JONATHAN KEITH EVANS,
Plaintiff,
v.
JOSEPH S. EVANS and HAROLD KEITH EVANS, d/b/a EVANS FARMS,
WESTERN OIL FIELD SUPPLY COMPANY, d/b/a LAKE COMPANY, CUSTOM
STAMPING & MFG. CO., BROCK TRACTOR & EQUIPMENT CO., INC., and LEE
TRACTOR CO., INC., d/b/a LEE TRACTOR OF ROCKY MOUNT,
Defendants.
Gibbons, Cozart, Jones, Hughes, Sallenger & Taylor, by W. Earl
Taylor, Jr. and Andrew J. Whitley, for plaintiff-appellant.
Teague, Campbell, Dennis & Gorham, L.L.P., by Donald F.
Lively, for defendant-appellee Custom Stamping & Mfg. Co.
HUDSON, Judge.
Jonathan Keith Evans (“plaintiff”) appeals a judgment entered
in favor of Custom Stamping and Manufacturing Company, Incorporated
(“Custom”), and an order denying his motion for a new trial. For
the reasons given below, we affirm.
Plaintiff was injured when a clamp failed on an irrigation
system while he was working for Evans Farms, a farming business
owned by his father and uncle. Some part of the irrigation
assembly, or possibly water at high pressure, struck plaintiff in
the face, causing serious, permanent injuries, including blindness
in both eyes. Neither plaintiff's father nor his uncle, who were
both working nearby when the accident occurred, saw what happened. Plaintiff does not remember anything about the incident.
Plaintiff filed a complaint against Evans Farms and Western
Oil Field Supply, d/b/a Lake Company (“Lake Company”). Plaintiff
later amended his complaint to add additional defendants, of which
Custom is one. Custom manufactured the clamp at issue for Lake
Company, which was the clamp's retailer. Prior to trial,
plaintiff's claims against all defendants except Custom were either
dismissed or settled, and the case proceeded to trial only against
Custom.
Plaintiff's claims against Custom included failure to give
adequate warnings; breach of implied warranty of merchantability;
and negligence in the design of the clamp. Dr. Anand David
Kasbekar testified for plaintiff as an expert witness in the field
of mechanical engineering and material science and in the field of
failure analysis of metallic components. He testified that, due to
its construction, the clamp deformed with use, as a result of which
the clamp could appear to be securely closed but then “flop open.”
Dr. Kasbekar opined that the deformation of the clamp occurred as
a result of being closed around a part that was slightly too big or
around parts that were not properly aligned. Additional testimony
of relevance here was that of David Stout, the president of Custom,
who testified to the nature of Custom's business. We discuss the
testimony in further detail below.
At the close of all the evidence, Custom moved for directed
verdict, and the trial court granted Custom's motion on the issues
of failure to give adequate warnings and breach of implied warrantyof merchantability. The trial court did not give the specific
instruction that plaintiff requested on the duty of a manufacturer
with respect to design. The jury returned a verdict finding that
plaintiff was not injured by the negligence of Custom. Plaintiff
moved for a new trial. The trial court entered judgment in favor
of Custom and denied plaintiff's motion for a new trial. Plaintiff
now appeals.
In his first two assignments of error, plaintiff contends that
the trial court erred by granting directed verdicts for Custom on
plaintiff's claims for failure to provide adequate warnings and
breach of implied warranty of merchantability. “On appeal from a
directed verdict, this Court must determine whether there is
substantial evidence of each essential element of a plaintiff's
claim.” Horack v. Southern Real Estate Co. of Charlotte, Inc., __
N.C. App. __, __, 563 S.E.2d 47, 53 (2002). “Substantial evidence
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” State v. Smith, 300 N.C. 71,
78-79, 265 S.E.2d 164, 169 (1980). On a motion for a directed
verdict at the close of all evidence, “the trial court must
determine whether the evidence, when considered in the light most
favorable to the nonmovant, is sufficient to take the case to the
jury.” Southern Bell Tel. & Tel. Co. v. West, 100 N.C. App. 668,
670, 397 S.E.2d 765, 766 (1990), aff'd, 328 N.C. 566, 402 S.E.2d
409 (1991). “The court should deny a motion for directed verdict
when there is more than a scintilla to support plaintiffs' prima
facie case. Where the question of granting a directed verdict isa close one, the better practice is for the trial judge to reserve
his decision on the motion and submit the case to the jury.”
