Pafford v. Biomet

448 S.E.2d 347, 264 Ga. 540, 94 Fulton County D. Rep. 3052, 1994 Ga. LEXIS 761
CourtSupreme Court of Georgia
DecidedSeptember 19, 1994
DocketS94G0154
StatusPublished
Cited by30 cases

This text of 448 S.E.2d 347 (Pafford v. Biomet) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pafford v. Biomet, 448 S.E.2d 347, 264 Ga. 540, 94 Fulton County D. Rep. 3052, 1994 Ga. LEXIS 761 (Ga. 1994).

Opinions

Carley, Justice.

In a surgical procedure performed at South Georgia Medical Center (Hospital) in 1988, a metal plate was installed in appellant-plaintiff’s back in an effort to stabilize his spine. Some months later, the plate broke and was removed from appellant’s back in a second operation.

[541]*541After this second surgery, appellant became disabled. Relying upon OCGA § 51-1-11 (b), appellant filed the instant tort action against appellee-defendants Biomet and Pfizer Hospital Products Group, Inc. in 1990. According to the allegations of appellant’s complaint, the plate had broken because it was defective and his ensuing disability had been caused by the breaking of the defective plate.

The trial court granted appellees’ motions for summary judgment. The Court of Appeals affirmed on two grounds: Appellant’s claim was barred by the applicable ten-year statute of repose; and, in any event, appellant had failed to prove that either of the appellees was the manufacturer of the plate. Pafford v. Biomet, 210 Ga. App. 486 (436 SE2d 504) (1993). This court granted certiorari to review the opinion of the Court of Appeals.

1. OCGA § 51-1-11 (b) (2) provides:

No action shall be commenced pursuant to this subsection with respect to an injury after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.

(Emphasis supplied.) However, no specific statutory definition of “first sale for use or consumption” is provided and, heretofore, our appellate courts have had no occasion to construe that phrase. The proper construction of “first sale for use or consumption” as employed in OCGA § 51-1-11 (b) (2) is, therefore, a question of first impression in Georgia.

Appellees urge, and the Court of Appeals agreed, that the applicable period of repose began to run more than ten years prior to appellant’s commencement of the instant action, when the plate was first placed in the stream of commerce by its initial sale to the Hospital for the Hospital’s ultimate sale to a patient. Pafford v. Biomet, supra at 487 (2). Chronologically, the Hospital’s initial purchase of the plate was certainly the “first sale” of the plate by its manufacturer. However, OCGA § 51-1-11 (b) (2) does not provide that the period of repose commences on the date of the “first sale” of a product by its manufacturer. It provides that the period of repose commences on the date of the “first sale for use or consumption.” Accordingly, unless the plate had been sold to the Hospital for the Hospital’s “use or consumption,” the period of repose did not commence on the date that the plate was initially purchased by the Hospital.

Other state statutes of repose begin their limitations period as of “the date of first sale, lease or delivery” of the product, [cit.], or “the date that the party last parted with possession or control of the product,” [cit.], giving manufacturers con[542]*542trol over when the limitations period begins. Our legislature, however, chose to begin the limitations period at the date of “[first sale] for use [or consumption],” not landmarks such as those chosen by [other] legislatures.

(Emphasis in original.) Chicopee, Inc. v. Sims Metal Works, 391 SE2d 211, 215 (N.C. App. 1990).

Appellant urges that the applicable period of repose did not begin to run until two years prior to his commencement of the instant action, when the plate was eventually sold by the Hospital to him for the intended purpose of its placement in his back. This construction of “first sale for use or consumption” is entirely consistent with the concepts of “use” and “consumption” as employed in OCGA § 51-1-11 (b). Subsection (b) (1) of that statute recognizes a distinction between the individual who initially purchased a manufactured product for mere static retention in his inventory and that individual whose actual employment of the product was ultimately intended and, as that distinction is expressed therein, the first “use or consumption” of the product would be by the latter, rather than the former, individual:

The manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property. . . .

(Emphasis supplied.)

The phrase “first sale for use or consumption” as employed in subsection (b) (2) of OCGA § 51-1-11 must be construed in pari materia with the concepts of “use” and “consumption” as employed in the other subsections of that statutory provision.

