*1 OF APPEALS IN THE COURT CO. v. McLEOD OIL WILSON in this District the properties the annexation of Consequently, pality.’ The fact that must fail. with these statutes and inconsistent is re- the District with officials of currently negotiating City is my opin- proceedings immaterial to these these taxes is garding ion, prior completed should have been negotiations since those language. the annexation ordinance adoption of
Ill court süperior the order of the I would reverse Accordingly, superior to the and remand the annexation ordinance approving City proceedings. for further remand to subsequent court for Individually, WILSON, T. and RONALD and MARILYN T. WILSON RONALD WILSON, ad Litem for WARREN CRAIG as Guardian WILSON WILSON, WILSON, Minor and MATTHEW REID THOMAS CHRISTOPHER Children, HILL, WILSON; HILL and MARIE and WENDELL GUY SCOTT Individually, Litem for EMILY GWEN HILL as Guardian ad GUY WHITE, Child, HILL, HILL, N. and C. and CRAIG FREDERICK Minor PAGURA, Plaintiffs, PAGURA, and BEVERLEY SHEILA and WALTER Individually, PAGURA, ad Litem as Guardian SHEILA PAGURA C. Child, PAGURA, v. McLEOD Minor Intervenor-Plaintiffs for BENTLY Corporation, INC., COMPANY, A. LOREN A North Carolina OIL RIGGAN, TOMPKINS, SIMMONS, AMOCO OIL COM- ADRIAN GEORGE Maryland Corporation, PANY, Defendants v. ALAMANCE OIL COM- A Corporation, BAXTER, PANY, INC., HILDA M. A North Carolina Representative Individually BAXTER, E. for CLIFTON and As Personal WARREN, WARREN, Deceased; H. ROBERT WILLIAM THOMAS CLYDE WARREN, WARREN, WARREN, A. H. OTIS PAUL ODIS JAMES C. Third-Party wife, WARREN, Defendants FAYE WARREN and GLENDA No. 8815SC684 1989) (Filed September — 5; § 3.2 Watercourses § Waters and 1. Limitation of Actions lim- applicable statute contamination of well water — itations 1-52 three-year of limitations N.C.G.S. § contamina- damages to an action to recover
applies by leakage from caused allegedly well water tion (3) 1-52(2), storage tanks. N.C.G.S. underground defendants’ § (5). OF APPEALS WILSON v. McLEOD OIL CO. *2 App. (1989)]
[95 5;§ § 2. Limitation of Actions Waters and Watercourses 3.2— gasoline contamination of well water —statute of limitations by two families for well
Claims contamination of their leaking underground storage water from tanks accrued when they were informed in June 1984 that their wells con- taminated, July and their actions instituted in 1986 were not family time-barred. The claims of a third were not time-barred they where moved to intervene in the against action defend- years they by ants within three after were informed NRCD their well water was contaminated. 3;§ § 3. Trespass gasoline Waters Watercourses 3.2— con- tamination of well water —statute of limitations in well presence gasoline plaintiffs’ water from tanks was a leaking storage continuing trespass, plain- and one by claim tiffs was barred statute limitations where in plaintiff learned 1979 that a test showed the presence water, gasoline her well but she did not institute her action until 1986. 4; 9; § § §
4. Trespass Nuisance Waters Watercourses 3.2— gasoline liability contamination of well water —strict —nui- trespass—negligence—sufficient forecast of evidence sance —
Plaintiffs’ forecast of evidence an action to recover damages by for contamination of their well water tanks owned leakage -underground storage or serviced by defendants was sufficient to present genuine issues of liability liability fact material as to defendants’ based on strict 143-215.93,nuisance, trespass under N.C.G.S. and negligence. § § 5. complaint— Rules of Civil Procedure 15.1— motion to amend denial not abuse of discretion
