*1 shop in such stores because choose to the customers who crue to premises keep prices. business care to their in a encompasses Our standard (1), properly supra reasonably Madaris, condition, see safe including variety situations, self-service of factual stores. Judgment Johnson, JJ., Andrews and concur. affirmed. May 2, 1994 Decided May denied
Reconsideration Eager Jr., Henderson, Moffett, F. L. Prentice & Glenn Moffett appellants. III, for Bass, Jester, Jr., Sommers, Goldner, & C. G. William Scrudder appellee. Jr., Horlock, W. COMPANY, INC. v. MONROE. B. C. DRUG
A94A0039.A. Judge. Andrews, (ABC) Drugs appeals Drug Company, N’ A. B. C. Pic jury’s Save d/b/a in favor of Monroe from entered on the verdict of its motion or new trial. and from the denial jury’s Viewing verdict, as we must in favor of the 1. the evidence do, Wade, Ailion v. August a.m., that, 11:30 went to one it of on 1989 about Monroe buy liquid drugstores powdered detergent Clorox ABC’s picked up laundry. first do five She bleach so she could box of loads pro- carrying detergent under her left arm and which she was was stored. Because of to the aisle where the bleach ceeded amount laundry, half-gallon she entered she of Clorox. As needed aisle, that, from the or five feet over she noticed four bleach section, were turned of another brand bleach Clorox over and some several bottles nothing There was observable
had the labels removed. and, in She was 5 5 tall order out order the Clorox section. upper half-gallon on container which she saw one of reach a shelves, over her head. to reach one-gallon manager aisle, that, con- the bleach The stated sepa- deep well, four in a tainers of Clorox were stacked three or half-gallon bottles, container with the smallest rated a dividers. gallon handle, and could on a shelf above the containers were stored high, although not be would have stored over five feet been top top top shelf. On the next to the or next to the stacked along powdered pint shelved, with bottles of Clorox half-gallon product. II, bottles On the Clorox a non-bleach liquid II Clorox were shelved. up get As Monroe reached of Clorox with her right improper hand, she observed that the was on the bottle and apparent. She took the handle and had tilted the bottle “gushed” toward her in order to it off the shelf when it into her momentarily immediately go face. She was blinded and let of the bot- *2 brought employee depart- tle. Her screams a woman from the meat helped eyes. ment who took her to a sink and her rinse out her by Monroe asked for an ambulance but was told a man who had by employee policy been called the woman that it was store not to call transport people an ambulance and were not allowed to in their own vehicles. Monroe’s sister was called and took her to the emer- gency charged eye irrigated room where her and treated and she was dis- patch right eye. with salve and a Thereafter, to cover her by ophthalmologist eventually performed outpatient was seen surgery who right to close her tear duct as a result of the chemical burns. After sister, Monroe had left with her 30 or 40 minutes after the manager accident, assistant Fulford went to the bleach aisle. The “only thing pint [he] [on found was a shelf] bottle the that did have a cap spot liquid” loose on it” and a small of “some about the size of a spills half-dollar on the floor. Fulford also said that most or fallen up say bottles were cleaned that this within a few minutes and he could not pint bottle was the one involved the accident. Douglas, manager, explained stocking procedure the store the displayed person
items in the bleach aisle. The stock would lift each shipping price drop container box, it, from its box, it back in the priced, again place when all lift each one out it on the shelf. lifting If the handles, bottles had handle; not, was done top. During process the bottle shelving, would be lifted its any defective merchandise would be corrected or not shelved. Although policy inspecting there was no written about the aisles during day any inspections, and no written record of that the aisles be such it was practice visually inspected periodically ABC’s ing ing dur- day. actually walking This could consist of the aisles or look- Manager Douglas usually up
down each one from the end. went day. and down the aisles five or six times a He was not the store on day happened, the Manager of Monroe’s accident until after it but Assistant personally Fulford had walked the bleach aisle at least once around 9:00 a.m. before Monroe’s accident at 11:30 a.m. and had no- ordinary. ticed out of the Douglas acknowledged
Both and Fulford bottle eye cap “danger- of bleach stored above level with a loose would be a previously incident, ous condition.” however, Such an had not oc- you acknowledged and, curred in the Monroe, store could not cap by looking tell the was loose at it. (1) complaint alleged negligence in that ABC failed specifically inspect “adequately merchandise, and maintain its to allowing top” a remain on the shelf with loose bleach container to (2) heavy qualities ... to be container with caustic and stocked on an to control Monroe added gerous reasonably allowed “a upper making it more difficult for the customer shelf” top. By amendment, and discover the loose displayed a dan- her claim that a bottle of Clorox not product height lid or which is and with honor the use intended and that ABC failed to suited for implied warranty merchantability its customers. its properly granted only when can be
2. “A n.o.v. is proper judgment; if there is reasonable conclusion as evidentiary viewing jury’s verdict, the evidence most basis for deny party favorably verdict, who secured the it is not error to Cook, [Cits.]” Stone motion. verdict at the conclusion
ABC moved for a directed renewing the evi- case as dence. As to the 314 that motion at the conclusion all well warranty merchantability, § 11-2- OCGA (2) (e), theory apply argued ABC would not because a that this patent was discovera- loose ble the bottle and she was a defect or latent defect which *3 buyer. If the had looked at the exercise of caution Monroe attempting lift it off the the lid before to checked problem particular bottle, have with that and would known the apply. the would not inspected properly area,
As the issue of whether ABC had the to employee argued aisle ABC the time of the incident there was no evidence was the at knowledge, so have actual nor had as to had knowledge showing that ABC should there been a of constructive so have known.
