Ellis v. Rich's, Inc.

• Decision Date: 29 January 1975
• Docket Number: No. 29260,29260
• Parties: , 16 UCC Rep.Serv. 683 Mary Ann ELLIS v. RICH'S, INC. et al.
• Court: Georgia Supreme Court

Page 373

212 S.E.2d 373

233 Ga. 573, 16 UCC Rep.Serv. 683

Mary Ann ELLIS v. RICH'S, INC. et al.

No. 29260.

Supreme Court of Georgia.

Jan. 29, 1975.

Rehearing Denied Feb. 18, 1975.

Scheer & Elsner, Robert A. Elsner, Atlanta, for appellant.

Lokey & Bowden, James C. Gaulden, Jr., Glenn Frick, Nall, Miller & Cadenhead, Atlanta, for appellees.

Kunes & Kunes, G. Gerald Kunes, Tifton, amicus curiae.

UNDERCOFLER, Presiding Justice.

This case involves a claim for damages for plaintiff's injuries caused by a defective fondue pot manufactured, distributed and sold at retail by the various defendants.

In December, 1970, Mrs. Esther Brake bought four fondue pots from a Richway store in Smyrna, Georgia. She gave one of the pots, wrapped in the original unbroken carton, to Mrs. Mary Ellis, plaintiff herein and applicant in certiorari, as a Christmas gift. Plaintiff's husband then assembled the handle to the pot. Plaintiff used the pot on four or five occasions without incident until February 28, 1971, when the pot, filled with hot cooking oil, spun over on its handle as she attempted to place it on a coffee table in her den. Hot oil spilled on her legs causing the injuries which are the subject of this action. Plaintiff testified that writing on the carton in which the pot was packaged indicated that 'it was a product of Japan or something.' The word 'Taiwan' was inscribed on the bottom of the pot.

The fondue pot had been manufactured by the defendant Ling Metal Manufacturing Company, a Taiwan corporation, and was purchased in Taiwan for importation into this country by the defendant Westwood Imports Co., Inc., a California corporation doing business in this state. Westwood resold the pot to the defendant Richway, Inc., from whose store it was purchased by Mrs. Brake. It was Westwood's practice during the initial stages of purchasing to inspect the merchandise at the factory for purposes of quality control and marketability in the United States. Westwood would receive samples of the items which it would furnish to its retail customers, including Richway. The merchandise would be shipped directly to the retailer without inspection by Westwood except in cases where the cartons were damaged. Frank Morris, the Secretary and Treasurer of Westwood, testified that prior to plaintiff's complaint Westwood had arranged for shipment of thousands of the fondue pots without notice of any defect in their manufacture or knowledge of any injuries occasioned by their use.

According to affidavits supplied by Richway, the fondue pots it purchased from Westwood had been well received by its customers, without complaint, and based upon this experience Richway continued to order the pots for resale to the general public. The pots were delivered to Richway unassembled in individual boxes and resold to customers in the same, unopened boxes. The purchaser or consumer would have to assemble the handle to the pot before it could be used. Richway neither tested the pots nor arranged to have them tested before resale. According to the affidavit of William Curran, the assistant manager of the Richway store in Smyrna, 'it was not the policy of the store management to demonstrate the use of posts or make any representations regarding the safety of the pots. No signs or placards were displayed which contained any representations regarding the safety of the pots.'

An affidavit by Dr. James M. Bradford, a mechanical engineer, stated that the 'method used to attach the handle to the subject fondue pot is not an acceptable engineering design' and that the 'instability of the fondue pot coupled with the unacceptable engineering design of the handle attachment causes this fondue pot to be a hazardous cooking utensil to pick up. In my opinion therefore, the fondue pot in question is unsafe to use.'

Plaintiff brought this action against Ling Metal, Westwood, Richway, and Rich's, Inc., alleging in her amended complaint that each defendant is liable for breach of implied warranties of merchantibility and fitness, for strict liability in tort, and for negligence in failing to warn of the defect in the pot's design and construction and in 'manufacturing, handling, inspecting, and selling to plaintiff a dangerous and defective, and improperly designed, constructed, and manufactured article.' All the defendants answered except Ling Metal. Westwood, Richway and Rich's each filed a motion for summary judgment, and after a hearing each motion was sustained. Plaintiff then appealed to the Court of Appeals, citing as error the trial court's holdings to the effect that (1) Westwood is not liable under the provisions of Code Ann. § 105-106, (2) Westwood, Richway and Rich's are not liable in tort for negligence, (3) neither Richway nor Rich's are liable on an implied warranty theory, and (4) neither Westwood nor Richway can be held strictly liable in tort. The Court of Appeals affirmed the judgment of the trial court, 132 Ga.App. 430, 208 S.E.2d 331, and this court granted plaintiff's application for certiorari.

The issues raised by plaintiff's application for certiorari are (1) whether Westwood, Richway or Rich's are liable on a negligence theory for failure to warn of the defect in the fondue pot's design and construction and in 'manufacturing, handling, inspecting, and selling' the defective pot, (2) whether Westwood and Richway are strictly liable in tort, and (3) whether Richway and Rich's are liable...