The trial court did not abuse its discretion in denying plaintiffs’ complaint motion filed March to amend their to institute direct claims defendants for against third-party of their well where contamination water fully January contended that did not become aware until study that an NRCD showed involvement in the con- defendants, third-party report tamination but NRCD was dated 9 COURT OF
WILSON McLEOD OIL CO. 5;§ § 6. Limitation of 3.2— Actions Waters and Watercourses gasoline contamination well water —last than ten acts more years before action —statute of .limitations third-party
Claims defendants on gasoline based contamination of well water were barred where the of limitations last acts of the defendants rise to the giving claims occurred more than ten years ultimately from time the action was brought. N.C.G.S. 1-52(16). §
Judge dissenting WELLS part concurring part. *3 (hereinafter by plaintiffs and intervenor plaintiffs plain- APPEAL tiffs) Inc., and defendants Company, McLeod Oil Loren Tompkins its president, Adrian Simmons and Riggan Estate George Allen, B., Jr., Court, J. All orders Judge. Superior entered County. in the Appeals January Heard Court of 25 ALAMANCE Orders entered 11 1988 April denying plaintiffs’ motion for summary 12 partial and 1988 judgment, April denying their motion complaint. amend their also entered 8 April granting Orders summary judgment favor defendant Adrian Simmons and third-party Company. defendant Alamance Oil entered 11 Orders summary April 1988 for granting judgment defendant Loren A. defendants, April 1988 for the Warren third-party and 1988 for the April Riggan. estate Order entered George 12 April summary for Baxter in- granting Hilda dividually as for E. personal representative and Clifton Baxter. against voluntarily
Claims defendant Amoco Co. were Oil by plaintiffs. dismissed Plaintiffs against also dismissed claims Midway McLeod Oil when Company, discovered that Oil a sister corporation, and not McLeod owned the underground storage tanks They at the Mini Mart and had to them. supplied then separate Midway instituted a action Co. against Hill, Wilson, families, original plaintiffs, and White instituted this action recover a damages suffered as result of having by They their well water gasoline. contaminated commenced this action several defendants who either presently supply or who supplied past gasoline have to two convenience stores homes, and gasoline stations located near their as well as against present They and former owners of the stores. filed their two complaint tests on the after conducted water THE OF IN CO. v. McLEOD OIL
WILSON Community and Resources of Natural Department North Carolina (NRCD) A fourth the contamination. in 1984 revealed Development their well in 1985. discovered contamination family, Paguras, in December 1987 in this lawsuit to intervene They filed motion February 1988. on granted which was Follín, Curtis, Smith, Patterson, by Bryan Harkavy, James & plaintiff-appellants. intervenor plaintiff and Lessley, E. for ‘Hatch, Bunn, Josephine H. Permar and by David Little & Holland, McLeod Oil Com- appellees defendant-appellants L. for Loren A. Tompkins. Inc. and pany, Estate defendant-appellant appellee Solberg Patrice for George Riggan. Adrian appellee Fogel defendant-appellant E.
Mark for Simmons. Roth, P.A., Grady Keller and Kenneth R. &
Carruthers Shields, A. Warren and Otis defendant-appellees L. for Faye Warren. Glenda Hilda third-party defendant-appellee Sternberg J. Frederick Baxter, representative individually personal M. for Clifton E. Baxter. *4 Jr., Coates, Bayliss, B. by Jack Bayliss & Henson
Henson Alamance Oil Co. defendant-appellee for JOHNSON, Judge.
