*1 APPEALS IN THE OF 108 v. WENCO MANAGEMENT GOODMAN N.C. 108 еxceed the shall not your injuries policies under all any liability under one policy. limit applicable highest 20-279.21(b)(4) is therefore G.S. and conflicts with policy provision This motorist the underinsured making addition to unenforceable. liability policy the same as limits in an automobile coverage limits, Proctor v. North rejects coverage, policyholder unless the 221, 324 N.C. Company, Farm Bureau Mutual Insurance Carolina 20-279.21(b)(4) (1989), multiple requires 761 G.S. 376 S.E.2d innocently injured to an available coverage underinsured motorist Casualty v. Aetna Sutton aggregated. victim be stacked accident denied, Co., 325 reh’g 382 S.E.2d 325 Surety & statutory would avail This mandate 384 S.E.2d recovery injured limit an insured’s carriers could nothing insurance policy. due under one the maximum amount part. reversed in part; plaintiffs’ appeal As to —affirmed appeal toAs defendant USF&G’s —affirmed. concur. and Greene
Judges Cozort MANAGEMENT, FOODS, INC., v. WENDY’S FRED WENCO d/b/a MEAT WENDY’S OLD FASHIONED HAMBURGERS GREENSBORO COMPANY, INC. SUPPLY
No. 8915SC1279 1990) (Filed August (NCI3d)- (NCI3d); § hamburger-bone- § 1. Sales 6.1 Food warranty merchantability implied concurring dissenting into Taking consideration should have been granted directed verdict not opinions, warranty Wendy’s implied on a claim for breach of defendant merchantability from bone in where arising was a merchant within terms N.C.G.S. 25-2-104(1); to plaintiff of the was a sale sale § 25-2-105(1);none goоds meaning within the of N.C.G.S. § 25-2-316 modifications of N.C.G.S. are exclusions or so that there a breach an applicable,
IN THE APPEALS COURT OF *2 GOODMAN v. WENCO MANAGEMENT (1990)] App. 108 N.C.
[100 of merchantability if was hamburger not fit for the or- sold; dinary for which it was purposes evidence was not so unequivocal that a court could as a of state matter law that it came from meat in under the hamburger; principles of Adams v. Great & Atlantic Tea Company, Paсific 565, it could not be as said a matter law that bone of a beef; the size allegedly by found plaintiff is natural to ground natural, clearly it jury remains a whether question reasonably consumer could of bone anticipate finding piece beef; that size ground and the fact that the beef ground may complied have all with state and federal regulations only jury some evidence may cоnsider in determin- ing if the product was merchantable. 2d, 84, 89, 94; 749, 91, 751,
Am §§ §§ Jur Food Sales 755, 777. (NCI3d)— §
2. Food 1.1 hamburger bone—negligence — into consideration the Taking concurring dissenting and opinions, properly granted directed verdict was for defendant Wendy’s on a claim from negligence arising bone in a hamburger. 2d, 84, 94; 89, 91, 749, 751,
Am §§ §§ Jur Food Sales 755, 777. (NCI3d)— warranty §
3. Food bone—implied — merchantability into concurring dissenting consideration the and Taking opinions, summаry the trial court erred granting judgment (GBMS) Co., for Greensboro Meat Inc. on a claim for Supply merchantability breach of from arising a bone in a where there was a issue as genuine and, so, to whether the bone in the if whether ground GBMS’s meat production of this constituted a breach implied warranty merchantability. 2d, 84, 89, 94; 749, 751, 91, §§ §§
Am Sales Jur Food 755, 777. (NCI3d)— hamburger bone—negligence
4. Food 1.1 — into Taking concurring dissenting cоnsideration summary did opinions, granting the trial court not err OF APPEALS IN THE COURT v. WENCO MANAGEMENT (GBMS) Co., on Inc. Supply Meat for Greensboro judgment Wendy’s hamburger. arising from a bone in a claim negligence 89, 91, 94; 2d, §§ §§ Sales Am Jur Food 755, 777. part. part dissenting
Judge concurring ARNOLD dissenting. Hedrick Judge Chief *3 Appeal 21 December 1987 by from order entered County Brannon in Court by Superior M. Judge Anthony ORANGE B. Ellis by 24 1989 May Judge Craig judgment and entered Appeals County Court. Heard in the Court of Supеrior ORANGE 1990. June D. plaintiff-appellant. Brenton Adams for Brown, Faison B. Reginald Gillespie, & O. William and Faison Jr., Foods, Inc. defendant-appellee Wenco Patterson, Cranfill, & Hartzog, by Dilthey, Clay, Sumner Russwurm, Lynn IV and Kari W. Thompson, for defendant- Sanford Meat appellee Supply Company. Greensboro
