Nicholson v. American Safety Utility Corp.

• Decision Date: 15 October 1996
• Docket Number: No. COA95-554,COA95-554
• Citation: 124 N.C.App. 59,476 S.E.2d 672
• Parties: Tony B. NICHOLSON, Plaintiff, v. AMERICAN SAFETY UTILITY CORPORATION, Duke Power Company and North Hand Protection, a division of Siebe North, Inc., Siebe North Holdings Corp., Siebe, Inc., Siebe Industries, Inc., and Siebe PLC, Defendants.
• Court: North Carolina Court of Appeals

Page 672

476 S.E.2d 672

124 N.C.App. 59

Tony B. NICHOLSON, Plaintiff, v. AMERICAN SAFETY UTILITY CORPORATION, Duke Power Company and North Hand Protection, a division of Siebe North, Inc. Siebe North Holdings Corp., Siebe, Inc., Siebe Industries Inc., and Siebe PLC, Defendants.

No. COA95-554.

Court of Appeals of North Carolina.

Oct. 15, 1996.

Twiggs, Abrams, Strickland & Trehy, P.A. by Douglas B. Abrams and Jerome P. Trehy, Jr., Raleigh, Wankser and Lindler by H. Bright Lindler, Rockingham, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe, by Linda Ambrose, Charlotte, for Harrison-Wright.

Smith, Helms, Mulliss & Moore, L.L.P. by Richard W. Ellis and Leslie C. O'Toole, Raleigh, for defendants-appellees Siebe North, Inc. and Siebe North Holdings Corp.

Cranfill, Sumner & Hartzog, L.L.P. by Robert W. Sumner and H. Lee Evans, Jr., Raleigh, for defendant-appellee American Safety Utility.

JOHN, Judge.

Plaintiff contends the trial court erred by granting defendants' motions for summary judgment and by denying his motion for partial summary judgment. We agree in part.

Pertinent facts and procedural information are as follows: On 26 January 1990, plaintiff, an electrical lineman for Harrison-Wright, Inc., was working on a Duke Power project to connect high-voltage overhead power lines to an underground cable. On the date in question, plaintiff was standing in an elevated, two-person aerial utility bucket located beneath energized overhead lines. At that time, plaintiff was connecting a de-energized conductor to a de-energized underground cable. The overhead energized lines carried approximately 7,200 volts of electricity, "phase-to-ground." In accordance with Duke Power regulations, plaintiff or his helper placed rubber hoses over the energized lines to shield them from the close proximity of the lines, and in addition the men wore protective helmets and thick rubber lineman's safety gloves.

Plaintiff's helmet had blown off at least twice prior to the incident at issue, and each time he had lowered the utility bucket to retrieve it. However, after a gust of wind blew the helmet off a third time, plaintiff continued tightening a "split bolt." An energized line thereupon either touched or came within an extremely short distance of plaintiff's unprotected head. Electricity raced from the overhead line to plaintiff's head and through his body, exiting via his gloved hands which were holding a de-energized, grounded cable. Plaintiff suffered severe and permanent brain and nervous system injuries.

The gloves worn by plaintiff at the time of his injury were purchased by defendant American Safety Utility Corporation (ASU) on 18 March 1989 from defendant Siebe North (Siebe); thereafter, the gloves were sold and delivered by ASU to plaintiff's employer in January 1990. Siebe sold the gloves as Class II lineman's gloves, safe for use with energized lines up to 17,000 volts. Plaintiff obtained the gloves from his employer 23 January 1990 and suffered the subject accident 26 January 1990.

Plaintiff commenced the instant products liability action by filing a complaint 9 December 1992 and an amended complaint 19 January 1993. Suit was brought against Siebe as manufacturer of the gloves worn by plaintiff at the time of the accident, as well as against seller ASU and Duke Power, the latter not a party to this appeal.

Contending he was injured "when electrical current completed as a direct result of the dangerously defective condition of the subject safety gloves," plaintiff alleged claims of negligence against Siebe and ASU based upon their failure, inter alia, to "exercise due care in the testing, inspection, marketing, promotion, sale and/or delivery of the subject safety gloves." Plaintiff's complaint also contained claims of breach of express and implied warranties, including specifically "the failure to provide necessary warnings."

All defendants answered denying liability and asserting numerous affirmative defenses, including contributory negligence, lack of privity, and alteration or damage to the gloves subsequent to defendants' release of possession and control thereof.

Defendants Siebe and ASU moved for summary judgment on all issues, and plaintiff sought summary disposition of the issues of breach of implied warranty and contributory negligence. Following a hearing 13 February 1995, the trial court granted defendants' motions and denied that of plaintiff. From these orders, plaintiff appeals.

__________

We note at the outset that plaintiff has assigned error to the denial of his motion for summary judgment on the issues of breach of implied warranty and contributory negligence. Denial of a motion for summary judgment is interlocutory and non-appealable. See Lamb v. Wedgewood Corp., 308 N.C. 419, 424, 302 S.E.2d 868, 871 (1983). Except as may arise in dealing with arguments properly before this Court, therefore, we decline to consider plaintiff's assignment of error directed to denial of his motion for summary judgment.

