Anderson v. Sears Roebuck & Co.

• Decision Date: 09 July 2008
• Docket Number: No. A08A0361.,A08A0361.
• Citation: 664 S.E.2d 911,292 Ga. App. 603
• Court: Georgia Court of Appeals
• Parties: ANDERSON v. SEARS ROEBUCK & CO.

292 Ga. App. 603

664 S.E.2d 911

ANDERSON v. SEARS ROEBUCK & CO.

No. A08A0361.

Court of Appeals of Georgia.

July 9, 2008.

Adam Ferrell, Waycross, for Appellant.

Hawkins & Parnell, Alan F. Herman, Atlanta, for Appellee.

BERNES, Judge.

Wanda Anderson appeals from the trial court's grant of summary judgment in her action against Sears Roebuck & Company for breach of contract, breach of warranty, and negligent failure to repair her riding lawnmower. Anderson asserts that the grant of summary judgment was error because questions of fact remain concerning Sears's duty to repair the lawnmower, its failure to do so, and whether that failure was the proximate cause of Anderson's injuries.¹ The record contains evidence to support each of the elements of Anderson's claim, and Sears has not made out any defense as a matter of law. We therefore reverse.

"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." (Citations and punctuation omitted.) Walker v. Gwinnett Hosp. System, 263 Ga. App. 554, 555, 588 S.E.2d 441 (2003). A trial court's grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Id. Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the non-movant must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. Weldon v. Del Taco Corp., 194 Ga.App. 174, 390 S.E.2d 87 (1990).

So viewed, the record shows that in August 2001, Anderson purchased a Craftsman riding lawnmower from Sears as well as a three-year service and repair contract. In early 2004, Anderson noticed that the lawnmower sometimes delayed shifting between gears. When the lawnmower was out of gear, Anderson would rock back and forward on the operator's seat to engage it, which often activated the automatic shut-off mechanism and caused the lawnmower to backfire. The lawnmower also backfired when Anderson drove over tree roots in her yard. She spoke to her son about these problems, but he told her that he would not attempt a repair because it might void the service contract. One of the repairmen knew that other customers had complained about the lawnmower's gear-shifting and backfiring problems. He responded to Anderson's complaints by spraying lubricant on the gear-shifting mechanism, or "transaxle," but the problem continued. Both Sears repairmen told Anderson that they could find nothing wrong.

Starting at around noon on May 21, 2004, Anderson operated the mower more or less continuously for five hours while wearing thong sandals on her feet. Throughout that time, as the lawnmower sometimes failed to shift gears and backfired, Anderson rested her left foot on the brake-clutch pedal located on the left side of the lawnmower. Though Anderson had reduced sensation in both feet as a result of longstanding diabetes, she felt a tingling sensation on her left foot as she continued to mow. Later that afternoon, she noticed that the tops of her left big toe and the two toes next to it were brown and blistered. Her right foot was also blistered, though less severely. By the next morning, the blisters on Anderson's left toes had burst and the skin had sloughed off.

Soon afterward, Anderson again contacted Sears and told them that the lawnmower would not change gears and that it was blowing hot air on her foot. On July 7, Sears repairmen replaced the transaxle and other parts on the lawnmower. After this repair, the lawnmower shifted properly and the backfiring stopped. Some time afterward, Anderson's son discovered that the muffler's metal seams had separated. Later inspections confirmed that the failure of the muffler, as caused or exacerbated by the backfiring, had resulted in an increased flow of hot air into the area above the left pedal. Flame marks leading from the exhaust system to that area were also detected.

Anderson later developed gangrene in her left big toe, which was amputated, and suffered complications leading to the amputation of a larger portion of her foot and then of her left leg to just below the knee.

1. In order to make out a claim for Sears's failure to repair the lawnmower, Anderson must show that Sears owed her

(1) [a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between [Sears's] conduct and the resulting injury; and (4) some loss or damage flowing to [Anderson's] legally protected interest as a result of the alleged breach of the legal duty.

Bradley Center, Inc. v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693 (1982). As our Supreme Court recently repeated, matters such as "the negligence of the defendant and the plaintiff, [as well as] the plaintiff's lack of ordinary care for personal safety[,] are generally not susceptible of summary adjudication," meaning that "summary judgment is granted only when the evidence is plain, palpable, and undisputed." Dickerson v. Guest Svcs. Co. of Virginia, 282 Ga. 771, 771-772, 653 S.E.2d 699 (2007).

(a) Under longstanding Georgia law [i]f a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded upon a contract. And in such a case, the liability arises out of a breach of duty incident to, and created by, the contract; but it is only dependent upon the contract to the extent necessary to raise the duty. The tort consists in the breach of duty.

(Citation and punctuation omitted.) City & Suburban R. v. Brauss, 70 Ga. 368, 377 (1883). Although a breach of contract does not always give rise to an action for negligence, such an action will lie "if in addition to violating a contract obligation [the breach] also violates a duty owed to plaintiff independent of contract to avoid harming him." Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365, 203 S.E.2d 587 (1973). See also OCGA § 51-1-8.

Construed in favor of Anderson, the record shows that she had a service contract on the lawnmower and that Sears repairmen made several visits and repairs to her lawnmower without charge under that service contract. This evidence was sufficient to raise a question of fact as to whether Sears had a duty to repair the lawnmower it sold to Anderson. See, e.g., Brock v. Allen, 256 Ga.App. 397, 400-401(3), 568 S.E.2d 536 (2002).

(b), (c) Questions of fact also remain concerning Sears's breach of its duty to repair the lawnmower and that breach as the proximate cause of Anderson's injuries.

Except in cases where the evidence is plain, palpable and undisputed, issues of negligence, contributory negligence, comparative negligence, proximate cause, assumption of risk, lack of ordinary care for one's own safety, lack of ordinary care in avoiding the consequences of another's negligence and comparative negligence are questions for the jury and are not susceptible of summary adjudication.

(Citations omitted.) Wade v. Polytech Indus., 202 Ga.App. 18, 22(3), 413 S.E.2d 468 (1991).

With reference to foreseeability of injury, the correct rule is that in order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result.

(Citations and punctuation omitted; emphasis supplied.) Wallace v. Sears, Roebuck & Co., 196 Ga.App. 221, 222-223, 396 S.E.2d 41 (1990). See also Williams v. Grier, 196 Ga. 327, 337-338(2), 26 S.E.2d 698 (1943).

There is evidence before us that Sears had notice that the lawnmower was failing to shift gears properly and was backfiring excessively. Under these circumstances, a...