Ryals v. Billy Poppell, Inc., A89A1235

• Citation: 386 S.E.2d 513,192 Ga.App. 787
• Decision Date: 14 July 1989
• Docket Number: No. A89A1235,A89A1235
• Parties: , 10 UCC Rep.Serv.2d 730 RYALS et al. v. BILLY POPPELL, INC.
• Court: Georgia Court of Appeals

Page 513

386 S.E.2d 513

192 Ga.App. 787, 10 UCC Rep.Serv.2d 730

RYALS et al. v. BILLY POPPELL, INC.

No. A89A1235.

Court of Appeals of Georgia.

July 14, 1989.

Rehearing Denied Sept. 11, 1989.

Certiorari Granted Nov. 2, 1989.

Richard D. Phillips, Ludowici, O. Dale Jenkins, Darien, for appellants.

King & Spalding, Philip E. Holladay, Atlanta, Dickey, Whelchel, Brown & Readdick, Richard A. Brown, Jr., John E. Bumgartner, Brunswick, for appellee.

McMURRAY, Presiding Judge.

Mr. and Mrs. Ryals brought a wrongful death action against General Motors Corporation ("GM") and the appellee used car sales business to recover for the death of their son. The complaint alleged that the decedent was killed while driving a used car purchased from appellee which was defective when manufactured by GM; and that the car was covered by an express warranty of merchantability, issued by appellee at the time of purchase, and also subject to implied warranties of merchantability under OCGA § 11-2-314 and the Magnuson-Moss Warranty Act (15 U.S.C. § 2301(3)). GM was released as a party defendant and appellee moved for summary judgment on the ground that as a matter of law a wrongful death claim could not be predicated upon the theories of either express or implied warranty. This appeal is from the grant of summary judgment in favor of appellee. Held:

The Georgia wrongful death statutes (OCGA §§ 51-4-1 through 51-4-5) limit recovery to "all cases in which the death of a human being results from a crime, from criminal or other negligence, or from property which has been defectively manufactured, whether or not as the result of negligence." OCGA § 51-4-1(2). See Lovett v. Emory Univ., 116 Ga.App. 277, 156 S.E.2d 923 (1967); Higginbotham v. Ford Motor Co., 540 F.2d 762 (5th Cir.1976). While a wrongful death action may now be maintained against a manufacturer in a products liability case to the full extent of the strict liability provisions of OCGA § 51-1-11 pertaining to injury to person or property, the vehicle in question here was not manufactured by appellee used car sales business and thus appellee had no liability under those sections. See Stiltjes v. Ridco Exterminating Co., 256 Ga. 255, 347 S.E.2d 568 (1986).

Appellants' claims under theories of breach of express and implied warranties arising from the purchase and sale of the automobile were likewise not maintainable. A wrongful death action may not be predicated on a breach of warranty arising from the sale of goods, except specified articles intended for human consumption or use. Lovett v. Emory Univ., 116 Ga.App. 277, 280(2), 156 S.E.2d 923, supra; Ford Motor Co. v. Carter, 239 Ga. 657, 659, 238 S.E.2d 361 (1977).

" 'It is the general rule that a vendor or dealer who is not the manufacturer is under no obligation to test an article purchased and sold by him for the purpose of discovering latent or concealed defects, but that when he purchases and sells an article in common and general use, in the usual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not. In such a case he may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to...