Justice MEYER dissenting.

Justice MITCHELL dissenting.

PARKER, Justice.

Plaintiff instituted this civil action for actual and punitive damages against J.M. Valencourt, a police officer for the City of Salisbury, and the City of Salisbury alleging state common-law tort claims for assault, false arrest and imprisonment, and malicious prosecution and a claim for relief pursuant to the Federal Civil Rights Act, 42 U.S.C. § 1983. Defendants' answer denied these allegations and asserted the affirmative defense of governmental immunity on the part of the City of Salisbury, the one-year statute of limitations contained in N.C.G.S. 1-54(3) as to plaintiff's claims for assault and false arrest and imprisonment, and qualified immunity on the part of Officer Valencourt. The trial court granted defendants' motion for summary judgment on all issues and plaintiff appealed to the Court of Appeals.

In its opinion, the Court of Appeals affirmed in part and reversed in part the ruling of the trial court. Summary judgment on plaintiff's claim for malicious prosecution against both defendants and for the section 1983 claim based on false arrest and imprisonment against defendant Valencourt was reversed. Summary judgment on plaintiff's common-law claims for assault and false arrest and imprisonment and for the section 1983 claim based on assault and malicious prosecution against both defendants and for the section 1983 claim against the City of Salisbury was affirmed. The Court of Appeals further affirmed summary judgment on plaintiff's claim for punitive damages against both defendants.

This Court allowed plaintiff's petition for discretionary review of the Court of Appeals' decision that the one-year statute of limitations in N.C.G.S. 1-54(3), rather than the three-year statute in N.C.G.S. 1-52(13), was applicable and barred plaintiff's common-law claims for assault and false arrest.

The underlying facts pertinent to plaintiff's claims for assault and false arrest are these. Plaintiff was employed by Rowan County as a data entry operator for the Department of Social Services. On the afternoon of 18 October 1989, plaintiff's sister, Ann Blackwell Dixon, telephoned her at work to pick up their younger brother, Norman Blackwell, at Ms. Dixon's home later that day. When plaintiff arrived at her sister's residence, she found Officer Valencourt investigating the theft of a television set. Officer Valencourt learned through a telephone conversation with a Rowan County Sheriff's Deputy that there were outstanding warrants against Norman Blackwell. When Officer Valencourt informed Ms. Dixon of the warrants for her brother's arrest, she began screaming that he "was not going to arrest her baby brother." Officer Valencourt then instructed Norman Blackwell that the orders for his arrest were en route and that he was not to leave the premises. Notwithstanding this instruction, plaintiff and Norman Blackwell got into plaintiff's automobile and drove away. Officer Valencourt followed in his patrol car and pulled plaintiff's vehicle over approximately two blocks away from Ms. Dixon's residence. Plaintiff was placed under arrest for resisting, delaying, and obstructing a police officer pursuant to N.C.G.S. 14-223. Another police officer who had arrived at the scene handcuffed plaintiff and seated her in his patrol car. Plaintiff was unruly and uncooperative while being restrained and thereafter complained on several occasions that the handcuffs were too tight. When the handcuffs were later removed, her hands were blistered and numb. At her trial in Rowan County District Court on 8 December 1989 on the charge of resisting, delaying, and obstructing a police officer, plaintiff was found not guilty. Plaintiff filed her complaint in this action on 22 October 1990, more than one year from the date of the incident giving rise to her claims.

The sole question before this Court for review is whether N.C.G.S. 1-54(3) or N.C.G.S. 1-52(13) is the applicable statute of limitation. Section 1-54(3) places a one-year limitation on actions for "libel, slander, assault, battery, or false imprisonment." N.C.G.S. 1-54(3) (Supp. 1992). Section 1-52(13) imposes a three-year limitation on actions "[a]gainst a public officer, for a trespass, under color of his office." N.C.G.S. 1-52(13) (Supp. 1992).

In construing a statute, the Court must first ascertain the legislative intent to assure that the purpose and intent of the legislation are carried out. Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). To make this determination, we look first to the language of the statute itself. Id. If the language used is clear and unambiguous, the Court does not engage in judicial construction but must apply the statute to give effect to the plain and definite meaning of the language. Utilities Comm. v. Edmisten, Atty. General, 291 N.C. 451, 465, 232 S.E.2d 184, 192 (1977). Applying these principles of statutory construction, we examine the language of the statutes at issue.

