*1 THE OF IN COURT CO. CHEMICAL v. UNITED STORES (1990)] App. 275 N.C.
[99 of the in the section empty an rack observed That Russell rele- and sold is were displayed knew men’s robes where he store theft that a probable it more evidence makes vant because Moreover, rack empty value of the probative place. had taken suffered may have the defendant any outweighed prejudice removed from the had been Testimony that robes its admission. not to consider instructed jury was was stricken and rack the evidence. admitting did not err the trial court it. We hold in defendant’s trial. we find no error reasons foregoing For the error. No and Orr concur.
Judges EAGLES STORES, and IN UNION INC. COMMERCIAL CONVENIENCE CHAMPS COMPANY, COMPANY, Plaintiffs v. UNITED CHEMICAL SURANCE INC., Defendant
No. 8928SC672 (Filed 1990) July (NCI3d)— cleaner cleaner ordered —automotive § floor Sales 22.2 contributory negligence by plaintiff delivered —use liability ac- recovery products in a Plaintiff store owner’s 99B-4because by N.C.G.S. was barred tion based on as a matter contributorily negligent employee plaintiff’s employee plaintiff’s showed that where the evidence of law defendant; instead defendant from a floor cleaner ordered conced- employee parts; cleaner for automobile delivered a delivered the product the name of not read ed that she did use, on printed which were for its both the directions the label label; if had read she also conceded she floor; cleaner parts not have she would on commented her co-worker employee although checked of them neither of the the “bad odor” floor. it on the mop continuing label before 702, 934. 2d, Liability §§ Products Am Jur dissenting. Judge Lewis COURT OF APPEALS UNITED CHEMICAL CO.
CHAMPS CONVENIENCE STORES v. *2 by Judge defendant from of Charles C. Judgment APPEAL Jr., Lamm, January County 19 1989 in Superior entered BUNCOMBE Heard in the of 1989. Appeals Court. Court December P.A., Jr., Roberts & Isaac N. Cogburn, by Northup, Stevens plaintiff appellees. for Morris, Morris, Morris, III, Bell by & William C. for defendant
appellant.
COZORT, Judge. liability This action has its in mistake and product origin unhappy coincidence. Marta an Sprinkle, employee plaintiff Champs Con- Stores, Inc., venience ordered from the product defendant a named Command, Dust used for dust on wooden floors. The controlling defendant, however, Carbo-Solv, product delivered a named used for cleaning parts engines. carburetors other small of combustion by Both Dust Command and Carbo-Solv distributed the de- 1987, in five-gallon fendant containers. On 31 without August reading label, the and another employee mopped Carbo-Solv on Grocery, the floor of Miller’s plaintiffs’ one of the convenience 1987, 4 September Drug stores. On the Food and Protection Divi- Department sion of the North Carolina of Agriculture embargoed eventually the entire contents of the store. Plaintiff closed store. 1987, sued, plaintiffs On December other alleging, among that the defendant things, “[negligently delivered a toxic chemical plaintiff representing plaintiff product that this was suitable Grocery.” for the floors of Miller’s The cleaning defendant answered asserted, defenses, among contributory other negligence trial, At plaintiffs. jury found defendant was negligent, contributory found no negligence plaintiffs’employee, and awarded $148,000 alternatively in The plaintiffs damages. defendant moved judgment notwithstanding the verdict or a new trial. The trial court denied that motion.
The defendant contends on that the trial court erred appeal in its motions for a directed verdict denying judgment and for the verdict. We notwithstanding agree.
In this action the relief initiating plaintiff sought based on theories of The negligence negligence and breach of contract. claim grounded delivery in the of the The breach wrong product. of contract claim was grounded Sprinkle’s Marta conversation OF COURT CO. STORES v. UNITED CHEMICAL defendant, Robinson, regarding of the employee with Bill an forward brought needed. Based on the evidence type she trial, however, liability jury to the dealt issues submitted at exclusively with negligence: Stores, Inc. and
1. Were Convenience plaintiffs, Champs injured damaged or Company, Union Insurance Commercial defendant, United Chemical Com- by the negligence Inc.? pany, by her own Sprinkle, Marta plaintiffs’ employee,
2. Did the damage? plaintiffs’ injury contribute to she called United Chemical and Marta testified that *3 with Bill Robinson: spoke a Robinson,
Q please. with Mr. your Tell us about conversation worked, Well, I I where I and A I told him who was and said, “We to on some wood floors to control something put need my I him man said it was “dust- the dust.” And told boss other,” I knew. that’s all something or and Q say you? What did Mr. Robinson said, Grocery’ in Haw you say A He “Did ‘Miller’s Creek?” said, said, he “We used to sell to the previous And I “Yes.” And owner.”
Q he to sell? you And did he tell what used A He said it was Dust Command.
