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Champs Convenience Stores Inc. v. United Chemical Co.8/14/1991
In this appeal we consider whether the Court of Appeals erred in determining that this action is a products liability action and thus covered by the provisions of N. C.G.S. § 99B and in determining that plaintiff's employee, under the facts of this case, was contributorily negligent as a matter of law. Defendant also raises five issues on cross-appeal dealing with jury instructions and the amount of damages awarded plaintiff. We conclude that the jury instructions given in this case make it unnecessary to decide whether the provisions of § 99B, more specifically the defenses found in § 99B-4, apply to the facts of this case, and we further conclude that the Court of Appeals erred in its determination that plaintiff's employee was contributorily negligent as a matter of law. We also conclude that none of the issues raised by defendant on cross-appeal have any merit.
Plaintiff Champs Convenience Stores, Inc., operated a small grocery store called Miller's Grocery. Plaintiff purchased Miller's Grocery on 8 May 1987 and in July 1987 hired Marta Sprinkle to manage the operation of the store. In August 1987, Sprinkle told Jim Hanvey, the president of plaintiff corporation, that she was having trouble keeping dust off the merchandise in the store. Hanvey told her to call defendant United Chemicals Company, Inc.
When Sprinkle called defendant on 31 August 1987, she spoke with an employee, Bill Robinson, and told him that she needed something to put on the wood floors of the grocery store to control the dust. According to Sprinkle's testimony at trial, "I told him that my bossman said it was 'dust-something or other,' and that was all I knew." Robinson, after inquiring if she was calling from Miller's Grocery, told her that defendant had sold a product known as Dust Command to the previous owners. Sprinkle asked Robinson what size container it came in, and he replied that it came in both one-gallon and five-gallon containers. Robinson, after asking when the product had last been applied, suggested that Sprinkle purchase a five-gallon container.
Sprinkle asked Robinson how to apply the Dust Command. He told her that she would have to close the store to put it down, but she could put it down after the store closed that evening, and the store could be reopened the next morning as usual. He also told her that she needed to apply the product with old mops because she would have to throw the mops away after using them to apply the product. When Sprinkle asked if she needed a special bucket to use, Robinson replied that she could just open the container the product came in and apply it directly from that container. He also suggested that she not wring out the mops because she should not get the product on her hands.
About thirty minutes after Sprinkle called defendant, a delivery person arrived at Miller's Grocery with a five-gallon black bucket. The delivery person told Sprinkle that he was from United Chemical and that he had brought the Dust Command she ordered. Sprinkle asked him to put it down in the corner so that it would not be in the way of the customers, and she asked him a question about the product. The delivery person looked at the bucket and told her that he could not answer her question. He then gave her the invoice; she looked at the invoice, signed it, and paid him. The invoice, presented as an exhibit at trial, listed the product delivered as Dust Command.
After closing the store at the usual time that evening, Sprinkle and Steve Creaseman, another employee of the store, began to apply the product which had been delivered that day. Sprinkle admitted at trial that she never read the label of the product which was delivered and did not know that the pro
Page 1 2 3 4 5 6 7 8 9 10 11 12 North Carolina Personal Injury Attorneys
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