## Facts

- Geraldine Maybank bought a flashcube from a K-Mart store operated by S.S. Kresge Co.
- The packaging warned the flashcube might “shatter,” but did not warn it might explode.
- While Maybank used the flashcube in its ordinary manner, it exploded in her face and injured her eye.
- Maybank sued Kresge alleging negligence, breach of express warranty, breach of implied warranty of merchantability, and strict liability.
- Kresge filed a third-party claim against the flashcube manufacturer, G.T.E. Sylvania, Inc.
- After Maybank’s case-in-chief, the trial court directed a verdict for Kresge on all claims.

## Issues

1. Whether Maybank’s evidence was sufficient to submit a breach of implied warranty of merchantability claim to the jury.
2. Whether Maybank’s evidence was sufficient to submit negligence and breach of express warranty claims to the jury.
3. Whether strict liability was available under North Carolina law for this product-related injury.

## Decision

- The court reversed the directed verdict as to breach of implied warranty of merchantability and remanded for further proceedings on that claim.
- The court affirmed the directed verdict for Kresge on negligence and breach of express warranty.
- The court affirmed the directed verdict for Kresge on strict liability, holding the theory was not available for ordinary products-liability claims under then-current North Carolina law.

## Legal Principles

- In ruling on a directed verdict, the evidence must be viewed in the light most favorable to the nonmoving party; if it permits a reasonable inference supporting the claim, the claim goes to the jury.
- A breach of the implied warranty of merchantability may be found when a product, used in its ordinary manner, malfunctions in a way permitting a jury to infer it was not fit for its ordinary purpose.
- Negligence is not established merely by proof of a single defective product; absent additional proof (such as similar incidents) or other evidence of fault, a negligence claim may not reach the jury.
- Res ipsa loquitur does not apply when the defendant lacked exclusive control and management of the instrumentality at the time of injury.
- An express warranty claim requires a clear affirmation of fact or promise attributable to the seller that became part of the basis of the bargain; an unclear record of such a warranty supports directing a verdict against the plaintiff.
- At the time of the decision, North Carolina had not adopted strict products liability for ordinary products; strict liability was limited to cases involving dangerous instrumentalities, and a flashcube was not treated as such.

## Conclusion

The court held that an unexpected explosion during ordinary use could allow a jury to find a breach of the implied warranty of merchantability, but it upheld dismissal of negligence and express-warranty claims for lack of supporting evidence and rejected strict liability as unavailable for this products-liability action.


Maybank v. S.S. Kresge Co., 266 S.E.2d 409 (N.C. Ct. App. 1980)