Gillespie v. American Motors Corp. , 69 N.C. App. 531 ( 1984 )

WEBB, Judge.

If the papers filed in support of and in opposition to the defendants’ motions for summary judgment present a forecast of evidence which, if offered at trial, would require a directed verdict for the defendants, then the court properly granted the motion for summary judgment. See Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E. 2d 419 (1979). We hold that the papers filed in this case show that the plaintiffs were contributorily negligent as a matter of law. We affirm summary judgment for the defendants.

The papers show that the plaintiffs knew of the noxious fumes in the passenger area of the vehicle within a week after it was purchased. They continued using the vehicle for more than three years and drove it 62,000 miles during that time. Mrs. Gillespie’s physician advised her to stop riding in the vehicle but she continued to do so. In Insurance Co. v. Chevrolet Co., 253 N.C. 243, 116 S.E. 2d 780 (1960) our Supreme Court held that when a person continues driving a vehicle when he knows of a defect, he is contributorily negligent as a matter of law and barred from recovering damages which are caused by the defect. The Supreme Court held this is so whether the plaintiffs claim is based on negligence or breach of warranty. We hold that we are bound by that case to affirm the judgment of the superior court.

The plaintiffs contend that they should not be barred by contributory negligence because they alleged that the acts of the defendants constituted “wanton, willful and culpable misconduct on their part.” In spite of these allegations, we do not believe the plaintiffs have shown any wanton, willful or culpable misconduct on the part of the defendants. Bailey Gillespie stated that he did not believe the defendants intentionally sold him a defective vehicle. We do not believe it was necessary for the defendants to advise the plaintiffs that a bulletin from American Motors showed some people were complaining of fumes in Jeeps when the plaintiffs were well aware that there were fumes in their Jeep.

Affirmed.

Judge WHICHARD concurs. Judge Wells dissents.