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Call Now: 904-383-7448A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume, or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this Code section.
(Code 1933, § 109A-2 - 318, enacted by Ga. L. 1962, p. 156, § 1.)
- Necessity of privity to support tort action generally, and as to liability of manufacturer of personal property sold as new property directly or through a dealer or other person, § 51-1-11.
Civil action for knowing or negligent selling of unwholesome provisions, drugs, alcoholic beverages, etc., to another person by use of which damage results to purchaser or his family, § 51-1-23 et seq.
- For article, "Georgia's New Statutory Liability for Manufacturers: An Inadequate Legislative Responses," see 2 Ga. L. Rev. 538 (1968). For article discussing interpretation of warranties under the Uniform Commercial Code, see 4 Ga. L. Rev. 469 (1970). For article, "Products Liability Law in Georgia: Is Change Coming?" see 10 Ga. St. B.J. 353 (1974). For article explaining the Unfair Trade Practices and Consumer Protection Act, proposed in Georgia in 1973, see 10 Ga. St. B.J. 409 (1974). For article discussing modification of consumer warranty provisions of the U.C.C. by the Magnuson-Moss Act (15 U.S.C. §§ 2301-2312) with special emphasis on attempted disclaimers, see 27 Mercer L. Rev. 1111 (1976). For article discussing strict liability for defective products in Georgia, see 13 Ga. St. B.J. 142 (1977). For article surveying developments in the Georgia torts law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 247 (1981). For article, "Products Liability Law in Georgia Including Recent Developments," see 43 Mercer L. Rev. 27 (1991). For note, "Allowance of Punitive Damages in Products Liability Claims," see 6 Ga. L. Rev. 613 (1972). For note, "Buyer's Right to Revoke Acceptance Against the Automobile Manufacturer for Breach of its Continuing Warranty of Repair or Replacement," see 7 Ga. L. Rev. 711 (1973). For note, "Enforcing Manufacturers' Warranty Exclusions Against Non-Privity Commercial Purchasers: The Need for Uniform Guidelines," see 20 Ga. L. Rev. 461 (1986). For comment on U.C.C.'s restrictive effect on consumers' right of action against manufacturers absent privity, see 1 Ga. St. B.J. 129 (1964). For comment on Putnam v. Erie City Mfg. Co., 338 F.2d 911 (5th Cir. 1964), as to privity requirement in implied warranty actions, see 17 Mercer L. Rev. 318 (1965).
- O.C.G.A. §§ 11-2-318 and51-1-11 are recent expressions of legislature establishing and limiting public policy of state in area of product liability. Ellis v. Rich's, Inc., 233 Ga. 573, 212 S.E.2d 373 (1975).
- Under O.C.G.A. § 51-1-11, no privity is necessary to institute an action for tort, but if tort results from violation of duty, itself the consequence of contract, right of action is generally confined to parties and privies of that contract except in cases where party would have right of action for injury done independently of contract and except as provided in O.C.G.A. § 11-2-318. Shell v. Watts, 125 Ga. App. 542, 188 S.E.2d 269, rev'd on other grounds, 229 Ga. 474, 192 S.E.2d 265 (1972).
O.C.G.A. § 51-1-11 purportedly limits the right of tort action based on the violation of a duty, itself the consequence of a contract, to a party or privy, except in "cases where the party would have had a right of action for the injury done, independently of the contract" or in cases covered by O.C.G.A. § 11-2-318 of the Uniform Commercial Code extending the benefit of express or implied warranties to certain natural persons without regard to privity. Koppers Co. v. Parks, 120 Ga. App. 551, 171 S.E.2d 639 (1969).
Generally, this state has recognized the necessity of privity between parties where plaintiff-purchaser of an article has been injured because of its alleged defectiveness and brings action based on warranty, but an exception to this rule requiring privity is expressed in O.C.G.A. § 11-2-318. Evershine Prods., Inc. v. Schmitt, 130 Ga. App. 34, 202 S.E.2d 228 (1973).