(a) [plaintiff] negligence “For to recover under a common law theory, premises, [defendant’s] there must have been a defective condition on [plaintiff’s injury] was and of
which defect the cause of superior knowledge. [defendant] [Cit.] The law is clear which had liability injury occurring that the while on to another basis an owner’s property superior knowledge is the owner’s the owner’s proximate injury. danger which the cause of the or defect was superior knowledge ground liability proprietor’s true is the instrumentality persons perilous upon danger going therefrom to perilous instrumentality property. is known It is when injured person occupant to the owner not known to omitted.) (Citations recovery permitted.” punctuation Garnett (345 (2) 919) App. Mathison, v. SE2d knowledge had of the There is no evidence here that ABC actual any recovery cap. Therefore, must be based on loose constructive “ knowledge. may knowledge ‘Constructive inferred be where there is employee vicinity evidence that an of the was in owner the immediate dangerous easily condition and could have noticed and re- (Cit.) Liability knowledge moved the hazard. based on constructive may by showing also be established to owner failed exercise inspecting recovery premises, reasonable care but under that approach requires proof length dangerous of time the condition (Cits.)’ (Emphasis supplied.) [Cit.]” was allowed to exist. Food Giant (366 (1) 781) (1988). App. Cooke, v. See Smith (406 App. Stores, v. Wal-Mart inspection Because the last of which was evidence spill, record occurred over two hours we before conclude that a jury issue did exist as to ABC whether should have been aware that half-gallon placed wrong had been on the shelf and denial ground motion for on this was not error. superior
We next consider the issue of whether ABC had knowl- edge improper display. spill claim
Monroe’s is that the was occasioned because the bottle requiring tip get was on a her it in order it to to off the tipping containing shelf. Monroe was aware that caustic she was bottle “ liquid toward face in to off order it the shelf. ‘There knowledge no warn her of a she condition which at ” (Cits.)’ equal supra Smith, least of defendants. 810. practice half-gallons Further, the store’s was not to shelve opposed top bleach, II, to Clorox next shelves. Monroe has failed ABC to show that had stacked the bleach inherently dangerous fashion, Donovan, Colonial Stores (2), (3) (154 knowledge supe- or had placed higher rior to her own that a of bleach was a (440 Harvey Johnson, shelf. J. H. Co. v. (1994); supra. Smith, cap, directly lifting As to the loose Monroe looked at it as wrong Therefore, the bottle off the shelf and noticed with it. hourly inspections by ABC, even ing Compare were undertaken there was noth- personnel cap. visible have which would store alerted *4 Sears, &c., Wallace v. Roebuck 221 41) (1990) (display by patron in of loose skateboards store resulted being by using jury ques- struck in child store aisles and created tion). “ (b) implied warranty theory, implied ‘[t]he As to the law of against patent defects, will not avail nor latent de- fects which either are disclosed or are discoverable the exercise of ” part purchaser.’ caution on v. Northeast Ga. Smith Fair (7) (67 Assn., 32, See v. Jones v. Wilkinson (2) (48 552) (1948); Rich’s, (1936). Body Knightstown Co., SE court, law, Therefore, a matter of erred conclude that the as we granting ABC its in motion not Beasley, specially
Judgment J., and John- P. concurs reversed. only. son, J., concurs in the specially. concurring Presiding Judge,
Beasley, judgment, Although I so I do concur reversal analysis. following premises liability presented theories, her case on two
Plaintiff warranty merchantability, in the as set out of and breach jury. objected pretrial charge to Defendant order and the being inapplicable. latter as premises duty
The evidence fails to show a breach occupier premises in The to a safe condition. owner or maintain majority jury to whether defendant that there was issue as holds placed half-gallon had been have been aware that the should “wrong” enough on a shelf so
shelf. Even if the plaintiff require it, this would not to reach above head premises. majority, this in the As noted is constitute a “defect” not an put inherently stacking. proprietor dangerous if it on Even the placing removing opposed to a it there after that customer’s place injury in such a “as to threaten it another it was not from visiting who are the exercise of care for to those the store safety.” Youngblood, App. 583, Parsons, Inc. v. their own question problem cap is was loose. But it is not a equal knowledge irregular There is no evidence of this condition. that prod- this condition of the defendant knew or should have known of duty to check the shelved uct it offered for sale. It does not have tight. periodically caps that the container are containers assure cap have been The loose condition case wold not inspection along the aisles defects detectable defendant’s visual by plaintiff’s dangerous any conditions more than it was detectable looking loose, It off. at it. was not tightness
