Civil Practice – Statute of Limitations – Tolling – Incompetency – No Adjudication – Tort/Negligence – Medical Malpractice

Ragsdale v. Whitley (Lawyers Weekly No. 011-006-18, 14 pp.) (John Arrowood, J.) Appealed from Cumberland County Superior Court (Beecher Gray, J.) N.C. App.

Holding: If a person meets the statutory definition of an “incompetent adult” under G.S. § 35A-1101(7), the applicable statute of limitations is tolled until the disability is removed. There is no requirement of an adjudication of incompetency in order to toll the statute of limitations. If that had been the General Assembly’s intent, it could have easily said so.

We reverse summary judgment for defendants.

In addition to our reading of G.S. § 1-17(a), we note that Fox v. Health Force, Inc., 143 N.C. App. 501, 547 S.E.2d 83, cert. denied, 354 N.C. 216, 553 S.E.2d 912 (2001), stands for the proposition that an adjudication of incompetency is not required for the tolling of the statute of limitations. The trial court erred when it ruled that an adjudication of incompetency pursuant to G.S. Chapter 35A was required for the statute of limitations to be tolled in this case.

Affidavits from a primary care physician, a neuropsychologist, two attorneys, plaintiff’s schoolteacher, his guardian ad litem, and plaintiff himself forecasted sufficient evidence to create a genuine issue of material fact as to whether plaintiff was incompetent at the time the statute of limitations expired, tolling the statute. Although defendants forecasted evidence to the contrary, there was nevertheless a genuine issue of material fact, making summary judgment inappropriate.

Reversed and remanded.