Simpson v. Hurst Performance, Inc.
| Decision Date | 02 September 1977 |
| Docket Number | No. C-76-80-WS.,C-76-80-WS. |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | Frieda Marlene Hanks SIMPSON, Plaintiff, v. HURST PERFORMANCE, INC., Defendant. |
Daniel J. Park and Raymond A. Parker, II, Elkin, N. C., for plaintiff.
William F. Maready of law firm of Hudson, Petree, Stockton, Stockton & Robinson, Winston-Salem, N. C., for defendant.
This matter came on for hearing before the Court on August 30, 1977, on the motions of the defendant for judgment on the pleadings and in the alternative for summary judgment. The plaintiff instituted a civil action against the defendant seeking damages for personal injuries sustained by the plaintiff as a result of defendant's alleged negligence.
On July 18, 1974, the plaintiff was a passenger in an automobile which was equipped with a bench-type front seat. She was sitting in the middle of the front seat when the automobile was involved in a head-on collision with another vehicle. On impact, the plaintiff was thrown off the front seat and was impaled upon a floormounted gearshift lever. There was no restraint or seat belt for one riding in the middle of the front seat. The automobile originally had a manual transmission gearshift lever mounted upon the steering column. However, a previous owner had purchased a Hurst Indy three-speed shifter and installed it in the automobile, the shifter being designed to modify the standard gearshift lever mounted on the steering column by replacing it with a floor mounted shifter. The Hurst shifter was manufactured by the defendant.
The plaintiff alleges (1) that the gearshift lever manufactured by the defendant was a dangerous instrumentality when installed in an automobile with a bench-type front seat; (2) that the defendant knew of the danger involved; and (3) that the defendant failed to exercise reasonable care to inform and warn purchasers or users of the gearshift lever of the dangerous condition created when such gearshift was installed in an automobile with a bench-type front seat.
The Court has jurisdiction by reason of 28 U.S.C. § 1332; the plaintiff is a resident of North Carolina and the defendant is a Pennsylvania corporation.
This action is not barred by the statute of limitations. At the time of the alleged negligence and of the accident the plaintiff was a minor, and she brought this action within three years after the removal of such disability. N.C.G.S. § 1-17. Even if plaintiff had not been a minor, the statute of limitations would not be a bar, because under N.C.G.S. § 1-15(b), the cause of action is deemed to have accrued on July 18, 1974, the date of the accident in which the injuries were incurred. Shuler v. Gaston County Dyeing Machine Co., 30 N.C.App. 577, 227 S.E.2d 634 (1976).
Any written statement which accompanied the purchase of the Hurst shifter attempting to limit warranties or other obligations would not be applicable to the plaintiff because of the lack of privity.
In North Carolina a manufacturer of products has the duty of reasonable or due care; he is not an insurer. Corprew v. Geigy Chemical Corp., 271 N.C. 485, 157 S.E.2d 98 (1967). In Swaney v. Peden Steel Co., 259 N.C. 531, 131 S.E.2d 601, 607 (1963), the North Carolina Supreme Court, quoting Restatement of Torts § 388, stated North Carolina law to be:
`One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so.'
The duty of reasonable care comprehends a duty to warn of danger and consequently a manufacturer of a product which to his actual or constructive...
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