Morrison v. Sears, Roebuck & Co.

• Decision Date: 07 April 1987
• Docket Number: No. 267PA86,267PA86
• Citation: 319 N.C. 298,354 S.E.2d 495
• Court: North Carolina Supreme Court
• Parties: , 55 USLW 2600, 3 UCC Rep.Serv.2d 1764, Prod.Liab.Rep. (CCH) P 11,465 Michael MORRISON and Wanda Jean Morrison, Appellants, v. SEARS, ROEBUCK & COMPANY, Appellee, v. COLBY FOOTWEAR, INC. and Colby Machine Corporation, Third-Party Defendant, v. YORK HEEL OF MAINE, INC., Appellee.

Page 495

354 S.E.2d 495

319 N.C. 298, 55 USLW 2600, 3 UCC

Rep.Serv.2d 1764,

Prod.Liab.Rep. (CCH) P 11,465

Michael MORRISON and Wanda Jean Morrison, Appellants, v. SEARS, ROEBUCK & COMPANY, Appellee, v. COLBY FOOTWEAR, INC. and Colby Machine Corporation, Third-Party Defendant, v. YORK HEEL OF MAINE, INC., Appellee.

No. 267PA86.

Supreme Court of North Carolina.

April 7, 1987.

Franklin Smith, Elkin, for appellants.

Moore, Willardson & Lipscomb by Larry S. Moore and William F. Lipscomb, Wilkesboro, for appellee Sears, Roebuck & Co.

MITCHELL, Justice.

The sole issue before us is whether the Court of Appeals erred in affirming the trial court's entry of summary judgment for the defendant Sears, Roebuck and Company (hereinafter "Sears") on the plaintiffs' claims for a breach of an implied warranty of merchantability. We hold that the Court of Appeals erred in that regard.

The plaintiffs, Wanda Jean Morrison and her husband, Michael Morrison, brought suit against Sears alleging that Mrs. Morrison bought a pair of high-heeled shoes from a Sears store in the spring of 1981. They alleged that on 2 April 1981, the second time she wore the shoes, the left heel gave way and buckled under. This caused her to fall and sustain a serious back injury which required surgery to correct. Mrs. Morrison sought to recover for damages resulting from her injury, and Mr. Morrison sought damages for loss of consortium. They brought their claims on both the theory of breach of implied warranty of merchantability and the theory of negligence, alleging that Sears had failed to market a reasonably safe product fit for ordinary use and had failed to warn the plaintiffs of the defect.

Sears filed a third-party complaint against Colby Footwear, Inc., the manufacturer of the shoes, and Colby Machine Corporation. The plaintiffs were thereafter permitted to amend their complaint to add Colby Footwear, Inc. and Colby Machine Corporation as original defendants. The plaintiffs were also permitted to file an amended complaint which added York Heel of Maine, Inc., the manufacturer of the heel, as an additional party defendant.

The trial court granted summary judgment in favor of the defendant Sears and allowed the motion to dismiss by York Heel of Maine, Inc. The trial court also granted summary judgment in favor of Colby Machine Corporation but not Colby Footwear, Inc. Sears took a voluntary dismissal of its claims against the third-party defendants, Colby Footwear, Inc. and Colby Machine Corporation.

The plaintiffs appealed to the Court of Appeals assigning as error only the trial court's entry of summary judgment in favor of Sears. The Court of Appeals affirmed that summary judgment. This Court allowed the plaintiffs' petition for discretionary review of the Court of Appeals' decision, limited to the question of whether the Court of Appeals erred in affirming the trial court's summary judgment for the defendant Sears with regard to the plaintiffs' claims based on the theory of breach of warranty of merchantability.

By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial or be able to surmount an affirmative defense. Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981). "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." Watts v. Cumberland County Hosp. System, 317 N.C. 321, 322-23, 345 S.E.2d 201, 202 (1986); Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). "[A]ll inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion." Dickens v. Puryear, 302 N.C. at 453, 276 S.E.2d at 335, quoting Page v. Sloan, 281 N.C. 697, 706, 190 S.E.2d 189, 194 (1972). Upon a motion for summary judgment by a defendant, a plaintiff "need not present all the evidence available in his favor but only that necessary to rebut the defendant's showing that an essential element of his claim is non-existent or that he cannot surmount an affirmative defense." Dickens v. Puryear, 302 N.C. at 453, 276 S.E.2d at 335.

