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Jolley v. General Motors Corp.

Filed: January 5, 1982.

DENNIS ELMER JOLLEY
v.
GENERAL MOTORS CORPORATION



Appeal by plaintiff from Gaines, Judge. Judgment entered 12 January 1981 in Superior Court, Cleveland County. Heard in the Court of Appeals on 18 November 1981.

Hedrick, Judge. Chief Judge Morris and Judge Martin (Robert M.) concur.

Hedrick

Plaintiff assigns as error the court's granting of defendant's motion for directed verdict. In determining whether a motion for directed verdict should be granted, the non-movant's evidence must be taken as true and considered in the light most favorable to him; a directed verdict is properly granted if and only if the evidence is insufficient to justify a verdict for the nonmovant. Hawks v. Brindle, 51 N.C. App. 19, 275 S.E.2d 277 (1981). In the present case, the plaintiff's evidence must be examined to determine if it would be sufficient to support a verdict for either negligence or breach of warranty.

The plaintiff, to overcome a motion for a directed verdict, is required to offer evidence to establish, beyond mere speculation or conjecture, every essential element of negligence. Upon his failure to do so, a motion for a directed verdict is properly granted." Oliver v. Royall, 36 N.C. App. 239, 242, 243 S.E.2d 436, 439 (1978). Evidence which raises only a conjecture of negligence is not sufficient to withstand a motion for directed verdict. Cox v. Dick, 31 N.C. App. 565, 229 S.E.2d 843 (1976), disc. rev. denied, 291 N.C. 710, 232 S.E.2d 203 (1977). Ordinarily, no inference of negligence arises from the mere fact of accident or injury. O'Quinn v. Southard, 269 N.C. 385, 152 S.E.2d 538 (1967). In an action to recover for injuries resulting from the negligence of a manufacturer, plaintiff must present evidence which tends to show that the product manufactured by defendant was defective at the time it left defendant's plant, and that defendant was negligent in its design of the product, in its selection of materials, in its assembly process, or in its inspection of the product. Cockerham v. Ward, 44 N.C. App. 615, 262 S.E.2d 651, disc. rev. denied, 300 N.C. 195, 269 S.E.2d 622 (1980). To make out a case of breach of implied warranty, the plaintiff must prove that the goods bought and sold were subject to an implied warranty of

merchantability, that the goods did not comply with the warranty in that the goods were defective at the time of sale, that his injury was caused by the defective nature of the goods, and that damages were suffered as a result; the burden is upon the purchaser to establish a breach by the seller of the implied warranty by showing that a defect existed at the time of sale. Cockerham v. Ward, supra.

No construction of the evidence in the present case yields an inference that the automobile in question was defective in any way when it left defendant's plaint, or that there was any negligence on the part of defendant in its design of the automobile, its selection of materials, its assembly process, or in its inspection. An inference which may reasonably be drawn from the evidence is that the right front tire either blew out or came off the rim of the automobile. Assuming arguendo that the tire did blow out or come off the rim, this fact standing alone is not sufficient to show that the vehicle, or in particular, the tire, was defective when it left defendant's plant, that defendant was negligent in its design of the automobile, its selection of materials, its assembly process, or its inspection. Plouffe v. Goodyear Tire & Rubber Co., 118 R.I. 288, 373 A. 2d 492 (1977); Springer Corp. v. Dallas & Mavis Forwarding Co., 90 N.M. 58, 559 P. 2d 846 (1976), cert. denied, 90 N.M. 254, 561 P. 2d 1347 (1977). When the evidence in the present case is considered in the light most favorable to plaintiff, it tends to show that an accident occurred and that plaintiff was injured, and, as pointed out earlier, negligence cannot be inferred from the mere happening of an accident or injury. What we have said with respect to a lack of evidence of negligence on the part of defendant applies equally to a lack of evidence of breach of implied warranty. Directed verdict against plaintiff, therefore, was proper.

Affirmed.

Disposition

Affirmed.

19820105

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