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Dewitt v. Eveready Battery Co.6/28/2002
urring in the result only.
The sole issue before this Court is whether plaintiff has made a showing that defendant breached the implied warranty of merchantability sufficient to overcome defendant's motion for summary judgment. A warranty of merchantability is implied in every contract for sale. N.C.G.S. § 25-2-314(1) (2001). To prove that this warranty has been breached,
"a plaintiff must prove, first that the goods bought and sold were subject to an implied warranty of merchantability; second, that the goods did not comply with the warranty in that the goods were defective at the time of sale; third, that his injury was due to the defective nature of the goods; and fourth, that damages were suffered as a result. Tennessee-Carolina Transportation, Inc. v. Strick Corp., 286 N.C. 235, 210 S.E.2d 181 (1974); Burbage v. Atlantic Mobilehome Suppliers Corp., 21 N.C. App. 615, 205 S.E.2d 622 (1974)." Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 301, 354 S.E.2d 495, 497 (1987) (quoting Cockerham v. Ward, 44 N.C. App. 615, 624-25, 262 S.E.2d 651, 658, disc. rev. denied, 300 N.C. 195, 269 S.E.2d 622 (1980)).
Although both N.C.G.S. § 25-2-314(1) and Morrison speak in terms of a plaintiff suing a merchant, a plaintiff may also "bring a product liability action directly against the manufacturer of the product involved for breach of implied warranty." N.C.G.S. § 99B-2(b) (2001); see also Morrison, 319 N.C. at 303-04, 354 S.E.2d at 499.
In my view, under existing North Carolina law, the forecast of expert evidence in this case, taken in the light most favorable to plaintiff, raises a genuine issue of material fact as to whether the batteries were defective at the time of sale and is, therefore, sufficient to withstand defendant's motion for summary judgment. N.C.G.S. § 1A-1, Rule 56 (2001). The evidence does not, however, compel such a finding; and the credibility of the evidence is for the jury. See Rose v. Epley Motor Sales, 288 N.C. 53, 61, 215 S.E.2d 573, 578 (1975).
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