Rhodes v. R.G. Industries, Inc.

• Decision Date: 26 November 1984
• Docket Number: No. 68528,68528
• Citation: 325 S.E.2d 465,173 Ga.App. 51
• Court: Georgia Court of Appeals
• Parties: , 40 UCC Rep.Serv. 1668 RHODES v. R.G. INDUSTRIES, INC. et al.

Page 465

325 S.E.2d 465

173 Ga.App. 51, 40 UCC Rep.Serv. 1668

RHODES v. R.G. INDUSTRIES, INC. et al.

No. 68528.

Court of Appeals of Georgia.

Nov. 26, 1984.

Rehearing Denied Dec. 13, 1984.

Certiorari Dismissed Jan. 24, 1985.

Alice Oppenheim, Randall R. Moore, Dallas, Tex., for appellant.

Manley F. Brown, John W. Collier, John C. Edwards, Mallory C. Atkinson, Jr., Macon, for appellees.

BENHAM, Judge.

On February 1, 1980, Mrs. Mattie Hogan purchased a new .22 caliber double-action revolver from appellee Arvin's Gun Shop ("Arvin's"). The gun was manufactured by appellee R.G. Industries, Inc. ("R.G.") from parts supplied by appellee Rohm Gescellschaft ("Rohm"). Mrs. Hogan bought the gun for self-protection and kept it in a concealed location in her home, which she shared with other members of her family, five of whom were children under five years of age.

On May 5, 1981, several adults and children were visiting the Hogan home, including Mrs. Hogan's 5-year-old nephew, her 3-year-old niece, and a 10-year-old girl, Kimberly Rhodes. During the course of the day, the nephew found the revolver under a chifforobe, cocked the hammer and put the gun in the basket of a bicycle in Mrs. Hogan's daughter's room. The niece later found the gun in the basket, removed it, held it by the grip with both hands, pulled the trigger and fired one bullet, which struck and killed Kimberly, who was seated on a sofa in the living room.

Appellant, the decedent's mother, filed a wrongful death action against the parts supplier, manufacturer and seller of the gun on behalf of decedent's estate and herself. She alleged, inter alia, that Arvin's was liable for breach of implied warranty of merchantability, i.e., that the gun was not fit for the purpose of self-protection and that R.G. and Rohm were strictly liable because the gun was unreasonably dangerous as designed and marketed to the general public.

Appellees moved for dismissal of the action, the trial court converted the motions to motions for summary judgment and, after reviewing the evidence and arguments presented, granted the motions. Appellant seeks a reversal of the judgment, raising seven enumerations of error. We affirm.

1. Appellant first contends that "the trial court erred in holding as a matter of law that handguns are exempt from Georgia's product liability law because the lack of safety connected with such weapons raises a political, nonjusticiable question." Her last contention is that the trial court erroneously held as a matter of law that the R.G. revolver is not unreasonably dangerous when marketed to the general public. We disagree on both points. The Second Amendment to the U.S. Constitution guarantees the right of the people to keep and bear arms, as does Art. I, Sec. I, Par. VIII of the Georgia Constitution 1983, which states that that right "shall not be infringed, but the General Assembly shall have the power to prescribe the manner in which arms may be borne." In accordance with that edict, the General Assembly has created a regulatory scheme for the distribution and use of firearms. "What is important here is the fact that the [Georgia] legislature has neither enacted a statute banning the sale of handguns to the general public nor adopted a joint resolution to amend the Constitution to that effect." Richman v. Charter Arms Corp., 571 F.Supp. 192, 198 (E.D.La.1983). The enactment of comprehensive licensing provisions for suppliers and purchasers of handguns is indicia that the legislature is not inclined to ban the use of such weapons, and that legislators do not feel that the marketing of handguns to the public is an unreasonably dangerous or socially unacceptable activity. Mavilia v. Stoeger Indus., 574 F.Supp. 107 (Mass.1983). We must conclude that the General Assembly does not intend to control further the manufacture, distribution or use of handguns. This court is prohibited from altering the status quo since the legislature's present position is within constitutional limits. We cannot change laws, we can only interpret them. State Bar of Ga. v. Haas, 133 Ga.App. 311(2), 211 S.E.2d 161 (1974). While we recognize with regret the numerous deaths caused by firearms, we are powerless to remedy the situation without a clear legislative mandate.

2. The trial court did not err when it ruled as a matter of law that R.G. had not manufactured a defective product and that the gun was fit for its intended purpose. Appellant asserts that R.G. is strictly liable in tort under OCGA § 51-1-11(b)(1) inasmuch as the gun "was not merchantable and reasonably suited to the uses intended..." However, the evidence showed that the gun performed exactly as was expected: when the hammer was cocked and the trigger was pulled, it fired. Mrs. Hogan testified in her deposition that she fired the gun several times before the accident and it never malfunctioned, and that on at least one occasion she fired it to ward off an intruder in her home. There was also deposition testimony from two of R.G.'s employees that the gun had no defects. The weapon clearly satisfied the purpose for which it was manufactured and purchased, and there was no evidence that the weapon was defective. In Jones v. Cranman's Sporting Goods, 142 Ga.App. 838, 237 S.E.2d 402 (1977), we held that the fact that a rifle exploded during loading was evidence that it was unfit for the ordinary purpose for which it was intended. Conversely, the fact that the revolver in this case fired when the hammer was cocked and the trigger was pulled was evidence that the weapon was fit for the use intended. The finding of fitness as a matter of law was adequately supported by the evidence.

Appellant further argues that the weapon should...