O.C.G.A. § 44-12-63 (2019)

Annotations

Cross references. Liability of motor vehicle owner for traf-

fic or parking violations occurring while motor vehicle leased to another, § 40-6207. Law reviews. For comment on Redfern Meats, Inc. v. Hertz Corp., see 27 Mercer L. Rev. 347 (1975).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION MANUFACTURER’S LIABILITY THIRD PARTY General Consideration Applicability. - O.C.G.A. § 44-12-63 applies to warranties under O.C.G.A. Art. 2, Pt. 3, T. 11. Redfern Meats, Inc. v. Hertz Corp., 134 Ga. App. 381, 215 S.E.2d 10, 1975 Ga. App. LEXIS 2021 (1975) (com-

mented on in 27 Mercer L. Rev. 347 (1975)). Due care on part of bailor requires bailor to examine thing bailed for the purpose of seeing that it has no hidden defects which would render it unsuitable

for the purposes for which it was hired. Parker v. G.O. Loving & Co., 13 Ga. App. 284, 79 S.E. 77, 1913 Ga. App. LEXIS 126 (1913); Hertz Driv-Ur-Self Stations, Inc. v. Benson, 83 Ga. App. 866, 65 S.E.2d 191, 1951 Ga. App. LEXIS 986 (1951); Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480, 164 S.E.2d 318, 1968 Ga. App. LEXIS 1436 (1968). Scope of bailor’s duty of care. - While it is the duty of the bailor to warrant against latent defects, much more is it the duty of the bailor to see that the bailed article is free from patent defects which render it unfit and unsuitable for the purposes for which it is hired. Parker v. G.O. Loving & Co., 13 Ga. App. 284, 79 S.E. 77, 1913 Ga. App. LEXIS 126 (1913); Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789, 1933 Ga. App. LEXIS 72 (1933). A bailor for hire, entrusting an automobile to another for immediate operation, has a duty of using ordinary care to ascertain that the automobile has no hidden defects rendering it dangerous, and this duty extends to those persons within the range of foreseeable operation of the automobile, such as someone on or near the highways on which the vehicle with defective brakes was to be operated. Hertz Driv-Ur-Self Stations, Inc. v. Benson, 83 Ga. App. 866, 65 S.E.2d 191, 1951 Ga. App. LEXIS 986 (1951). Where it is clear from the terms of an automobile lease agreement that a contract for hire as defined in O.C.G.A. § 4412-60 was created, with lessor as bailor and lessee as bailee, the relationship between the parties was governed by the lease terms, and by the statutory obligations of a bailor under O.C.G.A. § 44-1263. Mark Singleton Buick, Inc. v. Taylor, 194 Ga. App. 630, 391 S.E.2d 435, 1990 Ga. App. LEXIS 288 (1990). A ski rental agreement established the relationship of bailor-bailee which was governed by the terms of the agreement and the obligations of a bailor under O.C.G.A. § 44-12-63. Benford v. RDL, Inc., 223 Ga. App. 800, 479 S.E.2d 110, 1996 Ga. App. LEXIS 1284 (1996). In renting a bicycle, a motel acted as a bailor for hire, and the relationship caused certain duties requiring the exer-

cise of ordinary care that rose to a greater level than that owed to the general public. Perton v. Motel Properties, Inc., 230 Ga. App. 540, 497 S.E.2d 29, 1998 Ga. App. LEXIS 214 (1998). Exculpation of bailor’s liability by exculpatory clause. - The liability of a bailor under O.C.G.A. § 44-12-63 may be exculpated by an exculpatory clause, even when the damage is caused by the lessor’s own negligence, as long as the exculpatory clause is not contrary to public policy and explicitly shows an intent to include the lessor’s own negligence, and that negligence does not amount to willful and wanton misconduct. Hall v. Gardens Servs., Inc., 174 Ga. App. 856, 332 S.E.2d 3, 1985 Ga. App. LEXIS 1978 (1985). A contract in which a lessor or bailor is exculpated himself from liability with a disclaimer clause is not prohibited by law or public policy. Mercedes-Benz Credit Corp. v. Shields, 199 Ga. App. 89, 403 S.E.2d 891, 1991 Ga. App. LEXIS 344 (1991). A covenant not to sue in ski rental lease agreement barred the renter’s claim of breach of warranty or contract in the absence of a showing of any latent defect in the skis or bindings. Benford v. RDL, Inc., 223 Ga. App. 800, 479 S.E.2d 110, 1996 Ga. App. LEXIS 1284 (1996). Exculpatory clause void. - Portion of bailment contract which stated that the customer “by his acceptance and removal” of the skates agreed that they “are in acceptable operating condition, and that lessor makes no warranties, express or implied, in connection therewith,” was void. Hall v. Skate Escape, Ltd., 171 Ga. App. 178, 319 S.E.2d 67, 1984 Ga. App. LEXIS 2134 (1984). Bailor warrants soundness and suitableness of thing bailed, and is liable for any injury or damage which may result from a latent defect of which the bailee has no knowledge and the consequences of which the bailee could not avoid by the exercise of ordinary care. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789, 1933 Ga. App. LEXIS 72 (1933). What would be ordinary care depends upon particular business in hand, the circumstances surrounding the

