Champs Convenience Stores, Inc. v. United Chemical Co.

392 S.E.2d 761, 99 N.C. App. 275, 1990 N.C. App. LEXIS 516
CourtCourt of Appeals of North Carolina
DecidedJuly 3, 1990
Docket8928SC672
StatusPublished
Cited by3 cases

This text of 392 S.E.2d 761 (Champs Convenience Stores, Inc. v. United Chemical Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Champs Convenience Stores, Inc. v. United Chemical Co., 392 S.E.2d 761, 99 N.C. App. 275, 1990 N.C. App. LEXIS 516 (N.C. Ct. App. 1990).

Opinions

COZORT, Judge.

This product liability action has its origin in mistake and unhappy coincidence. Marta Sprinkle, an employee of plaintiff Champs Convenience Stores, Inc., ordered from the defendant a product named Dust Command, used for controlling dust on wooden floors. The defendant, however, delivered a product named Carbo-Solv, used for cleaning carburetors and other small parts of combustion engines. Both Dust Command and Carbo-Solv were distributed by the defendant in five-gallon containers. On 31 August 1987, without reading the label, Sprinkle and another employee mopped Carbo-Solv on the floor of Miller’s Grocery, one of the plaintiffs’ convenience stores. On 4 September 1987, the Food and Drug Protection Division of the North Carolina Department of Agriculture embargoed the entire contents of the store. Plaintiff eventually closed the store.

On 10 December 1987, the plaintiffs sued, alleging, among other things, that the defendant “[negligently delivered a toxic chemical to plaintiff representing to plaintiff that this product was suitable for cleaning the floors of Miller’s Grocery.” The defendant answered and asserted, among other defenses, contributory negligence by the plaintiffs. At trial, the jury found defendant was negligent, found no contributory negligence by plaintiffs’ employee, and awarded plaintiffs $148,000 in damages. The defendant moved alternatively for judgment notwithstanding the verdict or a new trial. The trial court denied that motion.

The defendant contends on appeal that the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict. We agree.

In initiating this action the plaintiff sought relief based on theories of negligence and breach of contract. The negligence claim was grounded in the delivery of the wrong product. The breach of contract claim was grounded in Marta Sprinkle’s conversation [277]*277with Bill Robinson, an employee of the defendant, regarding the type of product she needed. Based on the evidence brought forward at trial, however, the liability issues submitted to the jury dealt exclusively with negligence:

1. Were the plaintiffs, Champs Convenience Stores, Inc. and Commercial Union Insurance Company, injured or damaged by the negligence of the defendant, United Chemical Company, Inc.?
2. Did the plaintiffs’ employee, Marta Sprinkle, by her own negligence contribute to plaintiffs’ injury or damage?

Marta Sprinkle testified that she called United Chemical and spoke with a Bill Robinson:

Q Tell us about your conversation with Mr. Robinson, please.
A Well, I told him who I was and where I worked, and I said, “We need something to put on some wood floors to control the dust.” And I told him that my boss man said it was “dust-something or other,” and that’s all I knew.
Q What did Mr. Robinson say to you?
A He said, “Did you say ‘Miller’s Grocery’ in Haw Creek?” And I said, “Yes.” And he said, “We used to sell to the previous owner.”
Q And did he tell you what he used to sell?
A He said it was Dust Command.
H= * * *
Q Did you ask him what size he thought you needed?
A Yes. He said, “How long has it been? Have you put it down recently?” And I told him I had no idea when the last time was anything was put on the floor.
Q So did he tell you how much he thought you needed?
A He told me he thought it would take about five gallons.
Q And did he tell you whether the product came in the five-gallon size?
A Yeah; it came in a five-gallon bucket.
[278]*278Q Did you talk to him any more about Dust Command?
A Yes, I did.
Q What else did you ask him and what else did he tell you?
A Well, I asked him about — if I had to close the store to put it down, and he said he would advise it because it kind of made the floor slick. He asked me what our hours were, and I told him, and he told me to close when I closed, just go ahead and mop it down and then lock the door and go home and we’d go right back into business the next morning.
Q Did you ask anything about whether you needed any special equipment?
A Yes, sir, I did. I asked him how to put it down, if we had to have something special to put it down with. He asked me if we had any old mops, because he said, “You’ll have to throw them away when you get through.” I told him we had some old mops. So he told us just to — I said, “Do you have to have buckets or any kind of buffer or anything?” He said, “No, just open the bucket and put the mops in it and mop it down.” He said, “Don’t wring it out,” because he said, “You don’t need to get it on your hands or anything.”

She testified further that, when she and a co-worker mopped the floor with the product, they “commented that it had a bad odor.”

On cross-examination Ms. Sprinkle testified as follows:
Q And then later a five-gallon container was delivered, which you’ve identified as this one right in front of me, along with an invoice that said “Dust Command” on it; right?
A That’s correct.
Q And, in fact, you even had a question about the product that the delivery man could not answer for you?
A That’s correct.
Q But you never consulted the label yourself to try to answer that question after the delivery man left, did you?
A No, I did not.
Q And you had never used Dust Command before?
[279]*279A No, I had not.
Q And certainly had never read a Dust Command label to find out what the directions said on a Dust Command label?
A No, I had not.
* * * *
Mr. MORRIS, III.: Let me just put this up here so you can refer to it.
(Black bucket was placed next to the witness on the stand.)
Q Now, then, that label contains directions for use, does it not?
A Yes, it does.
Q Okay. And you can, of course, read?
A Yes, I can.
Q I believe over there on the right side of the label are the directions; is that right?
A Yes.
Q Okay. The name of the product is on the label, and it says “Carbo Solve?” [sic]
A Yes, it does.
Q And beneath that it says “cold parts and carburetor cleaner,” doesn’t it?
A Yes, it does.

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Related

Champs Convenience Stores, Inc. v. United Chemical Co.
406 S.E.2d 856 (Supreme Court of North Carolina, 1991)
Champs Convenience Stores, Inc. v. United Chemical Co.
392 S.E.2d 761 (Court of Appeals of North Carolina, 1990)

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Bluebook (online)
392 S.E.2d 761, 99 N.C. App. 275, 1990 N.C. App. LEXIS 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/champs-convenience-stores-inc-v-united-chemical-co-ncctapp-1990.