Evans v. Evans

• Decision Date: 17 September 2002
• Docket Number: No. COA01-1022.,COA01-1022.
• Citation: 569 S.E.2d 303,153 NC App. 54
• Court: North Carolina Court of Appeals
• Parties: Jonathan Keith EVANS, Plaintiff, v. Joseph S. EVANS and Harold Keith Evans, d/b/a Evans Farms, Western Oil Field Supply Company, d/b/a Lake Company, Custom Stamping & Mfg. Co., Brock Tractor & Equipment Co., Inc., and Lee Tractor Co., Inc., d/b/a Lee Tractor of Rocky Mount, Defendants.

569 S.E.2d 303

153 NC App. 54

Jonathan Keith EVANS, Plaintiff, v. Joseph S. EVANS and Harold Keith Evans, d/b/a Evans Farms, Western Oil Field Supply Company, d/b/a Lake Company, Custom Stamping & Mfg. Co., Brock Tractor & Equipment Co., Inc., and Lee Tractor Co., Inc., d/b/a Lee Tractor of Rocky Mount, Defendants.

No. COA01-1022.

Court of Appeals of North Carolina.

September 17, 2002.

Gibbons, Cozart, Jones, Hughes, Sallenger & Taylor, by W. Earl Taylor, Jr. and Andrew J. Whitley, Wilson, for plaintiff-appellant.

Teague, Campbell, Dennis & Gorham, L.L.P., by Donald F. Lively, Raleigh, for defendant-appellee Custom Stamping & Mfg. Co. HUDSON, Judge.

Jonathan Keith Evans ("plaintiff") appeals a judgment entered in favor of Custom Stamping and Manufacturing Company, Incorporated ("Custom"), and an order denying his motion for a new trial. For the reasons given below, we affirm.

Plaintiff was injured when a clamp failed on an irrigation system while he was working for Evans Farms, a farming business owned by his father and uncle. Some part of the irrigation assembly, or possibly water at high pressure, struck plaintiff in the face, causing serious, permanent injuries, including blindness in both eyes. Neither plaintiff's father nor his uncle, who were both working nearby when the accident occurred, saw what happened. Plaintiff does not remember anything about the incident.

Plaintiff filed a complaint against Evans Farms and Western Oil Field Supply, d/b/a Lake Company ("Lake Company"). Plaintiff later amended his complaint to add additional defendants, of which Custom is one. Custom manufactured the clamp at issue for Lake Company, which was the clamp's retailer. Prior to trial, plaintiff's claims against all defendants except Custom were either dismissed or settled, and the case proceeded to trial only against Custom.

Plaintiff's claims against Custom included failure to give adequate warnings; breach of implied warranty of merchantability; and negligence in the design of the clamp. Dr. Anand David Kasbekar testified for plaintiff as an expert witness in the field of mechanical engineering and material science and in the field of failure analysis of metallic components. He testified that, due to its construction, the clamp deformed with use, as a result of which the clamp could appear to be securely closed but then "flop open." Dr. Kasbekar opined that the deformation of the clamp occurred as a result of being closed around a part that was slightly too big or around parts that were not properly aligned. Additional testimony of relevance here was that of David Stout, the president of Custom, who testified to the nature of Custom's business. We discuss the testimony in further detail below.

At the close of all the evidence, Custom moved for directed verdict, and the trial court granted Custom's motion on the issues of failure to give adequate warnings and breach of implied warranty of merchantability. The trial court did not give the specific instruction that plaintiff requested on the duty of a manufacturer with respect to design. The jury returned a verdict finding that plaintiff was not injured by the negligence of Custom. Plaintiff moved for a new trial. The trial court entered judgment in favor of Custom and denied plaintiff's motion for a new trial. Plaintiff now appeals.

In his first two assignments of error, plaintiff contends that the trial court erred by granting directed verdicts for Custom on plaintiff's claims for failure to provide adequate warnings and breach of implied warranty of merchantability. "On appeal from a directed verdict, this Court must determine whether there is substantial evidence of each essential element of a plaintiff's claim." Horack v. Southern Real Estate Co. of Charlotte, Inc., 150 N.C.App. 305, ___, 563 S.E.2d 47, 53 (2002). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). On a motion for a directed verdict at the close of all evidence, "the trial court must determine whether the evidence, when considered in the light most favorable to the nonmovant, is sufficient to take the case to the jury." Southern Bell Tel. & Tel. Co. v. West, 100 N.C.App. 668, 670, 397 S.E.2d 765, 766 (1990), aff'd, 328 N.C. 566, 402 S.E.2d 409 (1991). "The court should deny a motion for directed verdict when there is more than a scintilla to support plaintiffs' prima facie case. Where the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and submit the case to the jury." Edwards v. West, 128 N.C.App. 570, 573, 495 S.E.2d 920, 923 (citation omitted), cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998).

