Barbara Williams and Richard Moore were severely injured when gas that had leaked from a gas water heater installed in Williams’s basement exploded. Williams and Moore, together with Williams’s then-husband, Henry Gilbert, brought suit against A. O. Smith Corporation, the water heater manufacturer, Emerson Electric Company, manufacturеr of the thermostat installed on the water heater, and the two companies that supplied liquid propane gas for the heater, Reliance Gas Corporation and Blossman Gas Company. The plaintiffs settled their claims against A. O. Smith and Emerson, and those defend *196 ants are not involved in this appeаl. The jury returned a verdict of $800,000 in compensatory and punitive damages against Blossman, and it appeals.
The record reveals that in September 1983, Williams and Gilbert bought an eight year old gas water heater previously owned by the Reverend John Barr. Appellant supplied liquid propane gas to Barr during 1981-1984, аnd first sold gas to appellees on August 4, 1984, three weeks before the explosion. The water heater appellees purchased was equipped with a thermostat manufactured by Emerson which was the subject of a recall beginning in late 1980 because the safety valve in the pilot gas control knоb on the thermostat tended to stick in the open position, allowing gas to escape and posing a risk of explosion. To effectuate the recall, Emerson mailed a strongly worded notice to liquid propane gas dealers nationwide, and also printed the recall notice in a number оf trade publications. In this notice, Emerson requested gas dealers to provide their customer lists so that Emerson could notify owners about the defective thermostats, and offered to reimburse the dealers for any expenses they incurred in replacing thermostats for their customers.
At trial, appellеes introduced into evidence twenty-two return mail receipts, which indicated the Emerson recall notices were received at appellant’s home and branch offices in December 1980, and also introduced a letter written to Emerson by R. C. Mayer, appellant’s vice president and treasurer, in which Mayer requested 60,000 copies of the recall notice and stated appellant would send them to each of its customers in their bills. Easton Weaver, Emerson’s recall manager, testified he then mailed the requested notices to appellant, and also sent a follow-up letter to aрpellant on March 4, 1981, but had no further communication with appellant. Several of appellant’s senior executives testified they did not remember the recall effort or the notices Emerson mailed, but they acknowledged regularly reading the trade magazines in which the recall notice was published, and also conceded the company and its branch offices replaced forty-one defective Emerson thermostats, including several within a few miles of appellees’ home. There was no evidence appellant ever informed its customers of the recall program, and both Bаrr and appellees testified they never received any warning of the recall or the defective thermostat.
1. In its first three enumerations, appellant contends the trial court erred by denying its motion for a directed verdict made on the general grounds. Appellant asserts specifically that it owed no duty to appellees because it did not sell or install the water heater and had no knowledge that appellees owned a water heater with a defective thermostat. In support of this argument, appellant relies on cases setting forth the general rule that when a gas water hеater installed in a pri
*197
vate home “is owned and installed by the owner or occupant, the gas company not selling or installing the appliance but merely furnishing gas to it, is not responsible for the condition of the appliance and is not liable to the owner ... for injuries caused by its defective condition, unless the gas was supplied by the company with actual knowledge on its part of the defective and dangerous condition of the appliance. [Cits.]”
Davis v. Gen. Gas Corp.,
However, appellees contend these cases are not controlling because their claim was based not merely upon a duty arising from appellant’s actual knowledge that appellees owned a defective thermostat or a duty to inspect the appliance when first supplying gas service, but alsо upon appellant’s breach of a voluntarily assumed duty to warn its customers about the defect. Appellees assert that the evidence adduced at trial supports a finding that as a result of appellant’s negligent failure to complete its obligations with regard to the recall, appellees and Barr were not notified of the defect in the thermostat, and that appellees’ injuries were proximately caused by appellant’s failure to warn its customers.
Assuming, without deciding, that appellant’s arguments regarding actual knowledge and the duty to inspect are correct, nonethelеss we agree with appellees that the evidence authorized a verdict for appellees on the issue of appellant’s negligent performance of the voluntarily assumed duty to notify its customers of the recall. “ ‘It is ancient learning that one who assumes to act, even though gratuitously, may thеreby become subject to the duty of acting carefully, if he acts at all.’ [Cit.]”