General Consideration (Cont’d) particular transaction, and the situation of the parties. Hertz Driv-Ur-Self Stations, Inc. v. Benson, 83 Ga. App. 866, 65 S.E.2d 191, 1951 Ga. App. LEXIS 986 (1951). Amount of care bailee ought to have used to discover defect is question of fact for jury. Parker v. G.O. Loving & Co., 13 Ga. App. 284, 79 S.E. 77, 1913 Ga. App. LEXIS 126 (1913). No duty to maintain imposable upon gratuitous bailor. - As a gratuitous bailor, defendant soda bottling company had no legal duty to maintain properly the area surrounding a refreshment wagon where plaintiff had allegedly slipped, particularly after the wagon was delivered and placed under the bailee’s control for its use. Prince v. Atlanta CocaCola Bottling Co., 210 Ga. App. 108, 435 S.E.2d 482, 1993 Ga. App. LEXIS 1082 (1993). Scope of bailor’s liability. - Since the bailor’s duty extends to persons other than the parties to the actual bailment contract, the limits of the bailor’s liability are not to be determined alone by the provisions and warranties of the contract of bailment, but also by the limits imposed by the doctrine of proximate cause, that is, whether the bailor should have foreseen the consequences of negligence as a natural and probable result. Hertz Driv-UrSelf Stations, Inc. v. Benson, 83 Ga. App. 866, 65 S.E.2d 191, 1951 Ga. App. LEXIS 986 (1951). Bailor’s liability is not determined alone by the provisions and warranties of the bailment contract, but also by the common law rules of negligence. Seaboard Coast Line R.R. v. Mobil Chem. Co., 172 Ga. App. 543, 323 S.E.2d 849, 1984 Ga. App. LEXIS 2574 (1984). Bailment for hire. - In an action in which an insurance company filed suit against a company in a subrogation action to recover money paid by the insurance company to a restaurant in Norcross, Georgia, after a fire destroyed the restaurant, the company’s motion for summary judgment was denied as to the bailment claim; the bailment was for hire because: (1) the company leased the soda dispens-

ing equipment at no cost to the restaurant because the restaurant then purchased the company’s syrup for use in the equipment; and (2) the fact that the syrup was purchased through a third-party vendor did not lessen the benefit of the sale to the company, as the company was the sole supplier of the company’s syrup. Colony Ins. Co. v. Coca-Cola Co., 239 F.R.D. 666, 2007 U.S. Dist. LEXIS 5113 (N.D. Ga. 2007). Bailor’s anticipation of particular ensuing consequences unnecessary for liability. - In order for a bailor to be liable as for negligence, it is not necessary that the bailor should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence the bailor might have foreseen that some injury would result from the bailor’s act or omission, or that consequences of a generally injurious nature might result. Hertz Driv-Ur-Self Stations, Inc. v. Benson, 83 Ga. App. 866, 65 S.E.2d 191, 1951 Ga. App. LEXIS 986 (1951). Foreseeability of resulting injury from bailor’s act sufficient. - It is sufficient if, in ordinary prudence, bailor might have foreseen that some injury would result from the bailor’s act or omission, or that consequences of a generally injurious nature might result. Hertz DrivUr-Self Stations, Inc. v. Benson, 83 Ga. App. 866, 65 S.E.2d 191, 1951 Ga. App. LEXIS 986 (1951). Bailor’s knowledge of defect waives right to claim damages. - If the bailee knows of the defect or in the exercise of ordinary care ought to discover it and, notwithstanding the bailee’s actual or implied knowledge, the bailee uses the thing and injury results on account of the defect, the bailee will be held to have waived the right to claim damages since, by the exercise of ordinary care, the bailee could have avoided the consequences of the bailor’s neglect. Parker v. G.O. Loving & Co., 13 Ga. App. 284, 79 S.E. 77, 1913 Ga. App. LEXIS 126 (1913). Manufacturer’s Liability Lessor not liable where manufacturer not liable. - If the evidence does not authorize a finding that allegedly defective leased equipment was in fact de-

