Cockerham v. Ward, No. 7818SC1141

• Docket Nº: No. 7818SC1141
• Citation: 262 S.E.2d 651, 44 N.C.App. 615
• Case Date: February 05, 1980
• Court: Court of Appeal of North Carolina (US)

Page 651

262 S.E.2d 651 44 N.C.App. 615, 28 UCC Rep.Serv. 671 Vestal H. COCKERHAM, Plaintiff,
v.
Roy D. WARD, t/a Ward's Awning Company and as Ward's Awning
and MattressCompany, Defendant.
The ASTRUP COMPANY, Defendant and Third-Party Plaintiff,
v.
The WEST COMPANY, Third-Party Defendant. No. 7818SC1141. Court of Appeals of North Carolina. Feb. 5, 1980.

J. B. Winecoff and Harry Rockwell, Greensboro, for third-party defendant-appellee.

MORRIS, Chief Judge.

N.C.Gen.Stat. § 1A-1, Rule 56 requires that the party moving for summary judgment "clearly (establish) the lack of any triable issue of fact by the record properly before the court." Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 469-70, 251 S.E.2d 419, 421 (1979); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). See generally 6 Moore's Federal Practice, P 56.15(8) (2d ed. 1979). In Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d [44 N.C.App. 618] 795 (1974), our Supreme Court stated the applicable rule as follows:

This burden may be carried by movant by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim. If the moving party meets this burden, the party who opposes the motion for summary judgment must either assume the burden of showing that a genuine issue of material fact for trial does exist or provide an excuse for not so doing.

286 N.C. at 29, 209 S.E.2d at 798. In effect, this motion forces plaintiff to produce a forecast of evidence which he has available for presentation at trial to support his claim. Moore v. Fieldcrest Mills, Inc., supra. In order for a defendant's motion for summary judgment to be granted, however, he must produce a forecast of his own which is sufficient, if considered alone, to compel a verdict in his favor as a matter of law. Moore v. Fieldcrest Mills, Inc., supra. See generally 2 T. Wilson & J. Wilson, McIntosh N.C. Practice and Procedure § 1660.5 (2d ed. Phillips Supp. 1970). Failure of the plaintiff to counter the effect of defendant's forecast by his own forecast of evidence sufficient to create a genuine issue of material fact will result in a judgment against him. The test is whether plaintiff has presented evidence sufficient to survive a motion for directed verdict if such evidence were offered at trial. Coakley v. Ford Motor Co., 11 N.C.App. 636, 182 S.E.2d 260, Cert. denied, 279 N.C. 393, 183 S.E.2d 244 (1971); Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865 (1971); Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970). To rebut his opponent's claim that there is no genuine issue of material fact presented, plaintiff may not rest on the allegations of his pleadings, but must, by affidavits or otherwise, set forth specific facts demonstrating that there is an issue for trial. G.S. 1A-1, Rule 56(e); Haithcock v. Chimney Rock Co., supra.

In his first assignment of error, plaintiff argues that the trial court erred when it granted defendant Astrup Company's motion for summary judgment on plaintiff's claim of negligent manufacture.

The general rule concerning manufacturer negligence is that the manufacturer may be held liable for [44 N.C.App. 619] which it was made if, in its manufacture, the manufacturer has failed to exercise due care in its manufacture, failing to recognize, when he should have, that, if negligently manufactured, the product's proper use would involve an unreasonable risk of harm to those using it for the purpose it was manufactured. See 1 Frumer and Friedman, Products Liability § 5.03(1) (1979). In this connection, a manufacturer is under a duty to exercise due care to make reasonable tests and inspections to discover latent hazards involved in the use of its products. 1 Frumer and Friedman, Products Liability § 6.01(1) (1979). In North Carolina, a manufacturer is not an insurer of the safety of products designed and manufactured by him, but is under an obligation to those who use his product to exercise that degree of care in its design and manufacture which a reasonably prudent man would use in similar circumstances. Corprew v. Geigy Chemical Corp., 271 N.C. 485, 157 S.E.2d 98 (1967); Gwyn v. Lucky City Motors, Inc., 252 N.C. 123, 113 S.E.2d 302 (1960); Cassels

Page 655

v. Ford Motor Co., 10 N.C.App. 51, 178 S.E.2d 12 (1970). In an action to recover for injuries resulting from manufacturer negligence, plaintiff must present evidence which tends to show that the rubber straps manufactured by Astrup were defective at the time they left Astrup's plant, and that Astrup was negligent in its design of the straps, in its selection of materials, in its assembly process, or in inspection of the straps. See Coakley v. Motor Co., supra; Fowler v. General Electric Co., 40 N.C.App. 301, 252 S.E.2d 862 (1979).

In our view, the evidence presented on motion for summary judgment does not justify a trial on the issue of manufacturer negligence in that plaintiff presented no evidence to show that a defect existed in the rubber strap at the time it was manufactured or that Astrup was negligent in its design, assembly, or inspection of its straps. The materials presented on motion for summary judgment reveal that, sometime before 22 March 1975, plaintiff purchased ten 20-inch rubber straps that had the name "The Astrup Company" printed on them from John Brothers, who had previously purchased the straps from defendant Roy D. Ward; that on 22 March 1975, plaintiff was using some rubber straps which were 20 to 22 long to secure a tarpaulin over a load of oats in a truck; that he was injured when he stretched one of the straps five or six inches in order to hook it to the underside[44 N.C.App. 620] of the truck, and the strap either broke or pulled loose from the metal hook fastened at the end of the strap, and hit plaintiff in the eye; that there had been at least one previous suit filed against Astrup on a claim of an alleged defective strap, which was settled; that about five complaints concerning straps manufactured by Astrup were received annually; that Astrup tested and inspected its straps by stretching each strap to determine its breaking point and accepted only those straps whose breaking point was beyond fifty percent of the original length; that such testing procedures were performed irregularly, and no records were kept of such tests. On the basis of this forecast of evidence, plaintiff contends that the issue of manufacturer's negligence should be put before the jury.

With respect to the defect alleged, plaintiff must present facts supporting the conclusion that the article was dangerous because of some latent defect or was inherently dangerous when used for the purpose for which it was manufactured. Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21 (1960). All that is shown by plaintiff is the fact that the strap broke or came apart while he was using it. In plaintiff's own words:

I had just leaned over from the waist. I had placed the hook in the tarpaulin and I started to pull down, and it pulled out of the end busted out. The strap busted out turned the strap loose.

Plaintiff, in response to interrogatories, asked of him by Astrup, stated:

The strap referred to in the complaint was defective at the time it was used, as evidenced by its breaking after being stretched only a very short distance. Nothing occurred to the strap immediately before its use by the Plaintiff which could have caused any defect to develop. Therefore, the defect was in the strap prior to its use by the Plaintiff.

Plaintiff similarly testified by deposition as follows:

With reference to what facts or information I have or had at the time the lawsuit was filed that leads me to believe that The...