How to access the above link?
Return to nccourts.org
Return to the Opinions Page
1. Appeal and Error--appealability--interlocutory order-_substantial right--risk of inconsistent verdicts
Although plaintiff's appeal of the trial court's grant of summary judgment in favor of defendant Empire in a negligent repair and products liability case is an appeal from an interlocutory order, the order is immediately appealable because it affects a substantial right when: (1) the case involves allegations that the actions of each defendant combined to cause plaintiff's injury; and (2) there is a risk of inconsistent verdicts.
2. Appeal and Error--appealability--interlocutory order--substantial right--precluded
from obtaining contribution
Defendant Macclesfield's right to participate in the appeal of the interlocutory order granting summary judgment in favor of defendant Empire in a negligent repair and products liability case affects a substantial right because Macclesfield will be precluded from obtaining contribution from Empire in the event plaintiff obtains a judgment against Macclesfield, and thus, both plaintiff and defendant Macclesfield are entitled to an immediate appeal.
3. Products Liability--improper modification--proximate cause
The trial court did not err in a negligent repair and products liability action seeking to recover damages for injuries sustained as a result of carbon monoxide exposure by granting summary judgment in favor of defendant Empire based on its conclusion that N.C.G.S. § 99B-3 barred recovery by plaintiff, because: (1) the pertinent heater was manufactured for use with natural gas, modification of the heater for use with liquified petroleum under Empire's instructions required the installation of an air shutter bracket, and no air shutter bracket was found on the heater when it was examined after the incident; (2) a cause of plaintiff's injury was the improper mix of liquified petroleum and combustion air, which was caused at least in part by the lack of an air shutter bracket; and (3) N.C.G.S. § 99B-3 bars a manufacturer's liability where a proximate cause of the injury is the improper modification and does not require that the modification be the sole proximate cause.
4. Appeal and Error--appealability--interlocutory order--expedite administration of
Defendant Macclesfield's petition for writ of certiorari to hear the issue regarding the trial court's denial of defendant's motion for summary judgment in a negligent repair and products liability case is granted because the Court of Appeals is free to exercise its discretion and rule on an appeal from an interlocutory order where the decision would expedite the administration of justice.
5. Negligence--negligent repair--summary judgment--genuine issue of material fact
The trial court did not err by denying defendant Macclesfield's motion for summary judgment in a negligent repair action seeking to recover damages for injuries sustained as a resultof carbon monoxide exposure because there was a genuine issue of material fact as to whether Macclesfield's employee: (1) failed to repair the heater properly; (2) failed to inspect the work properly after it was performed; and (3) failed to properly test the heater after the work was performed.
6. Appeal and Error--appellate rules--memorandum of additional authority
Plaintiff and defendant Empire's motion to dismiss defendant Macclesfield's memorandum of additional authority is allowed because: (1) N.C. R. App. P. 28(g) provides that a memorandum may not be used for additional argument; and (2) Macclesfield has done more than provide the full citation and state the issue to which the additional authority applies.
Thomas & Farris, P.A., by Eliot F. Smith; Battle, Winslow,
Scott & Wiley, P.A., by M. Greg Crumpler, for Plaintiff-
Valentine Adams Lamar Murray Lewis & Daughtry, L.L.P., by Ernie K. Murray and Kevin N. Lewis, for Defendant-Appellant Macclesfield L-P Gas Company, Inc.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by James K. Dorsett, III and Christopher R. Kiger, for Defendant-Appellee Empire Comfort Systems, Inc.
Plaintiff filed this action against Macclesfield and Empire Comfort Systems, Inc. (Empire) to recover for injuries Plaintiff sustained as a result of carbon monoxide exposure. Plaintiff contended a gas heater in his home emitted the carbon monoxide . Both Macclesfield and Empire moved for summary judgment. The trial court granted summary judgment in favor of Empire, but deniedsummary judgment in favor of Macclesfield. Both Plaintiff and Macclesfield appeal the grant of summary judgment in favor of Empire, and Macclesfield appeals the denial of its motion for summary judgment.
