Parzini v. Center Chemical Co., 49653

• Decision Date: 21 October 1975
• Docket Number: No. 49653,No. 3,49653,3
• Citation: 221 S.E.2d 475,136 Ga.App. 396
• Parties: A. A. PARZINI et al. v. CENTER CHEMICAL COMPANY et al
• Court: Georgia Court of Appeals

Page 475

221 S.E.2d 475

136 Ga.App. 396

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

No. 49653.

Court of Appeals of Georgia, Division No. 3.

Oct. 21, 1975.

Rehearing Denied Nov. 4, 1975.

William R. Parker, Tucker, for appellants.

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

DEEN, Presiding Judge.

1. The facts of this case are briefly stated in our opinion and judgment of March 20, 1975, appearing in 134 Ga.App. 414, 214 S.E.2d 700. Parzini, a restaurant employee, attempted to open a bottle of drain cleaner manufactured by the defendant in order to pour it down a sink drain for cleaning purposes. The liquid was in fact almost pure sulphuric acid. It was packaged in a flexible plastic bottle which would yield to the pressure of a firm hand grip. The top of the bottle, which had been machine tightened, could not be removed by Parzini's efforts. He asked another employee to remove the top, and the latter also failed in his efforts. The men then got a pair of pliers, and one held the bottle while the other attempted to unscrew it, with the result that when the top came off the liquid squirted into the air and fell on the plaintiff's head, severely burning and blinding him.

The judgment on a defendant's verdict was on appeal reversed by this court in the above cited opinion. The Supreme Court granted certiorari and, in Center Chemical Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580, that court reversed Division 2 of our prior opinion, at the same time giving expression to the rules of products liability tort law in this state with admirable clarity and conciseness. We accordingly vacate Division 2 of our prior opinion and, in accordance with the mandate of the Supreme Court, pass on the remaining enumerations of error of the appellant. Quotations, unless otherwise specified, are from the cited Supreme Court opinion which constitutes the law of this case.

2. The court charged: 'The law provides that if the plaintiffs recover in their cases they must recover upon some one or more of the allegations of negligence which this court has instructed you to consider.' The sixth enumeration of error rightly urges that the court erred in so restricting the case to negligence when it should have been submitted to the jury on the theory of strict liability in tort. 'Code Ann. § 105-106 imposes liability upon the manufacturer of personal property sold as new property . . . to any natural person who may use, consume or reasonably be affected by the property and who suffers injury . . . We hold further that the claimant is not required to prove negligence under Code Ann. § 105-106 . . . 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 . . . We construe . . . Code Ann. § 105-106 to mean that the plaintiff must show that the manufacturer's product when sold by the manufacturer was defective . . . Under Code Ann. § 105-106 the question is whether the product was defective in its manufacture, its packaging, or the failure to adequately warn of its dangerous propensities . . . 'No reason is apparent for distinguishing between the product itself and the container in which it is supplied; and the two are purchased by the user or consumer as an integrated whole."

While the court did grant a request to charge that if the jury should find the bottle of drain solvent was defective, and this proximately caused the injury, the plaintiff could recover, he also instructed them the unless they found the defendants were negligent that would end the investigation and they should return a verdict for the defendants. It is thus obvious that the doctrine of strict tort liability as it applies to this case was not charged by the court. The evidence would have authorized such a charge, and the plaintiff objected to its omission. This is error requiring reversal. It was also error to fail to charge in the language of the request set out in the 13th enumeration of error: 'If you find that the defendants manufactured and sold a drain solvent in a plastic bottle which caused injury and damage to the plaintiffs because this product as manufactured and packaged was not merchantable and reasonably suited to the use intended and its condition when sold was the proximate cause of the injury sustained, you should return a verdict for the plaintiffs.'

3. Insofar as they seek to have the court charge the jury on implied warranties on a breach of contract theory, enumerations 5, 9, 10, 15, 16, 17, 18, 19 and 26 are without merit, as pointed out in division 1 of our former opinion.

4. Enumerations of error 7 and 11 are without merit. 'Strict liability is not imposed under the statute merely because a product may be dangerous . . . If they are properly prepared, manufactured, packaged, and accompanied with adequate warnings and instructions, they cannot be said to be defective.' This ruling also applies to enumerations of error 20, 21 and 27 insofar as they predicate liability on the mere fact that the product sold may be intrinsically dangerous. 'Many products cannot be made...