"False imprisonment," used in N.C.G.S. 1-54(3), has been defined as "the illegal restraint of the person of any one against his will." State v. Lunsford, 81 N.C. 528, 530 (1879). If not lawful or consented to, any restraint is unlawful. Hales v. McCrory-McLellan Corp., 260 N.C. 568, 133 S.E.2d 225 (1963). A technical assault is always committed with false imprisonment. False arrest is a form of false imprisonment. Mobley v. Broome, 248 N.C. 54, 56, 102 S.E.2d 407, 409 (1958).

Addressing the meaning of "trespass" in applying former C.S., sec. 443, subsec. 1, the predecessor of both N.C.G.S. 1-54(1) and N.C.G.S. 1-52(13), this Court in Brown v. R.R., 188 N.C. 52, 123 S.E. 633 (1924), stated:

True, in its more general sense, a trespass is sometimes said to include any wrongful invasion of the rights of another, but in its more natural and usual meaning it is properly restricted to unlawful acts done to the person or property of another by violence or force, direct or imputed. It is to acts of trespass in this sense that the one-year statute of limitations applies — that is, a trespass committed by a public officer under color of his office and constituting a wrongful invasion of the rights of third persons by force shown or imputed, and the statute does not and was never intended to apply to a breach of official duty in reference to the principal and employer — in this case the municipality.

Id. at 58, 123 S.E. at 636 (citation omitted). "In all cases where an injury to the person is done with force and immediately by the act of the defendant, trespass may be maintained (at common law, the form of action denominated `trespass vi et armis.')." 7 Stuart M. Speiser et al., The American Law of Torts 23:4, at 604 (1990). Assault and false imprisonment including false arrest exist under the umbrella of the ancient action of trespass. Id. 26:1, at 877; 27:1, at 927.

In addition to the rules mandating that the Court discern the legislative intent from the plain language of the statutes themselves, another applicable rule of statutory construction must be considered. This rule, argued by both plaintiff and defendants, is that where two statutes deal with the same subject matter, the more specific statute will prevail over the more general one. As stated by this Court in Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 328 S.E.2d 274 (1985):

Where one of two statutes might apply to the same situation, the statute which deals more directly and specifically with the situation controls over the statute of more general applicability. National Food Stores v. North Carolina Board of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966); State ex rel. Utilities Comm. v. Union Electric Membership Corp., 3 N.C. App. 309, 164 S.E.2d 889 (1968). "When two statutes apparently overlap, it is well established that the statute special and particular shall control over the statute general in nature, even if the general statute is more recent, unless it clearly appears that the legislature intended the general statute to control." Seders v. Powell, 298 N.C. 453, 459, 259 S.E.2d 544, 549 (1979); Colonial Pipeline Co. v. Neill, 296 N.C. 503, 251 S.E.2d 457 (1979).

Id. at 238, 328 S.E.2d at 279.

As might be expected, plaintiff argues that N.C.G.S. 1-52(13) is the more specific statute because it deals with actions by a public officer under color of office. Defendants contend that N.C.G.S. 1-54(3), which specifically mentions assault, battery, and false imprisonment, is the more specific statute. As noted above, the authorities are consistent that the term "trespass" includes assault, battery, false imprisonment, and false arrest. Given this definition, N.C.G.S. 1-52(13) deals expressly with claims arising out of assault, battery, and false imprisonment by a public officer acting under the color of his office, and thus is a statute "special and particular" rather than a general limitation statute like N.C.G.S. 1-54(3). In this sense, N.C.G.S. 1-52(13) deals more particularly with the precise situation presented by plaintiff's claims. See Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. at 239, 328 S.E.2d at 280. Accordingly, we hold that N.C.G.S. 1-52(13), not N.C.G.S. 1-54(3), governs plaintiff's claims for false arrest and assault. While plaintiff has couched her complaint in terms of assault, false imprisonment, and false arrest, "[t]he nature of the action is not determined by what either party calls it," Hayes v. Ricard, 244 N.C. 313, 320, 93 S.E.2d 540, 545-46 (1956), but rather "by the issues arising on the pleadings and by the relief sought." Id. Moreover, where there is doubt as to which of two possible statutes of limitation applies, the rule is that the longer statute is to be selected. Dickens v. Puryear, 302 N.C. 437, 444 n. 8, 276 S.E.2d 325, 330 n. 8 (1981).

