Bernick v. Jurden, 36A81

Citation293 S.E.2d 405, 306 N.C. 435
Case DateJuly 13, 1982
CourtUnited States State Supreme Court of North Carolina

Page 405

293 S.E.2d 405
306 N.C. 435, 34 UCC Rep.Serv. 458
William M. BERNICK
Craig JURDEN, et al.
No. 36A81.
Supreme Court of North Carolina.
July 13, 1982.

Page 407

[306 N.C. 436] Smith, Moore, Smith, Schell & Hunter by McNeill Smith and Ben F. Tennille, Greensboro, for plaintiff-appellant.

Petree, Stockton, Robinson, Vaughn, Glaze & Maready by W. F. Maready, Ralph M. Stockton, Jr., and Grover G. Wilson, Winston-Salem, for appellees Cooper of Canada, Ltd. and Cooper Intern., Inc.

MEYER, Justice.

The major issue in this case is whether the trial court erred in granting summary judgment in favor of the defendants Cooper of Canada, Ltd. and Cooper International, Inc. In order to decide this issue, we must first determine whether plaintiff's appeal is premature. Then, we must answer several other questions: (1) which jurisdiction's law applies to plaintiff's warranty claims, (2) what is the applicable statute of limitations to plaintiff's warranty claims, (3) whether reliance must be alleged on the express warranty claim, (4) whether privity is required on the implied warranty claim, and (5) whether the defendants Cooper have established the lack of a genuine issue as to any material fact remaining on plaintiff's claims. For the reasons stated herein, we hold that the trial court erred in granting summary judgment.

[306 N.C. 437] In COUNTS ONE and TWO of his complaint filed 14 December 1979 and amended 8 February 1980, plaintiff alleged that while playing hockey for Georgia Tech against the Wake Forest Ice Hockey Club on the evening of 16 February 1979 in the Triad Arena in Greensboro, North Carolina, he was struck in the face, between his lips and nose, by a hockey stick swung by Craig Jurden, a player and team member of the Wake Forest Ice Hockey Club. Plaintiff's mouthguard was shattered, his upper jaw fractured, three of his teeth totally knocked out and a part of a fourth tooth broken off. Jurden was given a ten-minute major penalty which put him out of the game. The plaintiff alleged that defendant Jurden's conduct in striking him was reckless and negligent, and in the alternative, intentional and willful, and the proximate cause of his injuries.

In COUNT THREE of the complaint, the plaintiff alleged that the mouthguard he was wearing was manufactured by defendant Cooper of Canada, Ltd., a corporation having its principal office in Toronto, Ontario, Canada, and sold by its subsidiary, defendant Cooper International, Inc., a corporation having its principal office in Lewiston, New York. Plaintiff also alleged, inter alia, that these defendants knew when the mouthguard was made and sold that it was intended to be offered for sale and sold to and used by persons in the United States, including North Carolina; that plaintiff was using the mouthguard in a manner reasonably forseeable by the defendants; that the defendants had expressly warranted to the plaintiff that the mouthguard would give "maximum protection to the lips and teeth"; that defendants breached this express warranty; and that the mouthguard crumbled and disintegrated and failed in its function, causing plaintiff's injuries.

In COUNT FOUR, the plaintiff further alleged that these defendants had breached an implied warranty that the mouthguard was reasonably fit and safe for use in hockey games; that plaintiff relied on this implied warranty in purchasing the mouthpiece

Page 408

and that its breach caused or contributed to his injuries.

COUNT FIVE alleged that in the sale of the mouthguard the defendants had placed on the market a defective product, which was unfit for its intended use, knowing that it would be used without inspection for its susceptibility to crumbling and disintegration, thereby proximately causing plaintiff's injuries.

[306 N.C. 438] In an amendment to the complaint, plaintiff added as an additional defendant the Wake Forest Ice Hockey Club, alleging that defendant Jurden's actions and negligence are imputed to the Club and further that the Club was negligent in its training and supervision of defendant Jurden.

In answer, defendants Jurden and the Wake Forest Ice Hockey Club denied the essential allegations of the complaint and moved that it be dismissed for failure to state a claim. Rule 12(b)(6). They further alleged assumption of the risk and contributory negligence by the plaintiff. In addition to these averments, defendants Cooper of Canada, Ltd. and Cooper International, Inc. alleged misapplication of the product in bar of plaintiff's recovery and prayed for indemnity against defendants Jurden and the Wake Forest Ice Hockey Club.

Plaintiff Bernick's forty-seven interrogatories to the Cooper defendants were filed 10 April 1980, and the answers thereto were filed 29 May 1980. There also appears in the record a "Summary of Evidence Presented at Plaintiff's Deposition."

Defendants Cooper then amended their answer to allege that the plaintiff's claims for breach of warranty accrued more than four years preceding the commencement of the action and were therefore barred "by G.S. 25-2-725, laches and other applicable statutes of limitation," and moved for summary judgment. Their motion was allowed and summary judgment for these defendants was entered 16 October 1980. The plaintiff excepted to the judgment and gave notice of appeal.

