Dewitt v. Eveready Battery Co., Inc.

550 S.E.2d 511, 144 N.C. App. 143, 2001 N.C. App. LEXIS 432
CourtCourt of Appeals of North Carolina
DecidedJune 19, 2001
DocketCOA00-695
StatusPublished
Cited by17 cases

This text of 550 S.E.2d 511 (Dewitt v. Eveready Battery Co., Inc.) 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
Dewitt v. Eveready Battery Co., Inc., 550 S.E.2d 511, 144 N.C. App. 143, 2001 N.C. App. LEXIS 432 (N.C. Ct. App. 2001).

Opinions

GREENE, Judge.

Franklin R. DeWitt (Plaintiff) appeals an order filed 7 March 2000 granting summary judgment in favor of Eveready Battery Co., Inc. (Defendant).

[145]*145In a complaint filed 10 September 1997, Plaintiff alleged products liability claims against Defendant based on theories of negligence and breach of warranty. Plaintiff’s pleadings and deposition testimony allege the following: On 10 December 1995, Plaintiff purchased a battery-operated Coleman lantern and eight Eveready “Energizer” D cell batteries from a Wal-Mart in Mooresville, North Carolina. The batteries, which were purchased in four separate packages each containing two batteries, were manufactured by Defendant. After making the purchase, Plaintiff took the lantern and the batteries home and followed instructions that came with the lantern regarding how to install the batteries into the lantern. Plaintiff did not see any safety warnings on the batteries or battery packages, and he testified, “I can’t really say I looked at the battery packages because they’re just batteries. I took [the batteries] out of the container and knew what I was going to do with them — what I wanted them for.” Plaintiff did not recall whether the lantern package contained any safety warnings. Plaintiff did not notice whether he placed the batteries into the lantern in the proper direction; however, Plaintiff testified he was familiar with installing batteries and he assumed he had installed the batteries properly. Plaintiff “knew it could be dangerous” to place batteries into an object in the wrong direction.

After Plaintiff installed the batteries in the lantern, the lantern did provide some light; however, Plaintiff was not satisfied with the “[b]rightness” of the lantern. On the following day, Plaintiff decided to remove the batteries from the lantern and return the lantern to Wal-Mart. As Plaintiff placed the lantern between his ankles and began removing the batteries, he noticed fluid on at least one of the batteries. Plaintiff described the fluid as “slimy feeling,” and he testified: “I didn’t think anything of it at the time. Shortly thereafter, I felt a little tingle on my ankle. I didn’t give that any thought at all at the time. I just figured it felt like something nipped me, like a . . . spider bite or something like that.” Plaintiff “pulled down his sock and noticed a slightly red area . . . [and] also noticed that his sock was moist”; however, Plaintiff did not experience any “serious discomfort” and “didn’t really give it a second thought.”1 Additionally, [146]*146Plaintiff noticed the base of the lantern was “a little moist” and had a “slimy feeling.” Plaintiff washed his hands because he “didn’t know what [the fluid] was” and he thought it might have been either “condensation” or “perspiration.” Plaintiff stated “[t]he last place [he] would have thought [the moisture] came from was the batteries.” Plaintiff then drove to Wal-Mart to return the lantern. As Plaintiff was driving home from Wal-Mart, he felt a “[w]arm feeling almost like a burning” on his foot. When he arrived home, approximately ten minutes after leaving Wal-Mart, he removed his sock and discovered “the whole heel of [his] foot was black.” Plaintiff immediately drove himself to a hospital, where he was diagnosed as having “third and fourth degree alkaline chemical burns to his right ankle.” While at the hospital, Plaintiff discovered the bums were caused by potassium hydroxide, a chemical contained in the batteries. As a result of the burns, Plaintiff “suffered permanent disfiguring and debilitating injuries to his ankle.” Plaintiff testified that at the time he purchased the batteries, he knew that the substance contained in batteries could “[b]urn your skin” and could cause serious injury.

In an affidavit filed 1 October 1999, Plaintiff made the following pertinent statements: “I was aware at the time of my injury that aged batteries could in some way be dangerous”; “at the time of my injury, I did not know that newly purchased batteries could leak within 30 hours after taking them out of the package”; “at the time of my injury, I did not know that the substance from the inside of an Energizer D cell battery could soak through my clothes without burning or discoloring the cloth”; “at the time of my injury, I did not know that the substance from the inside of an Energizer D cell battery could cause the 3rd and 4th degree bums that I received when the substance soaked through my sock and came into contact with my skin”; and “though I did not particularly look for warnings on the package or the batteries themselves, the warnings were so inconspicuous that they did nothing to draw my attention to them.”

Joseph Crawford Hubbell, Jr. (Hubbell), a chemist and bacteriologist, testified in his deposition that he performed tests to determine the alkalinity of an Energizer D cell battery and a sock sent to him by Plaintiff. The battery had an alkalinity reading of 10.6 and the sock had an alkalinity reading of 7.10. Hubbell testified based on the alkalinity readings that the materials tested “ha[d] a high alkalinity.” If materials with such alkalinity readings came into contact with a person’s skin “[i]t would be very corrosive.” In an affidavit dated 30 September 1999, Hubbell made the following statements: “in my opin[147]*147ion, an indicator type dye, such as phenolphthalein, could be added to the solution of Potassium Hydroxide that is contained in Energizer D cell batteries”; “in my opinion, the addition of such substance would not adversely affect the composition or function of Energizer D cell batteries”; and “[t]he addition of this dye would allow the user to see the alkaline substance if it leaked out of the battery.”

Terrance Telzrow (Telzrow), the manager of standards, product safety, and environmental affairs for Defendant, gave deposition testimony regarding how Energizer D cell batteries function and the methods used by Defendant to test such batteries for leaks during the manufacturing process. Telzrow also testified regarding a safety device called a “Belville fail-safe device,” which serves as a venting mechanism that allows gases to escape from a battery if pressure in the battery reaches a certain level. Telzrow stated that when pressure builds inside a battery, the nylon inside the battery expands. When such expansion occurs, spurs in the venting mechanism “cut the nylon and relieve the pressure” by allowing gas to escape from the battery and, as a result of the holes created by the spurs, fluid also escapes from the battery. If this venting mechanism were not in place, a battery containing built-up pressure would explode. Telzrow stated four occurrences that can cause pressure to build up in a battery are: “[re]charging [the battery],” “putting [a battery] in backwards,” “gross contamination [in the battery],” and mixing old and new batteries.

Subsequent to Plaintiffs injury, Telzrow and his work assistant conducted tests on the batteries Plaintiff used in the lantern. The tests included weighing the batteries and taking X-rays of the batteries. Based on the low weights of two of the batteries, Telzrow concluded two of the batteries had leaked. The batteries that leaked had a “bulge,” which resulted from “internal pressure built up in the batter [ies].” Based on the X-rays, Telzrow concluded the Belville fail-safe device had activated in the batteries that leaked.

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550 S.E.2d 511, 144 N.C. App. 143, 2001 N.C. App. LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dewitt-v-eveready-battery-co-inc-ncctapp-2001.