GREENE, Judge. summary judgment appeals grant the trial court’s Plaintiff (GBMS) Inc. and its directed Supply Company, for Greеnsboro Meat evidence Wenco plaintiff’s Management, verdict at the end of Foods, Inc., Wendy’s Hamburgers Old Wenco’s Fashioned d/b/a (Wendy’s). negligent was complaint, plaintiff alleged
In his the that merchantability its implied preparing and breached containing and sandwich bone. Plaintiff also serving and its warran- alleged negligent that GBMS was breached ty merchantability by Wendy’s ground and processing providing in the sandwich. used trial, plaintiff’s At evidence tended to show on October with “everything” he a double sandwich purchased burger, testimony on the bun and his mentions it. addition to tomato, lettuce, and or “con- ketchup unspecified “toppings” other sandwich, halfway About the he bit a hard through diments.” burger, He a chewed mass and con- substance. out bun spit “majority diments and of bone therein. Because the found meat,” was concluded the bone had been of that mass THE IN COURT OF APPEALS GOODMAN v. WENCO MANAGEMENT However, in the meat. he admitted that the bone could possibly bun, have been in the toppings or condiments. He stated he could be portion not “sure” what of the sandwich concealed the bone.
The plaintiff stated the bone was “possibly my the size of fingernail,” small but more triangular with a slant tooff one side. home, He took the bone measured it and found it between one- sixteenth and one-eighth inch thick. “It was thick on one and side shaved down on the other.” Its length about one and one-half inches, widest, and width was one-quarter inch at its from which it point. narrowed Plaintiff later lost bone. bone, teeth,
As a result of biting plaintiff broke two which damaged third later was extracted. He incurred substan- expenses tial dentаl for root surgery, temporary canal and perma- crowns, nent and tooth extraction. In support summary of its motion for judgment, GBMS offered pleadings plaintiff’s which deposition, contained essen- tially the evidence at plaintiff offered trial and described above. verdict,
In granting Wendy’s motion for directed judge trial entered a written judgment provided part: in pertinent
The Court first considеred the issue. It negligence appears to the upon Court careful review of the law doctrine evidence, of res ipsa loquitur does not The apply. Plaintiff’s him, taken in the light most favorable to shows that the ground beef by obtained Defendant was purchased process- from a ing plant approved by which was U.S. Department of Agriculture had inspectors meat on site. The Defendant’s standards for exceeded ground Depart- those the U.S. ment of Agriculture, and Defendant’s inspection procedure was effective duty control and more than met the quality by care owed the Defendant to the Plaintiff. The Plaintiff offered no evidence from which reasonable minds could con- duty clude that the had meet any Defendant failed to of care Plaintiff, owed tо and the Court directs verdict in favor of the Defendant on the issue of negligence. warranty
The Court next considered the issue of implied and, of fitness for law purpose upon based case case, facts in the instant concludes that bone the ham- burger patty part ground was a natural of the beef and not against warranty substance warranted an of mer- implied OF APPEALS THE IN v. WENCO MANAGEMENT App. 108 of the hereby verdict in favor directs
chantability. The Court well. this issue as Defendant on (I) Wendy’s, against in an action are: presented The issues is sufficient hamburger sandwich of bone in a piece whether a (A)in an action for directed verdict motion evidence to overcome (B) in an merchantability and implied for breach sandwich; and hamburger, of the preparation negligent action for (II) GBMS, whether a of bone found against an action sandwich, supplied with hamburger prepared in a GBMS, summary judgment to a motion is sufficient overcome (A) warranty of mer- breach of in an action for for GBMS (B) for negligent processing in an action chantability and ground beef.
I
verdict,
of a motion
directed
granting
On
from the
appeal
is
as true and con-
plaintiff’s claim taken
supporting
the evidence
him,
him the
benefit
granting
in the
most favorable
light
sidered
his
Adler v. Lumber
inference
claim.
every
supporting
reasonable
Co.,
aff’d, 280
179 S.E.2d
Fire Ins.
N.C. App.
Mut.
(1971).
