Pepper v. Selig Chemical Industries, 62670
| Decision Date | 26 February 1982 |
| Docket Number | No. 62670,62670 |
| Citation | 288 S.E.2d 693,161 Ga.App. 548 |
| Parties | PEPPER v. SELIG CHEMICAL INDUSTRIES et al. |
| Court | Georgia Court of Appeals |
John C. Tyler, Alvin T. Wong, Atlanta, for appellant.
M. David Merritt, Howard M. Lessinger, Robert G. Tanner, Atlanta, for appellees.
Jean Pepper was injured while using a chemical solution designed for use in the process of tinting optical lens. Some of the solution spilled onto a hot plate, caught fire and burned Pepper. She sued Selig Chemical Industries (Selig), the manufacturer or distributor of the product, Robertson Optical Laboratories, Inc. (Robertson), and R. O. L. Lens Co. (R. O. L.), the sellers of the product, for negligence in the manufacturing of an inherently dangerous product and for failure to warn of the dangers in using the product. Selig's motion for summary judgment was granted, and Peppers appeals.
Appellant contends that the trial court erred in granting summary judgment in favor of Selig because Selig failed to carry its burden of showing that no genuine issue of material fact remained for jury determination. We agree with appellant and reverse.
1. Appellant contends that an issue of fact remains as to whether the chemical solution being used by Pepper is inherently dangerous. Appellee's expert, an employee of Selig, testified by affidavit that the chemical in question is not " 'flammable' in ordinary use, is not considered to be 'combustible,' and is not 'inherently dangerous.' " However, this is not the type of case in which an expert's opinion introduced by the movant will authorize the grant of summary judgment. Harrison v. Tuggle, 225 Ga. 211, 213, 167 S.E.2d 395 (1969); Savannah Valley Production Credit Assoc. v. Cheek, 248 Ga. 745, 285 S.E.2d 689 (1982). Hence, a question of fact remains regarding the dangerous nature of the chemical solution.
2. Next, appellant contends that Selig, as a manufacturer of the chemical solution, had a duty to Pepper to warn of the dangerous propensity of the product. Selig contends, however, that it is a mere bulk distributor of the chemical solution and has no duty to warn the ultimate user or consumer.
By affidavit and deposition, Selig's representative stated that the chemical solution which ultimately found its way into Pepper's hands was purchased by Selig in 55 gallon drums from American Industrial Chemical Corporation (American), and was sold to Robertson in the same 55 gallon drums. Selig, at Robertson's request, placed a label supplied by Robertson on the drums. The Robertson label named the solution "ROL Bleach" and included the following warning:
CAUTION
KEEP OUT OF REACH OF CHILDREN.
May be harmful if swallowed.
Avoid contact with skin and eyes.
In case of contact,
flush with plenty of clean water.
There was no warning that the solution might be combustible despite the fact that the instructions on the label said to "Heat 190~ to 200~>." There was no evidence that either Selig or American had affixed a label or warning of any kind on the drums.
Selig's representative admitted that Selig was a manufacturer of chemical products and that He admitted that the chemical in question was occasionally used as an ingredient in other products that Selig manufactured. He also admitted that "We do not alter the product [the chemical in question] other than on occasion, we have added a coloring agent to it to sell to them [Robertson] ..."
On deposition Selig's representative was questioned about certain invoices from American (although such invoices do not appear in the record) and it was well established in the questions and answers regarding the invoices that the chemical was purchased by Selig from American in 55 gallon drums. Robertson denied requesting that the chemical be delivered in the original drums and denied that it knew the chemical and drums were supplied to Selig by American.
The party opposing a motion for summary judgment must be given the benefit of all inferences that may be drawn from the evidence. Pierce v. Liberty Furniture Co., 141 Ga.App. 175, 178, 233 S.E.2d 33 (1977). Under the circumstances of this case, construing the evidence in a light most favorable to appellant, as we must, it cannot be said as a matter of law that Selig is a mere bulk distributor of the chemical solution sold to Robertson. "One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer." Second Restatement of the Law of Torts § 400; Pierce v. Liberty Furniture, supra, at 179, 233 S.E.2d 33.
3. Appellant also argues that Selig, as a manufacturer of the chemical solution, failed to...
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