A. B. C. Drug Co. v. Monroe

Beasley, Presiding Judge,

concurring specially.

Although I concur in reversal of the judgment, I do so on the following analysis.

Plaintiff presented her case on two theories, premises liability and breach of implied warranty of merchantability, as set out in the pretrial order and the charge to the jury. Defendant objected to the latter as being inapplicable.

The evidence fails to show a breach of the duty of the premises owner or occupier to maintain the premises in a safe condition. The majority holds that there was a jury issue as to whether defendant should have been aware that the half-gallon had been placed on the “wrong” shelf. Even if the half-gallon was on a high enough shelf so as to require plaintiff to reach above her head to get it, this would not constitute a “defect” in the premises. As noted by the majority, this is not an inherently dangerous stacking. Even if the proprietor put it on that shelf, as opposed to a customer’s placing it there after removing it from another shelf, it was not in such a place “as to threaten injury to those visiting the store who are in the exercise of ordinary care for their own safety.” Parsons, Inc. v. Youngblood, 105 Ga. App. 583, 585 (125 SE2d 518) (1962).

The problem is that the cap was loose. But it is not a question of equal knowledge of this irregular condition. There is no evidence that defendant knew or should have known of this condition of the product it offered for sale. It does not have a duty to check the shelved containers periodically to assure that the container caps are tight. The loose condition of the cap in plaintiff’s case wold not have been detectable by defendant’s visual inspection along the aisles for defects or dangerous conditions any more than it was detectable by plaintiff’s looking at it. It was loose, not off.

Also, the defendant did not owe a duty to check the tightness of every container cap when shelving it, in the absence of any evidence that looseness was a reasonably foreseeable condition. As the shelf-stocker testified, the merchandise is lifted out of the box, price-marked, dropped back down in the box, and after all the pricing is done, lifted out again and shelved. He testified that this activity would cause leakage or splattering if the cap was loose.

Assuming that the container of liquid Clorox, with a loose cap, sitting on a shelf with other similar merchandise, constitutes a “defect” in the premises so they were not “safe,” there is no evidence of *141negligence on defendant’s part such as to create liability for plaintiff’s injury. See Cook v. Home Depot, 214 Ga. App. 133 (447 SE2d 35) (1994).

Another theory was put to the jury as well, and the verdict does not indicate which theory was the basis for the finding of liability. OCGA § 11-2-314 imposes an implied warranty of merchantability on goods sold by merchants such as defendant. According to subsection (2) (e), in order to be merchantable, goods must be “adequately contained, packaged, and labeled as the agreement may require.” Here the Clorox was not adequately contained and packaged; it leaked out when the container was tipped. To say that a purchaser has a duty to assure the tightness of the top before removing it from the shelf creates an unreasonable burden on the shopper, absent some warning such as regularity that the top may be loose.

However, since there was no sale in this case, the plaintiff lacks the necessary privity with the seller to be entitled to the warranty. “Georgia law requires a showing of privity between the injured person and the seller of the product before a claim based upon an implied warranty may be brought. [Cit.]” Morgan v. Mar-Bel, Inc., 614 FSupp. 438, 441 (N.D. Ga. 1985). See Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 751 (206 SE2d 857) (1974), affirmed 233 Ga. 578 (212 SE2d 377) (1975); Lamb v. Ga.-Pacific Corp., 194 Ga. App. 848, 850 (4) (392 SE2d 307) (1990). “By statute, the UCC warranties can only be made by a seller of goods and those warranties can only be extended either to the buyer or to those who have a specified relationship with the buyer. See OCGA § 11-2-318. The Stewart opinion recognizes that, for purposes of imposing liability for a breach of the UCC warranties, it is the applicable specific statutory provisions of the UCC and not general legal principles that are controlling as to the privity requirement and any exceptions thereto.” Decatur North Assoc. v. Builders Glass, 180 Ga. App. 862, 864 (1) (350 SE2d 795) (1986).

This case differs from Fender v. Colonial Stores, 138 Ga. App. 31 (1A) (225 SE2d 691) (1976), in that privity of contract was created there by plaintiff’s act of taking physical possession of the merchandise in the self-service store, with the intent to purchase it. The customer was at the check-out counter and lifted the bottles from her cart to present to the checker to ring up when one of them exploded. Here the plaintiff was merely in the act of taking physical possession when the liquid spilled and she dropped the container. Privity had not yet arisen.

I note that plaintiff did not pursue a theory of liability against the manufacturer for offering for sale a defective product, which would be one containing a manufacturing defect, a design defect, or a defect of inadequate instructions or warnings. OCGA § 51-1-11. See *142Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44 (248 SE2d 15) (1978). The statute does not allow such a claim against the seller, however. See Maleski, Georgia Products Liability, 2d ed. (1993), § 2-3, and cases cited therein. The action might proceed upon an allegation that the manner of capping the caustic product was a defect in that there was no seal either on the container itself or on the cap, so as to prevent tampering or leakage. As to whether this intended purchaser should have standing to bring such an action, see Maleski, supra at § 8-5.

Decided June 16, 1994 Reconsideration denied July 27, 1994 Walker & Sweat, Forrest W. Sweat, Jr., Craig R. White, for appellant. Chambers, Rice & Rogers, Charles B. Rice, Delman L. Minchew, for appellee.