Perton v. Motel Properties, Inc.

• Decision Date: 11 February 1998
• Docket Number: No. A97A2562,A97A2562
• Citation: 497 S.E.2d 29,230 Ga.App. 540
• Parties: , 98 FCDR 848 PERTON et al. v. MOTEL PROPERTIES, INC.
• Court: Georgia Court of Appeals

Page 29

497 S.E.2d 29

230 Ga.App. 540, 98 FCDR 848

PERTON et al. v. MOTEL PROPERTIES, INC.

No. A97A2562.

Court of Appeals of Georgia.

Feb. 11, 1998.

As Amended Feb. 12, 1998.

Zipperer & Lorberbaum, Steven L. Beauvais, Eric R. Gotwalt, Savannah, for appellants.

Woodall & MacKenzie, John T. Woodall, Peter A. Giusti, for appellee.

ELDRIDGE, Judge.

On February 7, 1994, appellee-defendant Motel Properties, Inc. d/b/a Comfort Inn ("Motel Properties") rented to Selma Perton and Irwin Perton, appellants-plaintiffs, two bicycles for their use. After riding her bicycle for a short distance, Mrs. Perton felt that something was wrong with the bicycle. On inspection of the bicycle, neither of the Pertons could find any patent defect. However, Mrs. Perton decided to return the bicycle. During the return trip, the bicycle suddenly and completely malfunctioned and threw Mrs. Perton to the ground, causing her serious injury.

The plaintiffs sued the defendant for negligently maintaining, renting, and inspecting the bicycle and renting to Mrs. Perton a defective bicycle.

On deposition, Mrs. Perton testified that, in her opinion, the front wheel seemed wobbly and the brakes were not good. She stated that when she went to return the bicycle, she did not know that it was unsafe, but that she felt uncomfortable with the bicycle and decided to return it.

Sammie Yawn, who rented the bicycles to the plaintiffs for the defendant, testified that he made a daily visual inspection of the bicycles, but made no manual testing or operational inspection. He discovered no defects in his cursory visual inspection.

The defendant moved for and was granted summary judgment. Plaintiffs filed their timely notice of appeal.

Plaintiffs set forth their enumerations of error on two grounds, which both assert that the trial court erred as a matter of law in granting summary judgment on the issue of negligence. We agree.

(a) The first matter that must be dealt with in this analysis is the determination of the legal effect of OCGA § 44-12-63 as to the legal duties imposed upon a bailor. Motel Properties, in renting the bicycle, acted as a bailor for hire. Heughan v. State, 82 Ga.App. 640, 61 S.E.2d 685 (1950). OCGA § 44-12-63 sets forth the obligations imposed by law arising from such legal relationship. "The obligations of the bailor of things are: (1) To do no act to deprive the hirer of the use and enjoyment of the chattel during the period of the bailment; (2) To keep the thing in suitable order and repair for the purposes of the bailment; and (3) To warrant the right of possession and that the thing bailed is free from any secret fault rendering it unfit for the purposes for which it is hired." OCGA § 44-12-63; see Mark Singleton Buick, Inc. v. Taylor, 194 Ga.App. 630, 391 S.E.2d 435 (1990); see also Brannan & Holder v. Moore, 135 Ga. 517, 519, 69 S.E. 820 (1910).

The bailor's liability for defective rented property arises partly from in implied warranty created by the legal relationship alone and partly as a breach of the common law duties in negligence owed to the public in general. Seaboard Coast Line R.R. v. Mobil Chem. Co., 172 Ga.App. 543, 323 S.E.2d 849 (1984); see Southeastern Air Svc. v. Crowell, 88 Ga.App. 820, 78 S.E.2d 103 (1953). Thus, the relationship of bailor-bailee causes certain duties of the exercise of ordinary care to arise that are greater than are owed to the general public. See Yale & Towne, Inc. v. Sharpe, 118 Ga.App. 480, 164 S.E.2d 318 (1968); Hertz Driv-Ur-Self, etc. v. Benson, 83 Ga.App. 866, 873-875(3), 65 S.E.2d 191 (1951).

(b) To determine what duties of ordinary care are owed in negligence, it must be determined what effect legally imposed warranties have. Breach of implied warranty arises from the relationship of bailor-bailee when the rental property is defective, because the bailor warrants that the property is free of hidden defects and fit for the purposes for which it is hired. See Heyde v. Xtraman, Inc., 199 Ga.App. 303, 305, 404 S.E.2d 607 (1991); Hall v. Gardens Svcs., 174 Ga.App. 856, 858, 332 S.E.2d 3 (1985); Redfern Meats v. Hertz Corp., 134 Ga.App. 381, 384, 215 S.E.2d 10 (1975); Southern Protective Products Co. v. Leasing Intl., 134 Ga.App. 945, 946-948(3), 216 S.E.2d 725 (1975); Cooper v. Layson Bros., 14 Ga.App. 134, hn. 2, 80 S.E. 666 (1914). While the bailor warrants that the rental property is free from latent defects, the bailor at the same time impliedly warrants that the property is free from patent defects as well, because the existence of a patent defect renders the property unfit and unsuitable for the purpose for which it was rented, which violates the express language of the statute as to warranty of fitness. Brannan & Holder v. Moore, supra at 518-519, 69 S.E. 820; Queen v. Patent Scaffolding Co., 46 Ga.App. 364, 167 S.E. 789 (1933); Parker v. G.O. Loving & Co., 13 Ga.App. 284, 79 S.E. 77 (1913); see also Southern Protective Products, Co. v. Leasing Intl., supra at 948, 216 S.E.2d 725; Hall v. Gardens Svcs., supra at 858, 332 S.E.2d 3; Hertz Driv-Ur-Self, etc. v. Benson, supra at 874, 65 S.E.2d 191.

