Reid v. Eckerds Drugs, Inc.

• Decision Date: 03 April 1979
• Docket Number: No. 7814SC483,7814SC483
• Parties: , 26 UCC Rep.Serv. 20 Frankie REID v. ECKERDS DRUGS, INC.
• Court: North Carolina Court of Appeals

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.

Grover C. McCain, Jr., Durham, for plaintiff appellant.

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

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.

Plaintiff's complaint alleged counts of negligence and breach of warranty against Eckerds Drugs, Inc., the store that retailed 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.

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 (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 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 Code § 9-6 (1972); Hodge, Products Liability: The State of the Law in North Carolina, 8 Wake Forest Law Rev. 481 (1972); Annotation, 83 A.L.R.3rd 694 (1978); N.C. G.S. § 25-2-314, Official Comment PP 10, 11 and 13 and North Carolina Comment; Terry v. Bottling Co., supra; 2 L. Frumer and M. Friedman, Products Liability § 16.01 et seq.

Resolution of these questions (concerning definitional aspects and parameters of merchantability) will depend upon case law and further legislation which can properly evaluate changing standards of fitness in light of the competing interests of seller and buyer. . . . The UCC merely provides a conceptual framework for the deeper and more exacting analysis of merchantability.

C. Bunn, H. Snead and R. Speidel, An Introduction to the Uniform Commercial Code § 2.26(B) (1964). Noting the general absence of statutory constraints upon the definition of merchantability, we turn to a detailed factual analysis of the case Sub judice to assist our consideration of the question posed.

Two things are apparent with reference to the aerosol deodorant can: (1) the product contained therein was not available to the ultimate consumer, and it was not useable by him as it was constituted, without the assistance of the pressurized aerosol can and its propellant. (We are not unaware that non-aerosol deodorant formulations are available; we are merely observing that for the consumer of an aerosol spray deodorant to avail himself of the deodorant, he must also purchase and use the aerosol can. The one is an integral part of the other and the combination of product and dispenser are the "good" that reaches the consumer for his ultimate use.) Hence, any effort to distinguish between the deodorant and its aerosol applicator is unrealistic and specious; (2) the directions for use of the product clearly contemplate the use of the product as contained and dispensed by the aerosol can. The warnings of the label are easily understood to refer to the can itself and its proper use. No specific warnings about the use and formulation of the deodorant itself are given. Therefore, when it is assumed that both the can and its contents are components of the product for the ultimate consumer, it must also be assumed that the labeling and packaging of the whole product should fairly be expected to warn of any dangerous properties of both contents And container, especially where the normal and proper use of the product dictates that the contents of the container will be expelled from the container and will be exposed to conditions,...