The rule of privity in contract actions is made a statutory requirement by O.C.G.A. § 51-1-11. In actions based upon the breach of express or implied warranties this requirement is subject only to the exception contained in O.C.G.A. § 11-2-318. Ellis v. Rich's, Inc., 233 Ga. 573, 212 S.E.2d 373 (1975).
Privity is required in actions for breach of express warranties except as provided in O.C.G.A. § 11-2-318 and except where warranty clearly extends to some identifiable third person. Stewart v. Gainesville Glass Co., 233 Ga. 578, 212 S.E.2d 377 (1975).
- Nothing contained in O.C.G.A. § 11-2-318, which extends the seller's warranties to family members and guests in the buyer's home who may reasonably be expected to use the product and who are injured thereby, eliminates the requirement that the buyer and the defendant be in privity. Thomaston v. Fort Wayne Pools, Inc., 181 Ga. App. 541, 352 S.E.2d 794 (1987); Gowen v. Cady, 189 Ga. App. 473, 376 S.E.2d 390, cert. denied, 189 Ga. App. 912, 376 S.E.2d 390 (1988).
Plaintiff, parent of a child who sustained burns from spilled coffee, was not in privity with defendant restaurant that sold the coffee to a family friend of plaintiff, who was in turn purchasing the coffee for another family friend. Barnett v. Leiserv, Inc., 968 F. Supp. 690 (N.D. Ga. 1997), aff'd, 137 F.3d 1356 (11th Cir. 1998).
O.C.G.A. § 11-2-318 extends warranty to natural persons in family or household of buyer reasonably using or affected by goods, who are injured or damaged by breach thereof. Reddick v. White Consol. Indus., Inc., 295 F. Supp. 243 (S.D. Ga. 1968).
- In O.C.G.A. § 11-2-318, the words "family or household" do not, because stated in the alternative, limit members of family who may rely on implied warranty to those who live within household of buyer. Chastain v. Fuqua Indus., Inc., 156 Ga. App. 719, 275 S.E.2d 679 (1980).
- Word "family" as used in O.C.G.A. § 11-2-318 includes nephew of purchaser who lived next door and not in owner's house. Chastain v. Fuqua Indus., Inc., 156 Ga. App. 719, 275 S.E.2d 679 (1980).
"Family" and "household" have different meanings in O.C.G.A. § 11-2-318. Chastain v. Fuqua Indus., Inc., 156 Ga. App. 719, 275 S.E.2d 679 (1980).
"Guest in his home" has significance different from and independent of clause "person in household." Chastain v. Fuqua Indus., Inc., 156 Ga. App. 719, 275 S.E.2d 679 (1980).
- Plaintiff was not a "guest in [the] home" of buyer where plaintiff and buyer met briefly at buyer's home before embarking on a fishing trip on buyer's boat, aboard which buyer's handgun accidentally discharged and injured plaintiff. Curlee v. Mock Enters., Inc., 173 Ga. App. 594, 327 S.E.2d 736 (1985).
Warranty of personalty does not run with chattel to second or subsequent purchasers. Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 206 S.E.2d 857 (1974), aff'd, 233 Ga. 578, 212 S.E.2d 377 (1975).
Where the father of an injured child purchased a used motorcycle which caused the child's injuries several years after it was manufactured, plaintiffs were not the beneficiaries of any warranty, express or implied, arising from the manufacture of the motorcycle. Weatherby v. Honda Motor Co., 195 Ga. App. 169, 393 S.E.2d 64 (1990).
Mere fact that one would benefit by performance of warranty does not make that person a third-party beneficiary. Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 206 S.E.2d 857 (1974), aff'd, 233 Ga. 578, 212 S.E.2d 377 (1975).
Cited in Wood v. Hub Motor Co., 110 Ga. App. 101, 137 S.E.2d 674 (1964); Stovall & Co. v. Tate, 124 Ga. App. 605, 184 S.E.2d 834 (1971); Chaffin v. Atlanta Coca-Cola Bottling Co., 127 Ga. App. 619, 194 S.E.2d 513 (1972); Standard v. Meadors, 347 F. Supp. 908 (N.D. Ga. 1972); Dodge Trucks, Inc. v. Wilson, 140 Ga. App. 743, 231 S.E.2d 818 (1976); Pierce v. Liberty Furn. Co., 141 Ga. App. 175, 233 S.E.2d 33 (1977); GMC v. Davis, 141 Ga. App. 495, 233 S.E.2d 825 (1977); Ford Motor Co. v. Carter, 239 Ga. 657, 238 S.E.2d 361 (1977); Rhodes v. R.G. Indus., Inc., 173 Ga. App. 51, 325 S.E.2d 465 (1984).
