*1 207 an issue fact to defeat the summary carrier’s motion for judgment. McMurray, Benham, J., concur. affirmed.
Decided November Associates, Davidson & Davidson, William M. Thomas P. Lenzer, for appellant. Associates,
Lamb Hennick, Melody Lamb, R. T. Gordon Fred- erick G. Boynton, Wasmuth, Jr., Edward H. for appellee. CANADAIR,
76598. YAEGER et al. v. LTD. 469) John and Yaeger Patricia products liability filed a suit based on negligence and strict against Canadair, Ltd. and others seek- ing damages personal for injury and loss of consortium re- sulting when a “Flextrac” all-terrain vehicle manufactured Canadair, Ltd., and equipped with another manufacturer’s “Texoma” auger, rolled over while John Yaeger, who was equip- ment, was inside. In complaint, their alia, the Yaegers alleged, inter that the Flextrac was reasonably “not merchantable or suited for the intended, use and was defectively designed, manufactured, assembled, equipped and Yaegers modified.” The appeal from the trial court’s grant of summary judgment Canadair, in favor of Ltd.
The facts of this case fully Yaeger are more set forth in v. Stith Equip. 492) Ga. (1986) Yaeger Stith Equip. 48) 185 Ga. App. In this ap- peal, appellants contend the trial court erred granting appellee’s motion in that the opin- motion was on based ion proffered by appellee’s experts that the Flextrac vehicle was not defective or dangerous. We agree appellants holding Pepper v. Selig Indus., Chem. (1) Ga. 693) (1982) is controlling here in type that “this is not the expert’s opinion an introduced the movant will authorize the grant judgment. Id. appel- Since [Cits.]” lants need necessarily produce expert’s opinion pre- order to trial, vail at the language Walker, by appellee cited in Howard v. 45) (1978) Ga. applicable Holley is not here. See Smallwood, (dis- (1985) Ga. 366-367 senting opinion). Nor applicable do we find appellee’s citations to Smith, Inc. v. Stodghill v. Machinery, Fiat-Allis &c. Stodghill, held that Trailmobile it was In both product defects in the obvious the risk of
plaintiffs’ assumption of despite the intro- entitled the manufacturers were plaintiffs testimony by duction the doctrine application of It was due to the negligently designed. *2 not did patent defect the the risk that the assumption of (Empha- actionable manufacturing defect.” design or give rise to “an (2). inap- These cases are thus supra at 135 supplied.) sis ap- no that there was posite judice in which to the case sub by assuming of the risk he was cognizant pellant Yaeger was John Flextrac vehicle. the appel liable because that it cannot be held Appellee also asserts appellee’s of out of the condition cause action does not arise lants’ of exclusively out of arises it sold but instead all-terrain vehicle as was by as of the the addition vehicle design the of the defective modified is to Thus, that it entitled auger. appellee asserts Texoma liability in that no and as to strict judgment negligence both as to cause, necessary element a question proximate of fact exists as to Parzini, Center Chem. Co. v. theory recovery. See under either of 580) (1975). First, affidavit of since the Ga. 868 Flextrac the pierce appellants’ assertion cannot serve manufactured, Pepper, supra, designed negligently vehicle was and/or re appellants as must in favor of construing and the evidence as we 274, Bank South App. Corp., Daniel v. 183 Ga. spondents, 664) (1987), alleged that the be as a matter law it cannot said when sold was not the exclusive Flextrac defective condition of the over, auger the rolling whether modified cause the vehicle correctly Second, arguendo, appellee has assuming, not. even action, of the Flex the modification appellants’ characterized cause ab intervening act auger trac the addition of the can serve as an only intervening act independent, if the solving appellee by [appellee’s] triggered by [appellee], “was not foreseeable was Union act, . . of itself cause the injury. . was sufficient and [Cit.]” 105) (1975). Holton, 726, Carbide v. 136 Ga. say questions in the we cannot no Under the evidence record adduced Yaeger’s regarding cause of John proximate fact the exist v. Indus. holding in Omark appellee asserts the injuries. Although here, Alewine, controlling is 171 Ga. conceded plaintiff which therein that case involved an accident the manufacturer, inap is id. at thus was not the foreseeable plicable here. “ establishing judgment ‘On a motion for burden moving upon is any issue of fact genuine the non-existence of The movant. mo- party against all are doubts to be resolved party upon opposing vant has even as to issues that burden Gaylor Jay Chrysler- would have the trial burden .... [Cit.]” &c. Plymouth-Dodge, 183 Ga. Ac- cordingly, by granting summary judgment the trial court erred generally favor of App. See Butler v. T. C. Brittain 181 Ga. 589) (1987). 774, Carley, spe- Deen, J., reversed. concur cially. Judge, concurring specially. Carley, majority I reversing grant concur in the bring because I believe that the facts of this McCloskey it within the of Thebaut v. rationale Varnish 398) (1982). Compare City Talley Corp., Tank Presiding Judge I joins am authorized to state that Deen this special concurrence. — Decided October Rehearing denied November *3 Bergman Jeffrey Jenkins, Darroch, III, Frank E. Jenkins W. appellants. Frazier, for Henning, Mabry, Brooks, Chambers & C.W. James T. Budd, for 77353. LYNN v. GEORGIA FARM BUREAU MUTUAL
INSURANCE COMPANY. Lynn brought against Georgia Idus suit Farm Mutual In- Bureau Company casualty surance to recover insurance benefits due damage during him for wind and rain his home sustained Hurricane granted summary judgment Kate. The trial court in- favor Lynn’s proof surer based on failure to submit of loss and file suit timely policy, Lynn appeals. fashion under the terms damage The record reveals that roof, sustained his resulting damage leaking to interior walls rain on Novem- Appellant reported agent ber his loss to local following day. Appellant submitted written estimates from roofers February complained deposition 1986 but at his that he tried but get adjuster inspect damage. April could not the interior In appellee damage pay appellant $4,300 offered to in settlement the roof maintaining repaired claim, the roof could be for that