The General Assembly has created special proof requirements in a cause of action for the failure to give an adequate warning in a product liability case:

(a) No manufacturer or seller of a product shall be held liable in any product liability action for a claim based upon inadequate warning or instruction unless the claimant proves that the manufacturer or seller acted unreasonably in failing to provide such warning or instruction, that the failure to provide adequate warning or instruction was a proximate cause of the harm for which damages are sought, and also proves one of the following:

(1) At the time the product left the control of the manufacturer or seller, the product, without an adequate warning or instruction, created an unreasonably dangerous condition that the manufacturer or seller knew, or in the exercise of ordinary care should have known, posed a substantial risk of harm to a reasonably foreseeable claimant.

(2) After the product left the control of the manufacturer or seller, the manufacturer or seller became aware of or in the exercise of ordinary care should have known that the product posed a substantial risk of harm to a reasonably foreseeable user or consumer and failed to take reasonable steps to give adequate warning or instruction or to take other reasonable action under the circumstances.

N.C. Gen.Stat. § 99B-5(a) (2001). Plaintiff argues that the testimony of Dr. Kasbekar regarding warnings was sufficient to address these requirements and send the claim to the jury. Dr. Kasbekar testified as follows regarding warnings:

A. There should be some warning on this clamp, some warning to indicate to the user the severity of the hazard should it fail, and also a warning to tell the user when the clamp is worn and should be discarded, if that's the manufacturer's position that these will wear out and should be discarded at some point.

Obviously there's not enough room on this clamp to have a lot of specific instructions, at least not big enough that someone could read them. So the practice I would suggest would be to warn of the severity of the hazard, which, in my opinion, would be severe or fatal injury, at least with a high pressure irrigation system, and to instruct the user to either contact the manufacturer or refer him to a booklet provided by the manufacturer to let him know how the clamp should be applied, how to inspect the clamp properly if that needs to be done to prevent this type of situation.

I think the other witness had testified that if he knew that the clamp was doing this (illustrating) that he wouldn't have used it. But if these are sitting in an open position on your truck and you go to grab one and you place it around an object and either do the—

....

—either due to misalignment of the hasp or misalignment of the fittings or a fitting that's a couple tenths of an inch bigger than it should be, you go to close it and it closes in a secure manner, then you have no idea that that clamp is actually loose. If you are instructed that before you apply this clamp you should always join it together and line up the hasp and turn it upside down to make sure that it's functioning properly, that would probably eliminate that.

Additionally, Dr. Kasbekar testified that

if it is the manufacturer's intent for this clamp only to be used with components supplied by the manufacturer or certain brands of components, then I think that should be stated somewhere on the clamp because what I learned, talking with other experts in the area and doing some research on my own, is that there are six inch irrigation fittings and there's actually six inch fittings that are slightly smaller and some that are slightly bigger.

And, in fact, one of the clamps that we were provided with turns out to have a quarter inch smaller diameter than the subject clamp although it's still called a six inch clamp. And when you've got things that may vary by a quarter of an inch but it takes less than a quarter of an inch to totally deform the clamp so it's no longer useable, you've got a potential problem.

Assuming without deciding that there was sufficient evidence to create a jury question on whether Custom acted unreasonably in failing to provide these warnings, plaintiff proffered no evidence that Custom's failure to provide the warnings was the proximate cause of plaintiff's injuries. Therefore, we conclude that plaintiff failed to provide "substantial evidence of each essential element of [his] claim." Horack, ___ N.C.App. at ___, 563 S.E.2d at 53. Accordingly, the trial court did not err by directing a verdict for Custom on this claim.

Plaintiff also argues that the trial court erred by directing a verdict for Custom on the issue of whether Custom breached the implied warranty of merchantability. The Uniform Commercial Code, as adopted in North Carolina, provides:

(1) Unless excluded or modified (G.S.25-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind....

(2) Goods to be merchantable must be at least such as

(a) pass without objection in the trade under the

...