It is well-established that

[t]o succeed in a summary judgment motion, the movant has the burden of showing, based on pleadings, depositions, answers, admissions, and affidavits, that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.

Taylor v. Ashburn, 112 N.C.App. 604, 606, 436 S.E.2d 276, 278 (1993), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). Summary judgment is appropriate only when it appears that "even if the facts as claimed by [the non-movant] are taken as true, there can be no recovery," Lowder v. Lowder, 68 N.C.App. 505, 506, 315 S.E.2d 520, 521, disc. review denied, 311 N.C. 759, 321 S.E.2d 138 (1984), with the non-movant's materials being "indulgently regarded" and the movant's "closely scrutinized," Burrow v. Westinghouse Electric Corp., 88 N.C.App. 347, 350, 363 S.E.2d 215, 217, disc. review denied, 322 N.C. 111, 367 S.E.2d 910 (1988).

A summary judgment movant may meet its burden of showing the lack of a triable issue of fact by demonstrating the non-existence of an essential element of plaintiff's claim or by establishing an affirmative defense as a matter of law. Green v. Wellons, Inc., 52 N.C.App. 529, 532, 279 S.E.2d 37, 40 (1981). If a movant is successful in its showing, the burden shifts to the non-movant to produce a forecast of evidence sufficient to create a genuine issue of material fact. Cockerham v. Ward and Astrup Co. v. West Co., 44 N.C.App. 615, 618, 262 S.E.2d 651, 654, disc. review denied, 300 N.C. 195, 269 S.E.2d 622 (1980).

Plaintiff's action, brought pursuant to the Products Liability Act (the Act), see N.C. Gen.Stat. Chapter 99B (1989), is based on two separate theories--negligence and breach of warranty, both express and implied. We discuss each separately.

I. Negligence

Summary judgment is generally inappropriate in a negligence action, Brown v. Power Co., 45 N.C.App. 384, 386, 263 S.E.2d 366, 368, disc. review denied, 300 N.C. 194, 269 S.E.2d 615 (1980),

even when there is no dispute as to the facts, because the issue of whether a party acted in conformity with the reasonable person standard is ordinarily an issue to be determined by a jury.

Surrette v. Duke Power Co., 78 N.C.App. 647, 650, 338 S.E.2d 129, 131 (1986). See also Green, 52 N.C.App. at 532, 279 S.E.2d at 39 (because of "peculiarly elusive nature of the term 'negligence', the jury generally should pass on the reasonableness of conduct in light of all the circumstances of the case"). Notwithstanding, summary judgment may be proper in a negligence action

where there is no question as to the credibility of witnesses and the evidence shows either (1) a lack of any negligence on the part of the defendant, or (2) that plaintiff was contributorily negligent as a matter of law.

Surrette, 78 N.C.App. at 650-51, 338 S.E.2d at 131 (citations omitted).

The essential elements of a products liability action predicated upon negligence are: "(1) evidence of a standard of care owed by the reasonably prudent person in similar circumstances; (2) breach of that standard of care; (3) injury caused directly or proximately by the breach, and; (4) loss because of the injury." Ziglar v. Du Pont Co., 53 N.C.App. 147, 150, 280 S.E.2d 510, 513, disc. review denied, 304 N.C. 393, 285 S.E.2d 838 (1981) (citation omitted). In addition, a plaintiff must present evidence the product was in a defective condition at the time it left the defendant's control. See Cockerham, 44 N.C.App. at 619, 262 S.E.2d at 655.

A manufacturer must use reasonable care in the design and manufacture of products, and this includes the duty to perform "reasonable tests and inspections to discover latent hazards." Id. at 619, 262 S.E.2d at 654. Moreover, a manufacturer must exercise "the 'highest' or 'utmost' caution, commensurate with the risks of serious harm involved, in the production of a dangerous instrumentality or substance." Ziglar, 53 N.C.App. at 154, 280 S.E.2d at 515. See Corum v. Tobacco Co., 205 N.C. 213, 216-17, 171 S.E. 78, 80 (1933) (dangerous product is one which puts life and limb in great peril when negligently made).

In addition, a manufacturer is under an obligation to provide warnings of any dangers associated with the product's use "sufficiently intelligible and prominent to reach and protect all those who may reasonably be expected to come into contact with [the product]." Id. at 155, 280 S.E.2d at 516. Failure to warn adequately renders the product defective. Ziglar, 53 N.C.App. at 155, 280 S.E.2d at 516.

A non-manufacturing seller acting as a "mere conduit" of the product, on the other hand, ordinarily has no affirmative duty to inspect and test a product made by a reputable manufacturer. See Sutton v. Major Products Co., 91 N.C.App. 610, 614, 372 S.E.2d 897, 900 (1988). However, this rule does not stand where the seller knows or has reason to know of a product's dangerous propensity. Id. Moreover, where the seller acts as...