To prove a breach of implied warranty of merchantability under N.C.G.S. § 25-2-314,

a plaintiff must prove, first that the goods bought and sold were subject to an implied warranty of merchantability; second, that the goods did not comply with the warranty in that the goods were defective at the time of sale; third, that his injury was due to the defective nature of the goods; and fourth, that damages were suffered as a result. Tennessee-Carolina Transportation, Inc. v. Strick Corp., 286 N.C. 235, 210 S.E.2d 181 (1974); Burbage v. Atlantic Mobilehome Suppliers Corp., 21 N.C.App. 615, 205 S.E.2d 622 (1974). The burden is upon the purchaser to establish a breach by the seller of the warranty of merchantability by showing that a defect existed at the time of the sale. Rose v. Epley Motor Sales, 288 N.C. 53, 215 S.E.2d 573 (1975).

Cockerham v. Ward, 44 N.C.App. 615, 624-25, 262 S.E.2d 651, 658, disc. rev. denied, 300 N.C. 195, 269 S.E.2d 622 (1980).

The defendant Sears has argued before this Court that it was entitled to summary judgment as to the implied warranty of merchantability claims for two reasons. Sears contends that the plaintiffs did not meet their burden of proof because they came forward with no forecast of evidence that a defect existed in the shoe at the time of sale. Sears also contends that N.C.G.S. § 99B-2 provides it a defense in this case because Sears had no reasonable opportunity to inspect which, in the exercise of reasonable care, would have revealed the existence of the alleged defect.

The plaintiffs alleged in their complaint that the shoes purchased "looked to be of excellent quality," but that the soles and heels are merely cast plastic without any type of metal support. As a result, when pressure is applied to the heels, they collapse easily. Therefore, the plaintiffs alleged that at the time of sale the shoes were not fit for the ordinary purpose for which they are used, due to defective design and construction.

The plaintiffs presented evidence through the deposition testimony of Marshall Brim, a manufacturing consultant and former employee of York Heel of Maine, Inc., that the heels of the shoes in question are made of a type of plastic known as urethane. The plaintiffs also presented an affidavit and "supplemental affidavit" of B. Everett Gray, an engineer to be tendered as an expert, apparently in the field of footwear. The affidavit included a report prepared by Gray upon his examination of the shoes in question. The report indicated that Gray tested the shoes on 19 July 1984 to determine the amount of force required to deflect the heels, i.e., to move the heels of the shoes forward toward the toes. He determined that the right heel met the industry standard, but that the left heel was more flexible than normal. Therefore, it did not meet the American footwear industry practices for quality. Gray's "supplemental affidavit" contained his opinion that the heel of the left shoe sold to Mrs. Morrison lacked sufficient rigidity, due to an improperly formulated plastic compound, to adequately support a 125 to 135 pound woman under walking and working conditions in an office environment. He concluded, therefore, that the left shoe was "not suitable for the purpose for which [it] ... was designed for use by a consumer."

In light of the principles applicable to motions for summary judgment and those applicable to claims for breach of implied warranty of merchantability under the Uniform Commercial Code, we conclude that such a forecast of evidence by the plaintiffs was sufficient to demonstrate that they will be able to make out at least a prima facie case that the shoe was defective at the time Sears sold it to Mrs. Morrison in 1981. Sears was not entitled to summary judgment in its favor on the ground that the plaintiffs had failed to make a sufficient forecast of evidence.

We next turn to Sears' contention that N.C.G.S. § 99B-2(a) provides it with a defense in this case. That statute provides in pertinent part, that:

No product liability action, except an action for breach of express warranty, shall be commenced or maintained against any seller when the product was acquired and sold by the seller in a sealed container or when the product was acquired and sold by the seller under circumstances in which the seller was afforded no reasonable opportunity to inspect the product in such a manner that would have or should have, in the exercise of reasonable care, revealed the existence of the condition complained of, unless the seller damaged or mishandled the product while in his possession....

N.C.G.S. § 99B-2(a) (1985). Sears has argued before this Court that the legislature intended that N.C.G.S. § 99B-2(a), a part of the Products Liability Act, be available as a defense to actions for breach of an implied warranty of merchantability brought under the Uniform Commercial Code. We agree.

A basic rule of statutory construction is that the intent of the legislature controls. Campbell v. Church, 298 N.C. 476, 484, 259 S.E.2d 558, 564 (1978). "The intent of the Legislature may be ascertained from the phraseology of the statute as well as the nature and purpose of the act and the consequences which would follow from a construction one way or another." Id.

The implied warranty of merchantability arises under the Uniform Commercial Code upon the sale of goods when, as alleged in the present case, the seller is a merchant with respect to goods of the kind sold. N.C.G.S. § 25-2-314(1) (1986) (emphasis added). The term "product liability action" as used in the Products Liability Act includes "any action brought for or on account...