Edwards v. West, 128 N.C. App. 570, 573, 495 S.E.2d 920, 923
(citation omitted), cert. denied, 348 N.C. 282, 501 S.E.2d 918
(1998).
The General Assembly has created special proof requirements in
a cause of action for the failure to give an adequate warning in a
product liability case:
(a) No manufacturer or seller of a
product shall be held liable in any product
liability action for a claim based upon
inadequate warning or instruction unless the
claimant proves that the manufacturer or
seller acted unreasonably in failing to
provide such warning or instruction, that the
failure to provide adequate warning or
instruction was a proximate cause of the harm
for which damages are sought, and also proves
one of the following:
(1) At the time the product left
the control of the manufacturer or seller, the
product, without an adequate warning or
instruction, created an unreasonably dangerous
condition that the manufacturer or seller
knew, or in the exercise of ordinary care
should have known, posed a substantial risk of
harm to a reasonably foreseeable claimant.
(2) After the product left the
control of the manufacturer or seller, the
manufacturer or seller became aware of or in
the exercise of ordinary care should have
known that the product posed a substantial
risk of harm to a reasonably foreseeable user
or consumer and failed to take reasonable
steps to give adequate warning or instruction
or to take other reasonable action under the
circumstances.
N.C. Gen. Stat. § 99B-5(a) (2001). Plaintiff argues that the
testimony of Dr. Kasbekar regarding warnings was sufficient toaddress these requirements and send the claim to the jury. Dr.
Kasbekar testified as follows regarding warnings:
A. There should be some warning on this
clamp, some warning to indicate to the user
the severity of the hazard should it fail, and
also a warning to tell the user when the clamp
is worn and should be discarded, if that's the
manufacturer's position that these will wear
out and should be discarded at some point.
Obviously there's not enough room on
this clamp to have a lot of specific
instructions, at least not big enough that
someone could read them. So the practice I
would suggest would be to warn of the severity
of the hazard, which, in my opinion, would be
severe or fatal injury, at least with a high
pressure irrigation system, and to instruct
the user to either contact the manufacturer or
refer him to a booklet provided by the
manufacturer to let him know how the clamp
should be applied, how to inspect the clamp
properly if that needs to be done to prevent
this type of situation.
I think the other witness had
testified that if he knew that the clamp was
doing this (illustrating) that he wouldn't
have used it. But if these are sitting in an
open position on your truck and you go to grab
one and you place it around an object and
either do the--
. . . .
--either due to misalignment of the hasp or
misalignment of the fittings or a fitting
that's a couple tenths of an inch bigger than
it should be, you go to close it and it closes
in a secure manner, then you have no idea that
that clamp is actually loose. If you are
instructed that before you apply this clamp
you should always join it together and line up
the hasp and turn it upside down to make sure
that it's functioning properly, that would
probably eliminate that.
Additionally, Dr. Kasbekar testified that
if it is the manufacturer's intent for thisclamp only to be used with components supplied
by the manufacturer or certain brands of
components, then I think that should be stated
somewhere on the clamp because what I learned,
talking with other experts in the area and
doing some research on my own, is that there
are six inch irrigation fittings and there's
actually six inch fittings that are slightly
smaller and some that are slightly bigger.
And, in fact, one of the clamps that
we were provided with turns out to have a
quarter inch smaller diameter than the subject
clamp although it's still called a six inch
clamp. And when you've got things that may
vary by a quarter of an inch but it takes less
than a quarter of an inch to totally deform
the clamp so it's no longer useable, you've
got a potential problem.
Assuming without deciding that there was sufficient evidence
to create a jury question on whether Custom acted unreasonably in
failing to provide these warnings, plaintiff proffered no evidence
that Custom's failure to provide the warnings was the proximate
cause of plaintiff's injuries. Therefore, we conclude that
plaintiff failed to provide “substantial evidence of each essential
element of [his] claim.” Horack, __ N.C. App. at __, 563 S.E.2d at
53. Accordingly, the trial court did not err by directing a
verdict for Custom on this claim.