Georgia law has interpreted the breach of a statutorily imposed warranty, whether express or implied, as giving rise to strict liability. "Whether it be tort or contract, a breach of warranty gives rise to strict liability, which does not depend upon any knowledge of defects on the part of the [bailee], or any negligence." (Punctuation omitted.) John Deere Co. v. Lindsey Landclearing Co., 122 Ga.App. 827, 831(2), 178 S.E.2d 917 (1970); see also Pierce v. Liberty Furniture Co., 141 Ga.App. 175, 177(3), 233 S.E.2d 33 (1977). ¹

While the statute imposes warranties that arise out of such legal relationship of bailor-bailee, the bailee by express contract provisions can limit or waive such protection, not only in warranty but also in tort. Benford v. RDL, Inc., 223 Ga.App. 800, 479 S.E.2d 110 (1996); Lightsey v. Nalley Equip. Leasing, 209 Ga.App. 73, 432 S.E.2d 673 (1993); Mercedes-Benz Credit Corp. v. Shields, 199 Ga.App. 89, 403 S.E.2d 891 (1991); Petroziello v. U.S. Leasing Corp., etc., 176 Ga.App. 858, 338 S.E.2d 63 (1985); Hall v. Gardens Svcs., supra. However, a contract exclusion or exculpatory clause which is contrary to public policy is void. Mark Singleton Buick, Inc. v. Taylor, supra at 632, 391 S.E.2d 435; Hall v. Gardens Svcs., supra at 857-858, 332 S.E.2d 3.

As a matter of law, the trial court erred in finding that strict liability did not apply.

(c) The bailor has several duties imposed by statute, which give rise to negligence upon breach of such duties. The bailor must exercise ordinary care to inspect and ascertain that the rental property has no hidden defects that would render it dangerous. Hertz Driv-Ur-Self, etc. v. Benson, supra; see also Yale & Towne, Inc. v. Sharpe, supra; Parker v. Loving & Co., supra. The statute imposes a duty to properly care for, to inspect, and to maintain the property in a defect-free condition prior to rental. OCGA § 44-12-63(2).

"[D]ue care on the part of the bailor requires him to examine the thing bailed for the purpose of seeing that it has no hidden defects which would render it unsuitable for the purposes for which it was hired." (Punctuation omitted.) Hertz Driv-Ur-Self, etc. v. Benson, supra at 874, 65 S.E.2d 191; accord Southeastern Air Svc. v. Crowell, supra at 823, 78 S.E.2d 103; Parker v. Loving & Co., supra. "[A] bailor ... is liable for any injury or damage which results from a latent defect of which the bailee has no knowledge and the consequences of which he could not avoid through the exercise of ordinary care.... Thus, it is essential that a bailor use ordinary care to inspect the bailed article before delivery to ascertain if it was in a reasonably safe condition to avoid injury to another." Hall v. Skate Escape, Ltd., 171 Ga.App. 178, 179, 319 S.E.2d 67 (1984); accord Yale & Towne, Inc. v. Sharpe, supra at 491, 164 S.E.2d 318; see also Queen v. Patent Scaffolding Co., supra at 368, 167 S.E. 789; Hertz Driv-Ur-Self, etc. v. Benson, supra at 874, 65 S.E.2d 191; Parker v. Loving & Co., supra at 286, 79 S.E. 77.

"It was the duty of the defendant to deliver the [rental property] in such a condition that [plaintiff] could use it with safety." Queen v. Patent Scaffolding Co., supra at 368, 167 S.E. 789; see also Savannah, Fla., etc., R. Co. v. Booth, 98 Ga. 20, 23-24, 25 S.E. 928 (1895). "The plaintiff makes out [her] case by showing the injury and that the defendant was lacking in ordinary care, in furnishing [defective rental property] unsuited for the purposes for which it was hired. Negligence is not presumed, and must affirmatively appear from the plaintiff's proof." Cooper v. Layson Bros., supra at 135-136, 80 S.E. 666; OCGA § 9-11-56(e). Plaintiff has produced such evidence in response to the motion for summary judgment. OCGA § 9-11-56(e).

A bailor, as a matter of law, is presumed to have constructive knowledge of all defects that a reasonable inspection would reveal in the exercise of ordinary care, because the bailor is under a statutory duty to inspect for both patent and latent defects prior to renting the property. Parker v. Loving & Co., supra at 286, 79 S.E. 77; see also Savannah, Fla., etc., R. Co. v. Booth, supra at 23-24, 25 S.E. 928. The amount of care that the bailor should exercise in discovering a defect is a factual question for the jury. Hertz Driv-Ur-Self, etc. v. Benson, supra.

The evidence in this case is that the bicycle had a latent defect at the time that Motel Properties rented the bicycle, which it failed to discover on a cursory inspection. Motel Properties violated its statutory duties in (1) failing to maintain the bicycle in a fit condition to rent, (2) failing to inspect and to discover the latent defect prior to renting the bicycle, and (3) renting the bicycle in a dangerous condition so that it was not fit for the purpose for which it was rented. The evidence raises...