dissenting.
I respectfully dissent from the holding in part I of the majority opinion regarding the implied warranty of merchantability because I believe plaintiff has not shown substantial evidence of the product’s defect, and therefore cannot survive a motion for summary judgment.
A motion for summary judgment is proper where there is no genuine issue of material fact. Johnson v. Trustees of Durham Tech. Cmty. Coll., 139 N.C. App. 676, 680, 535 S.E.2d 357, 361, appeal dismissed and disc. review denied, 353 N.C. 265,-S.E.2d-(2000). As the majority has stated, “[a]n issue is genuine where it is supported by substantial evidence.” Johnson, 139 N.C. App. at 681, 535 S.E.2d at 361. In turn, substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and is more than a scintilla or a permissible inference.’ ” In re Appeal by McCrary, 112 N.C. App. 161, 168, 435 S.E.2d 359, 364 (1993 (quoting Wiggins v. N.C. Dep’t of Human Res., 105 N.C. App. 302, 306, 413 S.E.2d 3, 5 (1992)).
The majority holds that summary judgment in favor of defendant was improper because it finds there was substantial evidence that defendant breached the implied warranty of merchantability by manufacturing a defective product. In doing so, the majority relies heavily on Red Hill Hosiery Mill, Inc. v. MagneTek, Inc., 138 N.C. App. 70, 530 S.E.2d 321 (2000).
Red Hill involved a products liability claim resulting from an alleged defect in a flourescent light which started a fire that destroyed the Red Hill’s greige manufacturing mill. The evidence tended to show that it was a defective ballast (which dissipates heat generated in the normal operation of the light), inside the flourescent light that had overheated, igniting some lint that was on top of the *158light in the process. Red Hill sued the manufacturer of the ballast, MagneTek, Inc. (MagneTek), on a breach of warranty theory.
Summary judgment in favor of MagneTek was granted at the trial court level. However, this Court reversed that ruling after finding that Red Hill had produced substantial evidence of a genuine issue of material fact, and that therefore, summary judgment in favor of MagneTek was not proper.
The evidence provided by Red Hill tended to show that the Hickory Fire Marshall, the Hickory Fire Inspector, and two North Carolina State Bureau of Investigation agents had done a cause and origin investigation, and based on the fire pattern, had determined that the area of origin of the fire was a particular flourescent light fixture, that the light fixture was discolored on top, indicating a specific area of heating, and that this specific area was in the area where the ballast was located. The investigators excluded all other possible sources of the fire, including the mill’s electrical and mechanical systems. In addition, an expert for Red Hill whose expertise was in electrical engineering, physics, and fire investigation, reviewed the fire scene and the light fixture. The expert came to the same conclusion as the investigators — that the ballast had malfunctioned and that it overheated causing the fire. Even after considering all other possible sources of the fire, the expert concluded that no other cause was reasonable. Furthermore, although Red Hill could not point to a specific defect, the light fixture in question had been put only to its ordinary use. Thus, the Court held that “in a products liability action, based on tort or warranty, a product defect may be inferred from evidence of the product’s malfunction, if there is evidence the product had been put to its ordinary use.” Red Hill, 138 N.C. App. at 76-77, 530 S.E.2d at 327.
Red Hill, however, is distinguishable from the facts of the case at hand. Here, there was no evidence that the batteries malfunctioned, in fact, every indication was that they operated properly by activating the safety “venting” mechanism when pressure began to build in the batteries. An expert for defendant testified that the batteries were designed to leak in order to prevent them from exploding under certain conditions, namely their improper use by: (I) recharging the batteries; (2) mixing old batteries with new batteries; or (3) putting a battery in backwards. They would also leak if there were gross contamination in a battery. The expert was then able to rule out the possibilities of gross contamination or mixing old and new batteries. *159Further, as noted by the majority, there is no evidence that plaintiff recharged the battery. The only remaining possibilities then, are that (1) the plaintiff put the batteries in backwards, causing them to leak as they were designed to do for safety precautions, or (2) the batteries malfunctioned.
The majority contends that based on this evidence, and based on the plaintiff’s assumption that he properly placed the batteries in the lantern,7 that under our holding in Red Hill, plaintiff should be allowed to infer that the product was defective, and that this constitutes sufficient evidence to defeat the summary judgment motion.
I disagree with this reasoning. While it is true that “our courts have permitted an inference of a product defect upon a showing the product malfunctioned after the product had been put to ordinary use,” Red Hill, 138 N.C. App. at 76, 530 S.E.2d at 326, the only evidence that the product malfunctioned instead of properly venting, is the plaintiffs assumption that he properly placed the batteries in the lantern. This does not, in my belief, constitute the “substantial evidence” which is necessary to defeat a motion for summary judgment. Nor did plaintiff present expert testimony or other evidence to indicate the product was defective.8
Because I do not find that plaintiff has presented substantial evidence of any defect in the product, I would uphold the trial court’s ruling in favor of summary judgment for defendant.
. Plaintiff in his deposition responded to questions from defendant’s attorney as follows:
Mr. Raynor: Notice that you had all the batteries in the right way[?]
Plaintiff: I don’t even think I really looked to notice, to say honestly.
Mr. Raynor: Just assume you’d done it right?
Plaintiff: Yeah, yeah, I’ve put so many batteries in and out of things over the years with raising kids and everything.
. It should be noted that although plaintiff did present an expert witness (William Wayne Beaver) who gave testimony regarding the venting mechanism and who opined that the leaking might be caused by a manufacturing defect, the expert was not able to definitively state whether the batteries in question here were defective.
In fact as pointed out by the majority, Beaver testified that in his opinion “if it were shown that the venting mechanism had been initiated, it would be ‘strong evidence’ the batteries had functioned properly,” and that “Beaver was unable to state whether the batteries contained any defects that may have caused the venting system to malfunction.”