Lead Opinion
In this рroducts liability case, plaintiffs Gerald and Paige Farmer sued defendant Brannan Auto Parts, Inc. d/b/a Lawrenceville Auto Parts to recover for injuries Gerald Farmer received in an explosion. The explosion occurred when Farmer attempted to repair a flat tire on his truck by welding a crack in the wheel’s metal rim with an acetylene blowtorch. The flat tire was still attached to the rim, and several months before this incident Farmer had inflated that tire with а can of “Snap Fix-a-Flat,” which injects a flammable pressurized gas and sealant. According to the complaint, the heat from the torch caused Fix-a-Flat remaining in the tire to explode. The Farmers alleged that Lawrenceville Auto Parts distributed this “dangerous” product to the retail store from which Gerald purchased the sealant without giving him adequate warning of its explosive properties.
1. Whether termed “negligent distribution” or “negligent failure to warn,” Farmer’s claim charges that Lawrenceville Auto Parts distributed a product without telling consumers the dangers of that product. Although a distributor has a duty to communicate to customers and users the dangers of a product, we hold that duty did not arise here becаuse the manufacturer of Fix-a-Flat had already warned consumers of the particular danger at issue.
The tire continued to have a slow leak over the next few months, and Farmer added air to the tire four or five times. He believed that in doing so, he had replaced the inflator in the tire with air, as specified in the directions on the can. On March 23, 1992, after the tire had gone completely flat, Farmer inspected the tire and discovered a three-quarter-inch crack in the rim of the wheel. Farmer decided to repair the rim by welding it, without removing the wheel from the truck or separating the flattened tire from the rim. Shortly after Farmer touched the welding iron to the rim, the tire exploded, seriously injuring Farmer.
Farmer claims he did not understand that the substance would remain flammable “three and a half months” after he placed it in the tire and believed the Fix-a-Flat had dissipated by that time. The plaintiffs claim Lawrenceville Auto Parts had a duty to warn him of that danger. They point to the fact that, during 1991, a Lawrenceville Auto Parts vice-president learned that there had been “problems” with tire inflators such as Fix-a-Flat, including the fact that the propellant in some tire inflators mixed with air to form an explosive gas.
We agree with Farmer’s contention that the distributor “of a produсt which, to [its] actual or constructive knowledge, involves danger to users [has] a duty to give warning of such danger ... at the time of sale and delivery.” Beam v. Omark Indus.,
Webster’s Ninth New Collegiate Dictionary defines “flammable” to mean “capable of. being easily ignited and burned quickly.” Such a definition is consistent with the defendant’s officer’s understanding
“[W]hether a duty to warn exists depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. [Cit.]” (Emphasis supplied.) Wilson Foods Corp. v. Turner,
The principle stated in Beam and Bishop must be confined to those situations in which evidence shows a distributor or seller is aware оf a danger either not communicated by the manufacturer’s warning or substantively different from the dangers the manufacturer has included in a warning label. To hold otherwise would create a jury question in any case where the manufacturer has included a warning label on the product and the seller has read that warning and is aware of that danger.
While the dissent speaks of a distributor’s duty to inspect for defects, there is no evidence that Fix-a-Flat is otherwise “defective” as that term is used in the case on which the dissent relies, Sirmons v. Derst Baking Co.,
Furthermore, it appears that the failure of Lawrenceville Auto Parts to provide Farmer with its knowledge of the danger did not proximately cause Farmer’s injuries because Farmer already knew the substance was flammable and remained flammable when placed in a tire. See Exxon Corp. v. Jones,
Under the principles set forth by the Supreme Court in Lau’s Corp. v. Haskins,
2. The Farmers enumerate as error the trial court’s failure to grant their motion to strike the affidavits of Jeffrеy Mize, Coy Baker, and Hazel Weathers. Their motion was based upon the affidavits’ failure to state that they are based upon the personal knowledge of the affiants. See OCGA § 9-11-56 (e).