I Background Factual Plaintiffs, Wilson, Hill, intervenor-plaintiffs Pagura, White and in community Alamance Hopedale in the families who reside are four near the intersection located at or Their homes are County. River Roads. One corner of Sandy Hopedale-Haw and Cross store housed a convenience a which once building intersection is (hereinafter Mart). The which was gasoline Mini gas and station storage tanks. underground in was stored sold from this location they all share an that allege By complaint, plaintiffs their that it is their sole source and property with the Mini Mart aquifer with their They tap aquifer the use. household of fresh water THE IN OF
WILSON v. McLEOD OIL CO. ordinary further that pumps. wells and Plaintiffs allege large quantity gasoline from one more of the seeped result, underground storage ground. tanks into the As a the gasoline they flowed into the groundwater aquifer from which obtained their water and from the site supply, spread contamination into groundwater They the underneath their properties. allege also continues, the migration exposed and that have been to the (1) (2) water, gasoline getting inhaling gasoline contaminated (3) homes, vapor their buildup in bathing with contaminated water. their liability Plaintiffs based claims theories strict 143-215.93, nuisance, pursuant to G.S. negligence, trespass. sec. The evidence indicates that the tests the which revealed con- 1984, years tamination were two prior conducted to the initiation this suit. plaintiffs, Of the four families of N. only C. White (B. White) K. the early discovered contamination as as 1979 or families, Hills, 1980. Two of the remaining Wilsons and the assured state and local sup- environmentalists that their water was until ply family untainted June 1984. The Pagura discovered gasoline years the water in their two prior intervening in the lawsuit.
The defendants who sued are plaintiffs identified as follows: Inc., McLeod Oil Company, company they originally which be- lieved gasoline years had Mini supplied during to the Mart question gasoline and also owned the tanks into which the (note placed voluntarily suit McLeod has been dismissed); A. Loren president of McLeod Oil as well Midway who for the arranged supplying tanks; Simmons, to the underground Adrian owner of the Mini property Mart operator between Simmons 1979; Mini Mart and station between 1976 and gas George Riggan, owner of the Mini Mart from 1981 his death in until (his currently estate property, owns the but the convenience operations store have ceased and no has sold there been 1986); Company since around and Amoco Oil have voluntarily also dismissed.
McLeod and its Loren president Tompkins Oil Co. instituted followingthird-party claims the defendants: Hilda Baxter, individually M. for personal representative and as Clifton Baxter, E. the 1965 property who owned Mini Mart from until 1976, who use subject did not the tanks at the of underground OF APPEALS McLEOD OIL CO.
WILSON v. the gas which Baxters’ this delivered dispute; Alamance (the Mini tanks were removed they while the Mart operated tanks defendants, the Riggan); the and Warren George in 1986 owner station located diagonally small store and purchased who a in 1971. from the Mini Mart Alamance Oil Co. the street across on the Warren storage the tanks gas underground supplied while 1972 and 1973 members at various times between the store. These tanks family operated Warren leased of the the 1987 and contained water and at were removed in vent and the soil pipes their removal. The broken time of were contaminated. around these tanks groundwater mo- hearings at the on defendants’ The evidence introduced deposition the of Brenda summary judgment included tions for Joyce supervisor hydrogeological regional Smith. Ms. Smith is a of Natural Resources and Department (NRCD) with the North Carolina Community in the Winston-Salem Development regional position the of her explained her duties deposition office. She management and technical supervisory a included combination the responsible ground- She that she is explained functions. also In her region. capacity which is done in her water section work responsible Ms. was for oversee- supervisor, as Smith hydrogeological area, supervising Hopedale including of the ing investigations the kinds work geologic test wells and other drilling the the the extent and nature the contamination. assess 1987, the wells were installed in the area of In March test The where to the wells concerning place the decision contamination. sources, the potential was the locations of contamination based wells, the The topography general the and the area. affected wells which were downhill or down objective was to locate monitor potential identified the sources. She gradient potential which tanks underground storage contamination sources storage place underground had at Mini Mart and been on gas at the abandoned station tanks which had been located They were sources potential considered property. Warren product the contamination had been because had stored dug The wells were on 31 March test gasoline. identified — and 6 and April April report dated investigation, As a result of this Brenda Smith. results under the direction of Ms. compiled, appear part as follows: investigation *6 IN THE COURT OF APPEALS
WILSON v. McLEOD OIL CO. (1989)]
[95 Groundwater Monitor Wells (Benzene, Toluene,
A BTX Xylene) total concentration of 5,230 B7, was in ug/1 (ppb) present monitor well in located front of the abandoned store on the A. 0. Warren property. 65,600
A total BTX concentration of in ug/1 present monitor BIO, well located on the Mini-Mart at the site of the McLeod Company Oil USTs. No BTX was detected in the other monitor wells. Slight concentrations of petroleum B2, hydrocarbons were detected in well monitor located behind Mini-Mart; B3, monitor well located on the Wilson proper- Bll, ty; monitor well located on the Long property and intend- well; B13, ed to be the upgradient monitor well monitor in yard located the front the Hill home. No volatile organic B5, compounds detected in monitor well located on the 1737; Long property near the intersection of SR 1735 and SR B4, Mini-Mart; well monitor located in front and monitor B12, well located on Mini-Mart property at the site of the excavated Alamance Company USTs.
