dissenting:
I respectfully dissent.
As well as the majority, I respect the rule that summary judgment should not be lightly granted, and especially in a negligence case: however, where the law makes clear the futility of proceeding and no factual dispute exists, the purposes of the rule should not prevent the court from entering judgment then and there; indeed, they encourage it. Where, as here, there is no factual dispute, the defendant should not be required to go to trial. In the words of Rule 56(c), “[t]he judgment sought shall be rendered forthwith if . there is no genuine issue as to any material fact
The essential error in the majority opinion is in the statement upon which all of the opinion must be based, that the aerial bucket was being “used for work it was designed to do.” Such statement I think is without factual support in the record.
While it may be true that the manufacturer realized that the aerial bucket would be used at or near multiple energized lines above the ground, the specific use which Cook was making of the bucket involved the positioning of the upper arm and its bucket extension across two energized electrical lines, thereby creating a phase to phase connection. In a warning found in the operator’s manual accompanying the tower, the user was admonished specifically that the bucket would not “provide phase to phase protection.” The following quotation from the manual should be dispositive in the case provided the warning was adequate:
“While the fiberglass boom provides a high degree of electrical insulation between the bucket and the truck, there are several things it will NOT do.
1. Provide phase to phase protection. * * * * * *
Each of these dangers must be recognized and guarded against.” (Emphasis in original).
While the majority treats the specific direction not to do what Cook was doing as nothing more than an “unelaborated warning”, and does not quote the warning in the opinion, I think the warning is such as to prevent the plaintiff from recovery for any negligence of the defendant here in question.
This warning clearly shows that the aerial tower was not designed to provide phase to phase protection while working aloft. Even if the fact is as the plaintiff claims, that he thought the bucket would provide such protection, his belief was grounded on surmise, and he admits that he had never read the express disclaimer found in the instruction booklet, a copy of which was kept in the glove compartment of the truck. Such belief may not alter the physical facts concerning the functional construction and design of the product, to transform it from a device designed to provide an aerial platform insulated from current running from wires it touches to the ground, into a platform designed to be safe in situations including phase to phase contact. Thus, while the tower was designed for use around high tension wires, it was not designed for the use to which Cook put it, and Cook was specifically advised of that fact in the manual supplied with the product.
Keeping in mind that Cook was explicitly and emphatically warned that the bucket would not provide phase to phase insulation, I turn to the law in North Carolina with respect to the liability of a manufacturer which incorporates the Restatement of the Law of Torts, § 388:
“one who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows, or from the facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied;
(b) and has no reason to believe that those persons for whose use the chattel *867is supplied will realize its dangerous condition; and
(e) fails to exercise reasonable care to inform them of its dangerous condition or of facts which make it likely to be so.” (Italics added).
Section 388 is quoted as stating the duty of a manufacturer of a chattel in Swaney v. Peden Steel Co., 259 N.C. 531, 131 S.E.2d 601, at 607 (1963). See also Stegall v. Catawba Oil Co. of N. C., 260 N.C. 459, 133 S.E.2d 138 (1963).
Therefore, because the defendant admittedly did warn of the danger of using the aerial tower in the very manner in which Cook used it, the duty to warn him being stated in § 388 in the disjunctive, the liability of the defendant must depend upon whether the warning was adequate under the law. If the warning were legally inadequate, the defendant may be liable; but if the defendant adequately informed users of the dangerous condition, there is no ground for liability.
The majority states that the adequacy of the warning is a disputed factual issue which would prevent the district court from granting summary judgment. I believe that under the case law in our circuit the warning was sufficient as a matter of law. Because liability would ultimately be predicated on the adequacy or inadequacy of the warning, we may assume, for the purpose of argument in this context, that the screws were non-obvious and a dangerous latent condition existed. Summary judgment would even then be proper if there can be no dispute as to the adequacy of the warning because compliance with the duty to warn is stated in the conjunctive in § 388.
In Brown v. General Motors Corp., 355 F.2d 814 (4th Cir. 1966), cert. den. 388 U.S. 1036, 87 S.Ct. 1474, 18 L.Ed.2d 600 (1967), a case not mentioned in the majority opinion, we decided a case under South Carolina law which, for the purposes of the law concerning warning given by the manufacturer, should be so persuasive upon us here as to be followed. No significant fact in the Brown case and our case is different as might adversely affect the defendant. The Brown case was decided under § 388 of the Restatement of Torts, 2d, the law which applies here,1 as shown above, and no North Carolina decision I have found or which has been cited by the majority states any different rule.
