Scott v. Owens-Illinois, Inc.

325 S.E.2d 402, 173 Ga. App. 19, 1984 Ga. App. LEXIS 2716
CourtCourt of Appeals of Georgia
DecidedNovember 19, 1984
Docket68653
StatusPublished
Cited by24 cases

This text of 325 S.E.2d 402 (Scott v. Owens-Illinois, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scott v. Owens-Illinois, Inc., 325 S.E.2d 402, 173 Ga. App. 19, 1984 Ga. App. LEXIS 2716 (Ga. Ct. App. 1984).

Opinions

Deen, Presiding Judge.

Appellant Scott sustained injuries to his wrist, hand, and eyes when a bottle of barbecue sauce suddenly fell apart in his hand as he sat at a table in Ralph C. Yarbrough’s restaurant. Contending that the bottle had exploded as the result either of some defect in its design or manufacture, or of some negligence in the processing and bottling of its contents, appellant brought an action against Yarbrough; Bruce’s Food Corporation (Bruce’s), manufacturer, bottler, and distributor of the sauce; and Owens-Illinois, Inc. (Owens), and Chattanooga Glass Co. (Chattanooga), sole suppliers of bottles for Bruce’s barbecue sauce. Against Owens and Chattanooga, appellees in the instant appeal, Scott alleged negligence and breach of warranties of the bottle’s merchantability and fitness for its intended purpose and use.

According to Scott’s testimony, he and two companions had gone to Yarbrough’s barbecue restaurant for lunch. While they waited for their orders to be filled, one of the men with appellant remarked that the bottle of barbecue sauce sitting on their table showed a greater separation of ingredients than was evident in the bottles on nearby tables. Appellant picked up the bottle in his left hand and shook it to blend the ingredients. He testified by deposition that he had shaken it no more than three times when it “exploded” in his hand. The contents sprayed up into his eyes, and the jagged lower edge of the piece of the bottle remaining in his hand struck his right wrist and hand, which were lying on the table, cutting them and causing them to bleed profusely.

The restaurant manager testified by deposition that he had not seen the incident but that his attention was drawn to appellant’s party by a “popping” sound, which he attributed to the impact of the bottle against the table and which appellant attributes to an explosion occurring while the bottle was still several inches above his right arm. The manager testified that he had immediately summoned medical assistance and had bathed appellant’s eyes and attempted to stanch the flow of blood from his wrist and hand. He further testified that he subsequently gathered the pieces of broken bottle and deliv[20]*20ered them to the restaurant’s insurer. Somewhere in this process the bottom of the bottle, which bore the manufacturer’s stamp, became separated from the other pieces and never reappeared. Thus there was no indisputable evidence as to which of Bruce’s two suppliers, Owens and Chattanooga, had manufactured the bottle. Bruce’s records indicated that bottles from both manufacturers were used on the production run from which the bottle in the instant case had putatively come.

All four defendants in the action below filed motions for summary judgment. Appellees Owens and Chattanooga based their motions on the specific grounds that the bottle was used in a non-conforming manner; that the manufacturer had fulfilled its implied warranties and its duty of care in that the bottle met or exceeded industry safety standards for such containers; and, finally, that it was impossible for the plaintiff to show which manufacturer had supplied the particular bottle that had caused his injuries. Appellees attached to their motions, inter alia, the deposition of a professor of ceramics, an expert on the manufacture and testing of glass bottles. Appellant filed in opposition the deposition of an engineering consultant with special expertise in the analysis and testing of glass. The trial court denied the motions of Yarbrough and Bruce but granted summary judgment to Chattanooga and Owens. The order did not state the specific basis or bases on which summary judgment was granted. Scott appeals, enumerating as error the award of summary judgment to the two bottle manufacturers. Held:

On a motion for summary judgment, the movant has the burden of showing that “there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c); Sands v. Lamar Properties, 159 Ga. App. 718 (285 SE2d 24) (1981). Any doubt as to the existence of a genuine issue of fact is to be resolved against the movant; and the evidence must be construed in favor of the party opposing the motion. Eiberger v. West, 247 Ga. 767 (281 SE2d 148) (1981); Mixon v. Ga. Bank & Trust Co., 154 Ga. App. 32 (267 SE2d 483) (1980). Because summary judgment is an extreme remedy, it must be granted only when there is no doubt as to the facts of the case. Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801 (149 SE2d 749) (1966).