Water Supply Wells
Fluctuating concentrations of varying gasoline constituents White, Wilson, were detected in samples VOA collected from the and Hill water supply February wells June April 1987. The concentration of volatile organic compounds in these samples varied from 0.06 ppb ppb the White well, well, from 0.14 ppb to in the Wilson ppb and from 0.11 to 14 Hill ppb ppb well. Specific compounds iden- tified and concentrations detected are summarized Table 1.
Conclusions The results of this indicate investigation multiple contamina- tion sources for this incident:
1. USTs [underground storage at the abandoned tanks] 5,230 store on the A. by O. Warren evidenced property, toluene,
ppb [parts per [benzene, BTX xylene] billion] in MW “well]-B7; [monitor Mini-Mart, Company McLeod Oil USTs at Simmons 65,600 MW-B10; evidenced BTX in ppb OF APPEALS IN THE COURT McLEOD CO. WILSON v. OIL Mini-Mart, USTs at Simmons Company 3. Alamance Oil 5,700 1,670 ppb BTX in HA-3 and ppb evidenced *7 in HA-4. BTX the parties well as the affidavits of upon this evidence as
Based trial summary judgment, motions for court of their support defendants summary remaining on behalf of all judgment entered third-party defendants. summary judgment for defendants entering From the order Simmons, third-party defendants Riggan Estate of Tompkins, Warren, Co., A. Warren and Glenda Alamance Oil Otis summary for third- entering judgment From orders appealed. Co., Baxter, Otis Alamance Hilda party defendants Oil Co., Warren, Tompkins McLeod Oil and Loren defendants Glenda Adrian Simmons from the order enter- appealed. appealed Defendant Alamance summary third-party defendants ing appealed George Riggan Hilda Defendant Estate of Co. and Baxter. summary judgment in of defendants entering from the order favor third-party Simmons and the Warren de- Loren Adrian has withdrawn its Riggan appeal Estate since fendants. and Glenda third-party except defendants Otis as to all Warren Warren, of the Warren We shall consider present property. owners each turn. appeal
II Appeal Plaintiffs’ questions five for this Court’s By plaintiffs present their appeal, (1) two issues: whether the reduced to basic review can be summary behalf of de- by entering judgment on trial court erred plaintiffs presented because fendants and defendants violations of questions material fact on the genuine issues of North noncompliance with Caro- regarding G.S. sec. 143-215.93and law, to that plain- defendants failed show and because lina common (2) time-barred; court abused and whether trial claims were tiffs’ complaint. to amend their denying plaintiffs’ its motion discretion repose prior of the statute of limitations or Because the expiration render all issues moot and would of suit would other institution summary Brantley judgment, affirm the court’s entries operate to (1971), Dunston, first we con- App. S.E.2d part plaintiffs’ appeal. sider this COURT OF
WILSON v. McLEOD OIL CO.
A
Statute
Limitations and Repose
In
defendants
whom
response
allegations,
Simmons,
plaintiffs brought
appeal, Tompkins,
and Estate of
Riggan, all asserted defenses of statute of limitations and repose,
1-15, 1-50,
upon
based
G.S. secs.
