Beam v. Omark Industries, Inc.

• Decision Date: 08 July 1977
• Docket Number: No. 54027,No. 2,54027,2
• Citation: 237 S.E.2d 607,143 Ga.App. 142
• Parties: J. W. BEAM et al. v. OMARK INDUSTRIES, INC., et al
• Court: Georgia Court of Appeals

Page 607

237 S.E.2d 607

143 Ga.App. 142

J. W. BEAM et al. v. OMARK INDUSTRIES, INC., et al.

No. 54027.

Court of Appeals of Georgia, Division No. 2.

July 8, 1977.

Rehearing Denied July 29, 1977.

Alford Wall, Charles B. Rice, Roswell, for appellants.

Van Gerpen & Bovis, John V. Burch, Nall, Miller & Cadenhead, James S. Owens, Jr., Atlanta, for appellees.

QUILLIAN, Presiding Judge.

This is a products liability case arising out of injuries sustained by the appellant-plaintiff, due to the misfiring of an alleged defective "stud gun," manufactured by defendant Omark Industries, Inc., and locally distributed by defendant Builders Equipment Company, Inc. Both defendants moved for and were granted summary judgment. Plaintiffs appeal. We reverse. Held :

1. A "stud gun" is a firearm which uses a "power load" (a percussion cap with gunpowder) to propel a "fastener" (either a stud or a nail) into a steel or concrete wall. This gun will cause a nail to penetrate an object to be fastened to a concrete wall, and then penetrate the concrete wall up to a depth of one inch.

Plaintiff Beam was the foreman for A. C. Henderson, an electrical contractor, who purchased the "stud gun" from the defendant Builders Equipment. The gun was brought to the job site by a representative of Builders Equipment who gave "about two minutes" instruction on "how to load it and fire it." Plaintiff Beam stated he was instructed to put the "fastener" (a stud or nail) in the muzzle, and the "power load" (cartridge) in the chamber, then "put the muzzle in (the palm of) his left hand and heel of his (right) palm on the butt of the gun and close it (by pushing toward each other) and put it up against the slab and fire it." No brochure or operation pamphlet was given to him. The gun was brought to the job site "in a cardboard box," the same as a "box from a grocery shelf." It was not an Omark Industries box and contained no literature of any type.

The gun was fired approximately 300 to 400 times. It had misfired approximately 75 to 100 times. On the date plaintiff was injured, he could not get the gun to fire. He had changed the "load" a few times, and while he was attempting to close the gun by holding it between the palm of his left hand and the heel of his right hand, the gun fired and a nail in the gun went through his left hand. He did not have his finger on the trigger.

Omark Industries' evidence showed they forwarded their "stud gun" in a sealed container with a pamphlet inclosed listing "safety precautions." Some of the instructions were: Use only OMARK fasteners and power loads . . . Do not place hand over end of barrel . . . Loads other than the OMARK 'A' type will not chamber properly in the 721 and could cause tool malfunction."

Plaintiffs' expert, Mr. Samples, examined the Omark 721 gun which caused the injury, and found a "primer cap lodged in the trigger slot in the bottom of the breech block." He test-fired this weapon and a new Omark 721 gun with six different types of power loads. One significant finding that that "the cap on the primer end of the power load would be blown off and this happened on several occasions during the course of testing the new Omark gun and . . . all (power) loads including Omark's would pop the primer end off the cartridge from time to time and that when this would happen the cap would be left in the breech of the gun after the chamber was reopened."

Defendant's expert witness, Mr. Mirwald, was the Product Applications Manager for Omark Industries and was responsible for the test department of Omark Industries. His examination of the gun which injured plaintiff also disclosed a broken off head from "a power load jammed in the trigger slot in the bottom of the breech block." That head had an "H" stamped on it. It was not an Omark power load. "H" was the identification mark of "Winchester Western," the manufacturer of a similar power tool.