When, as in the instant case, the movant is the defendant in the action, he must pierce the plaintiff’s pleadings so as to show conclusively that the plaintiff has no right to recover against him under any theory alleged. Morton v. Stewart, 153 Ga. App. 636 (266 SE2d 230) (1980). The evidence offered by the movant for this purpose must unequivocally refute the plaintiff’s allegations, Supreme Oil Co. v. Brock, 129 Ga. App. 863 (201 SE2d 659) (1973), and must conclusively negate one or more essential elements of plaintiff’s case. Waller [21]*21v. Transworld Imports, 155 Ga. App. 438 (271 SE2d 1) (1980); Goodwin v. Mullins, 122 Ga. App. 84 (176 SE2d 551) (1970). If the defendant/movant does not pierce the pleadings and disprove one or more of the essential elements of plaintiff’s case, the mere fact that the evidence submitted by the plaintiff does not prove the latter’s case is not tantamount to the defendant/movant’s carrying his burden. Thomas v. McGee, 242 Ga. 441 (249 SE2d 242) (1978); Continental Assur. Co. v. Rothell, 121 Ga. App. 868 (176 SE2d 259) (1970), aff'd in part and rev’d in part on other grounds, 227 Ga. 258 (181 SE2d 283), vacated on other grounds, 123 Ga. App. 423 (181 SE2d 541) (1971).

The statute requires the respondent to a motion for summary judgment to do more than “rest upon the mere allegations or denials of his pleading, but. . . [to] set forth specific facts showing that there is a genuine issue for trial.” OCGA § 9-11-56 (e); Curtis v. J. L. Todd Auction Co., 159 Ga. App. 863 (285 SE2d 596) (1981); Oliver v. Thomas, 158 Ga. App. 388 (280 SE2d 416) (1981). This burden upon the plaintiff/respondent does not arise, however, until the movant has adduced evidence which prima facie disproves an essential element of the plaintiff’s theory of recovery. Rehak v. Mathis, 239 Ga. 541 (238 SE2d 81) (1977); Peoples Bank v. Austin, 159 Ga. App. 223 (283 SE2d 81) (1981); Continental Assur. Co. v. Rothell, supra. The evidence required of the movant to make out his prima facie case should be uncontradicted and leave no room for controversy as to his right to judgment, and should show affirmatively that the plaintiff would not be entitled to recover under any circumstances. Allen & Bean v. American Bankers Ins. Co., 153 Ga. App. 617 (266 SE2d 295) (1980); Berrien v. Avco Financial Services, 123 Ga. App. 862 (182 SE2d 708) (1971). The evidence is insufficient to support summary judgment if it merely preponderates towards the defeñdant’s theory, or if it only discloses that satisfactory proof of plaintiff’s case on trial will be unlikely. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813 (168 SE2d 827) (1969); Supreme Oil Co. v. Brock, supra.

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

Related

Daniel Gryder v. Trey Conley
Court of Appeals of Georgia, 2019
Carter v. Ensley
473 S.E.2d 265 (Court of Appeals of Georgia, 1996)
Pafford v. Biomet
448 S.E.2d 347 (Supreme Court of Georgia, 1994)
Coffee Butler Service, Inc. v. Sacha
430 S.E.2d 149 (Court of Appeals of Georgia, 1993)
First Rome Bank v. Reese Oil Co.
426 S.E.2d 384 (Court of Appeals of Georgia, 1992)
Re/Max Specialists, Inc. v. Kosakai
415 S.E.2d 698 (Court of Appeals of Georgia, 1992)
Derry v. Clements
397 S.E.2d 594 (Court of Appeals of Georgia, 1990)
Lamb v. Georgia-Pacific Corp.
392 S.E.2d 307 (Court of Appeals of Georgia, 1990)
English v. Crenshaw Supply Co.
387 S.E.2d 628 (Court of Appeals of Georgia, 1989)
Brygider v. Atkinson
385 S.E.2d 95 (Court of Appeals of Georgia, 1989)
Collins v. Newman MacHine Co.
380 S.E.2d 314 (Court of Appeals of Georgia, 1989)
Hepner v. Southern Railway Co.
356 S.E.2d 30 (Court of Appeals of Georgia, 1987)
Holbrook Contracting, Inc. v. Tyner
354 S.E.2d 22 (Court of Appeals of Georgia, 1987)
Wilson v. Pickels
352 S.E.2d 208 (Court of Appeals of Georgia, 1986)
American Cyanamid Co. v. Allrid
338 S.E.2d 14 (Court of Appeals of Georgia, 1985)
Scott v. Owens-Illinois, Inc.
325 S.E.2d 402 (Court of Appeals of Georgia, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
325 S.E.2d 402, 173 Ga. App. 19, 1984 Ga. App. LEXIS 2716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-owens-illinois-inc-gactapp-1984.