dissenting.
We view the forecast of plaintiff’s evidence as sufficient to withstand defendant’s motion for summary judgment. Our courts have consistently held that summary judgment is a drastic remedy and should be used cautiously. Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E. 2d 897 (1972), rehearing denied, 281 N.C. 516 (1972); Holley v. Coggin Pontiac, Inc., 43 N.C. App. 229, 259 S.E. 2d 1 (1979), disc. rev. denied, 298 N.C. 806, 261 S.E. 2d 919 (1979). The papers of the moving party are to be closely scrutinized, while those of the opposing party are to be indulgently regarded. Singleton v. Stewart, 280 N.C. 460, 186 S.E. 2d 400 (1972). Proceedings on summary judgment are not intended to operate as a substitute for trial, but only to determine if there are genuine issues to be tried. Kidd v. Early, 289 N.C. 343, 222 S.E. 2d 392 (1976).
In the case before us plaintiff has raised the issues of breach of express and implied warranties and negligent design. Plaintiff’s expert witness, Daniel W. Smith, testified that in his opinion the charge in the C02 cannister had a tendency to leak and did in fact leak in the bulldozer in question. Due to the leak, there was not a sufficient quantity of propellant to disperse the fire extinguishing chemical powder to effectively suppress or extinguish the fire. The expert’s testimony was sufficient for the trier of fact to conclude the fire suppression system was unmerchantable or negligently designed.
The majority rests its decision on City of Thomasville v. Lease-Martin Afex, Inc., 38 N.C. App. 737, 248 S.E. 2d 766 (1978). In that case the plaintiff offered nothing beyond its bare allegation that the fire suppressing system did not activate. The fact that the system did not work was held insufficient by itself to show a forecast of evidence that defendant negligently designed the device or breached express or implied warranties. In the present case, the testimony of plaintiff’s expert satisfies the deficiency-
The judgment of the trial court should be reversed.