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Dewitt v. Eveready Battery Co.6/28/2002
PUBLISHED
This products liability action was brought by plaintiff, Franklin Roland DeWitt, against defendant, Eveready Battery Company, Inc., for injuries plaintiff sustained when alkaline batteries manufactured by defendant leaked battery fluid onto plaintiff's ankle. The sole issue presented for this Court's review is whether the Court of Appeals erred in reversing the trial court's entry of summary judgment in favor of defendant on plaintiff's claim that defendant breached the implied warranty of merchantability by manufacturing defective batteries. For the reasons that follow, we hold that summary judgment was improperly entered for defendant on this issue; therefore, we affirm the Court of Appeals.
Taken in the light most favorable to plaintiff, the evidence shows that on 10 December 1995, plaintiff purchased a Coleman batterypowered lantern and eight Eveready "Energizer" size D batteries from a Wal-Mart store in Mooresville, North Carolina. The batteries, manufactured by defendant, were sold in sealed packages containing two batteries each. Plaintiff read the instructions accompanying the lantern explaining proper battery installation. He did not remember if these instructions included warnings of potential hazards that could result from incorrect battery placement, nor did he read or see any warnings on the battery packages or on the batteries themselves. However, because his occupation involved installing fire alarms and security systems, he was familiar with the characteristics of such batteries. He knew that it could be dangerous to install the batteries incorrectly and that the contents of damaged or leaking batteries could cause injury .
Plaintiff inserted the eight batteries in the bottom of the lantern. Although he did not notice specifically whether he aligned the batteries correctly, he assumed he did so because he had "put so many batteries in and out of things over the years with raising kids and everything." Plaintiff then operated the lantern for approximately five minutes. He was not satisfied with the meager illumination provided by the lantern, however, so he set it aside.
The next day, plaintiff decided to remove the batteries and return the lantern. At that point, the batteries had been in the lantern for approximately twenty-four hours. Plaintiff held the lantern between his ankles for three to four minutes while he removed the batteries. As he did so, he noticed fluid on some of the batteries. As plaintiff stated during his deposition, "I noticed on one for sure, there was like a slimy feeling." Plaintiff also noticed some "slimy" moisture on the bottom of the lantern. However, he did not realize that the moisture on the batteries or the lantern came from the batteries themselves. Instead, he "didn't know if it was like . . . condensation or what it could be" and simply washed his hands.
Shortly thereafter, plaintiff felt a tingling on his ankle and noticed that it was slightly red. Because he was not in any discomfort and had not experienced any tingling in his fingers prior to washing his hands, he thought he had been bitten by an insect. He also noticed that his sock was moist but, because the weather was warm, assumed the moisture came from perspiration. He added, "The last place I would have thought it [had come] from was the batteries." Accordingly, he did not wash his ankle or remove his sock, but put the lantern back in its box and returned it to Wal-Mart. He kept the batteries and later gave them to his attorney.
While driving home, plaintiff felt an uncomfortable warm sensation, "almost like a burning," on his ankle. Once inside his house, he removed his right shoe and sock and discovered that the enti
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