This is an appeal of the order of the superior court denying appellants’ motion for summary judgment to Ream Tool Company (RTC), Freeborn Tool Company (FTC), and Delta International Machinery Corporation (DIM) against appellee/plaintiff Karla R. Newton.
Appellee Newton purchased а DIM wood shaper from Stone Mountain Power Tool Corporation (SMPT) for her work shop; the shaper had a spindle guard; appellee knew this particular shaper did not come with cutters. Previously, Newton had worked for about six months at a millwork shop. Although she had never used a DIM wood shaper or a shaper with a similar guard or fences, she had worked with wood shapers at the millwork shop.
The DIM shaper guard had a four-and-one-half inch outer diameter, and was designed to be affixed on the spindle above the cutter. The instruction manual supplied by DIM with the shaper states in bold print: “CAUTION: The diameter of the spindle guard should be at least 1" (one inch) more than the maximum cutting circle of the shaper cutter and the height of the guard should not exceed XA" (one quarter inch) above the material.” Appellee maintains she did not read the portions of the . manual containing this warning.
Appellee did not buy cutters from SMPT, as the DIM shaрer was not sold with the specialized cutters she desired. Rather, she subsequently ordered two special cutters from RTC (a mail order cutter supplier), one of these was a “Colonial” cut with a spindle hole of a certain diameter. RTC in turn ordered the cutters from FTC. FTC manufactured an approximate six-inch Cоlonial cutter (with a so-called “open throat” design) to meet the spindle hole requirements of appellee’s order with RTC; apparently, at no time was FTC requested to produce a cutter having a specified outer diameter. The cutters were sold by FTC to RTC who sold them to appellee. RTC did nоt make any suggestions as to the size, style, or design of the cutters appellee needed; RTC merely passed the ordering information and sample wood cuts received from appellee to FTC. Appellee subse
Appellee brought a products liability suit averring various grounds of strict liability, negligent manufacturer, and breach of warranty against appellants DIM, RTC, FTC and SMPT. Appellants moved for summary judgment, relying upon the “open and obvious” rule. See generally
Weatherby v. Honda Motor Co.,
1. At summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-movant’s cаse.
Lau’s Corp. v. Haskins,
2. In her deposition, appellee affirmatively and unconditionally answered that she considered herself as having become an experienced shaper operator from working at the millworks. Subsequently and without explanation, appellee offered evidence at least implying she was not an experienced shaper operator; appellee’s counsel also argues in a supplemental appellate brief that “Ms. Newton was simply not an experienced shaper operatоr.” As to any unexplained contradiction in appellee’s testimony,
Prophecy Corp. v. Charles Rossignol,
3. (a) At best only a shadowy semblance of an issue exists (see
Peterson v. Liberty Mut. Ins. Co.,
(b) Further, as no genuine issue of material fact exists whether RTC manufactured or designed the cutter, only a shadowy semblance, if any, of an issue of RTC’s liability on grounds of negligent manufac
(c) Nor does a genuine issue of material fact exist that RTC negligently sold a defective cutter to appellee. The unrefuted evidence of record establishes that RTC was not aware, either before or when it sold appellee the cutter that the “open neck” or “open throat” design of the cutter might produce a greater likelihood of “kickback” when operated in conjunction with a shaper, or that it would produce a greater likelihood of “kickback” as opposed to a “closed throat” designed cutter. Not being a manufacturer, RTC аs a vendor or dealer had no obligation generally to test the cutter. When RTC purchased and sold the cutter in common and general use, in the usual course of trade, without knowledge of its alleged dangerous quality and with nothing tending reasonably to call RTC’s attention thereto, it was not negligent in failing to exercisе care to determine whether the cutter was dangerous.
Pierce v. Liberty Furniture Co.,
(d) However, a retailer may be held liable under an implied warranty of merchantability theory for selling a defective product; OCGA § 11-2-314 (2) (c) establishes a concept for retailers parallel to that of OCGA § 51-1-11 for manufacturers.