Privity is not extended to employee of purchaser by O.C.G.A. § 11-2-318. Beam v. Omark Indus., Inc., 143 Ga. App. 142, 237 S.E.2d 607 (1977).
To extent that breach of implied warranty is a contract notion, plaintiff who is employee of purchaser rather than person in family or household of buyer or a guest in the purchaser's home may not rely on express or implied warranties of manufacturer, as there is no privity. Parzini v. Center Chem. Co., 134 Ga. App. 414, 214 S.E.2d 700, rev'd on other grounds, 234 Ga. 868, 218 S.E.2d 580 (1975).
Employees of purchaser do not have privity with manufacturer. Watkins v. Barber-Colman Co., 625 F.2d 714 (5th Cir. 1980).
Employees of a purchaser simply do not have privity with the manufacturer and will not be allowed to institute action for breach of an implied warranty. Starling v. Seaboard Coast Line R.R., 533 F. Supp. 183 (S.D. Ga. 1982).
Class excepted by O.C.G.A. § 11-2-318 from horizontal privity requirement does not include employees of buyer. Weaver v. Ralston Motor Hotel, Inc., 135 Ga. App. 536, 218 S.E.2d 260 (1975).
- Plaintiff, employed as maid at time injury was sustained, does not fall into category of persons benefiting from implied warranty under O.C.G.A. § 11-2-318. Verddier v. Neal Blun Co., 128 Ga. App. 321, 196 S.E.2d 469 (1973).
- Member of armed forces injured by product purchased by federal government does not fall within ambit of O.C.G.A. § 11-2-318. Miles v. Bell Helicopter Co., 385 F. Supp. 1029 (N.D. Ga. 1974).
O.C.G.A. §§ 11-2-318 and51-1-11 preclude extension of strict liability to parties other than the manufacturer. Ellis v. Rich's, Inc., 233 Ga. 573, 212 S.E.2d 373 (1975).
- For plaintiff to maintain action against manufacturer based on implied warranties, plaintiff must be a purchaser either directly from manufacturer or from some other person such as a wholesaler or retailer. Whitaker v. Harvell-Kilgore Corp., 418 F.2d 1010 (5th Cir. 1969).
In a product liability action against the manufacturers of a boat and motor after a boating accident, where plaintiffs bought the boat from another consumer who in turn had purchased it from the original buyer who was in privity with the manufacturers, plaintiffs did not meet the required exceptions of O.C.G.A. § 11-2-318. Davis v. Brunswick Corp., 854 F. Supp. 1574 (N.D. Ga. 1993).
Lack of privity between the manufacturer and user of exercise machine at a health club precluded an implied warranty claim against the manufacturer. Bodymaster Sports Indus., Inc. v. Wimberley, 232 Ga. App. 170, 501 S.E.2d 556 (1998).
- Ordinarily, there is no implied warranty existing between manufacturer and purchaser of automobile when there is no privity between the two, yet where automobile manufacturer, through its authorized dealer, issues to purchaser a warranty by manufacturer to said purchaser, implied warranty statute becomes operative. Ford Motor Co. v. Lee, 137 Ga. App. 486, 224 S.E.2d 168, aff'd in part and rev'd in part on other grounds, 237 Ga. 554, 229 S.E.2d 379 (1976).
§ 96-307 does not negate effect of express warranties by manufacturer. - Repeal of former Code 1933, § 96-307 which provided implied warranty to ultimate consumer for whom product was intended does not mean that there can be no warranties if manufacturer or producer makes an express warranty to ultimate consumer, which is commonly done in the sale of a number of items, such as automobiles and household appliances. Evershine Prods., Inc. v. Schmitt, 130 Ga. App. 34, 202 S.E.2d 228 (1973).