It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes “in pari materia,” are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.

Ryan v. Commrs. of Chatham County, 203 Ga. 730, 731-732 (1) (48 SE2d 86) (1948). Accordingly, by purchasing the plate for mere static retention in its inventory, the Hospital was not functioning as an active “user or consumer” thereof, but only as “a dealer or any other person” through whom the plate would ultimately be sold for its intended purpose of placement in the back of a patient. Wilson v. Stu[543]*543debaker-Worthington, Inc., 699 FSupp. 711, 718 (S.D. Ind. 1987). See also Border v. Indian Head Indus., 792 P2d 111, 112 (Or. App. 1990); Witherspoon v. Sides Constr. Co., 362 NW2d 35 (Neb. 1985); Weeks v. Remington Arms Co., 733 F2d 1485, 1488, fn. 3 (11th Cir. 1984). The “first sale for use or consumption” did not occur until it was removed from the Hospital’s inventory and sold to appellant for its actual intended purpose of placement in his back.

Contrary to the holding of the Court of Appeals, this construction of the statutory language does not “create an absolute liability on the manufacturer.” Pafford v. Biomet, supra at 488 (2). Liability is not imposed upon a manufacturer by the provisions of OCGA § 51-1-11 (b) (2), but by the provisions of OCGA § 51-1-11 (b) (1). Subsection (b) (2) merely “sets an ultimate limit on which injuries shall be actionable.” Hill v. Fordham, 186 Ga. App. 354, 357 (2) (367 SE2d 128) (1988). Accordingly, in order to recover, appellant must still prove that the plate, “when sold by the

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Eagle West, LLC v. Georgia Department of Transportation
720 S.E.2d 317 (Court of Appeals of Georgia, 2011)
Campbell v. Altec Industries, Inc.
707 S.E.2d 48 (Supreme Court of Georgia, 2011)
Campbell v. Altec Industries, Inc.
635 F.3d 1212 (Eleventh Circuit, 2010)
Occidental Fire & Casualty Co. of North Carolina v. Johnson
691 S.E.2d 589 (Court of Appeals of Georgia, 2010)
Abrams v. Ciba Specialty Chemicals Corp.
659 F. Supp. 2d 1225 (S.D. Alabama, 2009)
Parks v. Hyundai Motor America, Inc.
668 S.E.2d 554 (Court of Appeals of Georgia, 2008)
Solomon v. Barnett
636 S.E.2d 541 (Supreme Court of Georgia, 2006)
Johnson v. Ford Motor Co.
637 S.E.2d 202 (Court of Appeals of Georgia, 2006)
Sharon Simmons v. United States
421 F.3d 1199 (Eleventh Circuit, 2005)
Simmons v. Sonyika
614 S.E.2d 27 (Supreme Court of Georgia, 2005)
Hamilton v. Werner Co.
268 F. Supp. 2d 1085 (S.D. Iowa, 2003)
Rosales v. Davis
580 S.E.2d 662 (Court of Appeals of Georgia, 2003)
Patrick v. MacOn Housing Authority
552 S.E.2d 455 (Court of Appeals of Georgia, 2001)
Winder v. Paul Light's Buckhead Jeep Eagle Chrysler Plymouth, Inc.
549 S.E.2d 515 (Court of Appeals of Georgia, 2001)
Ogletree v. Navistar International Transportation Corp.
535 S.E.2d 545 (Court of Appeals of Georgia, 2000)
Five Star Steel Construction, Inc. v. Klockner Namasco Corp.
524 S.E.2d 783 (Court of Appeals of Georgia, 1999)
KMart Corp. v. Jackson
521 S.E.2d 93 (Court of Appeals of Georgia, 1999)
Straughter v. J. H. Harvey Company, Inc.
500 S.E.2d 353 (Court of Appeals of Georgia, 1998)
State v. Griffin
491 S.E.2d 340 (Supreme Court of Georgia, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
448 S.E.2d 347, 264 Ga. 540, 94 Fulton County D. Rep. 3052, 1994 Ga. LEXIS 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pafford-v-biomet-ga-1994.