DeWitt v. Eveready Battery Co., Inc.

Decision Date28 June 2002
Docket NumberNo. 329A01.,329A01.
Citation565 S.E.2d 140
CourtNorth Carolina Supreme Court
PartiesFranklin R. DEWITT v. EVEREADY BATTERY CO., INC.

Homesley, Jones, Gaines, Homesley & Dudley, PLLC, by Clifton W. Homesley and Andrew J. Wingo, Mooresville, for plaintiff-appellee.

Templeton & Raynor, P.A., by Kenneth R. Raynor, Charlotte, for defendant-appellant.

EDMUNDS, Justice.

This products liability action was brought by plaintiff, Franklin Roland DeWitt, against defendant, Eveready Battery Company, Inc., for injuries plaintiff sustained when alkaline batteries manufactured by defendant leaked battery fluid onto plaintiff's ankle. The sole issue presented for this Court's review is whether the Court of Appeals erred in reversing the trial court's entry of summary judgment in favor of defendant on plaintiff's claim that defendant breached the implied warranty of merchantability by manufacturing defective batteries. For the reasons that follow, we hold that summary judgment was improperly entered for defendant on this issue; therefore, we affirm the Court of Appeals.

Taken in the light most favorable to plaintiff, the evidence shows that on 10 December 1995, plaintiff purchased a Coleman battery-powered lantern and eight Eveready "Energizer" size D batteries from a Wal-Mart store in Mooresville, North Carolina. The batteries, manufactured by defendant, were sold in sealed packages containing two batteries each. Plaintiff read the instructions accompanying the lantern explaining proper battery installation. He did not remember if these instructions included warnings of potential hazards that could result from incorrect battery placement, nor did he read or see any warnings on the battery packages or on the batteries themselves. However, because his occupation involved installing fire alarms and security systems, he was familiar with the characteristics of such batteries. He knew that it could be dangerous to install the batteries incorrectly and that the contents of damaged or leaking batteries could cause injury.

Plaintiff inserted the eight batteries in the bottom of the lantern. Although he did not notice specifically whether he aligned the batteries correctly, he assumed he did so because he had "put so many batteries in and out of things over the years with raising kids and everything." Plaintiff then operated the lantern for approximately five minutes. He was not satisfied with the meager illumination provided by the lantern, however, so he set it aside.

The next day, plaintiff decided to remove the batteries and return the lantern. At that point, the batteries had been in the lantern for approximately twenty-four hours. Plaintiff held the lantern between his ankles for three to four minutes while he removed the batteries. As he did so, he noticed fluid on some of the batteries. As plaintiff stated during his deposition, "I noticed on one for sure, there was like a slimy feeling." Plaintiff also noticed some "slimy" moisture on the bottom of the lantern. However, he did not realize that the moisture on the batteries or the lantern came from the batteries themselves. Instead, he "didn't know if it was like ... condensation or what it could be" and simply washed his hands.

Shortly thereafter, plaintiff felt a tingling on his ankle and noticed that it was slightly red. Because he was not in any discomfort and had not experienced any tingling in his fingers prior to washing his hands, he thought he had been bitten by an insect. He also noticed that his sock was moist1 but, because the weather was warm, assumed the moisture came from perspiration. He added, "The last place I would have thought it [had come] from was the batteries." Accordingly, he did not wash his ankle or remove his sock, but put the lantern back in its box and returned it to Wal-Mart. He kept the batteries and later gave them to his attorney.

While driving home, plaintiff felt an uncomfortable warm sensation, "almost like a burning," on his ankle. Once inside his house, he removed his right shoe and sock and discovered that the entire heel of his right foot was black. Plaintiff did not realize that the injury had been caused by leakage from the batteries, but instead thought that he had contracted a flesh-eating disease.

Plaintiff was treated in the emergency room of Lake Norman Regional Medical Center, where tests of the lesions on plaintiff's foot showed a pH level of 11 to 11.5.2 Plaintiff and medical personnel "finally put two and two together that [plaintiff's injuries led] back to the batteries," and plaintiff was diagnosed with having third- and fourth-degree alkaline chemical burns to his right ankle caused by potassium hydroxide, a chemical that leaked from the batteries. As a result of his injuries, plaintiff has undergone surgeries on his ankle, requiring skin grafts from his thighs and wrist.

On 10 September 1997, plaintiff filed a complaint against defendant, setting out products liability claims based on theories of breach of warranty and negligence. As to the former, plaintiff alleged that defendant breached the implied warranty of merchantability by manufacturing a defective product and by manufacturing a product containing an inadequate warning; as to the latter, plaintiff alleged that defendant was negligent by manufacturing a defective product and by placing inadequate warnings on the batteries. Plaintiff also alleged that defendant manufactured a product with an inadequate design. Defendant filed its answer on 5 November 1997, denying all material allegations and claiming several alternative defenses, including misuse of the batteries, alteration or modification of the batteries, use of the batteries contrary to express instructions or warnings of which plaintiff knew or with the exercise of reasonable care should have known, inconsistent use of the batteries, contributory negligence, and failure to mitigate damages.

