Stovall & Co. v. Tate
| Citation | 124 Ga.App. 605,184 S.E.2d 834 |
| Decision Date | 05 October 1971 |
| Docket Number | Nos. 46352-46354,No. 3,s. 46352-46354,3 |
| Court | United States Court of Appeals (Georgia) |
| Parties | , 9 UCC Rep.Serv. 1365 STOVALL & COMPANY, Inc. v. Brenda F. TATE. Brenda F. TATE v. McDONOUGH POWER EQUIPMENT, INC. et al. McDONOUGH POWER EQUIPMENT INC. v. Brenda F. TATE |
Swift, Currie, mcGhee & Hiers, W. Wray Eckl, Hunter S. Allen, Jr., Atlanta, for Stovall & Co.
Cullen M. Ward, Frank M. Eldridge, Atlanta, for Tate.
Powell, Goldstein, Frazer & Murphy, Robert W. Patrick, Jerry B. Blackstock, Atlanta, for McDonough Power Equipment, Inc.
Syllabus Opinion by the Court
The appeals in this personal injury action are from rulings made below on the motions for summary judgment made by two of the several defendants. The plaintiff, Brenda F. Tate, suffered injury and loss of effective vision in her left eye as a result of being hit be a rock thrown by a rotary power lawn mower. She was sitting in a classroom at North Clayton Junior High School when a rock was thrown by the mower through and opening in the classroom window.
The plaintiff's several-count complaint named the manufacturer (McDonough Power Equipment, Inc.) and the distributor (Stovall & Company, Inc.) of the lawn mower as defendants. Also named as defendants were the principal (R. E. Cooper, Sr.) and the assistant principal (Bill J. Livingston) of North Clayton Junior High School.
Count 1 proceeds in negligence against all defendants with different specifications of negligence as to each. Count 2 proceeds against the manufacturer, alleging a failure of implied warranty on the basis of its manufacture for sale and resale. Count 3 proceeds against the distributor, also alleging a failure of implied warranty on the basis of its sale for consumer use. Count 4 proceeds against both the manufacturer and distributor on the theory of strict liability.
The trial court denied the manufacturer's and the distributor's motions for summary judgment as to Count 1, but granted their motions as to the remaining counts. The manufacturer and the distributor appeal and enumerate as error the trial court's ruling with respect to Count 1. The plaintiff cross appeals and enumerates as error the trial court's ruling with respect to Counts 2, 3 and 4.
Defendants Cooper and Livingston are not here on appeal.
The following uncontradicted facts appear from the record: In 1961 or 1962 defendant McDonough Power Equipment, Inc. began the process leading to the design, manufacture and sale of its '306-RD' rotary power riding mower. The mower is also known as a 'Snapper Comet Riding Mower.' The machine cuts grass on the same principle as almost all other rotary power mowers. It has a blade which rotates at high speed in a plane horizontal with and very close to the ground.
With regard to the '306-RD' the blade is surrounded or encased in a metal housing except in two places. There is an opening on the underside of the housing which is necessary in order for the whirling blade to come in contact with the grass. The second opening is known as a grass port or discharge chute and is located on one side of the blade housing. The rotating blade cuts the grass and simultaneously expels it through the discharge chute. The continuous expulsion of grass as it is cut is necessary for the continuous functioning of the mower.
It was known by all parties to the suit that a rotary power mower will throw or sling such objects as rocks, wire, sticks, etc., out through the discharge chute if the whirling blade is allowed to come in contact with them. The defendant manufacturer designed the mower in question in a manner which equaled or exceeded the 'American Standard Safety Specifications for Power Lawn Mowers,' which is a standard approved by the American Standards Association. This standard addressed itself, among other things, to maximum allowable vertical and horizontal angles of exposure between the blade and discharge chute opening, i.e., the trajectory angle to which any projectile discharged through the chute must be limited. The standard also limited the total exposure area of the opening not to exceed a specified number of 'square degrees.' It is not disputed that the mower was well within all these limits.