Plaintiff also argues that the trial court erred by directing
a verdict for Custom on the issue of whether Custom breached the
implied warranty of merchantability. The Uniform Commercial Code,
as adopted in North Carolina, provides:
(1) Unless excluded or modified (G.S.
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. . . .
(2) Goods to be merchantable must be at
least such as
(a) pass without objection in the
trade under the contract
description; and
(b) in the case of fungible goods,
are of fair average quality
within the description; and
(c) are fit for the ordinary
purposes for which such goods
are used; and
(d) run, within the variations
permitted by the agreement, of
even kind, quality and quantity
within each unit and among all
units involved; 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.
N.C. Gen. Stat. § 25-2-314 (2001). This Court has stated that
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.
Reid v. Eckerds Drugs, Inc., 40 N.C. App. 476, 480, 253 S.E.2d 344,
347, disc. review denied, 297 N.C. 612, 257 S.E.2d 219 (1979).
The North Carolina Supreme Court has recently clarified how a
plaintiff may present a prima facie case for the jury on breach of
an implied warranty of merchantability, when the evidence iscircumstantial. Dewitt v. Eveready Battery Co., Inc., ___ N.C.
___, 565 S.E.2d 140 (2002). The Court noted the following:
In some cases, the plaintiff may be able to prove that
the product suffered from a specific defect by producing
expert testimony to explain to the jury precisely how the
product was defective and how the defect must have arisen
from the manufacturer or seller. In cases of a
manufacturing defect, such expert testimony is certainly
desirable from the plaintiff's perspective, but it is not
essential. The plaintiff, even without expert testimony
articulating the specific defect, may be able to convince
a jury that the product was defective when it left the
seller's hands by producing circumstantial evidence.
Such circumstantial evidence includes (1) the malfunction
of the product; (2) expert testimony as to a variety of
possible causes; (3) the timing of the malfunction in
relation to when the plaintiff first obtained the
product; (4) similar accidents involving the same
product; (5) elimination of other possible causes of the
accident; and (6) proof tending to establish that the
accident does not occur absent a manufacturing defect.
Id. at __, 565 S.E.2d at 149-50 (emphasis by the Court) (citation
omitted).
Plaintiff argues that the clamp was “being used for its
intended purposes in a normal way,” when it failed, and therefore
it must not have been “fit for the ordinary purposes for which such
goods are used.” N.C.G.S. § 25-2-314(2). Although we do not
believe that the plaintiff must produce evidence of every factor
mentioned in Dewitt, we believe that we may refer to these factors
if they help us to determine whether the plaintiff's circumstantial
evidence as a whole satisfies the requirements of the statute.
Applying the factors in Dewitt here, we conclude otherwise.
Joseph Stevens Evans, plaintiff's father, testified that the
clamp involved here had been in use in the farm's irrigation system
for two or three years. Plaintiff presented no evidence that thisclamp was manufactured any differently from the other clamps Custom
manufactured. David Stout, Custom's president, testified that
since 1972, Custom has made approximately 300,000 clamps per year
similar to the one at issue here. Prior to plaintiff's accident,
Stout had never received any complaints from his customers about
defects in the clamps. Dr. Ronald Sneed, plaintiff's expert
witness in the field of agricultural engineering, acknowledged on
cross-examination that the clamp did not violate any industry
custom or standard that he knew about, and that it would pass in
the irrigation industry as a merchantable clamp.
However, plaintiff's evidence did not eliminate other possible
causes of the accident, and provided no basis for an inference that
such an accident would not occur absent a manufacturing defect.
Reviewing the plaintiff's evidence as a whole, and by reference to
the Dewitt factors, we conclude that even if the evidence tended
to establish the first two factors, it did not support an inference
of any of the last four, or of any other fact tending to show a
defect existed when the clamp left the manufacturer. Thus, we
conclude that plaintiff failed to produce “substantial evidence of
each essential element of [his] claim,” in that his evidence does
not tend to establish a defect at the time of sale. Horack, __ N.C.