1-52 and 1-56. It is well settled
the statute of
run
begin
limitations does not
until the
aggrieved party becomes entitled to maintain an
Raftery
action.
(1976).
v. Wm. C. Vick Constr.
291 N.C.
Within three an action (2) statute, federal, liability Upon created either state or
unless some other time is mentioned in the it. creating (3) For When the trespass upon property. trespass real is a one, the action shall be commenced within three
continuing years original trespass, from the and not thereafter. (5) conversation, any injury For criminal or for other to the another, not on contract and
person rights arising not hereafter enumerated.
[2] According to the evidence before us, Hill and Wilson May until 1984 officials that no assured state and local They contamination was in their wells. were informed present 1984 that their wells were contaminated. We believe that June 1984, they their cause of action accrued at this time. Prior to June THE OF IN OIL CO. WILSON v. MCLEOD anyone. Raftery, action entitled to maintain an were not 1986, July within this civil action they Because instituted supra. accrued, sec. of action G.S. the time their cause years three 1-52, time-barred. were not we hold that their claims any notice family possible did not alleged
The
that
Pagura
by the
reports
1985. The earliest
NRCD
until
contamination
substances were
nonorganic
contained
that their water
indicated
in the case December
They moved to intervene
in 1985.
compiled
1987,
three-year
period
expired.
limitations
had
well before
[3]
Insofar as this
appeal
concerns
plaintiff
White, we must hold
on
performed
plaintiff
Tests were
her
are time-barred.
claims
1980,
February
29 and
September
water on 18
White’s
tests performed
1980. The earliest
August
1980 and on
hydrocarbons.
“gasoline-like”
contained
indicated that
water
of contamination
problem
of the NRCD discussed
Employees
in her
1980. She testified
White on 13 November
with plaintiff
gas
and that
presence
the 1979 test showed the
deposition
time.
told that fact at that
she was
(C.
incorrectly
N. White
B. K. White’s
It is clear to us that
documents)
in 1979.
of action accrued
all the
cause
on
appears
1986 results
its
recourse before
legal
Her failure to commence
continuing
in her water has been a
of the
presence
bar.
of Matthieu
Gas
meaning
time within the
since that
trespass
(1967),
and without inter-
patently
S.E.2d 336
Galloway
defined in
trespass as
recurring
to a
*9
ruption,
opposed
213,
(1983),
Co.,
Oakley
B and Law Claims Statutory Common 143-215.93, sec. liability violations of G.S. upon premise Plaintiffs [4] negligence maintenance, storage marketing in the operation, and/or third-party de Defendants’ and trespass. nuisance and gasoline, of summary granted. judgment for fendants’ motions when is allowed summary judgment properly for A motion es- before the court and other materials the affidavits pleadings, material fact to be de- is no issue of genuine that there tablish IN THE COURT OF CO. WILSON V. McLEOD OIL App. as is to a matter judgment cided the movant entitled and 632, Inc., Gulf, 339 S.E.2d v. Texas 79 N.C. App. of law. Cashion (1986). where fatal Summary also a appropriate is shown, inability the to or is such as defect the claim defense claim, the of every particular expiration element of a establish Co., 44 Insurance Thompson of limitations. (1980). 668, 262 S.E.2d summary judgment the hear- Plaintiff introduced evidence at was poten- that the Mini Mart a ing property which tends show the wells. Simmons owned contamination of plaintiffs’ tial source of January 1976 until June at which time property the from Simmons property, operated he sold it Prior to the Riggan. selling agreement the until 1979. Simmons had an gas a station at site Midway under several Midway provided with Oil which Company officer tanks at that site. an tanks and for gasoline to the Simmons Midway, provide the contracts to signed site; by Midway the of business there generally conducting oversaw repairs; which the and equipment performed serviced tanks Tompkins responsible maintaining servicing was also any and the dealing product supplying accounts and with loss A the evidence further tends to the site. forecast of began show the flow contaminant into before aquifer the Mini Mart acquifer 1981 and into the after seeping continued Simmons in 1981.The NRCD acquired by Riggan matter, its into the and based began investigation an discoveries, of the Pollution and issued notice violations Oil Simmons, George Substances Control Act to Adrian Hazardous in 1985. Riggan Tompkins Loren drilling more extensive and scientific On 9 after wells, study report issued a of the NRCD underground storage sources: possible identified three contamination tanks underground storage property, tanks on the Warren Mart, and others owned the Mini some owned McLeod Co. at (These greater depth, Oil Co. sources are described Alamance infra.) provides following:
G.S. sec. 143-215.93 oil or other hazardous Any having control over person State violation which enters the waters substances *10 fault, liable, strictly regard without to of this Part shall be or caused property, public private, or damages persons IN THE COURT OF APPEALS WILSON McLEOD OIL CO.
