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Bolick v. American Barmag Corp.

Filed: November 17, 1981.

CHARLES HENRY BOLICK
v.
AMERICAN BARMAG CORPORATION



Appeal by plaintiff from Lane, Judge. Judgment entered 14 July 1980 in Superior Court, Catawba County. Heard in the Court of Appeals 10 April 1981.

Whichard, Judge. Judge Vaughn concurs. Judge Martin (Robert M.) dissents.

Whichard

Plaintiff filed product liability claims against defendant on 10 October 1979 for injuries sustained on 3 June 1977 when he caught his hand in a machine manufactured and distributed by defendant. Plaintiff alleged defendant had negligently designed and manufactured the machine, which it sold to plaintiff's employer, and that this negligent design and manufacture proximately caused his injuries.

Defendant moved for summary judgment on the basis that G.S. 1-50(6), quoted infra, barred plaintiff's claims, because plaintiff brought them more than six years after 6 April 1971, the alleged date of sale of the machine by defendant to plaintiff's employer. The court granted defendant's motion and dismissed plaintiff's claims with prejudice.

We hold G.S. 1-50(6) unconstitutional on its face, and we therefore reverse. The courts have a duty "when it is clear a statute transgresses the authority vested in the legislature by the Constitution . . . to declare the act unconstitutional." Wilson v. High Point, 238 N.C. 14, 23, 76 S.E.2d 546, 552 (1953); Board of Page 591} Managers v. Wilmington, 237 N.C. 179, 74 S.E.2d 749 (1953); Glenn v. Board of Education, 210 N.C. 525, 187 S.E. 781 (1936). Article I, Section 18 of the North Carolina Constitution, quoted infra, guarantees access to the courts for redress of injuries. The attempt by enactment of G.S. 1-50(6) to abrogate the right of access to the courts of persons who sustain injury, death, or property damage due to a defect or failure of a product, violates that provision for the reasons discussed below.

On 28 May 1979, after plaintiff suffered injury allegedly caused by defendant's negligence in the design or manufacture of the machine, but before he filed suit, the General Assembly enacted "An Act Relating to Civil Actions for Damages for Personal Injury, Death or Damage to Property Resulting From the Use of Products." 1979 N.C. Sess. Laws ch. 654 [hereinafter The Products Liability Act]. The Products Liability Act provided that it would not affect pending litigation and that it would become effective 1 October 1979. Id. §§ 7, 8. It also contained a severability clause. Id. § 5. Because plaintiff filed his claims on 10 October 1979, the act, by its terms, purportedly applies.

The Products Liability Act, in addition to creating Chapter 99B of the General Statutes, which contains substantive provisions concerning products liability law, amended several sections of General Statutes, Chapter 1. It amended G.S. 1-50 by adding the following:

(6) No action for the recovery of damages for personal injury, death or damage to property based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption.

G.S. 1-50(6) purports to establish an absolute time after the purchase of a product beyond which no action can be maintained. The date from which the six year period is to be measured, the date of "initial purchase for use or consumption," has no relation to the claims purportedly barred, however. No claim can accrue, based upon or arising out of any alleged defect or failure in relation to a product, until the product causes actual injury. See Raftery v. Construction Co., 291 N.C. 180, 230 S.E.2d 405 (1976). A defect or failure in relation to a product could cause actual injury more than six years after the initial purchase. Thus, for those injured

or damaged by products more than six years after initial purchase, G.S. 1-50(6) would bar the right to sue for redress of injury before that right arose. The effect of G.S. 1-50(6) thus is to extinguish absolutely the right to assert personal injury, wrongful death, and property damage claims in all cases in which the statute would apply to bar the action.

Article I, Section 18 of the North Carolina Constitution provides, "All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay." (Emphasis supplied.) The North Carolina Supreme Court in Osborn v. Leach, 135 N.C. 628, 47 S.E. 811 (1904), discussed this "remedy by due course of law" provision in the 1868 Constitution from which current article I, Section 18 derived, and adopted the following statement by the Kansas Supreme Court:

It is an easy task to deduce either from reason or the authorities a satisfactory definition of 'law of the land' or 'due course of law.' We feel safe, however, from either standpoint, in saying these terms do not mean any act that the Legislature may have passed, if such act does not give to one opportunity to be heard before being deprived of property, liberty or reputation, or having been deprived of either does not afford a like opportunity of showing the extent of his injury, and give an adequate remedy to recover therefor. Whatever these terms may mean more than this, they do mean due and orderly procedure of courts in the ascertainment of damages for injury, to the end that the injured one 'shall have remedy,' that is, ...


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