Center Chemical Co. v. Parzini
Decision Date | 02 September 1975 |
Docket Number | No. 30082,30082 |
Citation | 218 S.E.2d 580,234 Ga. 868 |
Parties | , 17 UCC Rep.Serv. 1211 CENTER CHEMICAL COMPANY et al. v. Archie A. PARZINI et al. |
Court | Georgia Supreme Court |
Neely, Freeman & Hawkins, Paul M. Hawkins, William Q. Bird, Atlanta, for appellants.
William R. Parker, Tucker, for appellees.
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. 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. 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...
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