Cunningham v. Nat. Svc. Indus.,
In a factually similar case, the Iowa Supreme Court addressed the question of whether a farm implements dealer was liable to a subsequent purchaser of a used auger for failing to warn the prior owner of the manufacturer’s recall of the product. In
Nichols v. Westfield Indus.,
We concur with the reasoning of the Iowa court. Given the well established principle of Georgia law concerning the duty of volunteers to exercise ordinary care, we hold that when a dealer voluntarily agrees to notify its customers of a product recall and to mail notices provided by the manufacturer, and the evidence discloses that the manufacturer furnished the notices but that the dealer failed to perform its voluntarily assumed task, its negligence in failing to perform this obligation will give rise to a cause of action to one who suffers injuries as a proximate result thereof. Although the dealer is not obligated to conduct the recall program, once it undertakes to do so a duty devolves upon the dealer to exercise ordinary care, and whether it did so under the circumstances is a question for the jury. See generally
Cunningham,
supra;
Housing Auth.,
supra at 523-524 (3) (a);
Cleveland v. American Motorists Ins. Co.,
Nonetheless, аppellant argues that even if it was obligated to notify its customers of the recall program, any negligence of appellant in its execution of that duty is not actionable unless there is a causal relation to appellees’ injuries, a connection appellant contends was nоt established by the evidence adduced at trial regarding its failure to send recall notices to its customers. “Negligence which is the proximate cause of an injury is such an act that a person of ordinary cau
*199
tion and prudence would have foreseen that some injury might likely result therefrom. [Cit.]”
Harris v. Hardman,
Construing the evidence in favor of appellees, we find that the record contains evidence authorizing a finding that appellees’ injuries were a foreseeable consequence of appellant’s failure to complete its voluntarily assumed duties with regard to the Emerson recall program. The jury could have found that appellant offered to distribute the recall information, and then could have сoncluded either that appellant received the shipment of recall notices from Emerson but never mailed them to its customers, or that appellant did not receive the requested notices, but having assumed the duty to notify its customers a reasonably prudent dealer would have contacted Emerson when the notices failed to appear. Additionally, the jury was authorized to infer that had the notices been mailed to appellant’s customers, “this would have produced a chain of events resulting in [replacement of the defective thermostat] at the time [the water heater] was sоld to [appellees].” Nichols, supra at 398 (II). The evidence further authorized the jury to find that the explicit language in the recall notices regarding the risk of explosion from leaking gas would have led a gas dealer of ordinary prudence to foresee that users of appliances equipped with thе defective Emerson thermostat could be injured in explosions if they were not notified of the danger, and that appellant’s negligence in executing its obligation to so notify its customers, particularly the failure to send a recall notice to Barr, was a direct and proximate cause of aрpellees’ injuries. See Nichols, supra at 396-397 (I).
“On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict. [Cits.]”
Gold Kist Peanuts v. Alberson,
2. Appellant next contends the trial court erred by excluding from evidence the covenants not to sue executed by appellees in favor of the other defendants upon settlement of appellees’ claims against them, thus precluding appellant from disclosing to the jury thе allegations previously made against the other defendants and from arguing against a “double recovery.” “ ‘While [OCGA § 13-4-81] provides that a covenant never to sue is equivalent to a release, this statute applies to the parties with whom the covenant is made and not to another tortfeasor. A cоvenant not to sue one tortfeasor will not bar actions against another tortfeasor. (Cits.)’ [Cit.] . . . Anything received by way of such covenants not to sue operates as a payment
pro tanto
upon any judgment obtained against appellant. [Cits.]”
American Chain &c. Co. v. Brunson,
3. The record dоes not support appellant’s contention that the trial court allowed appellees’ counsel to “read the law to the jury” during closing argument. The record reveals appellees’ attorney did not read verbatim from statutes or cases but instead briefly outlined certain legal princiрles, which is clearly permitted. “It is counsel’s right to state his legal position to the jury; this right is indispensable to an intelligent presentation of his case. [Cits.]”
Garrison v. Rich’s,
4. Appellant next еnumerates as error the trial court’s failure to give all of appellant’s requested charges. This enumeration cannot be considered because the requests to charge do not appear in the record.
Northern Assur. Co. v. Roll,
5. Finally, appellant asserts the trial court erred by charging the jury regarding a Natiоnal Fire Protection Association regulation concerning odorization of liquid propane gas because the regulation was not admitted into evidence. This enumeration is without merit. The regulation at issue was adopted by the Safety Fire Commissioner pur *201 suant to the Georgia Administrative Procedure Act, OCGA § 50-13-1, et seq., see Ga. Admin. Comp. Ch. 129-3-16.06, and thus the trial court was required to take judicial notice of the regulation. OCGA § 50-13-8.
Judgment affirmed.