{ "id": 12123341, "name": "LILLIE J. GILLESPIE v. TOMMY RAY COFFEY, G. LEWIS BERNHARDT, and THE CITY OF LENOIR, a Municipal Corporation", "name_abbreviation": "Gillespie v. Coffey", "decision_date": "1987-06-02", "docket_number": "No. 8625SC1257", "first_page": "97", "last_page": "100", "citations": [ { "type": "official", "cite": "86 N.C. App. 97" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "100 S.E. 2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "page": "262" } ], "opinion_index": 0 }, { "cite": "247 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624963 ], "year": 1957, "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0047-01" ] }, { "cite": "191 S.E. 2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 757", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576706, 8576681, 8576651, 8576692, 8576664 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0757-05", "/nc/281/0757-03", "/nc/281/0757-01", "/nc/281/0757-04", "/nc/281/0757-02" ] }, { "cite": "189 S.E. 2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 15", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547379 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0015-01" ] } ], "analysis": { "cardinality": 392, "char_count": 6852, "ocr_confidence": 0.881, "pagerank": { "raw": 6.909434895555288e-08, "percentile": 0.4198883795927871 }, "sha256": "3f6c33dc168cb8ca708f5cd618f03033847fe0029b73a5a61b25f12d6a07ccdd", "simhash": "1:cefb77d39f30835c", "word_count": 1103 }, "last_updated": "2023-07-14T20:31:51.245722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and ORR concur." ], "parties": [ "LILLIE J. GILLESPIE v. TOMMY RAY COFFEY, G. LEWIS BERNHARDT, and THE CITY OF LENOIR, a Municipal Corporation" ], "opinions": [ { "text": "ARNOLD, Judge.\nPlaintiff contends that the trial court erred in granting summary judgment to all of the defendants. We do not agree.\nConcerning the granting of summary judgment to the City of Lenoir, we note the following statute. G.S. l-50(5)a states:\nNo action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property shall be brought more than six years from the later of the specific last act or omission of the defendant giving rise to the cause of action or substantial completion of the improvement.\nThe City of Lenoir claims that this statute of limitations prohibits plaintiff from bringing this action against the defendant City because more than six years have passed from the time that the building inspector approved the remodeling to the time plaintiff filed this action.\nPlaintiff, however, claims that the City of Lenoir may not assert the statute of limitations defense due to G.S. l-50(5)d. This statute states:\nThe limitation prescribed by this subdivision shall not be asserted as a defense by any person in actual possession or control, as owner, tenant or otherwise, of the improvement at the time the defective or unsafe condition constitutes the proximate cause of the injury or death for which it is proposed to bring an action, in the event such person in actual possession or control either knew, or ought reasonably to have known, of the defective or unsafe condition.\nPlaintiff argues that the City of Lenoir was in \u201ccontrol\u201d as set forth in the statute because it was in charge of all construction within its territorial boundaries and had the responsibility for enforcement of the North Carolina State Building Code pursuant to Section 105.2 which states:\nLocal Inspection Departments shall receive applications for permits, issue or deny permits, make necessary inspections, issue or deny certificates of compliance, issue orders to correct violations, revoke permits, bring judicial actions against actual or threatened violations, keep adequate records, and take any other actions that may be required in order adequately to enforce the Code.\nWe are not persuaded by plaintiffs argument.\nThe exception in G.S. l-50(5)d for owners and tenants is based on a continued duty to inspect and maintain the premises. The City of Lenoir had no duty to continually inspect the remodeled entryway. The last act of the defendant City occurred in May 1979 when the building inspector approved the remodeling of Crossroads and concluded that the alterations to the restaurant complied with the building code. Thus, by waiting more than six years from that last act, plaintiff is barred by G.S. 1-50(5) from bringing this action against the City of Lenoir.