Richard Clifton ROSE
v.
EPLEY MOTOR SALES and Jerome Epley.
No. 7425DC617.
Court of Appeals of North Carolina.
November 6, 1974.*331 Robert E. Hodges, Morganton, for plaintiff appellee.
Byrd, Byrd, Ervin & Blanton, P.A., by Robert B. Byrd, Morganton, and Joe K. Byrd, Jr., for defendant appellants.
CAMPBELL, Judge.
The defendant contends that the trial court erred in denying defendants' motion for directed verdict at the end of all the evidence.
"The motion for a directed verdict under Rule 50(a) presents substantially the same question as that formerly presented by a motion for judgment of involuntary nonsuit . . .. The motion for judgment of involuntary nonsuit . . . presented a question of law for decision by the court, namely, whether the evidence was sufficient to entitle the plaintiff to have the jury pass on it. [Citations omitted] The same question of law is now presented by a motion for a directed verdict under Rule 50(a)." Kelly v. Harvester Co., 278 N.C. 153, 157, 179 S.E.2d 396, 398 (1971).
To establish a cause of action "[u]nder 2-314, a plaintiff must prove (1) that a merchant sold goods, (2) which were not `merchantable' at the time of sale, and (3) injury and damages to the plaintiff or his property (4) caused proximately and in fact by the defective nature of the goods, and (5) notice to seller of injury." White and Summers, Uniform Commercial Code, § 9-6, at 286 (1972).
"Regardless of the ground on which it is sought to hold a . . . seller . . liable for injury allegedly caused thereby, it is of course necessary that it be established that the product in question actually was defective, deleterious, or otherwise harmful in the respect claimed.
* * * * * *
The defectiveness of the product is not shown by proof of nothing more than that the product was involved in an accident." 1 R. Anderson, Uniform Commerical Code, § 2-314:8, at 531 (2d Ed. 1970).
We believe that the above authority properly sets forth the proof required in North Carolina to establish a claim for relief under G.S. § 25-2-314. The Uniform Commercial Code in this respect accords with prior decisions of the North Carolina Court. Motors, Inc. v. Allen, 280 N.C. 385, 186 *332 S.E.2d 161 (1972); Aldridge Motors, Inc. v. Alexander, 217 N.C. 750, 9 S.E.2d 469 (1940).
In the case at bar, the plaintiff offered absolutely no evidence of a defect in the Volkswagen or of the cause of the fire, the presence of defectiveness and causation being left to complete conjecture. As mentioned above, the plaintiff must offer some evidence that the fire was caused proximately by the defective nature of the automobile. Absolute certainty or positive proof of causation is not required and may even be established by circumstantial evidence, but the evidence must be such that there is a reasonable likelihood or probability of the occurrence and not merely a possibility. Taking the facts in the light most favorable to the plaintiff, a jury would be left to speculate as to the cause of the fire and could not reasonably infer that a defect in the automobile caused the fire. Consequently, we find that the plaintiff has failed to sustain his burden in proving the essential elements of his cause of action and that the trial court was in error in not granting defendants' motion for directed verdict.
We take note that the plaintiff also alleged breach of implied warranty of fitness arising under G.S. § 25-2-315. This warranty, however, is even more specific than that in G.S. § 25-2-314 and normally only arises in very special circumstances where a buyer purchases goods that have to be specially selected for his particular use. We find no circumstances in this case giving rise to such a cause of action, particularly where we have already found insufficient proof to sustain a cause of action under G.S. § 25-2-314.
In view of the foregoing, we find no need to discuss the appellants' remaining assignments of error and reverse the trial court in denying the defendants' motion for directed verdict.
Reversed.
BRITT and VAUGHN, JJ., concur.