Plaintiff testified that on 5 March 2002, he and his wife noticed that the front of a heater in their home was "black, sooty, [and] smutted" and was burning a yellow flame with a black tip. The following day, Plaintiff requested that Macclesfield service the heater. Michael Batts (Batts), an employee of Macclesfield, serviced the heater at Plaintiff's home on 7 March 2002. Plaintiff testified that Batts took part of the heater out to Batts's van, then returned to the house and put the heater back together. Plaintiff said he cleaned the bricks surrounding the heater and the glass at the front of the heater while Batts was putting the heater back together. Batts stated that the heater was "fixed" and turned the heater back on for approximately ten seconds. Plaintiff asked if there was any way to check the heater, and Batts said Macclesfield had a carbon monoxide detector, but that Macclesfield only used it on tobacco barns. According to Plaintiff, after servicing the heater, Batts did not light the flame for long enough to observe the color of the flame.
Batts testified that upon arrival at Plaintiff's house, Batts noticed the heater was producing a yellow flame. Batts removed the burner and "blew it out" with compressed nitrogen. Batts said he then replaced the burner, lit it, and observed the flame for approximately fifteen minutes. After Batts observed the flameburning blue, he left Plaintiff's house.
Plaintiff testified that sometime during the night of 7 March 2002, or in the early morning hours of 8 March 2002, he and his wife woke up with severe headaches and nausea. They awakened their daughters and immediately left the house. Plaintiff saw that the heater was still burning and went back inside the house to turn it off. While doing so, he saw that the heater was as black as it had been before Batts's service. One of Plaintiff's daughters passed out on the front porch, and then she vomited in front of the house. Plaintiff decided to drive his family to the hospital instead of waiting for an ambulance. Plaintiff drove to Heritage Hospital in Tarboro, where the family was diagnosed with carbon monoxide poisoning. The family was transported to Duke Hospital, where they were found to be asymptomatic. Each member of the family underwent a 155-minute hyperbaric chamber treatment at Duke and was discharged.
Plaintiff called Macclesfield on 11 March 2002 and requested that Batts return to Plaintiff's home to re-inspect the heater. Plaintiff testified that Batts turned the heater on and after about thirty seconds, the heater turned off. When Batts turned the heater on again, it did not turn off, and Plaintiff's newly- installed carbon monoxide sensors registered increasing carbon monoxide readings. Plaintiff saw Batts grab his throat and leave the house coughing. Batts removed the heater and replaced it with a new heater the following day.
According to Batts, when he returned to Plaintiff's home andturned the heater on, the flame burned blue for a few minutes and then "got kind of lazy looking[.]" The heater automatically shut off. Batts removed the heater from Plaintiff's house and took it to Macclesfield's premises the following day. Plaintiff retrieved the heater from Macclesfield sometime during the next week. Plaintiff testified that when he regained possession of the heater, it had been thoroughly cleaned.
David McCandless (McCandless), an engineer with Accident Reconstruction Analysis, Inc., examined the heater in April 2002. The heater was located in Plaintiff's living room and was no longer hooked up. McCandless performed a "cursory overall inspection" of the heater and discovered that the radiants were out of place, but nothing else appeared unusual. McCandless checked the gas system in the house and concluded that the pressure going into the house was proper for the liquified petroleum appliances. He also checked the vent system and the chimney and determined they were not blocked. He also examined the stove and found that it was operating properly. McCandless noted that the chimney was not taller than the surrounding structure, as required by the building codes then in effect.
