dissenting.
Because I believe that, as a matter of law, the notice given by Wheeler of the alleged defect in the bow trigger release mechanism was not reasonable under OCGA §§ 11-2-607 (3) (a) and 11-2-725, the applicable statute of limitation, and that the trial court erred in not so finding, I must respectfully dissent.
Although, in Buford v. Toys R’ Us, 217 Ga. App. 565 (458 SE2d 373) (1995), the claim against the retailer was premised on strict liability, which this Court found inapplicable, I believe our conclusion that the notice given by the Bufords by service of the complaint two years after the accident and two years and five months after the sale was unreasonable as a matter of law should control here. While the two cases relied upon in Buford involved commercial transactions as opposed to a retail sale to a consumer, I do not believe, under the circumstances of this case, that the distinction is dispositive because, under either standard, the notice was not reasonable.
Other cases involving a merchant and retail buyer support this conclusion. In Oden & Sims Used Cars v. Thurman, 165 Ga. App. 500, 501 (1) (301 SE2d 673) (1983), the issue was warranty of title between a merchant seller and a retail buyer of an automobile. In considering the issue of notice, this Court found that
[a] condition precedent to bringing this action was that plaintiff must have notified Oden & Sims of the breach within a reasonable time thereof. [OCGA § 11-2-607 (3) (a)]; see Jones v. Cranman’s Sporting Goods, 142 Ga. App. 838 (1) (237 SE2d 402) (1977). The content of the notification needed merely to have been sufficient to have informed Oden & Sims that the transaction was “ ‘still troublesome and must be watched.’ ” Jones v. Cranman’s Sporting Goods, supra at 840.
(Emphasis supplied.) Id. at 500-501 (1) (no notice unreasonable as matter of law). See also Hudson v. Gaines, 199 Ga. App. 70, 72 (2) (403 SE2d 852) (1991) (service of complaint within eight months of confiscation of vehicle and its removal from the parties’ possession found reasonable as matter of law).
*613In considering the issue of notice and its reasonableness, it must be kept in mind that the implied warranty at issue here is predicated upon a sale of the item. In such a situation, the claimant must show that the defects or conditions responsible for the injury existed at the time of the sale, or on January 16, 1999. Jones v. Marcus, 217 Ga. App. 372, 373 (1) (457 SE2d 271) (1995). Further, in order to pursue his claim, Wheeler was required by OCGA § 11-2-725 to file his lawsuit within four years of its accrual, or at least by January 16, 2003. It was not until September 14, 2001, that the amended complaint naming Wal-Mart as a defendant was filed and it was not until September 19, 2001, over two years into the four years available to file suit, that it was served upon Wal-Mart.
In this case, Wal-Mart is faced with having to defend a claim based on a defective product over two years after its sale to Wheeler. As acknowledged by Wheeler, it is apparently impossible to identify the actual manufacturer of the bow release mechanism sold to him. Initially, Wheeler sued Cobra Manufacturing, later adding Wal-Mart as seller. Eventually, five other potential manufacturers were named in the amended complaint, although claims against all the named manufacturers have been dismissed, leaving only Wal-Mart as defendant.
The majority relies on Comments to the UCC for part of its rationale. While, certainly, such comments may be considered by this Court as persuasive authority, see Sun v. Mercedes Benz Credit Corp., 254 Ga. App. 463 (562 SE2d 714) (2002), they can in no way alter the limits enacted by the legislature as statutes of limitation. Therefore, the statute of limitation applicable to Wheeler’s claim, four years, must be the outside limits applicable to the issue of the reasonableness of notice.
The majority also discusses three different approaches in other jurisdictions to the reasonableness of notice issue in a seller/consumer situation: (1) those requiring a showing of prejudice from the delay before barring a consumer’s remedy; (2) those requiring no showing of prejudice, only delay by the consumer; and (3) those in which the notice requirement does not apply to product liability and tort claims.
There is no Georgia case specifically requiring the showing of prejudice by the seller before the consumer’s claim is barred. It would seem logical, however, that even were we to conclude that prejudice must be shown in Georgia, despite our finding in Buford v. Toys R’ Us, the burden of the retailer to show prejudice lessens as the time provided by the statute of limitation shortens. Here, filing of suit two years and nine months after the sale at issue and the fact that WalMart did not receive actual notice until after that is persuasive on the reasonableness of notice issue.
*614Decided July 16, 2003 Reconsideration denied July 31, 2003 Joseph D. Perrotta, for appellant. Simpson & Cross, Ralph F. Simpson, for appellee.Under either the first or second options discussed by the majority,3 I believe Wal-Mart was entitled to summary judgment in this case. As acknowledged by the majority, one of the purposes for notice in an action involving personal injury is to inform the seller of a need to make changes in its product to avoid future injuries. Had WalMart known sooner of the alleged defect, it is possible it could have identified the manufacturer and taken their product from the shelves. Instead, Wal-Mart is faced with a situation in which it was merely the seller of a defective product (the defect being latent), but is deprived, because of the delay in notice by Wheeler, of the opportunity to file a third-party claim against the manufacturer.
Also, although Wheeler states that, under the facts here, it was impossible for Wal-Mart to mitigate its damages or engage in meaningful settlement negotiations, this contention is at best speculation.
Here, the facts are not disputed and I believe that, as a matter of law, the notice given was not reasonable. See Hebron v. American Isuzu Motors, 60 F3d 1095, 1098 (4th Cir. 1995); Leeper v. Banks, 487 SW2d 58 (Ky. 1972); San Antonio v. Warwick Club Ginger Ale Co., 104 R.I. 700, 707-709 (248 A2d 778) (1968).
I am authorized to state that Presiding Judge Blackburn and Judge Mikell join in this dissent.
The third option is precluded by the mandatory language of OCGA § 11-2-607 (3) (a), as acknowledged by the majority.