Rhodes v. R. G. Indus.,
4. In products liability cases predicated on negligence, the duty imposed is the traditional one of reasonable care, and the
manufacturer
need not provide, from a design standpoint, a product incapable of producing injury. Georgia law does not require a manufacturer to occupy the status of an insurer with respect to product design. Rather, a manufacturer is under no obligation to make a machine accident proof or foolproof, or even more safe.
Weatherby,
supra at 170; accord
Floyd v. Bic Corp.,
790 FSupp. 276, 277-278 (N. D. Ga.). A manufacturer is under no obligation to make a machine totally modification-proof. In Georgia, “if the product is designed sо that it is
reasonably safe
for the use intended, the product is
not
defective even though capable of producing injury where the injury results from an obvious or patent peril”; in such instances, “the product is not defective as a matter of law.” (Emphasis supplied.)
Coast Catamaran Corp. v. Mann,
The standard whether there has been a breach of warranty by a
retailer,
like the standard imposed under strict liability upon a manufacturer, is whether the product sold or manufactured was defective.
Pierce,
supra;
Rhodes,
supra. In
Stodghill v. Fiat-Allis &c.,
When appellee attached the special-ordеr larger cutter to the shaper and secured the small spindle guard over the cutter, the bright yellow blades of the cutter clearly protruded beyond the orange protective covering of the spindle guard. The contrast in colors, the spatial configuration of the guard to the cutter, and the obvious protrusion of the cutter beyond the physical protective limits of the guard, when viewed using an
objective
standard, results in the following conclusion: that as a matter of law the peril created by appellee’s installation of an oversized cutter without guard modification produced a patent open and obviоus danger to any user of the cutter. Moreover, the record establishes that, as a matter of law, both the shaper and the cutter were in and of themselves reasonably safe for the use for which they were intended. Some evidence of record that “kickback” is an unusual occurrence when using a wоod shaper would not affect these determinations; neither are our determinations altered by evidence that appellee’s injury may have been the result of the open-throat design on the cutter head which she installed on the shaper. When viewed
objectively,
the presence of the patent pеril created an unequivocal signal of open and obvious danger that any user’s hand might, through any of a myriad of negligent or accidental cutter-oper
5. We need not address appellants’ assertions that appellee’s use of the shaper without the proper size spindle guard constitutеd assumption of the risk as a matter of law (see generally
Moore v. Service &c. Co.,
6.
Beam v. Omark Indus.,
7. We also reject appellee’s claim that FTC should have shipped the cutter with a protective device to prevent the type of injuries she sustained. The cutter, by virtue of the open and obvious rule was not defective as a matter of law; such “[a] product is not rendered ‘defective’ by the patent absence of a specific safety device which would serve to guard against a common danger connected with the limited use of a product, which danger the ultimate user can himself recognize and otherwise guard against.”
Fortner v. W. C. Cayne & Co.,
Also, this court has recognized that use of certain machines, such as firearms, power saws, and perhaps motorcycles, may be considered to be intrinsically dangerous (Branton, supra at 822); this rationale applies to wood shapers. A manufacturer has no duty to warn of common dangers (dangers which are open and obvious when objectively evaluated), connected with the use of these products. See Branton, supra. “In assessing what is obvious, it must be remembered that. . . the American public is not child-like.” Wilson, supra at 1507 (1).
Nor do we find persuasive testimony that, under certain speculative circumstances, appellee’s hand might have been injured by the cutter even if the guard had covered the cutter. Suffice it to say that in such circumstances the danger nо longer would have been “open and obvious”
as a matter of law.
Further, we find unpersuasive
Argo v. Perfection Prods. Co.,
730 FSupp. 1109 (N. D. Ga.), as this case does not involve an “open and obvious” danger analogous to the circumstances before us. Similarly,
Brown v. Apollo Indus.,
The judgments of the trial court are vacated, and this case is remanded for disposition consistent with this opinion.
Judgments vacated and remanded with direction.