concurring in the result.
I agree with the majority that the trial court properly granted Custom’s motion for a directed verdict as to plaintiff’s claims for failure to provide adequate warnings and breach of the implied warranty of merchantability but reach this conclusion using a different analysis.
*67 Failure to Warn
Pursuant to N.C. Gen. Stat. § 99B-5(a), a defendant in a product liability action will not be held liable for inadequate warning or instruction unless the claimant shows: (1) “the manufacturer or seller acted unreasonably in failing to provide such warning or instruction,” (2) “the failure to provide adequate warning or instruction was a proximate cause of the harm for which damages are sought,” and (3) either section 99B-5(a)(l) or 99B-5(a)(2) has been satisfied. N.C.G.S. § 99B-5(a) (2001). Section 99B-5(a)(l) applies where the manufacturer or seller becomes aware of the need to warn or instruct while the product is still in its control and provides:
At the time the product left the control of the manufacturer or seller, the product, without an adequate warning or instruction, created an unreasonably dangerous condition that the manufacturer or seller knew, or in the exercise of ordinary care should have known, posed a substantial risk of harm to a reasonably foreseeable claimant.
N.C.G.S. § 99B-5(a)(1) (2001). Section 99B-5(a)(2) deals with the scenario in which the manufacturer or seller only becomes aware of the need to warn or instruct after the product has left its control. See N.C.G.S. § 99B-5(a)(2) (2001). Under this section, the claimant must further prove that:
[a]fter the product left the control of the manufacturer or seller, the manufacturer or seller became aware of or in the exercise of ordinary care should have known that the product posed a substantial risk of harm to a reasonably foreseeable user or consumer and failed to take reasonable steps to give adequate warning or instruction or to take other reasonable action under the circumstances.
Id.
In this case, plaintiff presented no evidence that the clamp, when it left Custom’s control, created an unreasonably dangerous condition that Custom “knew, or in the exercise of ordinary care should have known, posed a substantial risk of harm” to plaintiff. See N.C.G.S. § 99B-5(a)(1). Furthermore, Custom’s president testified that since it started producing clamps, Custom had not received any complaints from customers about its clamps prior to plaintiff’s accident. Thus, there is no evidence under section 99B-5(a)(2) that after the clamp in question left Custom’s control, Custom “became aware *68of or in the exercise of ordinary care should have known that the product posed a substantial risk of harm” to plaintiff. As plaintiff failed to provide substantial evidence of the elements listed in either section 99B-5(a)(l) or (2), the trial court properly granted Custom’s motion for a directed verdict on plaintiff’s failure to warn claim. Cobb v. Reitter 105 N.C. App. 218, 220, 412 S.E.2d 110, 111 (1992) (standard of review on appeal from a directed verdict).
Implied Warranty of Merchantability
I disagree with the majority’s implication that a plaintiff seeking to show a breach of the implied warranty of merchantability must offer evidence as to each factor listed in Dewitt v. Eveready Battery Co., Inc. to survive a motion for a directed verdict. In order to establish a breach of the implied warranty of merchantability, a plaintiff must prove that: (1) the product bought and sold was subject to an implied warranty of merchantability; (2) the product did not comply with the warranty because it was defective at the time of sale; (3) the plaintiff’s injury was due to the defective nature of the product; and (4) plaintiff suffered damages as a result. Dewitt v. Eveready Battery Co., Inc., 355 N.C. 672, 683, 565 S.E.2d 140, 147 (2002). According to our Supreme Court, adequate circumstantial evidence of a defect at the time of sale
may include such factors as: (1) the malfunction of the product; (2) expert testimony as to a possible cause or causes; (3) how soon the malfunction occurred after the plaintiff first obtained the product and other relevant history of the product...; (4) similar incidents, “ ‘when[] accompanied by proof of substantially similar circumstances and reasonable proximity in time’ ”; (5) elimination of other possible causes of the accident; and (6) proof tending to establish that such an accident would not occur absent a manufacturing defect.
Id. at -, 565 S.E.2d at 151 (citations omitted) (emphasis added). Our Supreme Court further held that “[t]he plaintiff does not have to satisfy all these factors to create a circumstantial case . . . , and if the trial court determines that the case may be submitted to the jury, ‘ “[i]n most cases, the weighing of these factors should be left to the finder of fact.” ’ ” Id. (citation omitted). Accordingly, the fact plaintiff did not present evidence in this case relating to the last four factors outlined in Dewitt v. Eveready is not in and of itself determinative.
*69I nevertheless agree with the majority’s decision to affirm the trial court’s grant of a directed verdict as to plaintiff’s implied warranty of merchantability claim because plaintiff failed to prove the existence of this warranty. The implied warranty of merchantability applies only to merchants. See N.C.G.S. § 25-2-314 (2001). Pursuant to N.C. Gen. Stat. § 25-2-104(1), a merchant is defined as “a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction.” N.C.G.S. § 25-2-104(1) (2001).
According, to the testimony of Custom’s president, “Custom... is a metal stamping job shop [with which] [m]anufacturers of equipment contract... to run parts on [Custom’s] presses, parts they wish to outsource.” It is the customer who provides Custom with the specifications for the requested products, which range from “parts that go into winch assemblies^] . . . parts that go into hub assemblies for four-wheel drive vehicles[,] . . . components of exercise equipment [and] overhead door assemblies” to “cooling tubes for nuclear fuel rods.” This evidence gives no indication that Custom “dealft] in” clamps or otherwise “h[eld] [itself] out as having knowledge or skill peculiar to” the manufacture of clamps. Thus, Custom is not a merchant in respect to the manufacture of clamps, and no implied warranty of merchantability exists in this case. As such, the trial court properly granted Custom’s motion for a directed verdict.