McLaurin v. Vulcan Threaded Products, Inc. , 410 F. App'x 630 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1155
HENRY D. MCLAURIN; MILLIE D. MCLAURIN,
Plaintiffs – Appellants,
v.
VULCAN THREADED PRODUCTS, INCORPORATED, an Alabama
Corporation; GRAND RAPIDS BOLT AND NUT, INCORPORATED, d/b/a
Great Lakes Fasteners,
Defendants – Appellees,
and
EAST JORDAN IRON WORKS, INCORPORATED,
Defendant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:08-cv-00089-F)
Argued: December 9, 2010 Decided: February 10, 2011
Before GREGORY and SHEDD, Circuit Judges, and David A. FABER,
Senior United States District Judge for the Southern District of
West Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Gregory and Senior Judge Faber joined.
ARGUED: Daniel F. Read, Durham, North Carolina, for Appellants.
William Wayne Pollock, CRANFILL, SUMNER & HARTZOG, LLP, Raleigh,
North Carolina; Jeffrey Hart Blackwell, HEDRICK, GARDNER,
KINCHELOE & GAROFALO, LLP, Wilmington, North Carolina, for
Appellees. ON BRIEF: Andrew D. Hathaway, CRANFILL, SUMNER &
HARTZOG, LLP, Raleigh, North Carolina; Erin T. Collins, HEDRICK,
GARDNER, KINCHELOE & GAROFALO, LLP, Wilmington, North Carolina,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
Henry D. McLaurin and Millie D. McLaurin (collectively
“McLaurin”) brought this action against East Jordan Iron Works,
Vulcan Threaded Products, Inc., and Grand Rapids Bolt & Nut,
Inc. McLaurin’s claims arise from the alleged failure of a
manhole cover handle that resulted in personal injury to Mr.
McLaurin. 1 The district court granted summary judgment in favor
of the defendants on all claims. McLaurin now appeals. For the
following reasons, we affirm.
I.
Mr. McLaurin was employed in North Carolina as a civilian,
non-uniformed telecommunication splicer for the United States
Department of Defense (“USDOD”). In December 2005, Mr.
McLaurin’s employment duties required him to enter a manhole
that was located just outside Fort Bragg’s main gate. As he
lifted the bar that was inserted under the U-shaped drop handle
(“U-bolt”) attached to the manhole cover, the horizontal portion
of the U-bolt sheared off from the two vertical portions and
1
Mr. McLaurin brought claims for negligence and breach of
warranty, and Mrs. McLaurin brought a claim for loss of
consortium. For ease of discussion, we refer to both plaintiffs
collectively herein simply as “McLaurin.”
3
broke away, causing him to fall backwards and suffer personal
injuries.
McLaurin filed a complaint against East Jordan Iron Works
(“EJIW”), Vulcan Threaded Products, Inc. (“Vulcan”), and Grand
Rapids Bolt & Nut, Inc. (“Grand Rapids”) claiming negligence,
breach of warranty, and loss of consortium. The record
establishes that Vulcan manufactured U-bolts based on
specifications submitted by EJIW through Grand Rapids. Grand
Rapids purchased the U-bolts from Vulcan and then sold them to
EJIW, who in turn incorporated them into EJIW’s manhole covers.
EJIW sold some of these manhole covers to Sta-Rite. The record
also establishes that USDOD entered a contract with ECI
Construction, Inc., for the construction of a new Access Control
Facility at Fort Bragg. Starr Electric Co., Inc., who was a
subcontractor for ECI, purchased manhole covers from Sta-Rite
for use on the Fort Bragg project and assembled the manhole
covers on the job site. 2
After McLaurin voluntarily dismissed all claims against
EJIW, Vulcan and Grand Rapids filed separate motions for summary
judgment. The district court granted summary judgment against
2
There is no dispute that the manhole cover in question was
manufactured by EJIW, and because it is not critical to our
analysis, we assume that EJIW used only Vulcan U-bolts in
manufacturing the manhole covers it sold to Sta-Rite.
4
McLaurin on all claims against Grand Rapids, finding that Grand
Rapids had no duty under North Carolina law to inspect the U-
bolts. The court also granted summary judgment against McLaurin
on the negligence claim against Vulcan, finding that McLaurin
had not introduced sufficient evidence of the relevant standard
of care or that Vulcan had violated the standard of care. At
the court’s direction, Vulcan then filed an amended answer
asserting privity as a defense to the warranty claim. After
receiving Vulcan’s amended answer and two sur-replies from
McLaurin, which the court had instructed McLaurin to file to
address aspects of the breach of warranty claim, the court
granted summary judgment in favor of Vulcan on the remaining
claims for breach of implied warranty and loss of consortium. 3
II.
Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). We review the district court's order
3
Mrs. McLaurin’s loss of consortium claim is derivative and
dependent on Mr. McLaurin’s ability to recover for negligence or
breach of warranty. Because we find that Mr. McLaurin cannot
succeed on either of his claims, we affirm the district court’s
dismissal of the loss of consortium claim.
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granting summary judgment de novo. Jennings v. Univ. of North
Carolina, 482 F.3d 686, 694 (4th Cir. 2007) (en banc).
We find the district court properly granted summary
judgment in favor of the defendants as to all of McLaurin’s
claims. Regarding his negligence claims, McLaurin failed to
proffer any evidence establishing the relevant standard of care
owed by Vulcan or Grand Rapids. See Nicholson v. American
Safety Utility Corp., 476 S.E.2d 672, 676 (N.C. Ct. App. 1996).
As to Vulcan’s alleged negligent manufacturing, McLaurin’s
expert witness, Bill W. Hong, specifically testified in his
deposition that he did not know what the industry standard is
for manufacturing U-bolts. To the extent McLaurin now relies on
Hong’s affidavit testimony to establish the industry standard of
care for manufacturing U-bolts, that testimony is inadmissible
because it is inconsistent with Hong’s prior deposition
testimony. See Rohrbough v. Wyeth Lab, Inc., 916 F.2d 970, 975
(4th Cir. 1990). 4
Further, as to Vulcan and Grand Rapid’s alleged negligent
failure to inspect the U-bolts, the closest McLaurin comes to
establishing a standard of care for inspecting U-bolts is Hong’s
4
We note that during oral argument McLaurin’s counsel
acknowledged there is no admissible evidence establishing the
standard of care for manufacturing U-bolts and therefore that
aspect of McLaurin’s negligence claim is no longer at issue.
6
affidavit opinion that “[a]t a minimum, the [U-bolt] should have
been inspected for cracks after bending.” J.A. 60. However, the
record establishes that Vulcan did perform a visual inspection
of one out of every ten U-bolts it manufactured, and McLaurin
presented no evidence that this method of inspection is
insufficient or violates any standard of care as a matter of
law. Moreover, because Grand Rapids ordered the U-bolts from
Vulcan and sold them directly to EJIW, Grand Rapids was acting
as a “mere conduit” and therefore it had no duty to inspect the
U-bolts. See Nicholson, 476 S.E.2d at 676.
We also find that McLaurin’s warranty claims fail as a
matter of law. The district court correctly concluded that
North Carolina law bars implied warranty claims against a non-
manufacturing seller like Grand Rapids. See N.C. Gen. Stat.
§ 99B-2. Similarly, North Carolina law precludes McLaurin’s
warranty claim against Vulcan because there is no contractual
privity between Vulcan and McLaurin. See Crews v. W.A. Brown &
Son, Inc., 416 S.E.2d 924, 929 (N.C. Ct. App. 1992). McLaurin
attempts to circumvent the privity requirement by claiming that
his employer, USDOD, purchased the manhole cover as part of a
construction contract. See N.C. Gen. Stat. § 99B-2(b)
(eliminating the privity requirement if the claimant is the
buyer or an employee of the buyer); N.C. Gen. Stat. § 25-2-
103(1)(a) (defining “buyer” under the UCC as a person who “buys
7
or contracts to buy goods”). However, the district court
correctly analyzed USDOD’s contract as a “mixed contract” and
found that the predominant purpose of the contract was for
construction services rather than for the sale of goods under
Hensley v. Ray’s Motor Co. of Forest City, Inc., 580 S.E.2d 721,
724 (N.C. Ct. App. 2003). 5 Thus, USDOD was not a buyer of the
manhole cover as defined by the UCC, and therefore McLaurin
cannot avail himself of any UCC implied warranty as an employee
of a buyer.
III.
For the foregoing reasons, we affirm the district court’s
orders granting summary judgment to the defendants.
AFFIRMED
5
During oral argument, McLaurin’s counsel acknowledged that
under applicable precedent the contract in question was for
services rather than for the sale of goods.
8