Welding Products of Georgia v. S. D. Mullins Co., Inc.

• Citation: 193 S.E.2d 881,127 Ga.App. 474
• Decision Date: 06 October 1972
• Docket Number: Nos. 47229,47230,No. 1,s. 47229,1
• Parties: WELDING PRODUCTS OF GEORGIA v. S. D. MULLINS COMPANY, INC. WELDING PRODUCTS OF GEORGIA v. R. F. BURTON COMPANY
• Court: United States Court of Appeals (Georgia)

Page 881

193 S.E.2d 881

127 Ga.App. 474

WELDING PRODUCTS OF GEORGIA v. S. D. MULLINS COMPANY, INC.

WELDING PRODUCTS OF GEORGIA v. R. F. BURTON COMPANY.

Nos. 47229, 47230.

Court of Appeals of Georgia, Division No. 1.

Oct. 6, 1972.

Rehearing Denied Nov. 1, 1972.

Syllabus by the Court

1. The principle stated in Hunt v. Star Photo Finishing Co., 115 Ga.App. 1(1), 153 S.E.2d 602 controls this Division of this case.

2. The affidavits in support of the defendant's motion for summary judgment were insufficient to pierce the allegations of the amended complaint.

3. (a) The amended complaint was sufficient to allege a claim for relief.

(b) The statute of limitation began to run when the roof collapsed.

In these cases a motion for summary judgment of the defendant Mullins and the motion to dismiss the complaint by the defendant Burton were both granted.

This litigation involves the identical facts which formed the basis of the decision in Welding Products of Georgia v. Kuniansky, 125 Ga.App. 537, 188 S.E.2d 278, with one exception,-the parties in these cases occupy different roles. The earlier case involved a suit by the plaintiff, a sub-tenant, to recover damage by the collapse of a roof against the defendant general contractor who had constructed the building on land owned by him and sold upon completion to a purchaser. A grant of summary judgment to defendant general contractor was affirmed and it was held that the principle that absent fraudulent concealment of known defects, a seller-builders who conveys realty with improvements after completion is not liable to the purchaser for property damages resulting from negligent construction, applies with equal force to the sub-tenant of the purchaser's tenant. Welding Products of Georgia v. Kuniansky, 125 Ga.App. 537, 188 S.E.2d 278, supra; Dooley v. Berkner, 113 Ga.App. 162, 147 S.E.2d 685. Here plaintiff Welding Products brings these suits against the defendants who were subcontractors of the general contractor, Kuniansky, and who allegedly performed work in the construction of the roof. Further, the plaintiff filed an amendment to its complaint and alleged that these defendants negligently and improperly constructed the roof in a manner that was inherently and intrinsically dangerous and so defective as to be imminently dangerous to third persons as well as to the plaintiff.

Peek, Whaley & Haldi, William H. Whaley, J. Robert Hardcastle, Atlanta, for appellant.

Poole, Pearce, Cooper & Smith, Walter G. Cooper, Parks & Eisenberg, Atlanta, for S. D. Mullins Co.

Greene, Buckley, DeRieux & Jones, James A. Eichelberger, Atlanta, for R. F. Burton Co.

BELL, Chief Judge.

1. At the outset it must be determined whether the harsh rule of caveat emptor applies as between these parties. We are concerned with the right of the plaintiff sub-tenant to recover in tort for damage resulting from negligent construction against parties with whom plaintiff had no contractual relationship. It would appear that these cases fall within the exception to the general rule that an independent contractor may be liable to a third person after the contractor has completed work where the completed work product is inherently or intrinsically dangerous or so defective as to be imminently dangerous to third persons. Cox v. Ray M. Lee Co., 100 Ga.App. 333, 111 S.E.2d 246. In Hunt v. Star Photo Finishing Co., 115 Ga.App. 1, 153 S.E.2d 602 we held that this exception applied as between a designing engineer of a roof and a tenant who was damaged when the roof collapsed. There appears to be no logical basis to distinguish Hunt from this case. The plaintiff is a third party who has lodged his complaint within the exception to the general rule of nonliability, against a subcontractor of the builder-owner. The defendant-subcontractors bear the relationship of independent contractors to the plaintiff. As defendants are not seller-builders, caveat emptor does not apply. Amos v. McDonald, 123 Ga.App. 509, 181 S.E.2d 515.

2. Case No. 47229. The motion for summary judgment of defendant Mullins was supported by the affidavits of two of its employees. Their affidavits show that the work done by Mullins was performed 'fully and strictly in accordance and compliance with the plans and specifications' that were furnished by the general contractor, Kuniansky, and that neither had received any information of any defects in the construction or was aware of the same. The evidentiary matter contained in the affidavits fails to carry the burden required of the movant to prove that he is entitled to the grant of a summary judgment. The affidavits in no way pierce the allegations in the amended complaint that the work performed was inherently and intrinsically dangerous and was so defective as to be imminently dangerous to third persons. Thus, the trial court erred in granting the motion. A jury question...