Thebaut v. McCloskey Varnish Co.

• Decision Date: 11 May 1982
• Docket Number: No. 63744,63744
• Citation: 162 Ga.App. 651,291 S.E.2d 398
• Parties: THEBAUT v. McCLOSKEY VARNISH CO.
• Court: Georgia Court of Appeals

Page 398

291 S.E.2d 398

162 Ga.App. 651

THEBAUT v. McCLOSKEY VARNISH CO.

No. 63744.

Court of Appeals of Georgia.

May 11, 1982.

Billy L. Spruell, Sonja L. Salo, Atlanta, for appellant.

Robert C. Lamar, Atlanta, for appellee.

BANKE, Judge.

This is a products liability suit against Formby's, Inc., and McCloskey Varnish Co. The plaintiff alleges that when a neighbor living in an apartment directly below him applied some "Formby's Antique Walnut Wiping Stain" to an article of furniture, the fumes wafted up into his apartment and killed his collection of rare birds. It appears without dispute from the record that McCloskey Varnish Co. manufactured the base for the stain and then sold it to Formby's. Formby's, in turn, added additional chemicals to the base and sold it to retailers under its own name. McCloskey denies that it had any knowledge of the additions or modifications made to the base by Formby's and accordingly contends that it cannot be held liable for any damage caused by Formby's product. The trial court apparently agreed and for this reason granted McCloskey's motion for summary judgment. This appeal followed. Held:

"On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party's papers are carefully scrutinized, while the opposing party's papers, if any, are treated with considerable indulgence. Colonial Stores, Inc. v. Turner, 117 Ga.App. 331, 160 S.E.2d 672." Ham v. Ham, 230 Ga. 43, 45, 195 S.E.2d 429 (1973). See also Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 181 S.E.2d 866 (1971); Combs v. Adair Mortg. Co., 245 Ga. 296, 264 S.E.2d 226 (1980).

Although the plaintiff has produced no evidence in support of his allegation that his birds died as the result of the original composition of the base manufactured by McCloskey, McCloskey has produced no evidence negating this allegation. In particular, there is no chemical evidence to support McCloskey's contention that the damage was caused by the modifications made by Formby's. "One of the conditions for imposition of strict liability against a manufacturer of 'defective' products is that the product 'is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.' (Emphasis supplied.) Restatement of the Law, Torts 2d, 348, § 402A. In some cases it may be a jury question as to whether the products' original design has been merely slightly or somewhat modified. In such cases, the jury must determine whether the original manufacturer's design was defective and, if so, whether the proximate cause of the injuries sustained was the original defective design or the subsequent modification." Talley v. City Tank Corp., 158 Ga.App. 130, 135, 279 S.E.2d 264 (1981). See also Center Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975). The trial court erred in granting McCloskey's motion for summary judgment.

Judgment reversed.

QUILLIAN, C. J., McMURRAY and SHULMAN, P. JJ., CARLEY and POPE, JJ., concur.

DEEN, P.J., BIRDSONG and SOGNIER, JJ., dissent.

BIRDSONG, Judge, dissenting.

Inasmuch as the relevant evidence seems to point conclusively to the fact that the neighbor used a product manufactured by Formby's and the use of this product is the only explanation offered by appellant as the cause of his loss, I must respectfully dissent. The undisputed facts show that McCloskey sold a stain base in 55 gallon drums to Formby's. There is no showing that this stain base had any noxious odors or vapors or that any toxicity tests had been performed or were required to be performed. After the stain base was received by Formby's, two acidic solvents were added to the base, changing the content and nature of the stain base not only as to liquid and vapor content but also as to toxicity as...