- When goods are sold by original purchaser to third party as used or second-hand goods, there is no implied warranty with respect to manufacturer or original seller. Even with respect to the original purchaser or second seller, absent special circumstances, "the rule is that there is no implied warranty as to the condition, fitness or quality of the article." GMC v. Halco Instruments, Inc., 124 Ga. App. 630, 185 S.E.2d 619 (1971).
- Patient who died after taking medicine which a pharmaceutical manufacturer gave to the doctor and which the doctor gave to the patient was not entitled to an extension of any implied warranty existing between the manufacturer and the doctor, and the appellate court upheld the trial court's judgment dismissing claims the patient's spouse filed against the manufacturer, alleging breach of express and implied warranties, but reversed the trial court's judgment dismissing the husband's claims against the manufacturer alleging strict liability and negligent failure to warn. Bryant v. Hoffmann-La Roche, Inc., 262 Ga. App. 401, 585 S.E.2d 723 (2003).
- 67A Am. Jur. 2d, Sales, §§ 708-715.
6 Am. Jur. Pleading and Practice Forms, Commercial Code, § 2:307.
- 77A C.J.S., Sales, §§ 240, 241.
- Uniform Commercial Code (U.L.A.) § 2-318.
- Joinder of manufacturer or packer and retailer or other middleman as defendants in action for injury to person or damage to property of purchaser or consumer of defective article, 119 A.L.R. 1356.
Express warranty as excluding implied warranty of fitness, 164 A.L.R. 1321.
Assignability of warranty of goods and chattels, 17 A.L.R.2d 1196.
Privity of contract as essential to recovery in action based on theory other than negligence, against manufacturer or seller of product alleged to have caused injury, 75 A.L.R.2d 39.
Right of member of armed forces to recover from manufacturer or seller for injury caused by defective military material, equipment, supplies, or components thereof, 38 A.L.R.3d 1247.
Liability of manufacturer or seller of power lawnmower for injuries to user, 41 A.L.R.3d 986.
Liability of manufacturer, seller, or distributor of motor vehicle for defect which merely enhances injury from accident otherwise caused, 42 A.L.R.3d 560; 96 A.L.R.3d 265.
Application of warranty provisions of Uniform Commercial Code to bailments, 48 A.L.R.3d 668.
Liability of manufacturer, seller, or installer for personal injury caused by door glass, 84 A.L.R.3d 877.
Products liability: toys and games, 95 A.L.R.3d 390.
Products liability: forklift trucks, 95 A.L.R.3d 541.
Products liability: defective vehicular gasoline tanks, 96 A.L.R.3d 265.
Products liability: industrial accidents involving conveyor belts or systems, 2 A.L.R.4th 262.
Construction and effect of new motor vehicle warranty limiting manufacturer's liability to repair or replacement of defective parts, 2 A.L.R.4th 576.
Products liability: defective vehicular windows, 3 A.L.R.4th 489.
Liability of manufacturer of oral live polio (Sabin) vaccine for injury or death from its administration, 66 A.L.R.4th 83.
Products liability: general recreational equipment, 77 A.L.R.4th 1121.
Purchaser's disbelief in, or nonreliance upon, express warranties made by seller in contract for sale of business as precluding action for breach of express warranties, 7 A.L.R.5th 841.
Liability on implied warranties in sale of used motor vehicle, 47 A.L.R.5th 677.
Third-party beneficiaries of warranties under UCC § 2-318, 50 A.L.R.5th 327.
Total Results: 2
Court: Supreme Court of Georgia | Date Filed: 2011-02-07
Citation: 707 S.E.2d 48, 288 Ga. 535, 2011 Fulton County D. Rep. 200, 2011 Ga. LEXIS 98
Snippet: contract and except as provided in Code Section 11-2-318. (b)(1) The manufacturer of any personal property
Court: Supreme Court of Georgia | Date Filed: 1986-06-25
Citation: 344 S.E.2d 418, 256 Ga. 100, 1986 Ga. LEXIS 721
Snippet: contract and except as provided in Code Section 11-2-318. “(b) (1) The manufacturer of any personal property