Maybank v. S. S. Kresge Co., No. 7918SC1033

• Docket Nº: No. 7918SC1033
• Citation: 46 N.C.App. 687, 266 S.E.2d 409
• Case Date: May 20, 1980
• Court: Court of Appeal of North Carolina (US)

Page 409

266 S.E.2d 409 46 N.C.App. 687, 29 UCC Rep.Serv. 69 Geraldine MAYBANK, Plaintiff,
v.
S. S. KRESGE COMPANY, Defendant and Third Party Plaintiff,
v.
G. T. E. SYLVANIA, INC., Third Party Defendant. No. 7918SC1033. Court of Appeals of North Carolina. May 20, 1980.

Barefoot & White by J. C. Barefoot, Jr., Greensboro, for plaintiff.

Smith, Moore, Smith, Schell & Hunter by J. Donald Cowan, Jr., Greensboro, for defendant and third party plaintiff.

VAUGHN, Judge.

The sole question of this appeal is whether a directed verdict was erroneously entered for defendant. Considering the evidence under the standard set forth in Kelly v. Harvester Company, 278 N.C. 153, 179 S.E.2d 396 (1971), the evidence, in a light most favorable to plaintiff, was sufficient to carry the case to the jury on the claim of breach of an implied warranty but insufficient to carry the case to the jury on the claims of breach of an express warranty, negligence and strict liability. The trial

Page 411

court erred in directing a verdict on the claim of breach of an implied warranty.

Thus far, our Court has not applied the doctrine of strict or absolute liability to products liability actions. A plaintiff's claim must be based on negligence or breach of warranty. Fowler v. General Electric Co., 40 N.C.App. 301, 252 S.E.2d 862 (1979). The doctrine of strict liability applies only in cases involving [46 N.C.App. 690] dangerous instrumentalities such as explosives. A flashcube is not a dangerous instrumentality per se nor under the circumstances of this case, albeit an exploding flashcube, can we say it became a dangerous instrumentality for which the seller was absolutely liable. Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974); Patterson v. Weatherspoon, 29 N.C.App. 711, 225 S.E.2d 634, cert. den., 290 N.C. 662, 228 S.E.2d 453 (1976).

Plaintiff stated a cause of action for negligence but at trial offered no direct or indirect evidence of negligence on the part of the defendant seller. Plaintiff could have established a jury question on the issue of negligence by showing similar occurrences. No such proof was presented. Negligence is not established by the showing of one faulty product. Tedder v. Bottling Co., 270 N.C. 301, 154 S.E.2d 337 (1967). The doctrine of res ipsa loquitur is inapplicable to the case at hand because defendant did not have exclusive control and management over the flashcube. Jackson v. Gin Co., 255 N.C. 194, 120 S.E.2d 540 (1961).

The record on appeal is not clear about the existence of any express warranty on the part of the defendant seller nor the manufacturer. From the record, there appears to be no applicable express warranty by defendant. Plaintiff, on cross-examination, did read several sentences from the package in which the flashcubes came. These sentences do not appear to constitute a limited express warranty. Apparently, the package contained a cautionary warning about damaged bulbs shattering or causing static electricity and directions on how to get a replacement when a bulb failed to flash. The package itself was not made a part of the record on appeal and the actual wording is not before us. The evidence in the record does not indicate the existence of any limited or modified warranty. See G.S. 25-2-316; 25-2-719. There is no indication of any implied warranty of fitness for a particular purpose arising on the facts of this case. See G.S. 25-2-315.

This case, therefore, hinges on whether plaintiff presented evidence sufficient to get to the jury on the existence of implied warranty or merchantability which was breached by the defendant seller. "Unless excluded or modified (§ 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." G.S. 25-2-314(1).

[46 N.C.App. 691] (A)n action for breach of implied warranty of merchantability under G.S. 25-2-314 . . . entitles a plaintiff to recover without any proof of negligence on a defendant's part where it is shown that (1) a merchant sold goods, (2) the goods were not "merchantable" at the time of sale, (3) the plaintiff (or his property) was injured by such goods, (4) the defect or other condition amounting to a breach of an implied warranty of merchantability proximately caused the injury, and (5) the plaintiff so injured gave timely notice to the seller.

Reid v.Eckerds Drugs, 40 N.C.App. 476, 480, 253 S.E.2d 344, 347, cert. den., 297 N.C. 612, 257 S.E.2d 219 (1979). It is the plaintiff's burden to prove this claim. G.S. 25-2-607(4); Burbage v. Suppliers Corp., 21 N.C.App. 615, 205 S.E.2d 622 (1974). We...