With respect to the affidavit of Jeffrey Mize, this affidavit states that Mize is the vice-president of Lawrenceville Auto Parts, and that he “personally directfs] and oversee[s] the operation of Lawrenceville Auto Parts Store.” “Although the affidavit of [Jeffrey Mize] . . . did not specifically state that it was made of his own personal knowl
Coy Baker’s and Hazel Weathers’ affidavits also do not state that they were made on personal knowledge. “However, the affidavits] also [include] statements which clearly are based on personal knowledge.” Moon v. Yancy,
Judgment affirmed.
Notes
The Farmers also sued the manufacturer of the tire inflator and the retailer, but neither of those defendants is a party to this appeal.
Dissenting Opinion
dissenting.
Because I believe that the questions presented here must be determined by a jury, I respectfully dissent from the opinion of the majority.
1. A genuine issue of material fact exists as to whether Lawrenceville Auto Parts was negligent in distributing Fix-a-Flat. Because Lawrenceville Auto Parts is a distributor and not a manufacturer, the strict liability provision of OCGA § 51-1-11 is inapplicable. Instead, “[i]t is the general rule that a vendor or dealer who is not the manufacturer is under no obligation to test an article purchased and sold by him for the purpose of discovering latent or concealed dеfects, but that when he purchases and sells an article in common and general use, in the ukual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not. In such a case he may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity whiсh is defective and likely to inflict injury.” (Punctuation omitted.) Sirmons v. Derst Baking Co.,
This language makes it clear that a distributor could be negligent in distributing a product if the distributor has knowledge of its dangerous quality, or if something calls its attention to the possibil
The evidence shows that prior to Farmer’s accident, Jeffrey Mize, the vice-president of Lawrenceville Auto Parts, read an article in a trade magazine stating that there had been problems with tire inflators. Mize deposed that the articlе detailed how an explosive mixture was formed when tire inflator propellants mixed with air in a tire. In response to this information, Mize spoke with some tire inflator sales representatives. He was told, as the article had also stated, that a new chemical mixture was being investigated for future use and that future shipments of the old chemical mixture would include warning labels which could be attached directly to the tire in order to notify anyone who came in сontact with it that a sealant had been used. He was also told that any tire inflators which were made with the old chemical mixture already had warning labels attached to the can.
Mize then checked to see if Lawrenceville Auto Parts had any of the “old cans” on the shelf and found that, although it did have some of the cans, the cans did have warning labels on them. Mize shared what he had learned with all of his employees, “just so that they knew as a consumer thеre was potential if a safety precaution weren’t [sic] taken, there could be the problem.”
Because Mize had knowledge that tire inflators could be dangerous, under Sirmons, supra, he had a duty to exercise reasonable care to determine whether the tire inflators Lawrenceville Auto Parts was selling were dangerous. Mize ultimately made the determination that although Lawrenceville Auto Parts’ tire inflators were of the “old” variety and were dangerous, the warning labels on the cans were adequate to warn consumers of their dangerous nature. The reasonableness of this determination should be left to a jury.
The directions on the Fix-a-Flat can stated that the tire inflator was flammable, that it should not be used near heat or flame, an'd that the propellant would remain flammable when transferred from the can into a tire. The directions also stated that the tire inflator should he replaced with аir at the earliest opportunity, and, when making such replacement, the tire inflator should be kept away from flame or sparks. After adding air to the tire four or five times over the space of several months, Farmer believed that he had replaced the inflator in the tire with air, as specified in the directions on the can. The reasonableness of defendant’s conduct in this regard is also a jury question. Dorsey Trailers Southeast v. Brackett,
While the trial court found as a matter of law that Mize’s actions were reasonable, it based its finding upon the fact that the trade magazine read by Mize did not refer to Fix-a-Flat by name as being a dangerous tire inflator. This fact, however, would not be dispositive,
2. Plaintiffs also claim that Lawrenceville Auto Parts negligently failed to warn Farmer of the dangerousness of Fix-a-Flat. Although intertwined with the count regarding negligent distribution, slightly different law applies to this issue.
“In a products liability case, the existence of a duty to warn depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger.” (Punctuation omitted.) Dorsey, supra at 175 (2). In Beam, supra at 145 (1) (b), we held that “[a] manufacturer and retailer of a product which, to their actual or constructive knowledgе, involves danger to users have a duty to give warning of such danger to the purchaser at the time of sale and delivery.” (Punctuation omitted.)