If the evidence considered
this
N.C.G.S. § goods in of the kind or otherwise person ... who deals- or by having knowledge holds himself out as occupation his THE OF APPEALS IN MANAGEMENT v. WENCO App. 108 in the transac- involvеd goods to the or peculiar practices skill attributed may or skill be knowledge to whom such tion or intermediary or other or broker by employment agent his of an out such having holds himself as occupation his who knowledge or skill. 25-2-104(1)(1986). are defined as: Goods
N.C.G.S. § goods) (including specially manufactured things ... all the contract are movable at the time identification money price paid, is to the in which the be sale other than . . . . . . action. things investment securities 25-2-105(1)(1986). N.C.G.S. § merchantable, . . . “must at least such as goods be be
To used ordinary the for which such are purposes goods are fit for 25-2-314(2)(c)(1986). .” . . N.C.G.S. § statute, a merchant within terms was of “goods” to the was a sale the sale of the None of the exclusions modifica- meaning within the the statute. Therefore, there exists a breach 25-2-316are аpplicable. tions of § if the was warranty merchantability of an implied Generally, ordinary it for which was sold. purposes not fit for it that food which warranty an a restaurant “makes though the restaurant fit human even consumption, serves is its not have discovered possible in the exercise of all care could Anderson, Commercial Code R. unwholesome nature.” Uniform 2-314.183 in food or injured by When a been a substance plaintiff has drink, whether to determine the courts have used various tests ordinary it sold. was fit for for which was purposes that food that: generally test which holds “foreign/natural” Some courts apply in food or drink injured when substance was that warranty liability there is if the substance one no cherries, food, cherry crabshell pits was natural to meat, Conversely, in crab or fish bonеs fish. if the seller of food imposed upon
liabilities merchant harm of the plaintiff substance in food causes the nail, food, such as a foreign was a substance that wire. glass, piece or a *6 IN THE COURT OF APPEALS GOODMAN v. WENCO MANAGEMENT Anderson, 2-314.184.Other apply courts expecta- “reasonable § tion” test which generally provides that:
When the injured by a substance in food . . . courts ignore whether the substance was natural or fоreign to the food and direct inquiry to whether it was reasonable to expect presence of the substance in the If food. it was not reasonable to expect presence of the harm-causing substance, contrast, warranty liability can be In imposed. if food, it was reasonable to expect substance in the plaintiff is barred from exposing himself to expectable effect, risk. In this view regards anything that was not expect- able “foreign;” and changes the frame of reference so that “foreign to expectations” takes the place of “foreign to food.” Anderson, 2-314.185. Carolina,
In
case,
North
in a pre-Uniform Commercial Code
the Court was faced with an alleged breach of an implied warranty
when the plaintiff sued for damages to his tooth which he received
when he
partially crystallized
bit a
kernel of corn while eating
corn
565,
Co.,
flakes. Adams v. Great Atlantic &
Tea
251 N.C.
Pacific
is natural
to the
substance,
corn
and not a foreign
and where a consumer of the product might be exрected anticipate the presence of this substance in the food.
added).
IN v. MANAGEMENT WENCO (1990)] App. N.C. 108 [100 Adams, held the with this court that opinion In an consistent was the deter- “naturally unshelled filberts” occurring quantity within whether the were merchantable factor in filberts minative 25-2-314(2)(c). Brands, v. 30 Standard N.C. meaning the of § Coffer 226 S.E.2d App. this in Adams to the facts of case Applying principles the ordinary the determining hamburger pur- whether the was fit for sold, we the trial court erred for which it was determine poses First, the the evidence of source granting in the directed verdict. state, unequivocal the so that a court could as a bone is not law, hamburger matter of that it came from the meat in the sand- that the came the wich. Plaintiff stated he believed bone from the of chewed sandwich portion hamburger beef his because mass Howevеr, mainly he he out was beef. also stated the bone spit bun, have the the condiments or the toppings. could come from he He stated could not be “sure” of its actual source. From this could that the came from the jury evidence conclude bone sandwich, certainly portion of the it is not beef but portion from that from other or concluding barred it came some it is tell which imрossible portion that to in sandwich was bone concealed.