Defendants argue that the issue before the Court was previously decided by this Court in Mobley v. Broome, 248 N.C. 54, 102 S.E.2d 407 (1958). The opinion in Mobley, however, is silent as to whether the Court considered the statute covering trespass by a public officer under color of his office, which at that time was codified as N.C.G.S. 1-54(1) and provided a one-year period of limitation. Similarly, the Court of Appeals did not address the applicability of N.C.G.S. 1-52(13) in Evans v. Chipps, 56 N.C. App. 232, 287 S.E.2d 426 (1982), and Jones v. City of Greensboro, 51 N.C. App. 571, 277 S.E.2d 562 (1981), also relied upon by defendants. In those cases, the Court of Appeals merely held that the assault and false imprisonment claims were barred by the one-year statute, N.C.G.S. 1-54(3). The court's opinion in neither case indicates whether the applicability of N.C.G.S. 1-52(13) to claims for assault and false imprisonment by a public officer was argued. Nevertheless, in view of our holding today, to the extent that Mobley, Evans, and Jones hold that the one-year statute of limitation for false imprisonment and assault and battery is the applicable statute when a plaintiff alleges claims for false arrest, false imprisonment, and assault and battery by a police officer in the exercise of official duties, those cases are expressly overruled.

The position adopted by the Court today also finds support in the legislative history which repealed former N.C.G.S. 1-54(1) and made trespass by a public officer under color of his office subject to a three-year period of limitation under N.C.G.S. 1-52(13). As plaintiff discusses in her brief, Senate Bill 276 which added subsection (13) to section 1-52 is entitled:

AN ACT TO AMEND G.S. 1-17 SO AS TO ELIMINATE IMPRISONMENT AS A DISABILITY UNDER THE STATUTE OF LIMITATIONS AND TO SUBJECT THE CIVIL RIGHTS ACT OF 1871, 42 U.S.C. § 1983, TO THE NORTH CAROLINA STATUTE OF LIMITATIONS.

1975 N.C. Sess. Laws ch. 252. Section 2 of Senate Bill 276 provides:

Sec. 2. G.S. 1-52(2) is hereby rewritten to read as follows:

"Upon a liability created by statute, either state or federal, unless some other time is mentioned in the statute creating it."

1975 N.C. Sess. Laws ch. 252, 2. The clear import of this amendment was to bring actions under the Federal Civil Rights Act, 42 U.S.C. § 1983, within the purview of the three-year statute of limitations. Section 4 of Senate Bill 276 provided as follows:

Sec. 4. G.S. 1-52 is hereby amended to add a new subsection as follows:

"(13) against a public officer, for a trespass, under color of his office."

1975 N.C. Sess. Laws ch. 252, 4. The legislature's simultaneous passage of these two provisions suggests an intention by the legislature to make the limitation period for those causes of action that frequently arise out of transactions forming the basis for a section 1983 claim the same as the period for a section 1983 claim. We note parenthetically that the United States Supreme Court has subsequently ruled that claims under 42 U.S.C. § 1983 will be governed by the statute of limitations applicable to general negligence claims in the state where the claim arose. Owens v. Okure, 488 U.S. 235, 102 L.Ed.2d 594 (1989).

Further, we reject defendants' contention that we should make our ruling regarding the applicability of N.C.G.S. 1-52(13) prospective only. As to claims involving state statutes and common law, the rule has long been established that

a decision of a court of supreme jurisdiction overruling a former decision is, as a general rule, retrospective in its operation. Mason v. A.E. Nelson Cotton Co., 148 N.C. 492, 62 S.E. 625 (1908); MacDonald v. University of North Carolina, 299 N.C. 457, 263 S.E.2d 578 (1980). . . . This Court has implicitly recognized that the decision on retroactivity involves a balancing of countervailing interests. . . .

. . . Unless compelling reasons, . . . exist for limiting the application of the new rule to future cases, we think that the overruling decision should be given retrospective effect.

Cox v. Haworth, 304 N.C. 571, 573-74, 284 S.E.2d 322, 324 (1981). In the present case we find no compelling reason to depart from the traditional North Carolina rule and apply our holding prospectively. In our view, our decision today is not a change in the law. The applicable statute of limitations, N.C.G.S. 1-52(13), has been effective since 1 January 1976 and has not been considered and ruled on by either appellate court in the context of a police officer's execution of official duties. Further, application of our holding today to the parties and litigants before the Court will not be unduly burdensome in that the section 1983 claim based on unlawful arrest against Officer Valencourt was upheld by the Court of Appeals and proof of the section 1983 claim will entail presentation of much of the same evidence necessary to prove the underlying torts.

Finally, the parties in their briefs have raised the issue of excessive force with respect to plaintiff's claim for assault. This issue is beyond the scope of plaintiff's petition for discretionary review and is not properly before the Court for review.

For the foregoing reasons, the decision of the Court of Appeals that plaintiff's claims for false imprisonment and assault are barred by the statute of limitations is reversed, and this case is remanded to the Court of Appeals for further remand to the superior court for trial of the remaining viable claims.

REVERSED IN PART AND REMANDED.