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Morgan v. Cavalier Acquisition Corp.8/17/1993
beverage equipment owned by [defendant]." Mr. Barnwell did not report his suspicions (regarding the tilting of the machine or the reasons for the money loss) to his superiors. The record is devoid of any evidence indicating that Mr. Barnwell violated company procedure by keeping this information to himself. Additionally, Bottling Company conceded that it had no "safety or loss prevention officer or department" prior to decedent's death. When all of this evidence is viewed in the light most favorable to plaintiff as non-movant, we conclude that a genuine issue of material fact exists as to the issue of defendant Bottling Company's gross negligence.
Given the evidence presented in this record, we conclude that defendants have failed to meet their burden of showing that no genuine issue of material fact exists as to the issue of gross negligence. Cf. Akzona, Inc. v. Southern Railway Co., 314 N.C. 488, 334 S.E.2d 759 (1985) (reversing directed verdict for defendants on gross negligence issue). Accordingly, we remand for trial. See Cowan v. Brian Center Management Corp., 109 N.C. App. at 449-51, 428 S.E.2d at 266-67; Berrier v. Thrift, 107 N.C. App. 356, 360, 420 S.E.2d 206, 208 (1992), disc. rev. denied, 333 N.C. 254, 424 S.E.2d 918 (1993).
III.
Plaintiff contends that " here are genuine issues of material fact, precluding summary judgment, as to whether Cavalier Acquisition is responsible for the products liability claims of Cavalier." We agree and remand for trial on this issue.
In Budd Tire Corp. v. Pierce Tire Co., 90 N.C. App. 684, 687, 370 S.E.2d 267, 269 (1988), this Court stated:
A corporation which purchases all, or substantially all, of the assets of another corporation is generally not liable for the old corporation's debts or liabilities. See McAlister v. Express Co., 179 N.C. 556, 103 S.E. 129 (1920); Robinson, North Carolina Corporation Law and Practice, section 25-6 (1983); 15 Fletcher Cyc Corp, section 7122 (perm. ed. 1983). Exceptions exist where: (1) there is an express or implied agreement by the purchasing corporation to assume the debt or liability; (2) the transfer amounts to a de facto merger of the two corporations; (3) the transfer of assets was done for the purpose of defrauding the corporation's creditors; or (4) the purchasing corporation is a "mere continuation" of the selling corporation in that the purchasing corporation has some of the same shareholders, directors, and officers. Bud Antle, Inc. v. Eastern Foods, Inc., 758 F.2d 1451 (11th Cir. 1985); Robinson, supra ; 15 Fletcher Cyc Corp, supra. Some cases cite inadequate consideration for the purchase, or a lack of some of the elements of a good faith purchaser for value, as a separate exception, see Kemos, Inc. v. Bader, 545 F.2d 913 (5th Cir. 1977); Cyr v. B. Offen & Co. Inc., 501 F.2d 1145 (1st Cir. 1974), although those are generally considered only as additional factors in determining whether the transaction was for the purpose of avoiding creditors' claims, Bud Antle, Inc., supra, or whether the new corporation is a mere continuation of the old one. Robinson, supra. Our case law is less recent but has adopted essentially the same exceptions. See McAlister v. Express Co., supra at 560, 561, 565, 103 S.E. at 130-131, 133.
One of the Budd Tire exceptions exists where it is shown that "the transfer of assets was done for the purpose of defrauding the corporation's creditors." Budd Tire, 90 N.C. App. at 687, 370 S.E.
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