WILSON BROTHERS, a co-partnership; and Boney Wilson & Son, Inc., a North Carolina Corporation,
v.
MOBIL OIL, a foreign corporation; Mobil Chemical Corporation, a foreign corporation; Miller Building Corporation, a North Carolina Corporation; Graves Electric Corporation; and Mobil Oil Corporation, a foreign corporation.
No. 825SC789.
Court of Appeals of North Carolina.
July 19, 1983.*42 Moore & Biberstein by R.V. Biberstein, Jr., Burgaw, and Lommen, Nelson, Sullivan & Cold by John P. Lommen and Daniel J. Buivid, Jr., Minneapolis, Minn., for plaintiffs-appellants.
Hogue, Hill, Jones, Nash & Lynch by David A. Nash, Wilmington, and Carr, Abney, Tabb & Schultz by W. Pitts Carr and David H. Pope, Atlanta, Ga., for Mobil defendants-appellees.
Crossley & Johnson by Robert W. Johnson, Wilmington, for defendant-appellee Graves Elec. Corp.
Marshall, Williams, Gorham & Brawley by Lonnie B. Williams, Wilmington, for the defendant-appellee Miller Bldg. Corp.
ARNOLD, Judge.
Summary judgment under G.S. 1A-1, Rule 56(c) is proper when there is "no genuine issue as to any material fact...." It is a "drastic remedy ... [that] must be used with due regard to its purposes and a cautious observance of its requirements in order that no person shall be deprived of a trial on a genuine disputed factual issue." Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). This remedy "does not authorize the court to decide an issue of fact. It authorizes the court to determine whether a genuine issue of fact exists." Vassey v. Burch, 301 N.C. 68, 72, 269 S.E.2d 137, 140 (1980) (emphasis in original). Summary judgment should be denied "[i]f different material conclusions can be drawn from the evidence." Spector Credit Union v. Smith, 45 N.C.App. 432, 437, 263 S.E.2d 319, 322 (1980).
In Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897, reh'g denied, 281 N.C. 516 (1972), the court defined two terms that are determinative on a summary judgment question.
An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action. The issue is denominated "genuine" if it may be maintained by substantial evidence.
280 N.C. at 518, 186 S.E.2d at 901 (emphasis added). To grant summary judgment, a court must find "that on the undisputed aspects of the opposing evidential forecasts the party given judgment is entitled to it as a matter of law." 2 McIntosh, N.C. Practice and Procedure § 1660.5 (2d ed., Phillips Supp.1970). See also, W. Shuford, N.C. Civil Practice and Procedure § 56-7 (2d ed. 1981). In ruling on a summary judgment motion, the record should be viewed in the light most favorable to the party opposing the motion. Brice v. Moore, 30 N.C.App. 365, 367, 226 S.E.2d 882, 883 (1976).
It is an accepted tenet of our jurisprudence that summary judgment is rarely proper in negligence cases. "Even where there is no dispute as to the essential facts, where reasonable people could differ with respect to whether a party acted with reasonable care, it ordinarily remains the province of the jury to apply the reasonable person standard." Moore v. Crumpton, 306 N.C. 618, 624, 295 S.E.2d 436, 441 (1982). *43 But where there is no genuine issue of material fact and reasonable men could only conclude that the defendant was not negligent, entry of summary judgment is proper. Dendy v. Watkins, 288 N.C. 447, 455, 219 S.E. 214, 219 (1975).
We now consider the defendants separately.
GRAVES ELECTRIC
The plaintiffs contend that there is a fact issue as to whether Graves installed the wiring that caused the fire. Graves denies that it installed the wiring in question. It contends that its material lists did not show any of the type of conduit which caused the fire and that it was not the electrical contractor when the building was built in 1965. The conduit which caused the fire was connected to panels that were installed in 1965.
The plaintiffs' evidence raises a fact issue on this point. They submitted affidavits of three people who were plaintiff's employees in 1972. All three stated that their "best recollection" was that Graves installed the conduit which caused the fire.
Graves attacks these affidavits as insufficient under G.S. 1A-1, Rule 56(e). That rule states in part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
The requirements of the rule were met here.
The affidavits were based on personal knowledge. The phrase "best recollection" is equivalent to the phrase "to the best of my knowledge" that was held to be on personal knowledge in Faulk v. Dellinger, 44 N.C.App. 39, 259 S.E.2d 782 (1979). As Faulk commented, "[I]n the case at hand, we do not have a situation of manufactured fact but merely a self-imposed limitation to the affiant's personal knowledge which is all the rule requires." 44 N.C.App. at 42, 259 S.E.2d at 784. The affiants were competent to testify on what they stated in their affidavits.
Although there is a fact issue as to whether Graves installed the conduit in question, it must also be shown that there is a fact issue as to Graves' negligence for the plaintiff's case to survive a summary judgment motion.
Graves argues that offering Berkowitz's testimony about how the fire started, when his conclusions were based on photographs of the conduit after the fire, was not sufficient. It contends that because his testimony was not based on a personal examination of the burned conduit, he was not speaking from personal knowledge and thus, was not competent to testify. We reject these arguments.