In this case, Lawrenceville Auto Parts had actual or constructive knowledge of the danger inherent in tire inflators. Under Beam it therefore had a duty to give warning of such danger. Because Lawrenceville Auto Parts’ immediate purchaser in this case was the Highway 20 Store, not Farmer, we must determine whether Farmer can bring an action against Lawrenceville Auto Parts for failure to warn or is limited to bringing such action against the Highway 20 Store from which he purchased the product.
A distributor’s duty to warn does not run solely to its immediate purchaser, the retailer, but rather to anyone who might reasonably come into contact with the product. Therefore, Farmer’s claim against Lawrenceville Auto Parts was viable as the retailer’s customer is one who might reasonably come into contact with the product. See generally Bishop v. Farhat,
Although the duty to warn might be satisfied under some circumstances by giving an appropriate warning to the retailer to which the product is initially sold, it is uncontroverted that Lawrenceville Auto Parts did not warn either Farmer or the Highway 20 Store in the present case. The instructions on the can of Fix-a-Flat direct the user to replace the sealant with air at the earliest opportunity. In this case, Farmer added air to his tire, not just once, but several times, believing that in doing so he had replaced the explosive sealant with air as directed. Indeed, at the point that Farmer welded the tire, he had added air on several occasions and such air had since escaped. Certainly, then, it was reasonable for Farmer to think that the sealant had been replaced with air in accordance with the dirеctions on the can. Lawrenceville, on the other hand, knew that future shipments of tire sealants would include warnings to be adhered to the tire, itself, showing that a sealant had been used. Of course, the need for such an additional warning clearly implies that the dangerous propensities of the sealant may remain in the tire even after it has been inflated. Clearly, a question of fact remains as to whether the manufacturer’s warning on the can of Fix-a-Flat was sufficient to satisfy Lawrenceville Auto Parts’ duty to warn of the dangerousness of the product. This is a question for the jury, Beam, supra, and, accordingly, the trial court’s grant of summary judgment with regard to the duty of Lawrenceville Auto Parts to warn Farmer was error.
3. Contrary to the position taken by the majority, this is not, and should not be, a case subject to summary adjudication with regard to either the plaintiff’s claim concerning the negligent distribution of the tire inflator or the claim concerning the failure to warn of dangers associated with such tire inflator.
The majority contends that Beam, supra, and Bishop, supra, “must be confined to those situations in which evidence shows a distributor or seller is aware of a danger either not communicated by the manufacturer’s warning or substantively different from the dangers the manufacturer has included in a warning label.” As the latter circumstance necessarily includes the former, the majority’s standard must be construed to mean that a distributor has a duty to warn only when it is aware of a dаnger that is substantively different from those dangers communicated on a product warning. Therefore, based on its undefined, court-decided distinction regarding substantive differences between dangers, the majority would immunize a distributor from liability even when such distributor knows of a danger associated with a product, it knows that the danger has not been
In support of its conclusion that Lawrenceville had no duty to warn Farmer in this case, the majority cites Exxon Corp. v. Jones,
The present case does not involve the learned intermediary doctrine, and Jones did not involve the grant of summary judgment to the defendant whose duty it was to warn the plaintiff. In addition, Jones does not support the majority’s contention that Lawrenceville could not have foreseen, as a matter of law, the way in which Farmer used the tire inflator. Indeed, the faсts of this case, even as described by the majority, show otherwise. The vice-president of Lawrenceville read an article admonishing that tire inflators could cause explosions, and it is just such an explosion which occurred in this case.
Whether the manufacturer’s warning on the can of Fix-a-Flat was adequate to immunize Lawrenceville Auto Parts from its duty to warn of this foreseeable explosion is a question for the jury. In so holding, we take direction from Robinson v. Kroger Co.,
The majority suggests that while such issues are not subject to summary adjudication in a premises liability case, they somehow would be in a products liability case. Fact issues are for juries, not judges, and this is so without regard to the type of tort involved.
I am authorized to state that Presiding Judge McMurray joins in this dissent.