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Hastings v. Seegars Fence Co.12/16/1997
§ 1A-1, Rule 12(b)(6) (1967); N.C. Gen. Stat. § 1A-1, Rule 12(c) (1967).
The general rule is well-established that one trial Judge "'may not reconsider and grant a motion for summary judgment previously denied by another Judge.'" Iverson v. TM One, Inc., 92 N.C. App. 161, 164, 374 S.E.2d 160, 163 (1988) (quoting Smithwick v. Crutchfield, 87 N.C. App. 374, 361 S.E.2d 111 (1987)); Asheville Contracting Co. v. City of Wilson, 62 N.C. App. 329, 303 S.E.2d 365 (1983); Biddix v. Construction Corp., 32 N.C. App. 120, 230 S.E.2d 796 (1977). A second motion for summary judgment may be considered by the trial court only when it presents legal issues different from those raised in the earlier motion. Asheville Contracting Co., supra; Carr v. Great Lakes Carbon Corp., 49 N.C. App. 631, 272 S.E.2d 374 (1980), disc. review denied, 302 N.C. 217, 276 S.E.2d 914 (1981). In the present case, defendant argues that its second motion was based upon the defense contained in G.S. § 99B-3, which had not been before the court at the time of the previous hearing. We do not agree, notwithstanding the recitation in Judge Duke's order that "G.S. 99B-3 has not been the subject of a previous motion . . . ."
Although the materials before Judge Duke at the hearing on defendant's second motion included depositions which had not been before Judge Ragan when he denied defendant's first motion for summary judgment, the legal issues raised by the pleadings remained the same. Defendant's amended answer, which had been filed prior to the initial summary judgment motion and had not since been further amended, alleged the minor plaintiff's contributory negligence "by engaging in horseplay on the fence and cantilevered gate . . . ." This pleading was sufficient to raise the defense provided by G.S. § 99B-3, upon which defendant based its second motion, that the minor plaintiff "used the fence in a manner other than as it was originally designed, tested, or intended by the manufacturer to be used, i.e. she played on the fence and used it as a toy." The depositions offered at the hearing on the second motion disclosed, as had been disclosed in the pleadings and in the materials considered by Judge Ragan in ruling on defendant's first motion for summary judgment, that the minor plaintiff had been injured while playing on the gate. Thus, the issue of the manner in which the minor plaintiff used the fence and gate was before Judge Ragan at the hearing of defendant's first motion for summary judgment and his denial of summary judgment was conclusive upon the issue, precluding Judge Duke from thereafter granting summary judgment on that same issue.
Moreover, even if defendant's second motion had been properly before Judge Duke for decision, summary judgment in this case was error. G.S. § 99B-3 provides, in pertinent part:
Alteration or modification of product.
(a) No manufacturer or seller of a product shall be held liable in any product liability action where a proximate cause of the personal injury , . . . was either an alteration or modification of the product by a party other than the manufacturer, . . . .
(b) For the purposes of this section, alteration or modification includes changes in the design, formula, function, or use of the product from that originally designed, tested, or intended by the manufacturer. . . .
N.C. Gen. Stat. § 99B-3 (emphasis added). Thus, in order for G.S. § 99B-3 to bar plaintiff's recovery, the minor plaintiff's misuse of the fence and gate must have been a proximate cause of her injury . See Rich v. Shaw, 98 N.C. App. 489, 391 S.E.2d 220, disc. review denied, 327 N.C. 432, 395 S.E.2d 689 (1990).
Foreseeability of some injurious co
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