O.C.G.A. § 11-2-318 (2019)

Annotations

Cross references. 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 to another person by use of which damage results to purchaser or the purchaser’s family, § 51-1-23 et seq. Law reviews. 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). 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 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 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 note, “Enforcing Manufacturers’ Warranty Exclusions Against Non-Privity Commercial Purchasers: The Need for Uniform Guidelines,” see 20 Ga. L. Rev. 461 (1986). For article, “Products Liability Law in Georgia Including Recent Developments,” see 43 Mercer L. Rev. 27 (1991). For annual survey on construction law, see 71 Mercer L. Rev. 57 (2019).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION EMPLOYEES OF BUYER MANUFACTURER’S LIABILITY General Consideration Expression of public policy on product liability. - O.C.G.A. §§ 11-2318 and 51-1-11 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 Ga. LEXIS 1376 (1975). Exception to privity requirement. - 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. § 11-2318. Shell v. Watts, 125 Ga. App. 542, 188 S.E.2d 269, 1972 Ga. App. LEXIS 1398, rev’d, 229 Ga. 474, 192 S.E.2d 265, 1972 Ga. LEXIS 655 (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 Ga. App. LEXIS 858 (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. § 11-2318. Evershine Prods., Inc. v. Schmitt, 130 Ga. App. 34, 202 S.E.2d 228, 1973 Ga. App. LEXIS 1213 (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. § 11-2318. Ellis v. Rich’s, Inc., 233 Ga. 573, 212 S.E.2d 373, 1975 Ga. LEXIS 1376 (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 Ga. LEXIS 1377 (1975). Necessity of privity between buyer and seller. - 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 Ga. App. LEXIS 1454 (1987); Gowen v. Cady, 189 Ga. App. 473, 376 S.E.2d 390, 1988 Ga. App. LEXIS 1454 (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, 1997 U.S. Dist. LEXIS 8980 (N.D. Ga. 1997), aff’d, 137 F.3d 1356, 1998 U.S. App. LEXIS 5691 (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,

General Consideration (Cont’d) 1968 U.S. Dist. LEXIS 9703 (S.D. Ga. 1968). Section does not limit members of family covered to those living within buyer’s household. - In O.C.G.A. § 112-318, 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 Ga. App. LEXIS 3181 (1980). Nephew living next door. - 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 Ga. App. LEXIS 3181 (1980). “Family” and “household” have different meanings in O.C.G.A. § 11-2318. Chastain v. Fuqua Indus., Inc., 156 Ga. App. 719, 275 S.E.2d 679, 1980 Ga. App. LEXIS 3181 (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 Ga. App. LEXIS 3181 (1980). Person meeting briefly at buyer’s home before embarking on trip. - 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 Ga. App. LEXIS 2658 (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 Ga. App. LEXIS 1542 (1974), aff’d, 233 Ga. 578, 212 S.E.2d 377, 1975 Ga. LEXIS 1377 (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 manu-

facture of the motorcycle. Weatherby v. Honda Motor Co., 195 Ga. App. 169, 393 S.E.2d 64, 1990 Ga. App. LEXIS 443 (1990), overruled by Ogletree v. Navistar Int’l Transp. Corp., 1998 Ga. LEXIS 513, 269 Ga. 443, 500 S.E.2d 570 (1998). 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 Ga. App. LEXIS 1542 (1974), aff’d, 233 Ga. 578, 212 S.E.2d 377, 1975 Ga. LEXIS 1377 (1975). Employees of Buyer 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 Ga. App. LEXIS 2219 (1977). Employees of buyer excluded from exception. Class excepted by O.C.G.A. § 112-318 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 Ga. App. LEXIS 1726 (1975). Employees of purchasers.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, 1975 Ga. App. LEXIS 2026, rev’d, 234 Ga. 868, 218 S.E.2d 580, 1975 Ga. LEXIS 1309 (1975). Employees of purchaser do not have privity with manufacturer. Watkins v. Barber-Colman Co., 625 F.2d 714, 1980 U.S. App. LEXIS 14143 (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, 1982 U.S. Dist. LEXIS 12259 (S.D. Ga. 1982). Employment as maid of buyer. - 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 Ga. App. LEXIS 1471 (1973). Armed forces members injured by products purchased by federal government. - 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, 1974 U.S. Dist. LEXIS 11567 (N.D. Ga. 1974), overruled in part as stated in Motisola Malikha Abdallah v. Coca-Cola Co., No. 1:98CV-3679-RWS, 2000 U.S. Dist. LEXIS 21025 (N.D. Ga. Jan. 25, 2000). Manufacturer’s Liability O.C.G.A. §§ 11-2-318 and 51-1-11 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 Ga. LEXIS 1376 (1975). Plaintiff must be purchaser. - 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, 1969 U.S. App. LEXIS 9840 (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, 1993 U.S. Dist. LEXIS 20037 (N.D. Ga. 1993), dismissed, 854 F. Supp. 1574, 1994 U.S. Dist. LEXIS 7786 (N.D. Ga. 1994). 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 Ga. App. LEXIS 618 (1998). Extension of warranty through dealer. - 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, 1976 Ga. App. LEXIS 2502, aff’d in part and rev’d in part, 237 Ga. 554, 229 S.E.2d 379, 1976 Ga. LEXIS 1303 (1976). Repeal of former Code 1933, § 96307 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 Ga. App. LEXIS 1213 (1973). Second-hand goods. - 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 Ga. App. LEXIS 1052 (1971). Pharmaceutical products. - 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 Ga. App. LEXIS 945 (2003), cert. denied, No. S03C1724, 2003 Ga. LEXIS 1044 (Ga. Nov. 17, 2003).

RESEARCH REFERENCES Am. Jur. 2d. 67A Am. Jur. 2d, Sales, §§ 708-715. Am. Jur. Pleading and Practice Forms. 6 Am. Jur. Pleading and Practice Forms, Commercial Code, § 2:307. C.J.S. 77A C.J.S., Sales, §§ 240, 241. U.L.A. Uniform Commercial Code (U.L.A.) § 2318. ALR. 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 oth-

erwise 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.