H= * [*] [*] Q you he needed? you thought Did ask him what size said, you it put has it been? Have long A Yes. He “How when the last recently?” I told him I had no idea down And on the floor. anything put time was Q you he needed? you thought he tell how much So did five gallons. it would take about thought A He told me he Q five- in the you he whether the came And did tell size? gallon Yeah; bucket. five-gallon
A it came a COURT OF CHEMICAL CO. CONVENIENCE STORES v. UNITED
CHAMPS Q any him more Dust Command? you Did talk to about Yes, I A did.
Q you? he tell you else did ask him and what else did What Well, I him I had to close the store to A asked about —if down, he he it because it kind put it and said would advise were, He me our hours of made the floor slick. asked what closed, him, just when I I told and he told me to close and go it down and then lock the door and go mop ahead morning. we’d back into the next go right home and business Q you any needed you anything special Did ask about whether equipment? Yes, sir, down,
A I I asked him how to it if we put did. had to have it down with. He asked something special put said, any me if we he “You’ll have mops, had old because away you when I told him we get through.” to throw them said, you he to—I mops. just had some old So told us “Do any kind or anything?” have to have buckets or of buffer said, “No, in it just open put mops He the bucket and said, out,” he wring it down.” He “Don’t it because mop said, your “You need to it on hands or get anything.” don’t that, further when she mopped She testified and a co-worker they floor with the “commented that it had a bad odor.” *4 On cross-examination Ms. testified as follows: Q delivered, And then which five-gallon later a container was me, in you’ve identified as this one front of with right along it; right? an invoice that said “Dust Command” on A That’s correct.
Q And, fact, you in even question had a about delivery you? that man could not answer for A That’s correct.
Q you yourself try But never consulted the label to answer left, delivery you? question after man did No,A I did not.
Q you And had never used Dust before? Command
IN THE COURT OF APPEALS CHAMPS CONVENIENCE STORES v. UNITED CHEMICAL CO. App. No,A I had not.
Q certainly And had never read a Dust Command label find out what the directions said on a Dust Command label? No,A I had not.
[*] [*] [*] [*] III.: me just put up you Let here so MORRIS, Mr. can refer to it. (Black stand.) placed bucket was next to the witness on the Q Now, then, use, that label contains directions for does it not? Yes, A it does.
Q can, course, Okay. you And of read? Yes,
A I can. Q I believe over there on the side right label are the directions; is that right?
A Yes.
Q label, Okay. The name the product says is on the and it “Carbo Solve?” [sic] Yes,
A it does. Q cleaner,” says And parts beneath that it “cold and carburetor doesn’t it? Yes,
A it does. Q And then description says “Description: under the it An monophase variety economical and cold cleaner. parts Cleans a equipment used combustion such as small engines parts, arms, carburetors, cetera, rocker pistons, et as well as transmis- sions and housings components,” brake doesn’t it? Yes, A it does.
Q Now, then, I you your believe testified in which deposition, *5 1988; you was June of do remember that? Yes,
A I do.
‡ ‡ ‡ COURT OF STORES v. UNITED CHEMICAL CO. Q that, clarify you a given copy Just of the label deposition; at the correct?
A Right.
Q you And at that time read the label? Yes,
A I did. Q you when deposition, you And read the label at the realized it was a for product cleaning parts? car Yes, A sir.
Q realized, you reading your And also after the label at deposi- tion, that it was not a a floor cleaner? —not A That’s correct.
Q Now, you your I deposition you believe testified that if Solve, you had read the label before applied Carbo [sic] you would not have it to the floor?
A That’s correct.
Q Grocery, And as the manager your of Miller’s it was practice to make sure that the invoices for deliveries the prod- matched uct that was delivered?
A That’s correct.
Q you I even you always believe said that compared invoice to the product they delivered to make sure that matched? A That’s correct.
Q you But that did not do that on the occasion that Carbo Grocery? Solve was delivered to Miller’s [sic] [*] [*] [*] [*] No,A I did.not. evidence, plaintiffs’
At the close of the the defendant moved for a directed verdict on the plaintiffs’ warranty breach of claim. The granted trial court that motion. The defendant also moved a plaintiffs’ directed verdict on the claim. That motion was denied. We find the trial court erred in denying that motion.
IN THE COURT OF APPEALS 281 CHAMPS CONVENIENCE STORES v. UNITED CHEMICAL CO. App. (1990)] N.C. 275
[99 This case is governed North Carolina’s Liability Products (1989). 99B-1, Act. N.C. Gen. Stat. et seq. N.C. Gen. Stat. §§ 99B-H3) provides that a § liability “Product any action” includes brought action for or on account personal injury, property death or damage caused manufacture, construction, by or resulting from the design, formulation, standards, development of preparation, process- assembly, ing, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging or labeling any product. [Emphasis added.] offer,
The verb sell means “to deliver . . . present ... to give up [property] money to another for or other valuable consideration.” Webster’s Third New Dictionary International of the English (1966). Language 2061 Unabridged In this case we hold that “sell- ing” encompasses delivery of products and that plaintiffs’ action falls within the scope liability of a “product action.”