Also, did not owe to check the defendant every cap shelving it, in the when absence evidence reasonably As shelf- was a foreseeable condition. that looseness price- box, testified, is stocker the merchandise lifted out of the pricing dropped marked, box, after all the back down activity again done, shelved. He testified that lifted out leakage splattering loose. would cause cap, Assuming liquid Clorox, with a the container of sitting merchandise, a “de- on a with similar were not constitutes shelf other premises “safe,” there is evidence fect” in the no so
141 liability negligence part plaintiff’s such on defendant’s as to create 35) (447 Depot, App. injury. Cook 214 v. Home Ga. 133 SE2d See (1994). theory jury put well, to the does Another was verdict liability. theory finding was the not indicate which basis for implied warranty merchantability imposes § 11-2-314 an OCGA goods According sold merchants such as defendant. to subsection (2) (e), goods “adequately merchantable, in order to be must be con- packaged, may require.” agreement tained, and as the Here labeled adequately packaged; was not the Clorox when the contained and it leaked out to say purchaser tipped. To has a tightness removing shopper, assure the ates an unreasonable burden on the such as before it from the cre- shelf warning
absent some regularity top may be loose. plaintiff
However, case, since was no sale in lacks there necessary privity warranty. the seller with a to be entitled to the “Georgia requires showing privity injured person law between product upon and the seller of the before a claim based an may brought. Morgan Inc., [Cit.]” Mar-Bel, v. be 614 (N.D. 1985). FSupp. 438, 441 v. See Stewart Glass Gainesville (206 857) (1974), App. Co., 747, SE2d affirmed 233 Ga. (212 377) (1975); Corp., App. SE2d Lamb v. 194 Ga. Ga.-Pacific (4) (392 307) (1990). “By statute, the UCC warranties goods only can be made seller of a and those warranties can buyer specified be either or have a rela- extended to those who tionship buyer. opinion § with the OCGA The Stewart See 11-2-318. recognizes purposes liability imposing that, for a breach applicable statutory specific provisions warranties, UCC the UCC it is the legal general principles controlling and are not that requirement privity exceptions As- and Decatur North thereto.” Glass, soc. v. Builders (1986). Stores, case
This differs from Fender Colonial (1A) (225 691) (1976), privity that of contract was created taking physical possession act of merchan- purchase store, dise in with the it. The cus- the self-service intent tomer was the check-out counter and lifted the bottles from present ring up exploded. cart to Here to the checker to when one of them plaintiff merely taking physical possession in the act of liquid spilled dropped Privity when the container. yet not arisen. plaintiff pursue theory liability against
I not note did offering product, which for sale manufacturer for a defective containing manufacturing design defect, defect, or a would be inadequate warnings. § defect of OCGA 51-1-11. See instructions Harley-Davidson Co., Motor Hunt v. seller, allow such a claim The statute does not Liability, Georgia 2-§ 2d ed. Maleski, Products See however. upon allega- might proceed The action cases cited therein. product capping was a defect the caustic the manner of tion that that there cap, so itself or on the on the container was no seal either pur- leakage. tampering prevent this intended As to whether as to chaser supra standing bring Maleski, action, see such an should have § 8-5. *6 June Decided July denied Reconsideration ap- Craig White, Sweat, Jr., Sweat, R. for & Forrest W.
Walker pellant. Rogers, Minchew, Rice,
Chambers, B. Delman L. & Charles Rice appellee. for INSURANCE et v. HORACE MANN
A94A0098.MERRILLS al. COMPANY.
Judge Harold R. Banke. family January Beverly in- 5, 1992, Merrills and her On single-vehicle Oklahoma, which resulted in a accident volved injuries sustained her husband death of one of her children and appellee, accident, Horace children. At the time of the and other Mann Insurance by Beverly Company, insured the vehicle driven separate policies owned, Merrills and another vehicle the Merrills issued in Georgia. liability and unin- claims under the
After Merrills asserted policies, appellee coverage provisions in- both sured motorist seeking declaratory judgment a determi- action surer commenced this nation of its maximum liability. appeal follows from the trial This summary appellee, finding grant that it for the court’s policy covering involved under the vehicle liable coverage accident, $30,000, the acci- and that no with a limit of policy motorist or the uninsured dent was available under the other provisions policy. of either declaratory judgment Following ac- the commencement of Merrills) (except Beverly appellants filed an action
tion, the seeking recovery Beverly appellee, Oklahoma Merrills policies personal injuries the insurance is- and benefits due under