Strickland v. Dri-Spray Division Equipment Development, DRI-SPRAY
| Decision Date | 03 March 1981 |
| Docket Number | DRI-SPRAY,No. 8011SC466,8011SC466 |
| Citation | 275 S.E.2d 503,51 N.C.App. 57 |
| Court | North Carolina Court of Appeals |
| Parties | Kermith Morris STRICKLAND v.DIVISION EQUIPMENT DEVELOPMENT, a corporation, and Leawon F. Johnson, d/b/a Johnson Paint and Wallpaper and Ransburg Corporation, a corporation and Spraying Systems Co., Inc., a corporation. |
Hugh C. Talton, Jr., Smithfield, for plaintiff-appellant.
Johnson, Patterson, Dilthey & Clay by Ronald C. Dilthey and Paul L. Cranfill, Raleigh, for defendant-appellee Leawon F. Johnson, d/b/a Johnson Paint and Wallpaper.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by C. Ernest Simons, Jr., Raleigh, for defendant-appellee Spraying Systems Co., Inc.
Plaintiff asserts that it was error for the court to allow either motion for summary judgment. He contends that there were triable issues of fact as to whether defendants knew of prior injuries resulting from the use of this model sprayer, and whether defendants warned plaintiff of any danger in using the sprayer.
Due to the similarity of the contentions of the parties and the applicable law, we will consider the court's action with regard to each of defendants' motions together.
Rendition of summary judgment is conditioned upon a showing by the movant that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972) and cases there cited. The defendants in the instant case have fulfilled the burden of clearly establishing the lack of any triable issue of fact.
Only in exceptional negligence cases is summary judgment appropriate.
Nonetheless, summary judgment is proper in negligence actions where it appears that there can be no recovery even if the facts as claimed by plaintiff are true. McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972); Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970).
Kiser v. Snyder, 17 N.C.App. 445, 450, 194 S.E.2d 638, 641, cert. denied 283 N.C. 257, 195 S.E.2d 689 (1973).
Plaintiff presented no evidence of hidden defects or dangers in this paint sprayer. He complained that the paint sprayer did not have adequate safeguards, and that defendants had failed to warn him of dangers involved in the use of the sprayer.
The evidence before the court tended to show that prior to the accident plaintiff was aware of the safety hazards involved in the use of such a pressurized paint sprayer. In his sworn deposition plaintiff stated:
On the morning of February 11, 1975, Mr. Allen and I went to Johnson Paint and Wallpaper. I had a general idea of what kind of equipment they would use to spray the inside of the dry kiln.
I do not know who we talked to at Johnson Paint and Wallpaper. I first saw the machine when a boy showed it to us. I recognized the machine as a paint sprayer. I had used a paint sprayer about a dozen times before this occasion. The ones I used, operated electrically and had an extension hose. The one involved in this incident operated with a gasoline engine and had a pipe-type device which sat down in the bucket of paint.
The paint sprayers I had previously used had a similar type nozzle or pistol grip like the one involved in this incident. In the actual spraying of the paint, the machine would be no different than the other sprayers I had used.
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Q. Now, after seeing the machine and you, yourself, having operated maybe a dozen, did you have any question in your mind on the use of this machine, yourself?
A. No, sir.
Q. When you left with the machine, then I take it, you felt you had an understanding of how to use the machine?
A. Right.
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During the day of February 11, I worked with the machine at least four hours that day. At no time during that day did I run into any mechanical problems with the machine itself.
Having used a spray gun on at least a dozen prior occasions and having used it on the afternoon of February 11, I knew that if I pulled the trigger on the nozzle and placed my hands in front of the nozzle, it would spray my hands with paint. Basically, the nozzle on the end of this spray gun has the appearance of a pistol. If you pull the trigger on a pistol and you have got your hands in front of it, you are going to get shot. And the same thing is true of this spray gun.
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Q. Now, when you use the gun and pull the trigger and spray, it comes out in a hissing sound, doesn't it?
A. Yes, sir.
Q. And that you knew was from pressure.
A. Right.
Q. At any time while you used the machine, did you put your hands in front of it?
A. No, sir.
Q. Why didn't you?
A. It's not safe.
Q. You knew that before it stopped up.
A. Yes, sir.
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* * * When I first started using the machine, I noticed that it had more force than the other paint sprayers I had used. I noticed that on the 11th when I first began using it. This was a gas operated engine. At no time did anything unusual happen with respect to the operation of the machine up to the moment the accident occurred.
The issue narrows to the question of whether, under the circumstances, defendant was under a duty to warn plaintiff concerning the danger involved in spraying the spray gun at a part of his body. "When a person has knowledge of a dangerous condition, a failure to warn him of what he already knows is without significance." Jones v. Aircraft Co., 253 N.C. 482, 491, 117 S.E.2d 496, 503 (1960). See Sellers v. Vereen, 267 N.C. 307, 148 S.E.2d 98 (1966); York v. Murphy, 264 N.C. 453, 141 S.E.2d 867 (1965); Spell v. Contractors, 261 N.C. 589, 135 S.E.2d 544 (1964); Flores v. Caldwell, 14 N.C.App. 144, 187 S.E.2d 377 (1972).
We are of the opinion that the evidence here, even when considered in the light most favorable to plaintiff,...
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