by entry, subject such to the exceptions enumerated in G.S. 143-215.83(b). of action for private right violation of this section is set forth
in G.S. sec. 143-215.94 as follows:
In order to provide
protection
maximum
public
for the
interest, any actions brought pursuant to G.S. 143-215.88through
143-215.91(a),
Article,
any
143-215.93or
other
section
this
recovery
for
may
or
cleanup
penalties
costs
for civil
or for damages,
any
be brought against
one more
persons
or
of the
having
control over the oil
other
or
hazardous substances or causing
or contributing to the
of oil
other
discharge
hazardous
liable,
substances. All said persons
jointly
shall be
and severally
liability
but ultimate
parties may
as between the
be deter-
by
mined
principles.
common-law
Industries,
In Biddix v. Henredon Furniture
76 N.C. App.
(1985),
[b]ased any to report be NPDES Pollutant Discharge Elimina- [National tion System] violation defendant to legal NRCD without recourse for the alleged to his damages We property. cannot the Assembly conceive that General any intended such result adopting Clean Water We Act. with agree defendant Assembly provided General has a comprehensive statutory scheme for remedial correction of water pollution well as other forms private of industrial pollution. Preser- vation of the law common trespass actions nuisance and to land for industrial discharges violation of the laws of this state is with Assembly’s consistent the General enact- ments rather than inconsistent with them as argued de- By fendant. retaining common law civil actions of nuisance land, trespass legislative intent maintain waters of this state in clean and wholesome state for present and future generations is strengthened.
Biddix at
wilson v. mcleod oil App. (1989)] N.C. 479 [95 of firmly to the that the ‘violation proposition committed [i]s a act, protect property negligent to or is a designed persons injury, if causes the violator proximately and such negligence ordinance, serving . a legislative is liable.’ . . The statute as care, not private right of creates a declaration of a standard by its to be harmed violation.
Biddix at
WILSON v. McLEOD OIL CO.
III McLeod Co. and Appeal Loren Tompkins’ [6] *12 By their appeal McLeod Tompkins present an alternative short, argument one the advanced in their brief. appellees’ In if this Court their rejected contention that the court trial committed (which no error in entering summary judgment in favor Tompkins’ did) they we then alternatively argue that the trial court should reverse its entries of summary judgment in of third-party favor Baxter, Oil, defendants Hilda Alamance and the Warren defend ants. We believe that the court properly trial entered summary in favor of each of these defendants.
The recurring argument plaintiffs’ that are claims time-barred applicable is these three defendants. Although plaintiffs have attempted retract their original argument major that a loss of oil which occurred in 1978 Mini at the Mart was the site begin- contamination, ning point of their well we are inclined to accept their original It argument. primarily is due to this allegation that we have become convinced the that claims these against three sets of defendants must fail.
