Vernon v. Barrow

383 S.E.2d 441 (1989)

Layman Keith VERNON, Plaintiff, v. Phillip M. BARROW, Defendant.

No. 8918DC45.

Court of Appeals of North Carolina.

September 19, 1989.

*442 Fish and Hall, P.A. by Konrad K. Fish, and Henson Henson Bayliss & Teague by Perry C. Henson, Greensboro, for plaintiff, appellant.

McNairy, Clifford, Clendenin & Parks by Locke T. Clifford, Greensboro, for defendant, appellee.

HEDRICK, Chief Judge.

The sole question presented on appeal is whether the trial court erred in holding that plaintiff's 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, 355 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, 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.

ORR and LEWIS, JJ., concur.