Thorpe v. Robert F. Bullock, Inc.

Beasley, Judge,

dissenting.

While there is much persuasive authority to justify, on the basis of the purpose of the statute, the conclusion reached by the majority, it reaches over into the legislative sphere. The court construes the word “sold,” used three times in the governing statute and used to the exclusion of other words, to mean from the point it is “initially offered for sale or lease, or otherwise marketed or placed in the stream of commerce.”

Much reliance is placed on cases from other states and on the comments accompanying the Restatement (Second) of Torts (1965), *873Section 402A. We are not, however, construing the meaning of the Restatement’s language, and the foreign courts cited do not set forth their statutes, if that is what they are interpreting. If they are construing statutes, we do not know if they are identical to ours; if they are instead developing judicial policy or expanding common law, they are performing a function different from the one we are called upon to accomplish.

Here we are asked to construe the Georgia statute which imposes strict liability on a manufacturer regardless of privity with the person injured. OCGA § 51-1-11 (b). When does the manufacturer’s liability commence? “When sold” is the term used repeatedly in the statute. It is the only transactional event mentioned.

The Supreme Court construed the statute strictly, in Ellis v. Rich’s, Inc., 233 Ga. 573 (212 SE2d 373) (1975). It gave the word “manufacturer,” used expressly by the legislature, its common meaning and declined to rationalize a broader meaning into it. It recognized that the statute, and a related one, were “recent expressions of the legislature establishing but also limiting the public policy of this state in this area. Consequently, these legislative enactments preclude any extension of strict liability by this court.” Id. at 577.

Although ten years have passed since Ellis, the statute has not been changed and there appears to be no reason for adopting a more aggressive approach to construction of the statute. In fact, the approach of strict construction was given recently in Daniel v. American Optical Corp., 251 Ga. 166, 167 (1) (304 SE2d 383) (1983): “OCGA § 51-1-11 (b) (Code Ann. § 105-106) is our statute governing strict liability in tort which is in derogation of common law and ‘must be strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms.’ [Cits.]”

We must assume that the legislature deliberately chose the word “sold.” Where the language of an act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. Gazan v. Heery, 183 Ga. 30, 39 (187 SE 371) (1936); see OCGA § 1-3-1 (b). We must also apply the rule of construction that the absence of other transactional events, which would have been easy to list, such as “leased, rented, or delivered for use” meant that they were not to be embraced in Georgia’s initial foray into strict products liability. Jenkins v. Jones, 209 Ga. 758, 761 (75 SE2d 815) (1953). Compare Sovereign Camp v. Heflin, 188 Ga. 234, 235 (3 SE2d 559) (1939). The court leaned on the side of four-square interpretation when considering the legislature’s use of “sale” in another statute. Mays v. C & S Nat. Bank, 132 Ga. App. 602, 609 (208 SE2d 614) (1974), overruled on other grounds, Mock v. Canterbury Realty Co., 152 Ga. App. 872, 879 *874(264 SE2d 489) (1980).1

Decided June 19, 1986 Rehearing denied July 24, 1986 Theron D. Warren III, for appellant. Alfred B. Adams, Cathleen M. Devlin, John F. Davis, Jr., for appellee.

There are sound policy considerations for imposing strict liability in tort with respect to products placed in the stream of commerce. See, e.g., Prosser & Keeton on Torts (5th ed.), 690-692. As those authors point out, “As to defendants other than sellers, who supply chattels under contract, there has been much the same development in the law of negligence as in the case of sellers.” Id. at 715. Lessees, lenders, and other bailors are discussed. Id. at 715-719. See also Eldridge, Products Liability in Ga., § 5-11. But the development of that law in Georgia should await action by the legislature which set the public policy by adopting the statute which governs here. It can then take into account the factors such as accident prevention, enterprise risk-shifting capacity, and difficulties of proving negligence, which counsel the expansion to circumstances other than sales. See Prosser & Keeton, supra at 718, for this list of factors. These and other arguments, including those addressed to the court, should be directed to the legislature. Otherwise we are intruding on legislative terrain in an area it has carved out as best governed by a statute derived from the legislative process rather than by a decree developed by judicial consideration focused on the context of a single case.

I am authorized to state that Judge Sognier and Judge Pope join in this dissent.

Under that law, a simple lease is not a sale, and we do not even have a simple lease in this case. See Freeman v. Hubco Leasing, 253 Ga. 698, 703 fn. 6 (324 SE2d 462) (1985).