Several witnesses provided affidavits or gave deposition testimony on behalf of plaintiff. Joseph Crawford Hubbell, a chemist and bacteriologist, testified that he performed tests for pH and alkalinity on one of the batteries used by plaintiff and on the sock plaintiff was wearing at the time of his injury. The surface of the battery yielded a pH of 11.20 and an alkalinity of 10.6, and the sock yielded a pH of 10.10 and an alkalinity of 7.10. Hubbell stated that these high pH and alkalinity levels "would be very corrosive" in contact with skin. He also added that the results of the tests of plaintiff's skin at Lake Norman Regional Medical Center were consistent with his findings as to the battery and the sock. Finally, he noted that a new battery just removed from its package would have a neutral pH reading of approximately 7.0 and that leakage from a battery would be the main cause of high pH and high alkalinity levels on the surface of a battery.

William Wayne Beaver, P.E., an electrical engineer specializing in forensic analysis of failed structures and products, gave deposition testimony describing the design of the Eveready "Energizer" size D battery as follows:

There's an anode and a cathode. The anode generally contains a brass nail that fits into the negative—I'll call that the cap of the battery. The cathode is the can around the battery, which a top is attached to; positive terminal, if you will.
There are chemicals inside the battery that cause a reaction; a donating of electrons, if you will. I believe the anode material is a zinc powder. I believe the cathode material is a manganese dioxide and carbon. And there is an electrolyte solution that is a basic, and I think it's a potassium hydroxide solution in water that is near the anode.

Beaver also described an automatic venting mechanism built into each battery. This mechanism is designed to relieve dangerously high pressure in a battery by piercing the battery casing, allowing the pressure to dissipate at the expense of also allowing the contents of the battery to leak.

And there is a non-woven separator between the anode and cathode inside the battery. There is a plastic, perhaps nylon, disk that separates the anode and the cathode that also serves a purpose of expanding, if there is internal pressure[ ]. There is a—that is one part of the venting mechanism. The other part [is] metal spurs that will puncture this seal and venting plastic disk and allow any chemicals to come out of the battery should it have excessive pressure inside the battery.

Beaver examined and took X rays of the eight batteries used by plaintiff in the Coleman lantern. He testified that leakage had occurred3 and opined that several possibilities could explain the leakage. Two of these possibilities were manufacturing defects: either (1) a small hole in the positive metal case or negative metal top on the batteries, or (2) a gap or tear in the nonmetallic insulating seal between the positive metal case and the negative metal top (in other words, a loose connection where the batteries were crimped). Another possible cause of leakage was an increase of pressure in the battery. Such an increase can result from creating a charge if a battery is installed backwards, that is, with the positive and negative ends pointed in the incorrect direction. Although Beaver agreed with defendant's counsel that initiation of the venting mechanism in the batteries would be "strong evidence that the batter[ies] worked as [they were] supposed to," he later added that an activated venting mechanism could work improperly by venting at the wrong place if part of the battery casing is thinner than designed. Beaver also stated that the venting mechanism could have operated at too low a pressure (for example, if the spurs are too long, they could have penetrated the disk at a pressure lower than that specified for the battery) or that the chemicals in the batteries could have been of the wrong mixture, causing an increase in pressure and subsequent venting. Ultimately, though, Beaver could not tell...

To continue reading

Request your trial
160 cases
  • Kelly v. Georgia-Pacific LLC
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • September 30, 2009
    ...caused by or resulting from the manufacture ... of any product." Id. § 99B-1(3); see id. § 99B-2(b); DeWitt v. Eveready Battery Co., 355 N.C. 672, 682, 565 S.E.2d 140, 146 (2002); Tetterton v. Long Mfg. Co., 314 N.C. 44, 50, 332 S.E.2d 67, 71 (1985).3 In Atlantic Coast Mechanical, the North......
  • City of Asheville v. State
    • United States
    • North Carolina Court of Appeals
    • August 19, 2008
    ...or if its resolution would prevent the party against whom it is resolved from prevailing in the action." DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (citations omitted) (internal quotation marks omitted). "Substantial evidence is such relevant evidence as a......
  • City of High Point v. Suez Treatment Solutions Inc.
    • United States
    • U.S. District Court — Middle District of North Carolina
    • September 9, 2020
    ...use and the product malfunctioned." DeWitt v. Eveready Battery Co., 144 N.C. App. 143, 150, 550 S.E.2d 511, 516 (2001), aff'd, 355 N.C. 672, 565 S.E.2d 140 (2002). Under North Carolina law, proximate cause is defined as:a cause which in natural and continuous sequence, unbroken by any new a......
  • Metro. Prop. v. Deere
    • United States
    • Connecticut Supreme Court
    • August 16, 2011
    ...likely causes of the malfunction ordinarily will be presented through an expert witness. 11. See, e.g., DeWitt v. Eveready Battery Co., 355 N.C. 672, 690–95, 565 S.E.2d 140 (2002) (circumstantial evidence that battery had leaked was sufficient to support inference that battery had defect an......
  • 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