Second, to determine the bone jury even were that came sandwich, the beef of the the Adams test not portion from would It first determined support directed verdict defendant. must be is plaintiff allegedly whether a bone the size the one found to While bone nat- foreign ground natural beef. a steak is a matter of law to a steak a fish bone natural ural as T-bone fish, say matter to whole we are prepared as a of law not matter that a of the size discovered allegedly as a of law bone Furthermore, even if ground is natural beef. natural, clearly jury it remains a as to whether a consumer question reasonably anticipate finding could of bone size in ground beef. question
We also reject argument that since with all state and federal question complied regulations ground that was The beef meat merchantable a matter law. may complied that the have with all state and ground fact only jury may evidence con- regulations federal some product if the determining Collingwood sider merchantable. Cf. Inc., 63, 68-69, v. Real Estate 376 S.E.2d Equities, G.E. IN THE COURT OF APPEALS GOODMAN v. WENCO MANAGEMENT (1989) 425, 428 with (compliance building state code is evidence conclusive). event, noted, of due In any care but is not as we have beef, we say since cannot that the bone came proof from the hamburger complied meat itself with all state and regula- federal *8 entry tions could not support of directed verdict for defendant Wendy’s.
B Negligence [2] N.C.G.S. § 106-129 provides in pertinent part: A food shall be deemed to be adulterated: (1) If a. it beаrs or any contains poisonous or deleterious health; substance may which render it injurious to but case the substance is not an added substance such food shall not be considered adulterated under this paragraph if the quantity of such substance in such food does not ordinarily render it health; injurious to 106-129(l)(a) (1988).
N.C.G.S. It is a misdemeanor offense to sell § (1988). any adulterated food. N.C.G.S. 106-122 and 106-124 §§ jury Were a to dеtermine that a bone of the size described (or size) by the plaintiff was of a quantity ordinarily which renders health, a hamburger injurious sandwich then a violation of 106-29 proven prima and a case of negligence established facie jury determines the violation was a proximate cause of the injury. Stores, 332, 341, See Lutz Ind. v. Dixie Home 242 N.C. (1955)(violation 333, 88 S.E.2d 339 of ordinance constitutes negligence per sе when imposes ordinance a specific duty for the protection of others duty and breach of such is proximate cause injury).
II GBMS [3] Summary judgment is an extraordinary remedy, and it is war only ranted when there is no dispute as to material facts and the moving party deserves judgment as a matter of law. Gore Hill, 620, 102, v. denied, 52 App. N.C. 279 S.E.2d cert. 303 N.C. (1981). motion, on ruling summary judgment the trial court must view the record in the light most favоrable to the party opposing the motion. Peterson v. Winn-Dixie Raleigh, Inc., (1972). App. N.C. 187 S.E.2d 487 To be entitled to APPEALS
IN THE OF WENCO MANAGEMENT GOODMAN v. App. 108 conclusively “a com establish
summary
movant must
judgment,
Elec
Virginia
claim.”
to the nonmovant’s
legal
defense or
bar
plete
383, 385,
Tillett,
343 S.E.2d
v.
tric & Power Co.
188,
denied,
“The
meat for cоnstituted breach of summary merchantability, we reverse the court’s grant trial this issue. judgment for GBMS on
B Negligence [4] ducing The processing averred that ground the defendant was beef, that GBMS sold negligent ground in pro Wendy’s, preparing in negligence and that GBMS’s injury. At the proximate plaintiff’s was a cause of ground beef summary presented GBMShad granted judgment, time trial court could that the not conclusively establishing no evidence by the produced The evidence defendant related succeed its claim. Therefore, court’s must reverse the trial only to the Adams test. we summary on this issue also. judgment grant IN THE COURT OF APPEALS
GOODMAN v. WENCO MANAGEMENT Reversed and remanded.
Judge ARNOLD concurs in part and dissents in part. Judge Chief HEDRICK dissents.
Judge ARNOLD concurring part and dissenting in part. I vote to summary affirm judgments and directed verdicts However, to all relating claims based on negligence. I believe the claims fоr implied warranty of merchantability should to the go Therefore, jury. I vote to reverse and remand the implied warranty claims brought plaintiff. Judge
Chief HEDRICK dissenting. my opinion, the forecast of evidence in this case is not sufficient to withstand the summary motion for judgment of defend- ant, Inc., Greensboro Meat Supply Company, respect with plain- tiff’s claim negligence or breach of the implied warrаnty of Likewise, merchantability. my opinion, evidence offered at trial is not sufficient to take the case to the jury against defendants Foods, Inc., Wenco Management, Wendy’s Wendy’s Old Fash- d/b/a ioned Hamburgers (Wendy’s) with respect to either negligence or breach of the implied warranty of merchantability.
I vote to affirm the summary judgment for defendant Inc., Greensboro Meat Supply Company, and the judgment direct- ing a verdict Foods, for defendants Wenco Management, Wendy’s *10 Inc., Wendy’s Old Fashioned Hamburgers (Wendy’s). d/b/a