Thebaut v. McCloskey Varnish Co.

291 S.E.2d 398, 162 Ga. App. 651, 1982 Ga. App. LEXIS 2277

• Court: Court of Appeals of Georgia
• Decided: May 11, 1982
• Docket: 63744
• Status: Published

Opinions

Banke, Judge.

This is a products liability suit against Formby’s Inc., and McCloskey Varnish Co. The plaintiff alleges that when a neighbor living in an apartment directly below him applied some “Formby’s Antique Walnut Wiping Stain” to an article of furniture, the fumes wafted up into his apartment and killed his entire collection of rare birds. It appears without dispute from the record that McCloskey Varnish Co. manufactured the base for the stain and then sold it to Formby’s. Formby’s, in turn, added additional chemicals to the base and sold it to retailers under its own name. McCloskey denies that it had any knowledge of the additions or modifications made to the base by Formby’s and accordingly contends that it cannot be held liable for any damage caused by Formby’s product. The trial court apparently agreed and for this reason granted McCloskey’s motion for summary judgment. This appeal followed. Held:

Decided May 11, 1982 Rehearing denied June 21, 1982

“On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence. Colonial Stores v. Turner, 117 Ga. App. 331 (160 SE2d 672).” Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973). See also Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971); Combs v. Adair Mtg. Co., 245 Ga. 296 (264 SE2d 226) (1980).

Although the plaintiff has produced no evidence in support of his allegation that his birds died as the result of the original composition of the base manufactured by McCloskey, McCloskey has produced no evidence negating this allegation. In particular, there is no chemical evidence to support McCloskey’s contention that the damage was caused by the modifications made by Formby’s. “One of the conditions for imposition of strict liability against a manufacturer of ‘defective’ products is that the product ‘is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.’ (Emphasis supplied.) Restatement of the Law, Torts 2d, 348, § 402A. In some cases it may be a jury question as to whether the products’ original design has been merely slightly or somewhat modified. In such cases, the jury must determine whether the original manufacturer’s design was defective and, if so, whether the proximate cause of the injuries sustained was the original defective design or the subsequent modification.” Talley v. City Tank Corp., 158 Ga. App. 130, 135 (279 SE2d 264) (1981). See also Center Chem. Co. v. Parzini, 234 Ga. 868 (218 SE2d 580) (1975). The trial court erred in granting McCloskey’s motion for summary judgment.

Judgment reversed.

Quillian, C. J., McMurray, P. J., Shulman, P. J., Carley and Pope, JJ., concur. Deen, P. J., Birdsong and Sognier, JJ., dissent. Billy L. Spruell, Sonja L. Salo, for appellant. Robert C. Lamar, for appellee.