Warzynski v. Empire Comfort Systems, Inc., 904SC260

• Docket Nº: No. 904SC260
• Citation: 401 S.E.2d 801, 102 N.C.App. 222
• Case Date: March 19, 1991
• Court: Court of Appeal of North Carolina (US)

Page 801

401 S.E.2d 801 102 N.C.App. 222, 15 UCC Rep.Serv.2d 463 Timothy Glenn WARZYNSKI and wife, Nannette Harper Warzynski,
Plaintiffs,
v.
EMPIRE COMFORT SYSTEMS, INC. Safel-Inelsa Orbaiceta, S.A.
and Jenkins Gas Company of Pollocksville, North
Carolina, Defendants. No. 904SC260. Court of Appeals of North Carolina. March 19, 1991.

Blanchard, Tucker, Twiggs & Abrams, P.A. by Charles F. Blanchard and Jerome P. Trehy, Jr., Raleigh, for plaintiff-appellant/appellee.

White & Allen, P.A. by John R. Hooten and John C. Archie, Kinston, for defendant-appellant/appellee Jenkins Gas Co. of Pollocksville, N.C.

Maupin Taylor Ellis & Adams, P.A. by Mark S. Thomas and M. Keith Kapp, Raleigh, for defendant-appellant Safel-Inelsa, S.A.

Harris and Associates by Thomas E. Harris and C. David Creech, New Bern, for the defendant-appellee Empire Comfort Systems, Inc.

EAGLES, Judge.

We first address the plaintiffs' and defendant Safel's appeal of the entry of summary judgment in favor of Empire Comfort Systems. Here, summary judgment was based on the sealed container defense of G.S. 99B-2(a). We hold that the trial court erred in granting summary judgment for Empire because a genuine issue of material fact existed as to whether Empire was the apparent manufacturer of the heaters. By so holding, we adopt § 400 of the Restatement (Second) of Torts and conclude that a seller who holds himself out to the public as the manufacturer of a product is not protected from products liability actions by G.S. 99B-2(a).

G.S. 99B-2(a) provides:

No product liability action, except an action for breach of express warranty, shall be commenced or maintained against any seller when the product was acquired and sold by the seller in a sealed container or when the product was acquired and sold by the seller under circumstances in which the seller was afforded no reasonable opportunity to inspect the product in such a manner that would have or should have, in the exercise of reasonable care, revealed the existence of the condition complained of, unless the seller damaged or mishandled the product while in his possession; provided, that the provisions [102 N.C.App. 226] of this section shall not apply if the manufacturer of the product is not subject to the jurisdiction of the courts of this State or if such manufacturer has been judicially declared insolvent.

Here, the parties direct their arguments to the exceptions to the sealed container defense of G.S. 99B. We conclude that none of the parties dispute that Empire acquired the heaters from Safel in sealed containers. The plaintiffs first contend that the trial court erred in granting summary judgment because Empire made express warranties regarding the heaters. As noted above, G.S. 99B-2(a) excludes actions for express warranties. We find plaintiff's argument that Empire made express warranties without merit. Empire advertised that it sold "America's most complete line of reliable, economical gas heating appliances." Under the Uniform Commercial Code "a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty." G.S. 25-2-313(2). Under the facts presented, we cannot say that Empire's statement that the heater was "reliable" was so regarded by the Warzynskis as to be part of the reason for their purchase. See 3 A. Squillante & J. Fonseca,

Page 804

Williston on Sales § 17-5 (4th ed. 1974). Accordingly, we hold that the language in Empire's advertisement is merely puffing and not an express warranty.

Plaintiffs also argue that Empire is not entitled to assert the sealed container defense under G.S. 99B because Empire was more than a "mere conduit" in the distribution chain. We agree.

Plaintiffs rely on the Restatement (Second) of Torts which provides as follows: "One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer." Restatement (Second) of Torts § 400 (1965). Comment d provides:

[W]here it is clear that the actor's only connection with the chattel is that of a distributor of it (for example, as a wholesale or retail seller), he does not put it out as his own product and the rule stated in this section is inapplicable. Thus, one puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark.... The mere fact that the goods are marked with such additional words as "made for" the seller, or describe him as a distributor, particularly in the absence of a clear and distinctive designation of the real manufacturer or packer, is not sufficient to make inapplicable the rule stated in this Section....[102 N.C.App. 227] However, where the real manufacturer or packer is clearly and accurately identified on the label or other markings on the goods, and it is also clearly stated that another who is also named has nothing to do with the goods except to distribute or sell them, the latter does not put out such goods as his own. That the goods are not the product of him who puts them out may also be indicated clearly in other ways.

Restatement (Second) of Torts § 400 comment d (1965).

Our research disclosed only one case in which the appellate courts of this state have considered section 400 of the Restatement. The Supreme Court cited this section of the Restatement with approval in dicta in Rulane Gas Co. v. Montgomery Ward & Co., 231 N.C. 270, 56 S.E.2d 689 (1949).

Empire argues that section 400 is a form of strict liability and that it is contrary to the express language of G.S. 99B-2. We disagree. Section 400 is not a form of strict liability because it does not impose on sellers the absolute duty to make products safe. It merely provides that a seller is subject to the same liability as a manufacturer if the seller leads the public to believe that he is the manufacturer. Empire also contends that in...