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Champs Convenience Stores Inc. v. United Chemical Co.8/14/1991
. 533, 547, 359 S.E.2d 472, 480 (1987). Reading the above-quoted statutes together, it is clear that in order to have a cause of action under Chapter 99B, there must be a "defective" product. The action before us is simply not a "product liability action." It is an ordinary negligence action, and it was correctly tried as such in the trial division.
Prior to the enactment of Chapter 99B, this Court recognized the principle that the product must be defective in order to sustain a cause of action. This Court stated that, "'the necessity of proving defectiveness of the product applies no matter what theory governs the particular action.'" Transportation, Inc. v. Strick Corp., 286 N.C. 235, 243, 210 S.E.2d 181, 186 (1974) (quoting 63 Am. Jur. 2d, Product Liability ยง 9 (1972)). The Court of Appeals has also held that for a plaintiff to recover damages, he must show a defect in the product. Sutton v. Major Products Co., 91 N.C. App. 610, 372 S.E.2d 897 (1988). In Sutton, the plaintiff failed to show that a "potato whitener" was defective when it left the defendant's plant, and the Court of Appeals affirmed summary judgment in favor of the defendant.
This case was correctly tried as an ordinary negligence action, and it is for that reason I vote to remand this case to the trial court for reinstatement of its judgment.
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