Williams v. General Motors Corp.

• Decision Date: 12 September 1973
• Docket Number: No. 7318SC561,7318SC561
• Parties: , 13 UCC Rep.Serv. 444 Inez Hooker WILLIAMS v. GENERAL MOTORS CORPORATION and Traders Chevrolet Company.
• Court: North Carolina Court of Appeals

Page 766

198 S.E.2d 766

19 N.C.App. 337, 13 UCC Rep.Serv. 444

Inez Hooker WILLIAMS v. GENERAL MOTORS CORPORATION and Traders Chevrolet Company.

No. 7318SC561.

Court of Appeals of North Carolina.

Sept. 12, 1973 Certiorari Denied by Supreme Court Nov. 1, 1973.

Max D. Ballinger, Greenboro, for plaintiff appellant.

Smith, Moore, Smith, Schell & Hunter, by Beverly C. Moore, Greensboro, for defendant appellee General Motors Corporation.

Jordan, Wright, Nichols, Caffrey & Hill, by Karl N. Hill, Greensboro, for defendant appellee Traders Chevrolet Company.

BRITT, Judge.

Plaintiff's sole assignment of error is the granting of the motions for directed verdict. The test of whether the court may grant a motion for directed verdict in favor of a defendant at the close of plaintiff's evidence is whether, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff when all the evidence is considered in the light most favorable to the plaintiff. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971).

Plaintiff's evidence tended to show: She had borrowed the automobile in question from one James Milton for a trip to Baltimore, Maryland. Milton had recently acquired the vehicle, a 1966 Chevrolet Caprice made by defendant General Motors Corporation (GMC), from defendant Traders Chevrolet Company (Traders). She had borrowed the car on other occasions but had never had the accelerator stick. The accelerator had stuck previously while Milton was driving the car and he had told Mr. Edwards, a salesman of Traders who had sold him the car, about the problem. However, at the time of the accident Milton was not driving or riding in the car and had not had the problem corrected. As plaintiff was driving the borrowed auto along Interstate 85 near Petersburg, Virginia, and where the road came to a dead end, she could not stop the car either by taking her foot off the accelerator, depressing the brakes, or applying the emergency brake. Plaintiff noted that the speedometer registered 90 m.p.h. at this point. All traffic was forced to take an exit ramp by the dead end and in negotiating the ramp plaintiff struck a guardrail due to the excessive speed, left the road, and sustained injuries.

Through the testimony of W. D. McClure of GMC, plaintiff showed that there was a recall of some 1966 Chevrolets due to a problem with the fast idle cam in the carburetor breaking and jamming the throttle open. McClure's testimony also showed that there were specific serial numbers involved, not all 1966 Chevrolet Caprice automobiles were recalled, and he did not know if this particular auto was one of those which should have been recalled.

As to GMC, plaintiff relies on seven theories: (1) misrepresentation, (2) breach of warranty, (3) negligence in design of the accelerator and brake systems, (4) negligence in failure to inspect and test the accelerator and brake systems, (5) negligence in the manufacture and installation of the accelerator and brake systems, (6) negligence under the doctrine of res ipsa loquitur, and (7) strict liability in tort.

Plaintiff presented no evidence tending to show representations or misrepresentations made by GMC to anyone.

Plaintiff concedes that as to breach of warranty, the law of the place of the contract governs, Fast v. Gulley, 271 N.C. 208, 155 S.E.2d 507 (1967), and that in this case the place of the contract is North Carolina. It appears to be settled in this jurisdiction that, subject to some exceptions, it is the general rule that only a person in privity with the warrantor may recover on the warranty. Wyatt v. Equipment Company, 253 N.C. 355, 117 S.E.2d 21 (1960). The slight erosion in this State of the privity requirement in breach of warranty actions appears to have been limited to cases involving food, drink and insecticides in sealed containers, which had warnings on the label which reached the ultimate consumer. Byrd v. Rubber Company, 11 N.C.App. 297, 181 S.E.2d 227 (1971). Plaintiff presented no evidence of an express warranty to which she has privity, and no evidence of any advertising or directions as to use by GMC so that a warranty can be viewed as running to her as in the cases of Tedder v. Bottling Co., 270 N.C. 301, 154 S.E.2d 337 (1967) and Corprew v. Chemical Corp., 271 N.C. 485, 157 S.E.2d 98 (1967). Neither may plaintiff take advantage of any warranties implied by the Uniform Commercial Code, G.S. Ch. 25, since her evidence shows that she is not a member of the family or household or a guest in the home of the buyer so as to escape the privity requirement. G.S. § 25-2-318.

As to res ipsa loquitur, our Supreme Court has held that where the plaintiff's injury occurs in Virginia and plaintiff relies on the doctrine of res ipsa loquitur, the substantive rights of the parties are governed by the law of that state. Jones v. Elevator Co., 234 N.C. 512, 67 S.E.2d 492 (1951). Therefore, we look to the law of Virginia for the law of this case on that theory.

In Arnold v. Wood, 173 Va. 18, 25, 3 S.E.2d 374, 376 (1939), we find:

" * * * (I)t is well settled in this State that this doctrine applies only in the absence of evidence and when the cause of the accident is not explained. It does not apply where, as in the instant case, there is evidence explaining the cause of the accident. Richmond v. Hood Rubber Products Co., 168 Va. 11, 16, 17, 190 S.E. 95; Norfolk Coca-Cola Bottling Works, Inc. v. Krausse, 162 Va. 107, 115, 173 S.E. 497; Riggsby v. Tritton 143 Va. 903, 912, 129 S.E. 493, 45 A.L.R. 280."

* * * The doctrine rests upon the assumption that the thing which causes the injury is under the exclusive management and control of the defendant, and that the accident is such as in the ordinary course of events does not happen without fault on the part of the defendant. Duke v. Luck, 150 Va. 406, 412, 143 S.E. 692. But the doctrine does not apply in the case of an unexplained accident which may have been attributable to one of several causes, for some of which the defendant is not responsible. Peters v. Lynchburg Light & Traction Co., 108 Va. 333, 337, 61 S.E. 745, 22 L.R.A.,N.S., 1188; Riggsby v. Tritton, supra (143 Va. 903, at pages 914, 915, 129 S.E. 493, 45 A.L.R. 280)."

In the instant case plaintiff had ready access to the cause of the accident and, indeed, put on evidence as to the cause. Therefore, this is not a case of an unexplainable event so that the doctrine would apply under Virginia law. In addition, plaintiff's evidence clearly shows that GMC did not at all times have exclusive control over the automobile, and there was ample time after the vehicle left the hands of GMC during which time something else could have happened to it which could cause the accident.

Strict liability is similar to the doctrine of res ipsa loquitur in that it creates substantive rights in the parties. This being, true, under the strict liability theory the rights of the parties in this case...