In Brown, a bulldozer mechanic sued General Motors, the manufacturer of the bulldozer. The plaintiff was injured when he asked a fellow employee to press the starter button on the bulldozer while it was in gear. The bulldozer started, injuring the plaintiff, instead of just turning a grease fitting as intended. Among the instructions in the operator’s manual supplied by General Motors were the following: Under “Driving Instructions” a direction that “The lever must be in neutral in order to start the engine”; and yet under “Driving Instructions” appeared “NORMAL STARTING . . . Shift the transmission into neutral”; and under “TRANSMISSION OPERATING HINTS” was “Do not shift range selector into neutral except when starting engine. Leave in gear at all other times”; and under “SAFETY” as something an operator should “always” do was the caution to “Make sure no one is working on unit before starting engine or moving tractor.” p. 817.
Not only did the court hold that language, the substance of which I have just quoted, fulfilled the requirement of adequacy of warning, it specifically held that “In supplying a handbook for the use of a purchaser, the plaintiff’s employer, G.M. fully responded to its duty to provide instructions or to warn, even assuming the equipment was a dangerous instrumentality.” p. 820. The court further specifically held that “If the handbook was not shown to Brown . . . by . [his] employer, who apparently deemed it superfluous as a warning, this was no fault of the defendant.” p. 820.
*868The court in Brown set aside a jury verdict for the plaintiff, thus holding as a matter of law that the delivery of the handbook was sufficient, that the language used was sufficient, and that the fact that the employee may not have read the book made no difference. The only difference between Brown and our case is that the language used in the warning given by the manufacturer here is more specific so that a judgment for the defendant in Brown requires a judgment for the defendant in this case.
Because I think it is clear that there may be no liability because of an adequate warning, I will not discuss in detail the majority opinion, but there are two points which I believe deserve comment.
The district court, it seems clear to me, based its opinion on two grounds rather than only one, as the majority opinion may be read. The first was that the “metal hardware near the end of the boom was plainly visible and should have provided adequate warning. . . .” App. 82. The second was “. . . further in light of the defendant’s specific warning concerning the lack of phase to phase protection . . . . ” App. 82. (Italics added).
Finally, the holding in Corprew, as distinguished from the quoted discussion in that case which is relied upon by the majority opinion for a broad reading of North Carolina negligence law, is entirely consistent with my views, and I think inconsistent with the majority opinion. In that case, a farmer sued a manufacturer of a chemical weed killer. The farmer had used the defendant’s Atrazine 20G to kill weeds in his 1964 corn crop. The only warning on the bag was that the defendant “. . . did not recommend that the crop of corn for which [weed] product was used be followed the same year with another planting of corn or followed its initial use by a crop or crops of small grain the same year.” p. 100. The farmer planted peanuts and soybeans, in 1965, the following year, and alleged these crops were damaged by the use of the Atrazine 20G the year before. The court held the quoted warning was insufficient as it reversed a judgment for defendant on demurrer, the substance of the complaint having been that the defendant “should have warned . . . [the plaintiff] of the potential bad effects of Atrazine 20G upon succeeding crops other than corn and small grain in time to have prevented any damage to his 1965 crops, and that defendant negligently failed to so warn him.” p. 107. (Italics added). A comparison of Corprew, in which a plainly inadequate warning was involved, with our case, in which there is admittedly an emphasized warning of the danger of the specific use which caused the injury, leads me to the conclusion that Corprew, far from supporting the majority, supports a finding of no liability. Wilson v. E—Z Flo Chemical Co., 281 N.C. 506, 189 S.E.2d 221 (1972), for example, in a warranty case in which the court stated that an “ample warning” was “Do not use ALANAP [a herbicide] on vine crops of any kind when growing conditions are very adverse; namely, in early spring when the weather is cold and wet.” p. 224. I think the warning given in our case is indistinguishable from that given in Wilson.2
Thus, I believe that, under circuit precedent under § 388 of the Restatement, including § 388 of Restatement 2d, the specific warning given in this case was adequate as a matter of law. I also believe that under North Carolina law, which controls, the specific warning given was adequate as a matter of law. It follows that I believe the judgment for the defendant should be affirmed.
. The only difference in the Restatement and Restatement Second so far as the duty to warn is concerned is the substitution of “dangerous” in Restatement 2d for “so” in the original version as the last word of the section.
. Compare the remarkably similar phrasing of the duty in Wilson (with which the court stated the manufacturer complied) with that stated in § 388. Indeed, the statement of the duty in Wilson was taken from Corprew.
“The supplier of a chattel (especially food or drink for human consumption) is subject to liability for injury in its use by another when the supplier knows or should know that its use is or is likely to be dangerous and when there is no reason to believe that the user will realize this, if, further, he (the supplier) fails to use reasonable care to warn.” Wilson at p. 225.