McCandless testified that after further examination of the heater on 18 April 2002, he discovered "significant soot buildup" on the burner that contributed to a "lack of adequate air . . . into the burner assembly." McCandless opined that inadequate combustion started the soot buildup in the burner. McCandless also discovered that "the draft hood was not fully sealed so that thecombustion products instead of going in the draft hood and then up the flue were escaping the draft hood into the living space." McCandless testified that if there was no combustion problem, no carbon monoxide would be produced, so the leak would not have caused any health hazard. McCandless testified that his inspection showed that the correct quantity of gas was going though the heater, the orifice size was correct, and the pressure was correct, but that there was not enough combustion air mixing with the gas in the burner. McCandless testified that an inadequate amount of air was mixing with the gas, but that the amount of air could be adjusted on the burner. He stated there was not a specific setting specified, but that at the time of an installation, the burner should be examined and the air flow adjusted to obtain the proper flame. "[O]nce you initially have the condition where you don't have enough combustion air and you start leaving soot on the burner and your burner starts getting dirty . . . it only gets worse until the problem is corrected." McCandless testified that after service on a heater and reinstallation of the burner, the air setting would have to be reset to ensure proper combustion. When a flame is burning properly, it would be a "blue flame with a well-defined inner cone in the flame."
McCandless also found "some deformation of the combustion chamber that prevented the gasket from sealing properly on the face of it." McCandless opined that this deformation would result from the combustion chamber repeatedly heating up during use. The front cover of the heater would have to be removed to see thisdeformation.
McCandless also testified that the heater contained a "thermal switch" which would operate to shut the heater off if all of the combustion gas was going into the home instead of into the chimney. The switch was tested and found to operate normally.
McCandless stated that when he examined the heater, he did not see an air shutter bracket installed on it, although the owner's manual required that such a bracket be installed on the unit. The air shutter bracket "could affect" the amount of air that went into the mixture to be combusted, but that it was also there to regulate the velocity of the burning process. He also stated that the heater was originally a natural gas unit that was converted for use with liquified petroleum. McCandless's review of the owner's manual also showed that the heater should be serviced at least annually.
Plaintiff's amended complaint, filed 25 February 2005, asserted a claim for negligent repair against Macclessfield and various product liability claims against Empire. Plaintiff also named Tharrington Industries, Inc. (Tharrington) as a defendant, though the record is not clear as to whether Tharrington remains involved in this litigation. Empire moved to consolidate the action with two related actions in which Plaintiff's wife and daughters asserted similar claims, Dianne C. Edmondson v. Macclesfield L-P Gas Company, Inc., et al., (03 CVS 596), and Ashley Dianne Edmondson, Pamela T. Edmondson and Dianne C. Edmondson v. Macclesfield L-P Gas Company, Inc., et al., (05 CVS30). Although no order granting the motion to consolidate appears in the record, subsequent motions made by the parties and orders by the trial court indicate that the cases were in fact consolidated.
Empire filed a motion for summary judgment dated 4 October 2005. Empire argued that a proximate cause of the incident was the modification of the heater for use with liquified petroleum instead of natural gas, which occurred after the heater left Empire's control, and that the modification was not performed in accordance with Empire's instructions. Empire argued it was not liable to Plaintiff pursuant to N.C. Gen. Stat. § 99B-3. Empire's motion was supported by an affidavit of James E. Kovacs (Kovacs), Director of Engineering for Empire, and by deposition testimony. Kovacs's affidavit stated that the subject heater was manufactured by Empire for use with natural gas and was sold to Tharrington on 10 March 1999. After the heater was sold to Tharrington, but before the heater was installed at Plaintiff's home, the heater was modified to be used with liquified petroleum. Proper modification of the heater for use with liquified petroleum required, inter alia, the installation of an air shutter bracket to regulate the air flowing into the burner.
Macclesfield filed a motion for summary judgment on 7 October 2005. Macclesfield argued that it was entitled to summary judgment because Plaintiff had not forecast any evidence of a negligent act or omission by Macclesfield that proximately caused the alleged injury to Plaintiff.
In an order dated 20 December 2005, the trial court grantedEmpire's motion for summary judgment. Plaintiff and Macclesfield appeal. The trial court filed an order entered 3 February 2006, entered nunc pro tunc 6 December 2005, denying Macclesfield's motion for summary judgment. Macclesfield appeals.
*** Converted from WordPerfect ***