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Jack H. Winslow Farms7/19/2005
Jack Winslow Farms, Inc. (plaintiff) appeals from an order of summary judgment granted in favor of defendants, a retailer and manufacturer of grain silos. For the following reasons, we affirm the trial court's summary judgment order. In 1976 plaintiff purchased a Harvestore silo to store high moisture corn to be used as feed for his hogs. Plaintiff, a North Carolina farmer, traveled to farms in Wisconsin and Indiana that were using the Harvestore silo before making his own purchase. He investigated the silos and all the promotional literature associated with them. Finally, he contacted Carl Dedmon, a local Harvestore silo dealer, who eventually sold plaintiff his first silo.
Pleased with its performance, plaintiff bought two additional silos in 1977. Throughout the more than twenty years of using the silos, plaintiff never had reason to doubt the quality of his purchases. The size of his farm increased from 300 acres in 1960 to almost 2000 acres in 1999, and at that point involved about 1000 sows. Plaintiff always received market value for his hogs, and the high moisture corn stored in the silos consistently kept its yellow color, did not dry out, and did not spoil.
Then, in 1997, as plaintiff was filling his third silo, it collapsed and fell into the first silo, damaging it as well. Plaintiff attempted to get defendants to repair or replace the silos at defendants' cost, but each denied any agreement or warranty for that purpose. Plaintiff contacted a lawyer to represent him who was already involved in related litigation against defendant A.O. Smith. This lawyer suggested that plaintiff conduct a "test" on the feed being distributed to the hogs from the silos. Plaintiff alleges that the results from this test, which was conducted solely by plaintiff, supported a theory that therewere problems with the silos throughout their more than twenty years of use.
In June 1998, plaintiff filed suit against defendants for multiple claims including breach of contract, breach of warranties, fraud, unfair and deceptive trade practices, and products liability. Plaintiff alleged that a design defect had allowed moisture or oxygen to reach the corn causing it to spoil or otherwise fail to be as nutritious for plaintiff's hogs. Plaintiff further alleged that the sole reason in purchasing the silos was because they were designed and marketed as having the ability to prevent spoilage of high moisture corn.
Defendants moved for summary judgment on all claims arguing, in part, that the statute of repose, economic loss doctrine, and plaintiff's failure to adequately show damages entitled them to relief. The trial court granted defendants' motion for summary judgment on 28 July 2004 and plaintiff appeals.
Summary judgment is properly granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. ยง 1A-1, Rule 56(c) (2003).
Summary judgment is appropriate for the defending party when (1) an essential element of the other party's claim or defense is non-existent; (2) the other party cannot produce evidence to support an essential element of its claim or defense; or (3) the other party cannot overcome an affirmative defense which would bar the claim.
Caswell Realty Assoc. v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610 (1998) (internal citation omitted).
Whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. . . . However, when the bar is properly pleaded and the facts
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