Both experts were in apparent agreement as to the cause of the incident. When the gun fired, the breech block recoiled backward, the head of the foreign power load fell into the open breech chamber. When the breech block returned forward the cap prevented the breech block from fully closing in the forward position. This left the firing pin exposed in an extended position. After the gun was reloaded, it could not be fired by pulling the trigger as the breach assembly was not in a firing position. Apparently, when the plaintiff jammed the gun together, the firing pin made contact with the power load which exploded causing the fastener to exit through plaintiff's hand.

Because this is a summary judgment issue we have recited the facts in their most favorable light for the party opposing the motion in this instance, the plaintiff. Shutley v. Hite, 118 Ga.App. 664, 165 S.E.2d 169. Further, all inferences from the evidence will be interpreted favorably toward making an issue of fact. Bagley v. Firestone Tire, etc., Co., 104 Ga.App. 736, 739, 123 S.E.2d 179. We must also consider that a summary judgment can not be based on opinion evidence alone, although opinion evidence can be sufficient to make a jury issue. Ginn v. Morgan, 225 Ga. 192, 193, 167 S.E.2d 393.

(a) Plaintiff proceeded against the manufacturer on the theory of strict liability. All that plaintiff was required to establish was "a defect" which was the proximate cause of the injury. Center Chemical Co. v. Parzini,234 Ga. 868, 869, 218 S.E.2d 580. Plaintiff's expert, taking his testimony in its most favorable light, stated that it was his opinion "the reason the caps frequently blow off the power loads is because the instrument is not built with the same precision and tolerance as are most handguns" and in his opinion it "is a dangerous instrumentality."

This court has held that " 'ordinarily, the question whether a particular design is defective and could thus cause injury is for the jury.' " Long Manufacturing, N. C., Inc. v. Grady Tractor Co., 140 Ga.App. 320, 321, 231 S.E.2d 105, 107. Eldridge, Products Liability in Ga. 22, § 2-11; 76 A.L.R.2d 93. This evidence is sufficient to raise an issue for jury resolution. The court erred in granting summary judgment for defendant Omark Industries.

(b) Turning to the defendant distributor, we note that Omark Industries stated they shipped the Omark 721 gun in a sealed container with safety instructions. Plaintiffs' evidence showed it arrived at the job site in a "grocery box," without any literature. Accordingly, the user of the gun was deprived of necessary safety instructions, particularly those on "power loads" and use of the weapon. Further, plaintiff stated the distributor's representative instructed him to use the gun in a manner directly opposite to the safety instructions of the manufacturer.

This court has adopted as law, § 324A, Restatement of the Law 2d Ed., Torts, which states: "One who undertakes, gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking." Winslett v. Twin City Fire Ins. Co., 141 Ga.App. 143, 144, 232 S.E.2d 638, 639. Did the retailer have a duty to advise potential users of necessary safety precautions and possible danger in the use or misuse of this product?

A manufacturer and retailer of a product which, to their actual or constructive knowledge, involves danger to users have a duty to give warning of such danger to the purchaser "at the time of sale and delivery." Everhart v. Rich's, Inc., 229 Ga. 798(1), 194 S.E.2d 425; 76 A.L.R.2d 16; Cf. Johnson v. E. G. Beaudry Motor Co., 170 F.Supp. 164, 169 (N.D.Ga.1958). The sufficiency of that warning is for the jury. Eldridge, Products Liability in Ga. 39, § 2-24.

We cannot say as a matter of law that the distributor was not negligent in separating the gun from the safety instructions and instructing the plaintiff in a manner contrary to the missing safety instructions. Generally, questions of negligence, diligence, assumption of risk, and lack of ordinary care for one's own safety, are not susceptible of summary adjudication, but should be resolved by a trial in the ordinary manner. Malin v. Jaggers, 134 Ga.App. 806, 216 S.E.2d 666. Whether defendant's conduct in this instance amounted to negligence is for the trier of fact. The court erred in granting summary judgment for the defendant Builders Equipment Company.

2. Defendants argue that plaintiff is without privity, thus cannot maintain an action against the defendants. Plaintiff's action against the manufacturer is under...