C. C. Evans sued Holman Motor Company (Holman), Toyota Motor Sales, U. S. A., Inc. (TMS), and others to recover for personal injuries received on June 2, 1979, when the Toyota automobile in which she was a passenger went out of control and collided with other
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vehicles. The driver of the car was Evans’ cousin; the owner was Evans’ aunt, who had purchased the car new from Holman in July 1978. Holman and TMS filed motions for summary judgment which the trial court denied. We granted TMS’ application for an interlocutory appeal, as the record disclosed it was being held accountable as a manufacturer. Holman seeks review of the denial of its motion for summary judgment under the authority of
Executive Jet Sales v. Jet America,
1. Appellant TMS contends that the trial court erred by denying its motion for summary judgment.
a. TMS first contends that appellee cannot recover under a theory of strict liability because TMS was not the manufacturer of the car, but only the importer. See
Ellis v. Rich’s,
Since TMS was not the manufacturer of the car, it cannot be held liable on a theory of strict liability.
Ellis,
b. TMS’ contention that appellee cannot recover against it on its claim of negligent inspection is correct, since the evidence is undisputed that TMS was not the manufacturer and never tested, inspected, nor had physical possession of the car at any time.
c. TMS contends that appellee cannot recover against it upon any theories based upon breach of implied warranties because there is no privity of contract between TMS and appellee, and because any implied warranties were effectively disclaimed. We turn first to the latter argument.
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Although TMS was not the manufacturer, it was specifically named in the owner’s guide as one of the entities to which United States consumers could look for purposes of the warranty. However, the implied warranties, including those of merchantability and fitness, were limited to the first 12 months or 12,500 miles of the warranty period under a heading in the Warranty section of the owner’s guide, “WHAT IS NOT COVERED.” As it was undisputed that the collision occurred when the car had been operated for over 17,000 miles, the implied warranties had expired.
Henderson v. Gen. Motors Corp.,
d. Finally, TMS argues that appellee cannot recover against it on any theory of liability grounded upon the National Traffic and Motor Vehicle Safety Act of 1966, as amended, 15 USCA § 1381 et seq. (MVSA), because the Act does not provide a private cause of action. Without deciding this question or determining what rights appellee may have under this law, we simply note the following: (1) In Lowe v. Gen. Motors Corp., 624 F2d 1373, 1378 (5th Cir. 1980), the United States Court of Appeals for the Fifth Circuit found it unnecessary to determine whether a private right of action lay under the MVSA but noted that the district court had applied the guidelines of Cort v. Ash,
e. On a motion for summary judgment, the burden is on the movant to demonstrate that there are no genuine issues of fact and that the movant is entitled to judgment as a matter of law.
Harison-Gulley Chevrolet v. Carr,
2. We have considered Holman’s appeal of the denial of its motion for summary judgment without an application for interlocutory review having been granted because Holman’s appeal is tied to the appeal of an appealable order as to TMS.
Southeast Ceramics v. Klem,
*613 Appellant Holman contends that the trial court erred in denying its motion for summary judgment because all of the theories upon which appellee based its claims for relief were negated by the evidence adduced on motion for summary judgment.
a. Holman argues that since the evidence establishes that it was not the manufacturer of the car, appellee cannot proceed against it on a theory of strict liability. We agree, based upon the holdings in Ellis and Pierce, supra.
b. We also agree with Holman’s contention that it effectively and lawfully disclaimed any implied warranties by virtue of its contract disclaimer that met the requirements of OCGA § 11-2-316 (2) and (3) (a) (Code Ann. § 109A-2—316). See
Corbett v. North Fla. Clarklift,
c. Finally, Holman contends that the trial court erred in denying its motion for summary judgment as to appellee’s negligence claim based upon Holman’s alleged failure to properly inspect the car and to warn of the product defect.
The alleged product defect was in the left front strut assembly, which is part of the suspension system and located in the wheel area. The evidence showed without conflict that following the collision, there was a break in the interior strut assembly where the tip of the strut spindle is welded to the strut shell socket. Evidence given by expert witnesses for the parties was conflicting, however, as to whether the break was the cause of the accident by depriving the driver of steering control of the car, or was caused by the accident, specifically by the severe forces on impact.
Construing the evidence most favorably to appellee as non-movant on motion for summary judgment,
Holland v. Sanfax Corp.,
“It 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 defects, but that when he purchases and sells in the usual course of
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trade, an article in common and general use, 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.”
King Hardware Co. v. Ennis,
*614 In support of its motion for summary judgment, Holman presented evidence to show that its inspections did not involve examination of the interior components of the strut assembly, that the only phase of the inspections performed in the wheel area entailed checking the tire pressure, that the defect could not have been detected in such a visual inspection, and that had such a defect been noticeable it would have caused the car to function improperly. Appellee’s expert witness, a metallurgist, testified by affidavit that in his opinion, fluid had been leaking from the strut shell over a long period of time through cracks in the weld at the base of the shell. This evidence is sufficient to raise the inference that the defect might have been detected by visual inspection. See J. C. Lewis Motor Co., supra. Thus, an issue of fact remains as to whether Holman was negligent in its inspection of the automobile.
d. We find that jury questions remain with regard to Holman’s negligence and the trial court did not err in denying Holman’s motion for summary judgment as to this issue. However, we see no questions óf fact remaining as to Holman on issues of strict liability and implied warranty and the trial court erred in not granting partial summary judgment in favor of Holman as to these issues.
Judgment affirmed in part and reversed in part in Case No. 67000. Judgment reversed in Case No. 67001.