Center Chemical Co. v. Parzini

• Citation: 218 S.E.2d 580,234 Ga. 868
• Decision Date: 02 September 1975
• Docket Number: No. 30082,30082
• Parties: , 17 UCC Rep.Serv. 1211 CENTER CHEMICAL COMPANY et al. v. Archie A. PARZINI et al.
• Court: Georgia Supreme Court

Page 580

218 S.E.2d 580

234 Ga. 868, 17 UCC Rep.Serv. 1211

CENTER CHEMICAL COMPANY et al. v. Archie A. PARZINI et al.

No. 30082.

Supreme Court of Georgia.

Sept. 2, 1975.

Neely, Freeman & Hawkins, Paul M. Hawkins, William Q. Bird, Atlanta, for appellants.

William R. Parker, Tucker, for appellees.

UNDERCOFLER, Presiding Justice.

This is a certiorari to the Court of Appeals. Parzini v. Center Chemical Co., 134 Ga.App. 414, 214 S.E.2d 700. It was granted to review the ruling in division two concerning a manufacturer's product liability under Code Ann. § 105-106 (Acts 1968, p. 1166). Held:

1. We hold that Code Ann. § 105-106 imposes liability upon the manufacturer of personal property sold as new property, either directly or through a dealer or any other person, to any natural person who may use, consume or reasonably be affected by the property and who suffers injury to his person or property. The action is in tort and privity of contract is not necessary nor can the manufacturer avail itself of the usual contract or warranty defenses. See Ellis v. Rich's, Inc., 233 Ga. 573, 212 S.E.2d 373; 63 Am.Jur.2d 127, § 123. Code Ann. § 102-106 also states, 'a manufacturer may not exclude or limit the operation hereof.'

2. We hold further that the claimant is not required to prove negligence under Code Ann. § 105-106. However, the manufacturer is not an insurer. As provided in Code Ann. § 105-106, the manufacturer is liable if his product, 'when sold . . . was not merchantable and reasonably suited to the use intended and its condition when sold is the proximate cause of the injury sustained.'

The phrase, 'not merchantable and reasonably suited to the use intended' has been used ordinarily to establish warranties in sales contracts. It is not the usual language used to describe the 'strict liability in tort' which we have held Code Ann. § 105-106 imposes upon manufacturers of new products. See Restatement of the Law, Torts 2d, p. 347, § 402A. Therefore we conclude the phrase does not incorporate into Code Ann. § 105-106 the various constructions placed upon it in construing sales contracts but was used in the context of strict liability. 'All of the authorities supporting the doctrine of strict liability in tort have recognized the necessity that the plaintiff establish that there was a 'defect' in the defendant's product. However, the term 'defect' has been defined on a case-by-case basis and has generally not been found susceptible of any general definition. In fact, one authority has stated that 'no single definition of defect has proved adequate to define the scope of the manufacturer's strict liability in tort for physical injuries.' It has been said that the strict liability doctrine is applicable, in an action against the manufacturer, where it appears that there is a defect in manufacture consisting of use of material which may not be safely used for the purposes intended. Another criterion is that a product is defective if it is not reasonably fit for the ordinary purposes for which such products are sold and used.' 63 Am.Jur.2d 135, § 130. Accordingly, we construe the phrase 'not merchantable and reasonably suited to the use intended' as used in Code Ann. § 105-106 to mean that the plaintiff must show that the manufacturer's product when sold by the manufacturer was defective.

3. 'A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling . . . the seller is not liable. Where, however, he has reason to anticipate that danger may result from a particular use . . . he may be required to give adequate warning of the danger . . . and a product sold without such warning is in a defective condition.' Restatement of the Law, Torts 2d, p. 351, § 402A, comment h.

4. Code Ann. § 105-106 imposes strict liability for defective products. It does not attach the condition that the defective product must be 'unreasonably dangerous' which limitation is included in the classic definition of strict liability. We can not read this...