fective so as to permit a recovery against the manufacturer under O.C.G.A. § 51-111(b), it clearly does not authorize a finding that it was defective so as to permit a recovery under O.C.G.A. § 44-12-63(3) against the lessor. Fortner v. W.C. Cayne & Co., 184 Ga. App. 187, 360 S.E.2d 920, 1987 Ga. App. LEXIS 2192 (1987). Manufacturer of appliance for rent has duty to know whether appliance was constructed defectively or not. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789, 1933 Ga. App. LEXIS 72 (1933). Liability of maker or vendor of article harmless in kind, but dangerous through defect, is under a duty to make the article carefully where its nature is such that it is reasonably certain to place life and limb in peril when negligently made and, where there is knowledge that the article will be so used by persons other than the purchaser, such maker or vendor is liable for an injury to a person resulting from a failure to perform this duty. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789, 1933 Ga. App. LEXIS 72 (1933). Manufacturer is not liable where purchaser had knowledge of defect before injury. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789, 1933 Ga. App. LEXIS 72 (1933). Manufacturer may be liable for injury arising from defect which the manufacturer ought to have discovered, such as one which the manufacturer could have ascertained by proper care and attention, or by making a reasonable test or inspection. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789, 1933 Ga. App. LEXIS 72 (1933). Liability exists where manufacturer fails to warn of known defect. - A manufacturer of an article which is not

inherently dangerous, but which is rendered dangerous by a defect therein, is liable for an injury to a third person arising from the defect, where the manufacturer had knowledge of the defect and failed to give notice or warning thereof to the purchaser. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789, 1933 Ga. App. LEXIS 72 (1933). Third Party Bailor’s knowledge of animal’s vicious nature required for third person’s recovery. - When a third person, other than bailor and bailee, is injured by a dangerous animal, that third party cannot recover from the owner unless that party shows that the owner knew or had reasonable grounds to know of the vicious propensities of the animal and was wanting in ordinary care. Reed v. Southern Express Co., 95 Ga. 108, 22 S.E. 133, 1894 Ga. LEXIS 449 (1894). Bailee’s discovery of defect no insulation from third person’s injury. - One who furnishes a motor vehicle to another in a defective condition is not as a matter of law insulated against liability to third persons because the bailee continues to operate the vehicle after discovery of the defect. Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480, 164 S.E.2d 318, 1968 Ga. App. LEXIS 1436 (1968). Bailor’s negligence superseded by unauthorized criminal acts. - Any negligence on the part of the owner/bailor of an automobile in failing to inquire as to the driving records of the bailee or another listed driver, or their intended use of the vehicle, was superseded by the unauthorized criminal acts of a third party who had borrowed the vehicle from the bailee. Alamo Rent-A-Car, Inc. v. Hamilton, 216 Ga. App. 659, 455 S.E.2d 366, 1995 Ga. App. LEXIS 259 (1995).

RESEARCH REFERENCES Am. Jur. 2d. 8 Am. Jur. 2d, Bailments, § 100 et seq. C.J.S. 8 C.J.S., Bailments, §§ 31, 33, 37 et seq. ALR. Recovery back of amount paid to bailee

for repairs of no benefit to bailor, 31 A.L.R. 698. Liability of bailor for personal injuries due to defects in subject of bailment, 61 A.L.R. 1336; 131 A.L.R. 845. Construction and application of provi-

sion of bailment or lease contract relating to cost of repairs or replacements, or damage to chattle, 129 A.L.R. 460. Liability of bailor for personal injuries or death due to defects in subject of bailment, 131 A.L.R. 845. Liability for loss of or damage to automobile left in parking lot or garage, 7 A.L.R.3d 927; 13 A.L.R.4th 362; 13 A.L.R.4th 442. Tort liability of one renting or loaning airplane to another, 4 A.L.R.2d 1306. Liability of bailor of automotive vehicle or machine for personal injury or death due to defects therein, 46 A.L.R.2d 404. Warranties in connection with leasing or hiring of chattels, 68 A.L.R.2d 850.

Liability of pawnbroker or pledgee for theft by third person of pawned or pledged property, 68 A.L.R.2d 1259. Application of warranty provisions of Uniform Commercial Code to bailments, 48 A.L.R.3d 668. Products liability: application of strict liability is tort doctrine to lessor of personal property, 52 A.L.R.3d 121. Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 A.L.R.4th 358. Liability in negligence for death or injury related to rented bicycle, scooter, or segway, 48 A.L.R.7th Art. 3.