N.C. Gen. Stat. 99B-4 provides in part
No manufacturer or seller shall be held in any liable prod- liability uct action if:
(1) The use of the product giving rise to the product liabili-
ty action contrary any express and adequate with, on, instructions or delivered warnings appearing or attached to the product or on its original container or if wrapping, the user knew or with the exercise of reasonable and care diligent should have known of such instructions or warnings; provided, that in the case of prescription drugs or devices the adequacy of the warning by the manufacturer shall be determined by the information prescribing made available manufacturer to the health practitioner; care or ‡ ‡ H* *
(3) The claimant failed to exercise reasonable care under
the circumstances in his use of the and such failure proximate was a cause occurrence that injury caused to the damage claimant.
When,
below,
as in the
liability
case
a product
action is “found-
ed on negligence,
is no
[plaintiff’s]
doubt that
contributory
‘[t]here
will
negligence
recovery
bar his
to the same extent
in any
as
282
OF APPEALS
COURT
v. UNITED CHEMICAL CO.
STORES
App.
”
300 N.C.
Smith v. Fiber Controls Corp.,
other
case.’
(1980)
Prosser,
504,
669, 672,
Law of Torts
(quoting
268 S.E.2d
1971)).
(4th
Moreover,
Liability
specifical-
ed.
the “Products
Act
§
ly
*7
defense
contributory negligence
of
as a
applicability
reaffirms the
678, 268 S.E.2d
510.
product
liability
in
actions.” Id. at
at
(1)
did
read the
Ms.
conceded
that she
not
At trial
use,
for
both
delivered or the directions
its
product
name of the
(2)
label,
if she had read
printed
of
on the
and
that
which
She
to the floor.
the
she would not have
Carbo-Solv
label
that,
on
she and her co-worker commented
although
also testified
neither of
checked the label
the
odor” of the
them
“bad
it
continuing
mop
to
on the floor.
before
jury’s finding
to
the
certainly ample
support
There is
evidence
Never-
delivering
wrong product.
that
in
the
negligent
defendant was
theless,
testimony conclusively establishes that the
Sprinkle’s
Ms.
“express
labeled with
and
instruc-
product
adequate
delivered was
product’s
to
the
name or the direc-
tions” and that her failure
read
use
cause
the occurrence that
proximate
tions for its
“was a
of
99B-4(1)
to
Gen.
injury
damage
caused
the claimant.” N.C.
Stat. §
(1989).
(3)
recovery in
product
Consequently, plaintiffs’
in
is
99B-4 because
liability
grounded
action
barred
§
contributorily
a
of law.
was
as matter
plaintiff’s employee
negligent
peculiar
is limited to the
facts
holding
We note that our
We
in all cir
imply
the case below.
do not
that
presented
contributory negligence
a
label
product’s
cumstances failure to read
is
Co.,
See,
v. E.I. DuPont
example, Ziglar
a
of law.
for
as matter
510,
denied,
147,
disc.
280 S.E.2d
review
N.C.
App.
53 N.C.
(1981),
393,
summary judg
found
Judge LEWIS dissents.
Judge
IN THE COURT OF
STATE v. KING App. LEWIS Judge dissenting.
I respectfully dissent. in gallon
The arrived a five as with expected Carbo-Solv can an invoice reciting product ordered had arrived. Bill Robin- material, son plaintiffs’ agents told the how to apply leaving little Ziglar, reason consult label. In supra, (“like Here, had a distinct and unpleasant eggs”). odor rotten Nevertheless, odor Court, unpleasant. was also distinct and the Supreme Ziglar, in stated further hold that the defense con- “[w]e tributory negligence not established this case as a matter of law.” Id. at 160. For us to reverse this and direct judgment entry of judgment contrary for defendant is Ziglar 2D G.S. 99B-4. I adequacy believe that the the label and proximate injury cause of the in this case are issues of fact *8 issues, the After jury. a full trial on all the the jury found on negligence of the part contributory defendant and no I no plaintiff. find error.
STATE OF NORTH v. CAROLINA IDELLA KING
No. 8926SC1305 (Filed 1990) July — (NCI3d)— 1. 4.6 Narcotics two defendants instruction con- on possession structive error —no
The trial court did not improperly an express opinion instructing jury regarding close as it proximity related sister, her to defendant but not twin since there was no conflict regard with to the evidence both that and her defendant sister where police lived at residence officer found cocaine present premises and both and on at the time discovered; cocaine was the fact that one was outside difference; house one inside the house made no the com- plained of instruction was with con- followed an instruction on defendants; as it possession structive to both the sister had testified that she was the one the bedroom where the outside, was she cocaine found and defendant testified that was necessary so a close instruction proximity only