App. at __, 563 S.E.2d at 53. Accordingly, the trial court did not
err by directing a verdict for Custom on this claim.
In his third and final assignment of error, plaintiff contends
that the trial court erred by refusing to give his requested
instruction on Custom's duty regarding the design of the clamp. Our legislature has provided that:
No manufacturer of a product shall be held
liable in any product liability action for the
inadequate design or formulation of the
product unless the claimant proves that at the
time of its manufacture the manufacturer acted
unreasonably in designing or formulating the
product, that this conduct was a proximate
cause of the harm for which damages are
sought, and also proves one of the following:
(1) At the time the product left the
control of the manufacturer, the
manufacturer unreasonably failed to
adopt a safer, practical, feasible,
and otherwise reasonable alternative
design or formulation that could
then have been reasonably adopted
and that would have prevented or
substantially reduced the risk of
harm without substantially impairing
the usefulness, practicality, or
desirability of the product.
(2) At the time the product left the
control of the manufacturer, the
design or formulation of the product
was so unreasonable that a
reasonable person, aware of the
relevant facts, would not use or
consume a product of this design.
N.C. Gen. Stat. § 99B-6(a) (2001) (emphasis added).
Plaintiff requested the following instruction:
A manufacturer of a product, such as a
ring lock clamp, is under a duty to those who
use its product to use reasonable care in the
manufacture and inspection of the product so
as to not subject a person to injury from a
latent defect. A manufacturer is also under a
duty to those who use its product to exercise
that degree of care in its:
(1) design of the product;
(2) manufacture of the product;
(3) selection of materials;
(4) assembly process; and
(5) inspection of the product
that a reasonable and prudent person would use
under the same or similar circumstances to
protect others from injury.
A manufacturer's failure to use
reasonable care is negligence.
The court gave the following instruction:
Now, members of the jury, a manufacturer
of a product such as a ring lock clamp, is
under a duty to those who use its product to
use reasonable care in the manufacture and
inspection of the product so as not to subject
a person to injury from a latent defect. A
manufacturer is also under a duty to those who
use its product to exercise that degree of
care in its manufacture of the product,
selection of materials, assembly process, and
inspection of the product, that a reasonable
and prudent person would use under the same or
similar circumstances to protect others from
injury. A manufacturer's failure to use
reasonable care is negligence.
A manufacturer is also under a duty to
make reasonable efforts to correct design
defects about which it knows or should have
known.
Thus, the trial court omitted plaintiff's requested instruction
that a manufacturer is under a duty to exercise reasonable care in
the design of a product, instructing instead that a manufacturer is
under a duty to make reasonable efforts to correct design defects
about which it knows or should have known. Our Supreme Court has
explained:
When charging the jury in a civil case it
is the duty of the trial court to explain the
law and to apply it to the evidence on the
substantial issues of the action. If a party
contends that certain acts or omissions
constitute a claim for relief or a defense
against another, the trial court must submit
the issue with appropriate instructions if
there is evidence which, when viewed in the
light most favorable to the proponent, willsupport a reasonable inference of each
essential element of the claim or defense
asserted.
Cockrell v. Cromartie Transport Co., 295 N.C. 444, 449, 245 S.E.2d
497, 500 (1978) (citations omitted). Plaintiff argues that the
court's version of the instruction was inadequate because the jury
may have understood this instruction to impose on Custom only a
duty to correct a design defect after it is discovered, rather than
a duty to design the clamp correctly in the first instance.
Plaintiff's assertion, however, is not supported by law, as
N.C.G.S. § 99B-6(a) does not impose a duty of design on the
manufacturer. Rather, if the manufacturer designs the product,
then it has a duty to use reasonable care in the design. Plaintiff
did not proffer evidence to show that Custom was in fact the
designer of the clamp, as well as the manufacturer, of the clamp.
In fact, the evidence adduced at trial tends to show that Custom
did not design the clamp.
