ten years. In addition, the amended complaint states
that plaintiff experienced problems with the dirty water at least
two or three times per month in each year during the last ten
years. Further, we do not think the injuries complained of by
plaintiff had a separate and distinct nature like the injury
complained of in Harrison. Accordingly, we disagree with
B. Implied Warranty of Merchantability
 We have previously stated that the sale of water by a
municipality is a proprietary function not subject to governmental
immunity and constitutes the sale of goods under the Uniform
Commercial Code (U.C.C.). Mulberry-Fairplains Water Assn. v.
Town of North Wilkesboro
, 105 N.C. App. 258, 264-65, 412 S.E.2d
910, 914-15, disc. review denied
, 332 N.C. 148, 419 S.E.2d 573
(1992). Under the U.C.C., a warranty of merchantability is implied
in the sale of goods if the seller is a merchant with respect to
goods of that kind. N.C. Gen. Stat. § 25-2-314(1) (2005). The
U.C.C. contains a four-year statute of limitations for breach ofwarranty, accruing from when tender of delivery is made. N.C. Gen.
Stat. § 25-2-725 (2005).
Here, Angier tenders water to plaintiff every time he uses
water at his business. Thus, under the particular facts of this
case, the statute of limitations found in the U.C.C. would not bar
plaintiff from suing for any damages that have occurred within the
four years prior to the filing of the lawsuit. However, the North
Carolina General Statutes contain a two-year statute of limitations
for actions brought against a local unit of government upon a
contract, obligation or liability arising out of a contract,
express or implied. N.C. Gen. Stat. § 1-53 (2005). Because Angier
is a local unit of government, plaintiff can only sue for any
damages that have occurred within two years prior to filing the
lawsuit based on the implied warranty of merchantability.
Angier relies on Matthieu v. Gas Co.
, 269 N.C. 212, 152 S.E.2d
336 (1967), contending that plaintiff's claim for breach of the
implied warranty of merchantability should be barred. In Matthieu
our Supreme Court stated that the '[i]mplied warranty cannot
extend to defects which are visible and alike within the knowledge
of the vendee and vendor, or when the sources of information are
alike open and accessible to each party
at 217, 152 S.E.2d
at 341 (quoting Driver v. Snow
, 245 N.C. 223, 225, 95 S.E.2d 519,
520-21 (1956)). 'There is no implied warranty where the buyer has
knowledge equal to that of the seller . . . the presence of the
goods at the time of sale open and available for inspection . . .prevents the implication of warranties.' Driver
245 N.C. at 225,
95 S.E.2d at 521 (citation omitted).
Here, the water supplied to plaintiff by Angier cannot be
inspected at the time of the sale. As soon as any water is used,
plaintiff has purchased it. Thus, there does not seem to be any
practical way for plaintiff to inspect the water prior to purchase.
Also, the water was not dirty every time plaintiff used it. Thus,
without being able to inspect it prior to purchase, plaintiff could
not determine whether the water was fit for use. Accordingly, we
determine that plaintiff's claim based on the implied warranty of
merchantability is not barred, but plaintiff can only seek damages
for the period of two years preceding the filing of the lawsuit.
Therefore, we affirm the trial court regarding plaintiff's
claims against Angier and Fire Department based on negligence.
However, we reverse and remand to the trial court regarding
plaintiff's claim based on the implied warranty of merchantability
Affirmed in part; reversed and remanded in part.
Chief Judge MARTIN and Judge ELMORE concur.
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