Coakley v. Ford Motor Co.

• Decision Date: 14 July 1971
• Docket Number: No. 7121SC279,7121SC279
• Citation: 11 N.C.App. 636,182 S.E.2d 260
• Court: North Carolina Court of Appeals
• Parties: Raymond W. COAKLEY v. FORD MOTOR COMPANY and Grover Shugart Motors.

Page 260

182 S.E.2d 260

11 N.C.App. 636

Raymond W. COAKLEY v. FORD MOTOR COMPANY and Grover Shugart Motors.

No. 7121SC279.

Court of Appeals of North Carolina.

July 14, 1971 Certiorari Denied by Supreme Court Sept. 7, 1971.

White, Crumpler & Pfefferkorn, by James C. White, and Michael J. Lewis, Winston-Salem, for plaintiff-appellant.

Hudson, Petree, Stockton, Stockton & Robinson, by R. M. Stockton, Jr., and J. Robert Elster, Winston-Salem, for defendant-appellee Ford Motor Co.

Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter, Winston-Salem, for defendant-appellee Grover Shugart Motors.

BROCK, Judge.

The only exceptions which are preserved on appeal are to the entry of summary judgment in favor of defendant Shugart as to the cause of action grounded on negligence, and the allowance of the motion of defendant Ford for directed verdict in the cause of action grounded on negligence. Thus, we are not presented with any question relationg to any alleged breach of warranty.

Summary Judgment for Shugart:

In Veach v. Bacon American Corp., 266 N.C. 542, 146 S.E.2d 793, the Court said:

'As to the seller of a chattel known to have been manufactured by another, the rule has been stated as follows: 'A vendor of a chattel made by a third person which is bought as safe for use in reliance upon the vendor's profession of competence and care is subject to liability for bodily harm caused by the vendor's failure to exercise reasonable competence and care to supply the chattel in a condition safe for use.' (citation). Under this rule, liability depends upon whether such seller, by the exercise of reasonable care, could have discovered the dangerous character or condition of the chattel. (citations).

'If, under the indicated circumstances, the seller knows or should have discovered a latent defect in the chattel of such nature that he, by the exercise of due care, could reasonable foresee it was likely to cause injury in the ordinary use thereof, and the seller fails to warn the buyer of such defect, the seller is liable to a buyer who, without any negligence of his own, makes ordinary use thereof and is injured on account of such defect. (citations).'

In support of his contention that it was error to grant the motion of defendant Shugart for summary judgment on the cause of action for negligence, plaintiff contends that the jury should have been allowed to determine whether Shugart, in the exercise of reasonable care, could have discovered the alleged defect, which the complaint acknowledged to be latent.

In resistance to a motion for summary judgment properly supported, the party against whom the motion is made may not rest upon the allegations or denials of his pleading, but must demonstrate that there is a genuine issue for trial. G.S. § 1A--1, Rule 56(e). In support of its motion, defendant Shugart offered the affidavit of Alex Simmons, defendant's service manager, which tended to show that 'the usual 6,000-mile checkup does not include inspection of latent defects such as determining whether any of the bolts in the master cylinder are improperly threaded.' Plaintiff offered no evidence to the contrary. On motion for summary judgment, the test is whether the moving party presents materials which would require a directed verdict in his favor if offered as evidence at trial. Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865. In order to withstand a motion for nonsuit (or for directed verdict, under present practice), a plaintiff must offer evidence tending to show each element of actionable negligence. Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661. Assuming that the brake failure was caused by a defective master cylinder assembly, plaintiff has offered no evidence as to whether a reasonable inspection, either prior...