Hilda Baxter and her husband owned the Mini Mart property 1962 January January between they 1976. Until sold They from site. had sale discontinued the nearly Also, years four before the major spill occurred. the con- (Wilson, tamination of the remaining plaintiffs’ Hill and Pagura) waters was not confirmed until and 1985.
Alamance Oil Co. last delivered the gasoline to Mini Mart in 1974. Oil purchased Alamance Co. the Warren on 25 January 1968 September and sold it on 21 1971 to J. R. Warren. Alamance Oil supplied gasoline Co. to the Warren tenant from 6 October to 30 March 1973. defendants, argument
Insofar as this concerns the Warren we have no evidence before us which any would indicate that of the Warren defendants ever had or exercised over control oil or haz- ardous substances within the meaning of G.S. sec. 143-215.93.Their tenant, themselves, not the Warrens operated selling of gasoline. Because of this fact cannot show the required causal con- nection between Warrens’ conduct and the contamination of Farm, See Dedham Water complain. Co. v. Cumberland (D. Inc., 1989). F.Supp. Mass. OF co. v. McLeod oil
wilson 1-52(16) addition, “no cause of action provides In G.S. sec. act omission years last shall accrue more than This cap places of action.” rise to cause giving of the defendant In may the case brought. be outer limit before which an action an exist, defendants, acts, any if acts three their last of each these ultimately years ten from the time action occurred over Therefore, them are time-barred. claims brought. correctly summary judgment trial entered court therefore three sets of defendants. favor these
IV Appeal Adrian Simmons’ defendant we of the identical issues disposed Because have McLeod Co. in his in our discussion of appeal Simmons raises i.e., entry of of the propriety Tompkins’ appeal, supra, *13 Alamance Oil Co. summary third-party for defendants judgment (Refer Baxter, appeal. consider this unnecessary we find it and opinion.) to Section III of this
V George Riggan’s Appeal Estate of all the raised questions we have resolved previously Because (Refer unnecessary again. to review them by this we find it appeal limitations, and II for a to Section discussion Refer complaint. motion to amend their the denial of entry summary judgment Section III for a discussion defendants.) third-party for the VI Conclusions Therefore, correctly entered sum- we that the trial court hold defendants, for all defend- mary third-party for the judgment incorrectly K. court B. White. trial ants the claims of Simmons, summary for judgment entered defendants Riggan. Estate of in in part; part. Reversed affirmed Judge BECTON concurs. in part. dissents part
Judge concurs WELLS OF STATE v. SANDERS Judge part dissenting concurring part. WELLS my From immensely review the forecast of evidence this case, complicated I do summary judgment not not agree was properly for Loren entered defendant A. nor Tompkins that sum- mary properly entered for the defendants Warren, as to claims other than B. K. those of White. In my otherwise I wish to concurring, emphasize position that (1) there identity remain issues of fact as to the of the actors (2) in the alleged escape or of oil or leakage gasoline, and only those responsible escape may actors or leakage be liable under the theories advanced in case. I not accept do the pos- sible inference that a owner subsequent of facilities from which a previous or escape leakage may has occurred be liable for con- tinued seepage resulting previous from the escape leakage over which he no had control.
STATE OF NORTH RENA CAROLINA G. SANDERS
No. 8812SC1040 (Filed 1989) September 60; Jury § § Constitutional Law 7.14— peremptory challenges — jurors black on basis of race discrimination not shown Defendant’s right equal protection under Fourteenth Amendment was not violated the State’s peremptory challenges jurors of black when there five black venire *14 members, one of whom jury, served on the one of whom was cause, excused for and three of whom were removed through the State’s peremptory challenges; the first black was excused months; because he had held jobs three ten preceding second excused because she never claimed to have participated court when proceedings in fact she had an record; extensive criminal the third was deemed undesirable by the prosecutor because her headstrong overbearing personality; properly trial court determined that these proffered reasons prima rebutted the facie case discrimina- tion; the discriminatory record contained no comments prosecutor; and defendant not prove did otherwise a case of racial discrimination.