Plaintiff argues that Dr. Kasbekar's testimony constituted
evidence in support of the instruction he requested regarding the
design of the clamp. In particular, Dr. Kasbekar testified that
the clamp was “underdesigned.” He testified that “if the clamp had
been properly designed and constructed such that you didn't end up
with this condition (illustrating), then, more likely than not the
clamp would have held the two pieces together and this accident
wouldn't have happened.” Dr. Kasbekar explained that, due to the
materials used in the parts of the clamp, the latch plate could
become deformed, which caused, in part, the clamp to become loose. Additionally, other parts of the clamp were subject to wear and
deformation. Finally, the clamp became loose because the spring
stretched and elongated. Dr. Kasbekar testified that, in his
opinion, this happened because the spring was not strong enough.
Once the clamp is deformed, Dr. Kasbekar explained, “after it's
clamped it will simply flop open.” Dr. Kasbekar testified to his
opinion that the spring and latch plate were not “strong enough to
prevent permanent deformation or stretching of the two materials,
either the spring indenting the latch plate or the spring itself
stretching. A different type of material would probably prevent
that, or a larger diameter spring may also prevent that.” Dr.
Kasbekar testified further that, in his opinion, the clamp should
have contained a secondary locking device so that, if the spring
mechanism failed, the clamp could not open; plaintiff's uncle
attached such a device to the clamps after the accident.
This evidence may show that the clamp's designer acted
unreasonably in the design. It does not show, however, that Custom
was the clamp's designer. Dr. Kasbekar testified that the
selection of material was part of the design of the clamp. David
Stout, Custom's president, testified as follows:
Q. Tell the jury what your contract was
with Lake Company for making these clamps.
A. Our contract was to make clamps that
looked like the clamp that they showed us,
subject to the alterations that they
requested.
Q. All right. Who decided what kind of
metal to make the clamps out of?
A. Lake Company did.
Q. Who decided what kind of metal to
make the latch plate and the bale spring out
of?
A. Lake Company.
Q. Did they come in and give you
specifications for it, or a sample, or what?
A. They gave us a sample of the ring
lock and said we want you to do this the same
way.
Q. So, on what basis did you decide
what materials to buy to make the clamp out
of?
A. We got the same materials that were
incorporated in the other clamp.
Stout testified further that his company was approached by other
irrigation equipment manufacturers. These other manufacturers
“[said] basically the same thing the Lake Company did. 'We want a
ring lock like the Western ring lock, only we need a little bit
different configuration or diameter of the band itself . . . .'
They all wanted the same locking mechanism.” Stout testified that
all the manufacturers wanted the clamp to be manufactured from the
same materials as used in the Lake Company clamp. He emphasized
that “We don't do design.” Additionally, Stout testified as
follows:
Q. How many of [the manufacturers]
asked you to put a secondary locking device
like the one that Steve Evans designed?
A. None.
Q. What would you have done if they had
asked you to put on a secondary locking device
like the one that Steve Evans' [sic] designed?
A. If they'd specked it out, I wouldhave quoted it.
Q. And what would have been the result
to you?
A. It would be like getting another
job; we would be paid for that.
Stout's testimony indicates that Custom did not design the clamp
and that Custom did not select the material from which the clamp
was made. Custom merely followed the specifications given to it by
Lake Company. There was no evidence presented to contradict this
testimony, nor any evidence to suggest that Custom was the designer
of the clamp. In fact, plaintiff's counsel asked Stout on cross
examination if he knew who had designed the clamp, and Stout
identified “an engineer who worked for Western Irrigation in the
late '60s” as the one who “came up with the original design.”
We conclude that there is no evidence to show that Custom
designed the clamp. Accordingly, the law and evidence do not
support the instruction that plaintiff requested, and it was not
error for the trial court to refuse to give the instruction.
In summary, the superior court did not err by granting a
directed verdict for Custom on the issues of failure to warn and
breach of implied warranty of merchantability, or by failing to
give plaintiff's requested design instruction. Accordingly, we
affirm the judgment and the order denying plaintiff's motion for a
new trial.
Affirmed.
Judge BIGGS concurs.
Judge GREENE concurs in the result with a separate opinion.
GREENE, Judge, concurring in the result.
I agree with the majority that the trial court properly
granted Custom's motion for a directed verdict as to plaintiff's
claims for failure to provide adequate warnings and breach of the
implied warranty of merchantability but reach this conclusion using
a different analysis.
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