By order entered 18 March 1981 the Court of Appeals dismissed the plaintiff's appeal. This Court allowed plaintiff's petition for discretionary review on 5 May 1981.

This appeal does not involve the defendants Craig Jurden and the Wake Forest Ice Hockey Club as the only claims before us are those against the Cooper defendants.


The threshold issue that this Court must decide is whether plaintiff's appeal in this case is premature. Since summary judgment was allowed for fewer than all the defendants and the judgment did not contain a certification pursuant to G.S. § 1A-1, Rule [306 N.C. 439] 54(b), that there was "no just reason for delay," plaintiff's appeal is premature unless the order allowing summary judgment affected a substantial right. G.S. §§ 1-277, 7A-27(d); Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976); Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377 (1950). As stated by the Court in Bailey v. Gooding, 301 N.C. 205, 210, 270 S.E.2d 431, 434 (1980), "The 'substantial right' test for appealability is more easily stated than applied." See Green v. Power Company, 305 N.C. 603, 290 S.E.2d 593 (1982); Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). "It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered." Waters v. Personnel, 294 N.C. at 208, 240 S.E.2d at 343. Having considered the matters suggested in Waters, we hold that because of the possibility of inconsistent verdicts in separate trials, the order allowing summary judgment for fewer than all the defendants in the case before us affects a substantial right. Plaintiff Bernick alleged in his complaint that the conduct of the defendants Jurden and the hockey club and that of the defendants Cooper caused his injuries. He has a right to have the issue of liability as to all parties tried by the same jury. In a separate trial against the defendants Jurden and the hockey club, the jury could find that the blow by Jurden's hockey stick was not intentional, negligent, or was not the cause of

Page 409

plaintiff's injury and damages. Then, if summary judgment in favor of the Cooper defendants were reversed on appeal, at the ensuing trial the second jury could find that plaintiff's injuries were the result of Jurden's or the hockey club's negligent, intentional, or even malicious conduct, and either not forseeable by or not within the scope of any warranties made by the Cooper defendants. Thus, the plaintiff's right to have one jury decide whether the conduct of one, some, all or none of the defendants caused his injuries is indeed a substantial right. Plaintiff's appeal is not premature, and the Court of Appeals erred in dismissing it.

[306 N.C. 440] II

The remaining issue for review is whether the trial court erred in granting the defendants Cooper's motion for summary judgment. We hold that it did. 1

Rule 56(c) of the North Carolina Rules of Civil Procedure provides that summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law."

An issue is genuine if it 'may be maintained by substantial evidence.' Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). See also Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).

... [A] fact is material if it would constitute or would irrevocably establish any material element of a claim or defense. See M. Louis, A Survey of Decisions Under the New North Carolina Rules of Civil Procedure, 50 N.C.L.Rev. 729, 736 (1972).

City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 654, 268 S.E.2d 190, 193 (1980).

In order to prevail on their summary judgment motion, defendants must carry the burden of establishing the lack of a genuine issue as to any material fact and their entitlement to judgment as a matter of law. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972).

Defendants may meet their burden by (1) proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party (2) cannot produce evidence to support an essential element of his or her [306 N.C. 441] claim, or (3) cannot surmount an affirmative defense which would bar the claim. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).

If the moving party meets this burden, the nonmoving party must in turn either show that a genuine...

To continue reading

Request your trial
184 cases
  • Thornton v. Cessna Aircraft Co.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 13, 1988
    ...529 F.Supp. 584, 586 n. 2 (D.Nev.1982); Teel v. American Steel Foundries, 529 F.Supp. 337, 344 (E.D.Mo.1981); Bernick v. Jurden, 306 N.C. 435, 441-44, 293 S.E.2d 405, 409-11 (1982). Because the decedent here resided in South Carolina and purchased and maintained the airplane in this state, ......
  • Walsh v. Ford Motor Co.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 14, 1984
    ...the Supreme Court of North Carolina determined that "privity is not required" in implied warranty claims. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405, 414 (1982). Defendant has argued, however, that the decision in Bernick is limited to those cases which involve personal injuries and th......
  • Gries v. Zimmer, Inc., C-C-87-0576-P
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • February 28, 1989
    ...that the issues raised in Counts 2 and 3 of Plaintiffs' Complaints are matters of contract performance. Citing Bernick v. Jurden, 306 N.C. 435, 442, 293 S.E.2d 405, 410 (1982) (U.C.C. case), Plaintiffs contend that North Carolina's law applies to Plaintiffs' contract claims because North Ca......
  • City of High Point v. Suez Treatment Solutions Inc.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 9, 2020
    ...purchase or use if the natural tendency of the representations made is such as to induce such purchase or use." Bernick v. Jurden, 306 N.C. 435, 448, 293 S.E.2d 405, 413 (1982) ; see also Kinlaw v. Long Mfg. N.C. Inc., 298 N.C. 494, 500 n.7, 259 S.E.2d 552, 557 n.7 (1979). Finally, to estab......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT