{
  "id": 8556367,
  "name": "ANNE B. RAFTERY, Administratrix of the Estate of ALLEN G. RAFTERY, Deceased v. WM. C. VICK CONSTRUCTION CO. and CLARK EQUIPMENT COMPANY, a CORPORATION",
  "name_abbreviation": "Raftery v. Wm. C. Vick Construction Co.",
  "decision_date": "1976-05-19",
  "docket_number": "No. 7511SC932",
  "first_page": "495",
  "last_page": "498",
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    "name_long": "North Carolina",
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      "cite": "166 N.C. 5",
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  "last_updated": "2023-07-14T16:29:22.308082+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Morris and Clark concur."
    ],
    "parties": [
      "ANNE B. RAFTERY, Administratrix of the Estate of ALLEN G. RAFTERY, Deceased v. WM. C. VICK CONSTRUCTION CO. and CLARK EQUIPMENT COMPANY, a CORPORATION"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nIn an action for wrongful death alleged to have resulted from a hidden defect in a product, does the cause of action accrue at the time the product is sold, or at the time of decedent\u2019s death? That is the question raised by this appeal.\nIt is alleged by plaintiff that decedent was killed as a result of a hidden defect in a crane. Plaintiff contends that under G.S. 1-53(4) the limitation period for wrongful death is two years, and she contends further that her cause of action accrued, not when the crane was sold in 1953, but when decedent died [14 June 1972].\nDefendant maintains that a cause of action for wrongful death resulting from a defective product accrues when the defective product is sold. In support of this position defendant argues that if the action does not accrue until death occurs an action could be brought against a seller of a defective product one hundred years after it was sold, if the product does not malfunction and cause death until one hundred years have elapsed.\nAccording to defendant, an action for wrongful death is governed not only by G.S. 1-53(4) but also by the statute of limitations which would have applied in a similar action brought by decedent himself had he lived. Defendant relies on G.S. 28-173 [now G.S. 28A-18-2] which provides: \u201cWhen the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable . . . shall be liable to an action for damages . . . . \u201d (emphasis added). The limitation period for tort actions based on hidden defects in products is ten years. G.S. 1-15 (b). Had decedent not been killed, but only injured by the collapse of the crane, his action against defendant would have been barred by G.S. 1-15 (b), and defendant, therefore, argues that plaintiff\u2019s action for wrongful death ought to be barred.\nWhile we are persuaded by the logic of defendant\u2019s arguments we are nevertheless bound by Causey v. R. R., 166 N.C. 5, 81 S.E. 917 (1914). In Causey v. R. R., supra, there was an action for wrongful death of plaintiff\u2019s intestate who was injured on 1 December 1903, and died on 7 June 1912. There was evidence to support a finding that the injury in 1903 caused the death of the intestate. It was held in Causey that the cause of action accrued at the death of the intestate.\nPlaintiff also cites Williams v. General Motors Corporation, 393 F. Supp. 387, 395-396 (1975), in which pertinent comment is made of the Causey decision.\n\u201c . . . Causey holds that an administrator may bring an action even though the deceased would have been barred at the time of his death from bringing the action while N.C.G.S. \u00a7 28-173, on the other hand, requires that the cause of action, in order to be brought by the administrator, must have been one which the deceased had the right to bring at the time of his death. The above-quoted phrase from N.C.G.S. \u00a7 28-173 was in basically the same form in 1914 when Causey was handed down that it is today and thus it cannot be said that the conflict exists because the North Carolina Supreme Court was construing a different statute.\u201d\nBased on the authority of Causey v. R. R., supra, entry of summary judgment for defendant was error. Judgment is therefore vacated and the cause is remanded for further proceedings.\nVacated and remanded.\nJudges Morris and Clark concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Hedrick, McKnight, Parham, Helms, Kellam & Feerick, by Richard T. Feerick, for plaintiff appellant.",
      "Maupin, Taylor & Ellis, by Armistead J. Maupin and Richard M. Lewis, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "ANNE B. RAFTERY, Administratrix of the Estate of ALLEN G. RAFTERY, Deceased v. WM. C. VICK CONSTRUCTION CO. and CLARK EQUIPMENT COMPANY, a CORPORATION\nNo. 7511SC932\n(Filed 19 May 1976)\nDeath \u00a7 4; Limitation of Actions \u00a7 4\u2014 wrongful death \u2014 defective product \u2014 statute of limitations\nA cause of action for wrongful death alleged to have resulted from a hidden defect in a product accrues at the time of decedent\u2019s death rather than at the time the product was sold; therefore, a wrongful death action based on an alleged defect in a crane was not barred by the statute of limitations where it was brought within two years after decedent\u2019s death, G.S. 1-53(4), although it was brought more than ten years after the crane was sold and an action by decedent, had he not been killed, would have been barred by G.S. 1-15 (b).\nAppeal by plaintiff from Brewer, Judge. Judgment entered 7 August 1975 in Superior Court, JOHNSTON County. Heard in the Court of Appeals 11 March 1976.\nThis action for wrongful death arose from alleged negligent acts by defendants in the design, manufacture and sale of a crane which on 14 June 1972 collapsed and fell on decedent, causing his death. On 12 June 1974 this action was commenced.\nThe equipment involved is a crane manufactured by Michigan Power Shovel Company and sold through its distributor, North Carolina Equipment Company, to J. M. Thompson Company of Raleigh on 23 June 1953. The crane, serial number 8298, was used by the J. M. Thompson Company until 1966 when Thompson Company sold it to Roger K. Barbour.\nOn 16 September 1974, defendant Clark Equipment Company moved for summary judgment on grounds that the plaintiff\u2019s action was barred by the statute of limitations. In support of its motion Clark Equipment Company submitted affidavits stating that the crane had been sold by Michigan to a Raleigh firm in 1953, and that the crane was new at that time; and that since 1953 neither Michigan nor Clark had owned the crane, done any work on it, or had any possession of the crane. Plaintiff submitted no proof in opposition to the summary judgment motion.\nA voluntary dismissal pursuant to G.S. 1A-1, Rule 41(a), was entered by plaintiff as against Vick Construction Company, and the trial court granted summary judgment for defendant Clark Equipment Company.\nHedrick, McKnight, Parham, Helms, Kellam & Feerick, by Richard T. Feerick, for plaintiff appellant.\nMaupin, Taylor & Ellis, by Armistead J. Maupin and Richard M. Lewis, for defendant appellee."
  },
  "file_name": "0495-01",
  "first_page_order": 527,
  "last_page_order": 530
}
