Farmex Inc. v. Wainwright

• Decision Date: 29 June 1998
• Docket Number: No. S97G1919.,S97G1919.
• Citation: 501 S.E.2d 802,269 Ga. 548
• Parties: FARMEX INCORPORATED v. WAINWRIGHT et al.
• Court: Georgia Supreme Court

501 S.E.2d 802

269 Ga. 548

FARMEX INCORPORATED v. WAINWRIGHT et al.

No. S97G1919.

Supreme Court of Georgia.

June 29, 1998.

David B. Dunaway, Adams, Barfield, Dunaway & Hankinson, Thomaston, for Farmex Incorporated.

Wallace Miller, III, John Dan Raines III, Miller & Towson, Macon, for Jeff Wainwright et al.

CARLEY, Justice.

Jeff Wainwright and James Corbin (Appellees) were sued for damages caused when a trailer became unhitched and struck a vehicle. As one of their defenses, Appellees alleged that the proximate cause of the collision was a defectively designed and manufactured hitch pin. Appellees also filed a third-party complaint against Farmex Incorporated (Farmex), an Ohio manufacturer of hitch pins, even though the hitch pin involved in the collision had been designed and manufactured by JA-BIL, Inc. (JA-BIL), another Ohio corporation. Third-party liability under the continuation theory was predicated upon Farmex's acquisition of the hitch pin inventory in a purchase of assets from JA-BIL, and its subsequent introduction of that product into the stream of commerce.

The trial court granted summary judgment in favor of Farmex, concluding that, under the continuation theory, Farmex was not the "manufacturer" of the hitch pin for purposes of strict liability. In a whole-court opinion, the Court of Appeals reversed, although the elements of "the continuation theory, as traditionally applied," were not present. Corbin v. Farmex, 227 Ga.App. 620, 622(1), 490 S.E.2d 395 (1997). The dissenters took the position that Bullington v. Union Tool Corp., 254 Ga. 283, 328 S.E.2d 726 (1985) was controlling Georgia authority and that the majority's expansion of the continuation theory was contrary to that decision. We granted certiorari to review the opinion of the Court of Appeals.

In Georgia, strict liability applies only to the "manufacturer of any personal property sold as new property," and not to a "product seller." OCGA §§ 51-1-11(b)(1), 51-1-11.1. However, a successor corporation can be held strictly liable as a "manufacturer," if it is a mere continuation of the predecessor corporation which actually manufactured the product. Bullington v. Union Tool Corp., supra at 284, 328 S.E.2d 726. "In Georgia, the common law continuation theory has been applied where there was some identity of ownership. [Cits.]" Bullington v. Union Tool Corp., supra at 284, 328 S.E.2d 726. Between JA-BIL, as the seller of corporate assets, and Farmex, as the purchaser of those assets, there is no identity of ownership. Thus, as the Court of Appeals held, the common law continuation theory, as previously applied in Georgia, has no applicability here.

It is undisputed that, after the transaction, Farmex continued JA-BIL's general business of manufacturing, warehousing and selling hitch parts. However, it also is undisputed that Farmex did not continue to design or manufacture any hitch pins of the type that it acquired from JA-BIL. Compare Cyr v. B. Offen & Co., 501 F.2d 1145, 1151(II) (1st Cir.1974) (applying New Hampshire law) (successor corporation "continued to produce the same kind of product in essentially the same way that [the predecessor corporation] had."); Ray v. Alad Corp., 19 Cal.3d 22, 136 Cal.Rptr. 574, 581, 560 P.2d 3, 10 (1974) (successor corporation continued "to produce the same line of ladders....").

There is a difference between manufacturing the same type of product and remaining in the same sort of manufacturing business.... [I]t is neither logical nor fair to ask consumers of wholly unrelated [products] also to pay a premium for injuries caused by [a product that is no longer produced]. The product line exception requires the corporation to manufacture the same type of product, and not merely stay in the same type of manufacturing business.

George v. Parke-Davis, 107 Wash.2d 584, 733 P.2d 507, 511 (1987). See also Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973, 986(II) (1985). Thus, if the successor corporation continues to manufacture the same type of product, then it, by

"carrying over the experience and expertise of the manufacturer, is likewise in a better position than the consumer to gauge the risks and the costs of meeting them. The successor knows the product, is as able to calculate the risk of defects as the predecessor, is in position to insure therefor and reflect such cost in sale negotiations, and is the only entity capable of improving the quality of the product." Cyr, [supra] at 1154. [Cits.]

Bullington v. Union Tool Corp., supra at 284-285, 328 S.E.2d 726. If, however, the successor corporation merely continues the general business of the predecessor corporation, then it will not be "in a position to improve the quality of the product in question or to reflect the possible defects in the cost of the product." Bullington v. Union Tool Corp., supra at 285, 328 S.E.2d 726.

As between Farmex and JA-BIL, any alleged defect in the hitch pin was attributable exclusively to JA-BIL's original design and manufacture. Farmex did not continue to manufacture hitch pins of that design. Therefore, Farmex was not a "manufacturer" against whom strict liability, regardless of negligence, can be imposed for defects in the design or manufacture of JA-BIL's hitch pins. Farmex's only connection to the hitch pins was that, after purchasing those items from JA-BIL, it introduced them into the stream of commerce. Under these circumstances, Farmex is simply a wholesaler of JA-BIL's hitch pins. Because Farmex was only "involved in placing a product in the stream of commerce" it became a "product seller" under OCGA § 51-1-11.1(a), not a "manufacturer" subject to strict liability for any defect in the hitch pins under OCGA § 51-1-11(b)(1).

The paramount purpose of strict liability "`is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them.' [Cit.]" (Emphasis omitted.) Ray v. Alad Corp., supra at 579, 560 P.2d at 8. In Georgia, that purpose cannot be advanced by imposing strict liability upon a "product seller." Unless and until the General Assembly acts, strict liability is an available remedy only against a "manufacturer." Because Farmex did not continue the manufacture of the allegedly defective hitch pin, "it never produced the product, [and the continuation] rationale does not apply." Bullington v. Union Tool Corp., supra at 285, 328 S.E.2d 726. A strict liability claim can be asserted only against JA-BIL, which continued in existence after the sale of its assets to Farmex. The decision of the Court of Appeals reversing the grant of Farmex's motion for summary judgment is, therefore, reversed.

Judgment reversed.

All the Justices concur, except HUNSTEIN, J., who concurs specially.

HUNSTEIN, Justice, concurring specially.

Bullington v. Union Tool Corp., 254 Ga. 283, 328 S.E.2d 726 (1985) involved a plaintiff who was injured in 1981 while operating a table saw which had been designed, manufactured and sold to an unknown purchaser at an unknown date no later than 1956. In the twenty-five year interval between the last date of sale and the plaintiff's injury, the company that...