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N.C.App.1 SPRING SESSION 1972 401
Johnson v. City of Winston-Salem
had for a period of time permitted the sewer lines serving plain-tiffs'
home to become clogged with all manner of debris, and had
permitted others using it to use material which slowed and
clogged the sewer line . . ." causing damage for which they
had filed a claim with Mr. Kemp Cummings, but that defend-ant
municipality had refused to pay. Plaintiffs alleged in para-graph
number V of their complaint "[tlhat the City impliedly
warranted to furnish services reasonably safe and suited to
plaintiffs' needs and not to injure plaintiffs on their property
by a breach of their contractual obligations . . . ", but that by
failing to inspect the sewer main periodically and to remove
the accumulation of foreign substances, the defendant breached
the implied contract for which they also seek recovery.
After first generally denying plaintiffs' allegations, de-fendant
asserted in its answer that the plaintiffs' failure to
install a back pressure or check valve when the difference in
elevation between the sewer main and plaintiffs' house was less
than four feet was in violation of Section 23-16 of the Winston-
Salem City Code and thus a plea in bar to their claim for breach
of contract. As its other defense, defendant asserted that:
"[allthough the plaintiffs have alleged a purported cause of
action for breach of implied warranty and contractual obliga-tions,
the complaint is bottomed on the tort action of negligence,
so that Section 115 of the City Charter, requiring notice, is
applicable"; that "Section 115 of the Charter of the City of
Winston-Salem . . . requires written notice of loss to be given
to the Board of Aldermen or Mayor within 90 days after the
cause of action in tort accrues"; and that plaintiffs' failure to
comply with Section 115 was a plea in bar to their claim for
negligence.
At the conclusion of plaintiffs' evidence, counsel for de-fendant
moved for a directed verdict under G.S. 1A-1, Rule 50,
on the grounds that plaintiffs' evidence was insufficient to go
to the jury either on the issue of breach of contract or of negli-gence,
if construed as a tort claim. Following arguments on
the motion, the trial court ruled that this was a tort action,
that the required notice was not given and that the motion by
defendant for directed verdict should be allowed. Accordingly
judgment was entered, and plaintiffs appealed.
Object Description
| Title | North Carolina Court of Appeals Reports [v.015, Spring Session 1972] |
| Creator | North Carolina. Court of Appeals. |
| Date | 1973 |
| Subjects | Law reports, digests, etc.--North Carolina; Court records--North Carolina |
| Place | North Carolina, United States |
| Description | Volume 15, Spring Session 1972. Cited as 15 N.C.App. The North Carolina Court of Appeals Reports are the official report of opinions of the North Carolina Court of Appeals. Includes cases and other information about the courts of North Carolina. |
| Publisher | Court of Appeals of North Carolina |
| Agency-Current | North Carolina Court of Appeals, Judicial Department |
| Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
| Collection | North Carolina State Documents Collection. State Library of North Carolina |
| Type | Text |
| Language | English |
| Format | Reports; Legal documents |
| Digital Characteristics-A | 36 MB; 842 p. |
| Serial Title | North Carolina Court of Appeals Reports |
| Digital Collection | North Carolina Digital State Documents Collection |
| Digital Format | application/pdf |
| Pres File Name-M | pubs_serial_courtofappealsreports_vol_015.pdf |
| Pres Local File Path-M | \Preservation_content\StatePubs\pubs_law\images_master\ |
| OCLC Number-Original | 1681248 |
Description
| Title | Page 425 |
| Full Text | N.C.App.1 SPRING SESSION 1972 401 Johnson v. City of Winston-Salem had for a period of time permitted the sewer lines serving plain-tiffs' home to become clogged with all manner of debris, and had permitted others using it to use material which slowed and clogged the sewer line . . ." causing damage for which they had filed a claim with Mr. Kemp Cummings, but that defend-ant municipality had refused to pay. Plaintiffs alleged in para-graph number V of their complaint "[tlhat the City impliedly warranted to furnish services reasonably safe and suited to plaintiffs' needs and not to injure plaintiffs on their property by a breach of their contractual obligations . . . ", but that by failing to inspect the sewer main periodically and to remove the accumulation of foreign substances, the defendant breached the implied contract for which they also seek recovery. After first generally denying plaintiffs' allegations, de-fendant asserted in its answer that the plaintiffs' failure to install a back pressure or check valve when the difference in elevation between the sewer main and plaintiffs' house was less than four feet was in violation of Section 23-16 of the Winston- Salem City Code and thus a plea in bar to their claim for breach of contract. As its other defense, defendant asserted that: "[allthough the plaintiffs have alleged a purported cause of action for breach of implied warranty and contractual obliga-tions, the complaint is bottomed on the tort action of negligence, so that Section 115 of the City Charter, requiring notice, is applicable"; that "Section 115 of the Charter of the City of Winston-Salem . . . requires written notice of loss to be given to the Board of Aldermen or Mayor within 90 days after the cause of action in tort accrues"; and that plaintiffs' failure to comply with Section 115 was a plea in bar to their claim for negligence. At the conclusion of plaintiffs' evidence, counsel for de-fendant moved for a directed verdict under G.S. 1A-1, Rule 50, on the grounds that plaintiffs' evidence was insufficient to go to the jury either on the issue of breach of contract or of negli-gence, if construed as a tort claim. Following arguments on the motion, the trial court ruled that this was a tort action, that the required notice was not given and that the motion by defendant for directed verdict should be allowed. Accordingly judgment was entered, and plaintiffs appealed. |
