Jarrell v. Samsonite Corporation

184 S.E.2d 376 (1971)

12 N.C. App. 673

James Norfleet JARRELL v. SAMSONITE CORPORATION (a Foreign Corporation), and Herb Cochrane, t/a C & C Restaurant.

No. 7126SC681.

Court of Appeals of North Carolina.

November 17, 1971.

Certiorari Denied January 4, 1972.

*377 Don Davis, Charlotte, for plaintiff appellant.

Carpenter, Golding, Crews & Meekins by James P. Crews, Charlotte, for Samsonite Corp., defendant appellee.

Certiorari Denied by Supreme Court January 4, 1972.

HEDRICK, Judge.

The question presented on this appeal is whether the record discloses that plaintiff's claim against the defendant Samsonite is barred by the running of the statute of limitations. If so, the defendant Samsonite was entitled to judgment as a matter of law and the entry of summary judgment under G.S. § 1A-1, Rule 56, was appropriate. Brantley v. Dunstan, 10 N.C.App. 706, 179 S.E.2d 878 (1971).

*378 If the defendant moving for summary judgment successfully carries his burden of proof, the plaintiff may not rely on the bare allegations of his complaint to establish triable issues of fact, but must, by affidavits or otherwise, set forth specific facts showing that there is a genuine issue for trial. Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865 (1971).

In the present case the answers of defendant Cochrane to the interrogatories disclose that the chair which plaintiff alleged caused his injury was purchased by the defendant Cochrane from Harris-Teeter Super Market more than three years before plaintiff's suit was instituted against the defendant Samsonite or the defendant Cochrane.

Although the plaintiff filed a response to the motion for summary judgment, he did not set out in his opposing affidavit specific facts showing that the chair had not been in the defendant Cochrane's possession for more than three years before the suit was instituted, as shown in the answers to the interrogatories, or that the chair had been under the control of the defendant Samsonite within three years of the time that suit was instituted.

As to when the statute of limitations commenced to run, we think the recent decision of this Court in State v. Cessna Aircraft Corp., 9 N.C.App. 557, 176 S.E.2d 796 (1970), is controlling. There the State sought to recover for damages allegedly sustained by one of its buildings when an airplane manufactured, assembled and sold by defendant Cessna more than three years prior to the date suit was instituted crashed into the building as a result of the negligence of the defendant Cessna in the manufacture, assembly and sale of the plane. Citing as authority, Thurston Motor Lines, Inc. v. General Motors Corporation, 258 N.C. 323, 128 S.E.2d 413 (1962), and Hooper v. Carr Lumber Co., 215 N.C. 308, 1 S.E.2d 818 (1939), this Court held that the statute of limitations commenced to run on the date the airplane was sold by defendant Cessna and not on the date of the crash.

Since the record in the instant case discloses clearly that the chair which allegedly caused plaintiff's injury had been sold to the defendant Cochrane, and had been out of the control of the defendant Samsonite for more than three years before suit was instituted, we hold that the defendant Samsonite was entitled to judgment as a matter of law because of the running of the three-year statute of limitations, G.S. § 1-52, and the entry of summary judgment was appropriate.

Affirmed.

MALLARD, C. J., and GRAHAM, J., concur.