Ream Tool Co. v. Newton

Decision Date02 June 1993
Docket NumberNos. A93A0153,A93A0154 and A93A0155,s. A93A0153
Citation209 Ga.App. 226,433 S.E.2d 67
Parties, Prod.Liab.Rep. (CCH) P 13,647 REAM TOOL COMPANY v. NEWTON. FREEBORN TOOL COMPANY, INC. v. NEWTON. DELTA INTERNATIONAL MACHINERY CORPORATION v. NEWTON.
CourtGeorgia Court of Appeals

Brennan & Wasden, Joseph P. Brennan, Marvin W. McGahee, Savannah, for Ream Tool Co.

Brannen, Searcy & Smith, Leesa A. Bohler, Savannah, for Freeborn Tool Co.

Fulcher Hagler, Reed, Hanks & Harper, J. Arthur Davison, James W. Purcell, Augusta, for Delta Intl. Machinery Corp.

Edenfield, Stone & Cox, Gerald M. Edenfield, E. Lee Davis, Jr., Statesboro, Hendrix, Murray & Associates, Jerrell T. Hendrix, Savannah, for Newton.

BIRDSONG, Presiding Judge.

This is an appeal of the order of the superior court denying appellants' motion for summary judgment to Ream Tool Company (RTC), Freeborn Tool Company (FTC), and Delta International Machinery Corporation (DIM) against appellee/plaintiff Karla R. Newton.

Appellee Newton purchased a DIM wood shaper from Stone Mountain Power Tool Corporation (SMPT) for her work shop; the shaper had a spindle guard; appellee knew this particular shaper did not come with cutters. Previously, Newton had worked for about six months at a millwork shop. Although she had never used a DIM wood shaper or a shaper with a similar guard or fences, she had worked with wood shapers at the millwork shop.

The DIM shaper guard had a four and one-half inch outer diameter, and was designed to be affixed on the spindle above the cutter. The instruction manual supplied by DIM with the shaper states in bold print: "CAUTION: The diameter of the spindle guard should be at least 1"' (one inch) more than the maximum cutting circle of the shaper cutter and the height of the guard should not exceed 1/4"' (one quarter inch) above the material." Appellee maintains she did not read the portions of the manual containing this warning.

Appellee did not buy cutters from SMPT, as the DIM shaper was not sold with the specialized cutters she desired. Rather, she subsequently ordered two special cutters from RTC (a mail order cutter supplier), one of these was a "Colonial" cut with a spindle hole of a certain diameter. RTC in turn ordered the cutters from FTC. FTC manufactured an approximate six-inch Colonial cutter (with a so-called "open throat" design) to meet the spindle hole requirements of appellee's order with RTC; apparently, at no time was FTC requested to produce a cutter having a specified outer diameter. The cutters were sold by FTC to RTC who sold them to appellee. RTC did not make any suggestions as to the size, style, or design of the cutters appellee needed; RTC merely passed the ordering information and sample wood cuts received from appellee to FTC. Appellee subsequently installed the Colonial cutter on the DIM shaper, and placed the four and one-half inch spindle guard on top of the cutter, resulting in the bright yellow blades of the cutter extending about one and one-half inches beyond the protective range of the orange spindle guard, contrary to the warning contained in the DIM instruction manual. As appellee was operating the shaper with the Colonial cutter, the cutter snatched the wood in a "kickback" action and appellee's hand was pulled suddenly into the cutter.

Appellee brought a products liability suit averring various grounds of strict liability, negligent manufacturer, and breach of warranty against appellants DIM, RTC, FTC and SMPT. Appellants moved for summary judgment, relying upon the "open and obvious" rule. See generally Weatherby v. Honda Motor Co., 195 Ga.App. 169, 393 S.E.2d 64. The trial court denied appellants/defendants' motion for summary judgment. Held:

1. At summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-movant's case. Lau's Corp. v. Haskins, 261 Ga. 491, 495, 405 S.E.2d 474. A movant/defendant for summary judgment may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the non-moving party's case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau's Corp. v. Haskins, supra at 491, 405 S.E.2d 474.

2. In her deposition, appellee affirmatively and unconditionally answered that she considered herself as having become an experienced shaper operator from working at the millworks. Subsequently and without explanation, appellee offered evidence at least implying she was not an experienced shaper operator; appellee's counsel also argues in a supplemental appellate brief that "Ms. Newton was simply not an experienced shaper operator." As to any unexplained contradiction in appellee's testimony, Prophecy Corp. v. Charles Rossignol, 256 Ga. 27, 343 S.E.2d 680 applies.

