City of Thomasville v. Lease-Afex, Inc.

MARTIN (Robert M.), Judge.

Plaintiff seeks recovery for damages to a bulldozer owned by it, those damages having been allegedly caused by the defective design, installation and operation of a fire suppressant system placed by defendant on plaintiff’s bulldozer. The claims for damages were pled under theories of breach of express and implied warranties and negligence. After substantial discovery, defendant moved for and got summary judgment entered in its favor. Plaintiff appealed, contending that there were material issues of fact which should have been submitted to the jury. We do not agree. The facts surrounding this case are almost identical with the facts of City of Thomasville v. Lease-Martin Afex, Inc., 38 N.C. App. 737, 248 S.E. 2d 766 (1978), in which a similar fire involving the same questions of liability was the subject of litigation culminating in summary judgment for defendant. In the instant case, plaintiff’s evidence, from the operators of the bulldozer and from their expert mechanical engineer, does no more than raise speculation as to the existence of any malfunction within the system and provides no proof from which the trier of fact could infer that there was any defect in the design, construction or installation of the system, even though that evidence be viewed in the light most favorable to plaintiff. The system did function, and even plaintiff’s expert did not assert as a fact that the system had malfunctioned or provide any concrete theories as to causation of the hypothetical malfunction, other than speculation as to a leak in the seal of the C02 cannister which powered the system. Accordingly, we affirm the entry of summary judgment below. See City of Thomasville v. Lease-Martin Afex, Inc., supra.

Affirmed.

Judge Hedrick concurs. Judge WELLS dissents.