It should first be remembered that there is a presumption against granting summary judgment in negligence cases. It is a jury question if a defendant met the reasonable man standard. See, e.g., Williams v. Carolina Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979).
The pertinent portion of Berkowitz's deposition is as follows:
Q. ... do you have any explanation for why it [the conduit] arced at this particular time?
A. ... I have seen cables that will be pulled into a conduit and will be damaged and will sit there for years until the insulation finally breaks down.... It may not fail immediately. It may sit there for a period of years under a condition of tension and then ultimately break down.
Also, because of the localized nature of this arcing, I have the feeling that that cable was bent while it was being pulled in. That is, that it had a crimp in it and that this ultimately broke down.
Q. You are saying that the insulating material was under tension while it was there in the conduit?
A. That is correct.
Q. Which would cause it to break down in one particular point?
*44 A. That is correct.
Q. Where it had a crimp; is that correct?
A. That is correct.
Q. Is that all theory? Do you have any facts to support that?
A. I didn't have the conduit itself or the cable. What I am going by is my own experience in having found cable under that condition that did fail as a consequence of that, of that kind of condition.
Q. Now, assuming that this point in the conduit which has the hole in it was caused by arcing of the nature that you have described, do you have an opinion as to how the heat spread from that point and started a fire?
A. Yes, sir, the molten metal and the sparks falling from the arc point would have fallen into combustible material that was stored beneath it.
This testimony raises questions of whether Graves was negligent in installation and if such negligence could have caused the fire. Although Berkowitz did not personally examine the conduit in question, his opinion was based on a personal examination of the burned building, photographs of the melted conduit, and his experience in other cases, and was therefore competent to testify as to the cause of the fire.
MILLER BUILDING CORPORATION
The plaintiffs argue that there is a fact issue on whether an employer-employee or contractor-subcontractor relationship existed between Miller and Graves so as to make Miller liable for any possible negligence of Graves. We agree.
The law in North Carolina on the relationship between master and servant was outlined in Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944). The Supreme Court found the vital test to be if "the employer has or has not retained the right of control or superintendence over the contractor or employee as to details." Id. at 15, 29 S.E.2d at 140. Hayes enunciated a number of elements to consider in the determination.
The person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.
Id. at 16, 29 S.E.2d at 140. These factors are considered along with all other circumstances to determine the relationship.
The facts here show a possible relationship which could result in holding Miller liable for the alleged negligence of Graves. An affidavit of J.A. Kuske, Miller's Vice-President, states the following contentions:
1. Wilsons took separate bids from general contractors and from electrical, plumbing, heating, and air conditioning contractors.
2. Graves did all of the electrical installation in connection with the 1972 project, as far as Miller knows. None of the electrical work was done by Miller or at its request.
3. Miller exercised no control over Graves in the 1972 installation.
4. Miller included the bids of all contractors in one contract as a matter of convenience at the plaintiffs' request.
An affidavit of Lawrence Allan Wilson, a partner in the plaintiffs' business, however, contradicts Kuske's assertions. Wilson states in his affidavit: "The electrical subcontractor for Miller Building Corporation was Graves Electric Company. Wilson Brothers did not contract separately with Graves Electric Company for the electrical work. The contract with Miller Building Corporation included the electrical work."
This conflict in the evidence over the relationship between Miller and Graves creates an issue of fact that must be decided *45 by a jury. We express no opinion on the alleged negligence of Graves or Miller's responsibility for it. We only decide that summary judgment was improperly entered for Miller.
THE MOBIL DEFENDANTS
The plaintiffs argue that the Mobil defendants should be strictly liable in tort because the plastic trays which they manufactured and sold were unreasonably dangerous. They contend that Restatement (Second) of Torts § 402A (1965), which extends strict liability to sellers in products liability cases, should be adopted in North Carolina.
We note first that the Supreme Court rejected the same argument recently in Smith v. Fiber Controls Co., 300 N.C. 669, 268 S.E.2d 504 (1980). In this State, a plaintiff's claim in a products liability case must be determined by the principles of negligence or breach of warranty. Maybank v. S.S. Kresge Co., 46 N.C.App. 687, 689, 266 S.E.2d 409, 411 (1980), modified and aff'd, 302 N.C. 129, 273 S.E.2d 681 (1981).
G.S. 99B, the North Carolina Products Liability Act, is not an enactment of strict liability in products liability cases. In fact, G.S. 99B-4(3) reaffirms the applicability of contributory negligence as a defense in product liability actions. Contributory negligence is not a defense in a strict liability action.
The plaintiffs also contend that the Mobil defendants may be liable in negligence for failure to warn of the dangers of the plastic trays. We find this argument to be feckless.
The fact that Mobil's plastic trays burned when molten metal dripped on them does not make them so dangerous as to require a warning about their use. Almost any material would have burned under the facts of this case. That fact does not mandate a warning on the product. See RESTATEMENT (SECOND) OF TORTS § 388 (1965).
As a result, we hold that it was proper to grant summary judgment in favor of all Mobil defendants.
In conclusion, summary judgment was improperly granted in favor of Graves Electric and Miller Building. It was properly granted for the Mobil defendants.
Reversed and remanded in part. Affirmed in part.
WELLS and BRASWELL, JJ., concur.