3. (a) At best only a shadowy semblance of an issue exists (see Peterson v. Liberty Mut. Ins. Co., 188 Ga.App. 420, 424, 373 S.E.2d 515) that RTC was the manufacturer of the cutter. RTC merely acted as a "middleman" in procuring the cutters from FTC and selling them to appellee. A cause of action for strict liability can be maintained only against the manufacturer of a product. OCGA § 51-1-11.1. A mere "product seller" is not a manufacturer, and is not liable as a manufacturer on grounds of strict liability. OCGA § 51-1-11.1.

(b) Further, as no genuine issue of material fact exists whether RTC manufactured or designed the cutter, only a shadowy semblance, if any, of an issue of RTC's liability on grounds of negligent manufacture or design remains. Peterson, supra.

(c) Nor does a genuine issue of material fact exist that RTC negligently sold a defective cutter to appellee. The unrefuted evidence of record establishes that RTC was not aware, either before or when it sold appellee the cutter that the "open neck" or "open throat" design of the cutter might produce a greater likelihood of "kickback" when operated in conjunction with a shaper, or that it would produce a greater likelihood of "kickback" as opposed to a "closed throat" designed cutter. Not being a manufacturer, RTC as a vendor or dealer had no obligation generally to test the cutter. When RTC purchased and sold the cutter in common and general use, in the usual course of trade, without knowledge of its alleged dangerous quality and with nothing tending reasonably to call RTC's attention thereto, it was not negligent in failing to exercise care to determine whether the cutter was dangerous. Pierce v. Liberty Furniture Co., 141 Ga.App. 175, 175-176, 233 S.E.2d 33. Accordingly, RTC could assume the manufacturer of the cutter had done its duty in properly constructing the article and not placing upon the market a commodity which was defective and likely to inflict injury. Pierce, supra at 176, 233 S.E.2d 33.

(d) However, a retailer may be held liable under an implied warranty of merchantability theory for selling a defective product; OCGA § 11-2-314(2)(c) establishes a concept for retailers parallel to that of OCGA § 51-1-11 for manufacturers. Rhodes v. R.G. Indus., 173 Ga.App. 51, 54(4), 325 S.E.2d 465; Pierce, supra 141 Ga.App. at 176, 233 S.E.2d 33. Whether the cutter was defective in view of the Georgia "open and obvious" rule will be discussed in Division 4 below.

4. In products liability cases predicated on negligence, the duty imposed is the traditional one of reasonable care, and the manufacturer need not provide, from a design standpoint, a product incapable of producing injury. Georgia law does not require a manufacturer to occupy the status of an insurer with respect to product design. Rather, a manufacturer is under no obligation to make a machine accident proof or foolproof, or even more safe. Weatherby, supra 195 Ga.App. at 170, 393 S.E.2d 64; accord Floyd v. Bic Corp., 790 F.Supp. 276, 277-278 (N.D.Ga.). A manufacturer is under no obligation to make a machine totally modification-proof. In Georgia, "if the product is designed so that it is reasonably safe for the use intended, the product is not defective even though capable of producing injury where the injury results from an obvious or patent peril"; in such instances, "the product is not defective as a matter of law." (Emphasis supplied.) Coast Catamaran Corp. v. Mann, 171 Ga.App. 844, 847-848(2), 321 S.E.2d 353. Under the Georgia "open and obvious rule" or "patent danger rule" it is provided that "a product is not defective [either in its design or manufacture] if the absence of a safety device is open and obvious, and there is no duty to warn of an obvious danger" or one that is "generally known." Weatherby, supra 195 Ga.App. at 170, 173, 393 S.E.2d 64; see Gragg v. Diebold, Inc., 198 Ga.App. 823, 403 S.E.2d 229. Moreover, under the open and obvious rule whether the peril from which an injury results is latent or patent is to be determined by an objective view of the product; the subjective perceptions of the user in this regard are irrelevant. Weatherby, supra 195 Ga.App. at 171, 393 S.E.2d 64; accord Wilson v. Bicycle South, 915 F.2d 1503, 1507(1) (11th Cir.). While in many cases a defense based upon the obvious and common nature of the peril will be a question for the jury, a defendant is entitled to judgment as a matter of law in clear and palpable cases. Weatherby, supra 195 Ga.App. at 173, 393 S.E.2d 64.

The standard whether there has been a breach of warranty by a retailer, like the standard imposed under strict liability upon a manufacturer, is whether the product sold or manufactured was defective. Pierce, supra; Rhodes, supra. In Stodghill v. Fiat-Allis, etc., 163 Ga.App. 811, 295 S.E.2d 183, appellant testified he was an experienced bulldozer operator and knew that absence of a protective cage exposed him to...

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