Morgan v. Cavalier Acquisition Corp.

• Decision Date: 17 August 1993
• Docket Number: No. 9228SC577,9228SC577
• Citation: 111 N.C.App. 520,432 S.E.2d 915
• Court: North Carolina Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 13,575 Marcia L. MORGAN, Ancillary Administrator of the Estate of Philip N. Tilghman Jr., Plaintiff-Appellant, v. CAVALIER ACQUISITION CORPORATION, d/b/a Cavalier Corporation, and Coca-Cola Bottling Company Affiliated, Inc., Defendants-Appellees.

Page 915

432 S.E.2d 915

111 N.C.App. 520, Prod.Liab.Rep. (CCH) P 13,575

Marcia L. MORGAN, Ancillary Administrator of the Estate of Philip N. Tilghman Jr., Plaintiff-Appellant, v. CAVALIER ACQUISITION CORPORATION, d/b/a Cavalier

Corporation, and Coca-Cola Bottling Company

Affiliated, Inc., Defendants-Appellees.

No. 9228SC577.

Court of Appeals of North Carolina.

Aug. 17, 1993.

George Daly, P.A. by George Daly, Charlotte, for plaintiff-appellant.

Roberts Stevens & Cogburn, P.A. by Frank P. Graham and Vernon S. Pulliam, Asheville, for defendant-appellee Coca-Cola Bottling Co. Affiliated, Inc.

Ball Barden Contrivo & Lewis, P.A. by Frank J. Contrivo, Asheville, for defendant-appellee Cavalier Acquisition Corp., d/b/a Cavalier Corp.

EAGLES, Judge.

Plaintiff brings forward two assignments of error. After a careful examination of the briefs, transcript, and record, we reverse the trial court's entry of summary judgment for defendants and remand for trial.

I.

Regarding G.S. 1A-1, Rule 56, our Supreme Court has stated:

The party moving for summary judgment must establish the lack of any triable issue by showing that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975); Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972). As this Court remarked in Koontz, "An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action." Koontz, 280 N.C. at 518, 186 S.E.2d at 901. All inferences are to be drawn against the moving party and in favor of the opposing party. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379; Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897.

Branks v. Kern, 320 N.C. 621, 623-24, 359 S.E.2d 780, 782 (1987). Furthermore, it is well established that certain claims or defenses are not well suited to summary judgment. For example, summary judgment is rarely appropriate in a negligence case. City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 268 S.E.2d 190 (1980). This is because the determination of essential elements of these claims or defenses to these claims are within the peculiar expertise of the fact finders. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); 10A Wright, Miller & Kane, Federal Practice and Procedure § 2729 (2d ed. 1973). Similarly, contributory negligence is a jury question unless the evidence is so clear that no other conclusion is possible. City of Thomasville, 300 N.C. at 658, 268 S.E.2d at 195-196; Cowan v. Laughridge Const. Co., 57 N.C.App. 321, 326, 291 S.E.2d 287, 290 (1982). "[P]roximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in the consideration of the evidence of each particular case." W. Prosser, Handbook of the Law of Torts § 45, at 290 (4th ed. 1971); see Williams v. Power & Light Co., 296 N.C. 400, 403, 250 S.E.2d 255, 258 (1979).

Smith v. Selco Products, Inc., 96 N.C.App. 151, 155-56, 385 S.E.2d 173, 175 (1989), disc. rev. denied, 326 N.C. 598, 393 S.E.2d 883 (1990). Here, reasonable persons could differ as to whether decedent exercised prudence in the events immediately prior to his death. Because the evidence could support a finding that defendants' negligence was the proximate cause of decedent's death, we conclude that the trial court erred in granting summary judgment for defendants.

II.

Plaintiff argues that "[t]here are genuine issues of material fact, precluding summary judgment, as to: 1) whether defendants were negligent in the design, servicing, and failure to give notice of danger of the vending machine which fell on Phil Tilghman [decedent]; 2) whether he was contributorily negligent; and 3) whether defendants were grossly negligent, thus making irrelevant plaintiff's contributory negligence, if any." We agree and reverse the trial court's entry of summary judgment for defendants.

Plaintiff's action against defendants is a products liability action since it has been "brought for or on account of ... death ... [allegedly] caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling" of a product, namely, the Cavalier vending machine. G.S. 99B-1(3). Here, plaintiff's products liability claim

is based on two separate theories, negligence and breach of warranties. See Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 303, 354 S.E.2d 495, 498 (1987) (action for breach of implied warranty of merchantability is products liability action where action is for injury to person resulting from sale of product); Wilson Bros. v. Mobil Oil, 63 N.C.App. 334, 341, 305 S.E.2d 40, 45, disc. rev. denied, 309 N.C. 634, 308 S.E.2d 718 (1983) (products liability actions determined by principles of negligence and breach of warranty); C. Daye & M. Morris, North Carolina Law of Torts §§ 26.10, 26.30 (1991) (because Products Liability Act not source of liability, liability determined by rules of negligence, breach of warranty, or other theory of recovery).

