Reid v. Eckerds Drugs, Inc., No. 7814SC483

• Docket Nº: No. 7814SC483
• Citation: 253 S.E.2d 344, 40 N.C.App. 476
• Case Date: April 03, 1979
• Court: Court of Appeal of North Carolina (US)

Page 344

253 S.E.2d 344 40 N.C.App. 476, 26 UCC Rep.Serv. 20 Frankie REID
v.
ECKERDS DRUGS, INC. No. 7814SC483. Court of Appeals of North Carolina. April 3, 1979.

Page 346

[40 N.C.App. 477] Grover C. McCain, Jr., Durham, for plaintiff appellant.

Newsom, Graham, Strayhorn, Hedrick, Murray, Bryson & Kennon, by O. William Faison, Durham, for defendant appellee.

[40 N.C.App. 478] ROBERT M. MARTIN, Judge.

Plaintiff brought this civil action to recover damages arising on personal injuries sustained, allegedly resulting from the use of an aerosol deodorant sold to plaintiff's wife by defendant. Plaintiff's evidence tended to show that on 23 September 1976, he was preparing to go to work and liberally applied deodorant from an aerosol can of 5-day antiperspirant to his underarms and neck. He then put the can of deodorant down, walked across the room to where his shirt was, took up a cigarette and proceeded to light it with a match from a paper book of matches. When he struck the match, he heard a loud report and he burst into blue flame. He sustained severe burns to his upper torso, the burns following the pattern of the application and running of the deodorant. As a result of his injuries, plaintiff was briefly hospitalized and lost over five weeks from work, and now has large areas of scar tissue where he was burned. Plaintiff also testified that he was familiar with the warning on the aerosol can concerning use near flame or heat, and that the deodorant felt cold when he applied it.

Defendant introduced evidence tending to show that experimental evidence, derived from tests conducted by an expert, indicated that the deodorant would not ignite unless a paper match was no more than one and one-fourth inches (1 1/4 ) from the surface to which the deodorant had been applied. Other evidence was introduced to show that vast quantities of this deodorant had been marketed without receiving any complaint other than plaintiff's.

It appears from the evidence that the deodorant is approximately 92% Alcohol in the aerosol spray can. The warning and directions placed upon the can are as follows:

WARNING: Use only as directed. Do not apply to broken, irritated or sensitive skin. If rash or irritation develops discontinue use. Never spray towards face or flame. Do not puncture or incinerate can. Do not expose or store at temperature above 120o F. Intentional misuse by deliberately concentrating and inhaling the contents can be harmful or fatal. Keep out of reach of children.

Page 347

Plaintiff's complaint alleged counts of negligence and breach of warranty against Eckerds Drugs, Inc., the store that retailed [40 N.C.App. 479] the deodorant, and against J. P. Williams Company, Inc., the manufacturer. After receiving plaintiff's evidence, and upon motions and affidavits from the defendant, the trial judge entered summary judgment against plaintiff on all counts pursuant to Rule 56, North Carolina Rules of Civil Procedure. Plaintiff appeals, proceeding solely on his claim of breach of warranty against defendant Eckerds Drugs, Inc. We reverse and remand for trial.

Plaintiff has indicated in his brief that he is abandoning any appeal or argument as to tort aspects of his action, but will instead rely upon his theory of breach of implied warranty of merchantability. He derives this theory from the language contained in the Uniform Commercial Code, as adopted by our Legislature and codified in G.S. 25-2-314. We set out the statute in pertinent part below:

§ 25-2-314. Implied warranty. Merchantability; usage of trade. (1) 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. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (2) Goods to be merchantable must be at least such as

(c) are fit for the ordinary purposes for which such goods are used; and

(e) are adequately contained packaged and labeled as the agreement may require; and

(f) conform to the promises or affirmations of fact made on the container or label if any.

Because any right of recovery on plaintiff's part must be found to exist within or under these implied warranty provisions, we will first analyze the nature and scope of the implied warranty of merchantability and actions thereon.

[40 N.C.App. 480] We note at the outset that this is a novel question for the appellate courts of this State: will a duty to warn of dangerous propensities be found to exist as part of the implied warranty of merchantability? Or, to couch the question more precisely in Code language, is a product merchantable where, although some directions for its use and some warnings of the dangers inhering to use under certain circumstances are given, the directions and warnings as a whole do not adequately inform the user of the potential dangers?

It is now generally acknowledged that the action for breach of warranty is an offspring of mixed parentage, aspects of it sounding in both tort and contract, but following strictly the rules and precedents of neither. In its pure form, an action for breach of implied warranty of merchantability under G.S. § 25-2-314 (and all other analogous state enactions of U.C.C. 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 the implied warranty of merchantability proximately caused the injury, and (5) the plaintiff so injured gave timely notice to the seller. The action is akin to the action of strict liability in tort, except that proof of negligence and foreseeability of injury are not required. It is also akin to a contract action, except that privity requirements have become considerably more relaxed by the various courts in recent years and further, affirmative defenses of disclaimer and failure to give timely notice may be asserted by the seller. We abandon as hopeless any efforts to characterize the warranty action as either tort or contract, but will draw upon both types of precedent as appropriate in fashioning our view of "merchantability" under G.S. § 25-2-314. As was stated by Justice Sharp (now Chief Justice) in her concurring opinion in Terry v. Bottling Co., 263 N.C. 1, 138 S.E.2d 753

Page 348

(1964) (where plaintiff was suing over a green fly found in her bottled soft drink):

Strict liability for a food manufacturer's or supplier's default is Sui generis. As to it, distinctions between tort and contract, either procedural or substantive, are artificial and unjustified, so that the law of primary and secondary liability [40 N.C.App. 481] ought to be appropriate irrespective of whether warranty is descended from tort or contract.

. . . Whether we call the rule for which I contend strict liability in tort, as the professors and chaste logic might require, or an implied warranty of fitness imposed by law makes no difference. Id. at pp. 12, 13, 138 S.E.2d 760, 761.

We likewise find any distinctions between tort and contract in this warranty action to be artificial and unnecessary to our consideration of merchantability. For general commentary on evolution of this area of the law, See J. White and R. Summer, Handbook of the Law under the Uniform Commercial...