\nEven without the benefit of the statute of limitations set forth in G.S. 1-50(5), summary judgment was appropriately granted to the City of Lenoir and also to the remaining defendants because plaintiff presented no evidence that the alleged noncompliance with the building code proximately caused her injuries.\nPlaintiff makes brief mention of the provision of the North Carolina State Building Code concerning handicapped facilities in construction. No mention, however, is made of what plaintiff believed the code to require in the present case and just how the entryway did not conform to such requirements.\nIn her brief, plaintiff correctly points out that violation of the building code is negligence per se. Lindstrom. v. Chesnutt, 15 N.C. App. 15, 189 S.E. 2d 749, cert. denied, 281 N.C. 757, 191 S.E. 2d 361 (1972). However, even assuming arguendo that the entryway did not meet the requirements of the code, plaintiffs action still fails. Plaintiff has made no showing that such negligent noncompliance was a cause in fact of her injury, much less a proximate cause. In order for plaintiff to show that there was a genuine issue of material fact in this respect, it was necessary for plaintiff to forecast evidence which is \u201csufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts.\u201d Parker v. Wilson, 247 N.C. 47, 53, 100 S.E. 2d 258, 262 (1957). This, plaintiff has not done. The trial court did not err in granting defendants\u2019 motions for summary judgment.\nAffirmed.\nJudges WELLS and ORR concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Donald T. Robbins for plaintiff appellant.", "Whisnant, Simmons, Groome, Tuttle and Pike, by Houston Groome, Jr., for defendant appellee, Tommy Ray Coffey.", "Todd, Vanderbloemen, Respess and Brady, by Bruce W. Van-derbloemen, for defendant appellee, G. Lewis Bernhardt.", "Mitchell, Blackwell, Mitchell and Smith, by Thomas G. Smith, for defendant appellee, City of Lenoir." ], "corrections": "", "head_matter": "LILLIE J. GILLESPIE v. TOMMY RAY COFFEY, G. LEWIS BERNHARDT, and THE CITY OF LENOIR, a Municipal Corporation\nNo. 8625SC1257\n(Filed 2 June 1987)\n1. Limitation of Actions 8 4.2\u2014 remodeling of restaurant entry way \u2014applicability of six-year statute of limitations\nThe statute of limitations of N.C.G.S. \u00a7 l-50(5)a prohibited plaintiff from bringing a personal injury action against defendant city because more than six years had passed from the time that defendant\u2019s building inspector approved the remodeling of a restaurant entryway to the time plaintiff filed this action seeking damages for the injuries suffered due to a fall at the restaurant.\n2. Negligence 8 48\u2014 condition of restaurant entryway \u2014failure to comply with building code \u2014no showing of proximate cause\nIn an action to recover for personal injuries sustained by plaintiff when she fell in a restaurant, the trial court properly entered summary judgment for defendants where plaintiff alleged that remodeling of the restaurant entryway did not meet requirements as set forth in the N. C. State Building Code, but she presented no evidence that the alleged noncompliance proximately caused her injuries.\nAppeal by plaintiff from Hyatt, Judge. Orders entered 5 September 1986 in Superior Court, CALDWELL County. Heard in the Court of Appeals 6 May 1987.\nPlaintiff instituted this action on 24 September 1985 seeking damages for the injuries suffered due to a fall at Crossroads Restaurant in Lenoir, North Carolina. Plaintiff claimed that the remodeling of the restaurant entryway in May of 1979 did not meet requirements as set forth in the North Carolina State Building Code. Plaintiff claimed that the City of Lenoir was responsible because it inspected and approved the entryway after its completion and continually failed to enforce the building code requirements. Plaintiff claimed that all defendants were liable because of faulty design, construction and maintenance and because there were no signs warning of the \u201cdangerous condition there existing.\u201d All defendants filed for summary judgment and their motions were granted on 5 September 1986. From these orders of the trial court, plaintiff appeals.\nDonald T. Robbins for plaintiff appellant.\nWhisnant, Simmons, Groome, Tuttle and Pike, by Houston Groome, Jr., for defendant appellee, Tommy Ray Coffey.\nTodd, Vanderbloemen, Respess and Brady, by Bruce W. Van-derbloemen, for defendant appellee, G. Lewis Bernhardt.\nMitchell, Blackwell, Mitchell and Smith, by Thomas G. Smith, for defendant appellee, City of Lenoir." }, "file_name": "0097-01", "first_page_order": 125, "last_page_order": 128 }