....

As with other negligence actions, the essential elements of a products liability action based upon negligence are (1) duty, (2) breach, (3) causation, and (4) damages. McCollum v. Grove Mfg. Co., 58 N.C.App. 283, 286, 293 S.E.2d 632, 635 (1982), aff'd per curiam, 307 N.C. 695, 300 S.E.2d 374 (1983).

Crews v. W.A. Brown & Son, 106 N.C.App. 324, 329, 416 S.E.2d 924, 928 (1992). See Driver v. Burlington Aviation, Inc., 110 N.C.App. 519, 430 S.E.2d 476, 482 (1993) ("Chapter 99B does not adopt the doctrine of strict liability, as clearly demonstrated by the language in G.S. 99B-4 which codified the common law defense of contributory negligence in products liability actions"); Stiles v. Chloride, Inc., 668 F.Supp. 505 (W.D.N.C.1987), aff'd, 856 F.2d 187 (4th Cir.1988). In her assignment of error, plaintiff brings forward only a negligence theory of products liability.

A. Defendants' Negligence

1. Defendant Acquisition Corporation

It is well established that "[a] manufacturer must properly inform users of a product's hazards, uses, and misuses or be liable for injuries resulting therefrom under some circumstances." Smith, 96 N.C.App. at 156, 385 S.E.2d at 173 (citation omitted). Additionally, a manufacturer must inform itself about what safety designs and methods are available in its industry and is under a duty to make reasonable tests and inspections to discover any latent hazards. Id.; Cockerham v. Ward and Astrup Co. v. West Co., 44 N.C.App. 615, 262 S.E.2d 651, disc. review denied, 300 N.C. 195, 269 S.E.2d 622 (1980); Jenkins v. Helgren, 26 N.C.App. 653, 217 S.E.2d 120 (1975). Plaintiff presented the testimony of Lindley Manning, a registered professional mechanical engineer and a retired associate professor of mechanical engineering, who testified that the vending machine had latent hazards arising from its

instability--in that it can be pushed over so easily is probably the largest of the defects ...

....

... Other defects, of course the vending of a free product and the subsequent ability to buy an empty space are really things that entrap people into the rocking of the machine to achieve their goal and there is this latent defect of instability that surprises them and injures or kills them.

Q: Let me ask you about that. What is latent about the instability?

A: It isn't obvious to the layman. The first time I pushed on one of these, I thought there is a problem here. When I was first called about the first case I was in, I was a little skeptical, but I never tried to rock one of these big machines ...

Q: You don't deny that grabbing ahold [sic] of the machine and pulling it either anywhere from 800 to 1200 to 1400 pounds--I mean that is a lot of weight, isn't it?

A: Exactly. It will kill you, and it has in this case and in many others.

Q: And what's latent about the fact that the machine weighs a lot?

A: You can't necessarily see it nor do you think it, and of course the size of it, it looks like a big stable thing, and it isn't. When I found how easy it was to rock them by pushing on it, I was surprised because I hadn't realized the internal configuration and the weight distribution, but even looking at it is not enough to tell.

Because the alleged defect in the vending machine "is hidden and not apparent, the alleged defect is properly classified as a latent one." Crews v. W.A. Brown & Son, Inc., 106 N.C.App. 324, 329, 416 S.E.2d 924, 928 (1992) (citing Sutton v. Major Prods. Co., 91 N.C.App. 610, 614, 372 S.E.2d 897, 899 (1988)).

Furthermore, evidence in the record indicates that defendants knew of the possible misuse of the machines, knew of the dangers arising from that misuse, and failed to provide warnings to the users of its product. The existence of several genuine issues of material fact precludes summary judgment. For example, in 1987 Mr. Sarkisan received a letter dated 1 September 1987 from the chief executive officer of The Vendo Company (hereinafter "Vendo"), a competitor in the industry, describing problems with its (Vendo's) vending machines. The Vendo letter stated that "[r]ecently, there have been several accidents where venders have been tipped over, causing serious personal injury or even death." Vendo's machines were the subject of an ongoing investigation by the United States Consumer Product Safety Commission. The record contains evidence that the Cavalier machine which fell upon decedent had the same generic mechanism as the Vendo machine, which, as described in the letter, dispensed a drink when tilted.

Enclosed with the Vendo letter was a sample "warning label decal" which warned consumers of the problem....