NO. COA02-967

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2003

    Appeal by plaintiff from judgment entered 27 March 2002 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 16 April 2003.

    Kelly & Rowe, P.A., by James Gary Rowe, for plaintiff appellant.

    Van Winkle, Buck, Wall, Sterns & Davis, by Stephan J. Grabenstein, for defendant appellees.

    ELMORE, Judge.

    Anelia R. Brady (“plaintiff”) appeals from an order granting summary judgment in favor of defendants Ameriplus, Inc. (“Ameriplus”), Family Dollar Stores of Asheville, Inc. (“FamilyDollar Stores”), and Family Dollar Services, Inc. (“Family Dollar Services”) entered 27 March 2002.
    Taken in the light most favorable to plaintiff, the evidence tended to show that plaintiff purchased Family Dollar Mildew Stain Remover from a Family Dollar store in July 1996. Plaintiff used the product to clean her shower on 17 July 1996 and again on the morning of 18 July 1996. Shortly after applying the product on the morning of 18 July 1996, plaintiff used the shower. At the time, plaintiff did not notice any odor generated by the stain remover but, later that day, developed a cough and shortness of breath. She was admitted to the emergency room at Memorial Mission Hospital on 21 July 1996 and again on 5 August 1996, where she received treatment for reactive airway disease. Plaintiff claims that she was unable to return to work for approximately three months and that she continues to suffer from respiratory problems.
    Plaintiff filed suit against defendants alleging negligence, breach of express warranty, breach of implied warranty of merchantability, and breach of fitness for a particular purpose. On 6 March 2002, defendants filed a motion for summary judgment. On 27 March 2002, after careful consideration of the supporting affidavits, the pleadings, and other evidence presented by the parties, the trial court ordered that summary judgment be entered in favor of defendants.    On appeal, plaintiff makes the following assignments of error: 1) that the trial court erred in granting summary judgment for defendants because there was a genuine issue of material fact as to whether Ameriplus manufactured the product at issue; and 2) that the trial court erred in granting summary judgment for defendants because the issue of Ameriplus's negligence should have been submitted to a jury. We disagree with plaintiff's contentions and affirm the trial court's order.
    Initially, we note that plaintiff does not contest the trial court's decision to grant summary judgment in favor of defendants Family Dollar Stores and Family Dollar Services. Therefore, to the extent that any issue regarding these defendants may have been raised by plaintiff's assignments of error, they are deemed waived under the N.C.R. App. P. 28(a).
    Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001); DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002). “An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whomit is resolved from prevailing in the action.” Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). A genuine issue is one supported by substantial evidence. Id. “Substantial evidence is more than a scintilla or a permissible inference.” Utilities Commission v. Trucking Co., 223 N.C. 687, 690, 28 S.E.2d 201, 203 (1943). It is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977).
    The party seeking summary judgment has the burden of establishing the lack of any triable issue of material fact. DeWitt, 355 N.C. at 681, 565 S.E.2d at 146. “Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.” Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664, disc. review denied, 353 N.C. 262, 546 S.E.2d 401 and cert. denied, 353 N.C. 371, 547 S.E.2d 810-11 (2000). In determining whether summary judgment is proper, the evidence presented must be viewed in the light most favorable to the non-moving party. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).    In support of defendants' motion for summary judgment, Ameriplus presented compelling evidence demonstrating that it was not the manufacturer of the product at issue. The affidavit of Ameriplus President Steve Poirier states, “Ameriplus, Inc. did not design, construct, manufacture, or produce the Family Dollar Mildew Stain Remover at issue in this case.” The affidavit further indicates that Ameriplus purchased the product from Crest Products, Inc. (“Crest Products”) in a sealed container before reselling the product to Family Dollar Stores. Ameriplus also presented a Material Safety Data Sheet (“MSDS”) dated 10 July 1995 listing Crest Products as the manufacturer of Family Dollar Mildew Stain Remover.
    Plaintiff argues, however, that the pleadings and evidence support her position that a genuine issue of material fact existed as to whether Ameriplus was the manufacturer. First, plaintiff points to the initial answer filed by Family Dollar Stores and Family Dollar Services indicating that Ameriplus was the manufacturer of Family Dollar Mildew Stain Remover. Plaintiff also points to the amended answer filed by Family Dollar Stores and Family Dollar Services, which identifies Ameriplus as the “distributor or manufacturer.” However, such responses do not constitute specific facts as would be admissible into evidence and do not amount to a forecast of evidence supporting plaintiff'sposition. See N.C. Gen. Stat. § 1A-1, Rule 56(e); Gaunt, 139 N.C. App. at 784-85, 534 S.E.2d at 664. Furthermore, Ameriplus specifically and repeatedly denied manufacturing the product in its own answer.
    Plaintiff also contends that her position is supported by an MSDS dated 25 June 1992, which was produced by Ameriplus during discovery. This MSDS lists Ameriplus as the manufacturer of a product called Tile Plus Mildew Stain Remover. Though this document certainly supports an inference that Ameriplus at one time manufactured a mildew stain remover product, plaintiff has failed to demonstrate how this MSDS supports an inference that plaintiff was involved in the manufacture of Family Dollar Mildew Stain Remover, the product at issue.
    Finally, plaintiff points to evidence of overlapping stock ownership, overlapping managers, and contact information shared by both Crest and Ameriplus. Such information does not constitute substantial evidence that Ameriplus was the manufacturer of the product at issue and plaintiff has not referenced any legal authority supporting a conclusion that the two corporations should be treated as one.
    We hold that plaintiff's forecast of evidence fails to demonstrate a genuine issue of material fact. Even when viewed in the light most favorable to plaintiff, the evidence presented byplaintiff is not substantial and does not support a reasonable inference that Ameriplus was the manufacturer of the product at issue. Without substantial evidence that Ameriplus manufactured the Family Dollar Mildew Stain Remover, plaintiff cannot establish a prima facie case of negligence against said defendant. Ameriplus is, therefore, entitled to judgment as a matter of law. Accordingly, the trial court properly granted defendants' motion for summary judgment.
    Affirmed.
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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