Some rotary lawn mowers are equipped with grass catchers which attach to the discharge chute and collect the grass as it is cut and expelled. In performing such function the grass bag also catches projectiles thrown by the blade. Some rotary mowers have a deflector at the exhaust port which is intended to deflect projectiles thrown by the blade. It acts, in effect, to further restrict or eliminate the angle of exposure. Later models of the Snapper Comet have a 'funnel' deflector available. Grass catchers are available if desired. That the mower in question had no grass catcher or deflector on the discharge chute was obvious to any observer.
The machine was sold in 1965 under the following circumstances: Mr. E. E. Oliver, as principal of G. W. Northcutt Elementary School, made a request to one T.N. Holbrook (a member of the School's P.T.A. who was in the farm machinery business) for the mower. Mr. Oliver specified the mower he wanted by brand name-'Snapper Riding Mower.' Mr. Holbrook did not handle lawn mowers but he made arrangements with defendant Stovall & Co., Inc., who was the Atlanta distributor for the manufacturer, for procurement of the machine. Stovall invoiced the machine through its authorized dealer, Corley Sales & Service. The machine was delivered to the G. W. Northcutt Elementary School, and at the time of delivery and at the request of Mr. Oliver, the janitor was shown how to operate the mower. Both the janitor and Mr. Oliver were warned of the danger of objects being thrown by the mower. Mr. Oliver thereupon instructed the janitor never to operate the mower while children were at school. In addition, an instruction manual was delivered with the mower. Among other things it contained the following: Turtle mowers are designed and engineered for maximum safety in operation. However, like all mechanical tools, care must be taken in their operation and maintenance to protect the operator and others from harm. These simple suggestions and rules are published for your benefit and safety. Please read them carefully and be sure that any operator of your power mower is familiar with them and observes them.
Northcutt Elementary School, which owned the mower, was located adjacent to the North Clayton Junior High School. The officials of the two schools came to an agreement regarding the mower to the effect that if North Clayton would house it and share in the cost of maintenance, etc., then it would also have the use of it.
On October 2, 1968, approximately three years after the mower was purchased, the incident occurred which is the subject of this suit. The mower was being used on this occasion on the premises of North Clayton and was being operated by a special education student. In addition to its normal educational program, North Clayton conducted a special education program for the educable mentally retarded. These students received classroom instruction on varying levels as well as practical training in various vocational fields. Part of this latter training included the performance of tasks around the school such as painting, running floor buffing machines and operating the lawn mower. This student had exhibited the ability required to operate the lawn mower and had done so on approximately five occasions.
The principal of North Clayton (defendant R. E. Cooper, Sr.) was aware of the rock throwing propensity of rotary lawn mowers. He had established a policy that there would be no grass cutting when children were on the playground because of the danger of the mower slinging debris or rocks and, further, that the grass was not to be cut around a classroom area while classess were in session. His policy was that any area to be mowed was to be inspected and cleared. He, as principal, delegated the supervision of this policy to his assistant principal.
The assistant principal (defendant Bill J. Livingston) devoted a great deal of his time to guiding and working with special education students. He was aware of the dangers of rotary power mowers. He instructed the student here involved to pick up paper, rocks and tree limbs. This was the procedure before every grass cutting operation. He was always present and supervised the operation of the lawn mower.
On the occasion in question the student started the mower in the presence of Livingston. Livingston left the area to get a hammer and some nails in preparation for some repair work. He was gone between 3 and 5 minutes. The student at one point during this time drove the mower within 10 or 12 feet of a classroom where a class was in session. There was a patch of gravel in the area. The mower threw a rock through a narrow opening in a classroom window. It went across the room and hit the plaintiff who was seated in the rear seat of the row most distant from the windows. The rock struck plaintiff in her left eye, causing severe injury and loss of effective vision in that eye. Held:
1. In Count 1 of the complaint the plaintiff alleged that the manufacturer was liable to her because it had been negligent. It was alleged that the manufacturer failed to properly design the mower in that it had not been provided with a device to deflect to the ground any hard objects struck and thrown from under the mower by the blade, as a result of which...
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