317 S.E.2d 32 | N.C. Ct. App. | 1984
Joy O. GILLESPIE and Bailey Gillespie
v.
AMERICAN MOTORS CORPORATION, American Motors Sales Corporation, Jeep Corporation and Valley Motor Sales, Inc.
Court of Appeals of North Carolina.
*33 Tomblin & Perry by Vance M. Perry and A. Clyde Tomblin, Spindale, for plaintiffs-appellants.
Mullen, Holland & Cooper by R.T. Wilder, Jr., and William E. Moore, Jr., Gastonia, for defendant-appellee American Motors Corp.
Golding, Crews, Meekins, Gordon & Gray by Marvin K. Gray and Ned A. Stiles, Charlotte, and Hamrick, Bowen, Nanney & Dalton by Louis W. Nanney, Jr., Rutherfordton, for defendant-appellee Valley Motor Sales, Inc.
WEBB, Judge.
If the papers filed in support of and in opposition to the defendants' motions for summary judgment present a forecast of evidence which, if offered at trial, would require a directed verdict for the defendants, then the court properly granted the motion for summary judgment. See Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). We hold that the papers filed in this case show that the plaintiffs were contributorily negligent as a matter of law. We affirm summary judgment for the defendants.
The papers show that the plaintiffs knew of the noxious fumes in the passenger area of the vehicle within a week after it was purchased. They continued using the vehicle for more than three years and drove it 62,000 miles during that time. Mrs. Gillespie's physician advised her to stop riding in the vehicle but she continued to do so. In Insurance Co. v. Chevrolet Co., 253 N.C. 243, 116 S.E.2d 780 (1960) our Supreme Court held that when a person continues driving a vehicle when he knows of a defect, he is contributorily negligent as a matter of law and barred from recovering damages which are caused by the defect. The Supreme Court held this is so whether the plaintiff's claim is based on negligence or breach of warranty. We hold that we are bound by that case to affirm the judgment of the superior court.
The plaintiffs contend that they should not be barred by contributory negligence *34 because they alleged that the acts of the defendants constituted "wanton, willful and culpable misconduct on their part." In spite of these allegations, we do not believe the plaintiffs have shown any wanton, willful or culpable misconduct on the part of the defendants. Bailey Gillespie stated that he did not believe the defendants intentionally sold him a defective vehicle. We do not believe it was necessary for the defendants to advise the plaintiffs that a bulletin from American Motors showed some people were complaining of fumes in Jeeps when the plaintiffs were well aware that there were fumes in their Jeep.
Affirmed.
WHICHARD, J., concurs.
WELLS, J., dissents.
WELLS, Judge, dissenting:
I believe the forecast of evidence in this case raises a genuine material issue of fact as to whether plaintiffs reasonably relied on defendant's assurances that defects in plaintiffs' vehicle had been repaired or corrected. I cannot agree that the forecast shows plaintiffs to have been contributorily negligent as a matter of law. Generally, I believe that defective products cases should be liberally construed in favor of injured parties. I vote to reverse summary judgment for defendants.
