Wilcher v. Redding Swainsboro Ford Lincoln Mercury, Inc.
Wilcher v. Redding Swainsboro Ford Lincoln Mercury, Inc.
Opinion of the Court
On May 6, 2008, a 1996 Chevrolet Sport Van carrying a driver and eight passengers left the roadway and crashed into a tree after the left front tire malfunctioned and the van’s driver lost control, killing one of the passengers and injuring the others. Seven of those passengers (collectively, the appellants) brought seven separate lawsuits against Dallas Stewart d/b/a S&S Auto Sales (“S&S Auto”); who sold the van to its owner prior to the crash, Joe Pierce, Jr.; Redding Swainsboro Ford Lincoln Mercury, Inc. (“Redding”), who sold the van to S&S Auto; and Cooper Tire & Rubber Company (“Cooper Tire”). In their respective lawsuits, the passengers asserted a negligence cause of action against Redding, S&S Auto, and Cooper Tire, a claim for breach of warranty as to all defendants, and a strict liability claim against Cooper Tire. Redding and S&S Auto moved for summary judgment, which the trial court granted. In a subsequent order, the trial court issued a final judgment in each case pursuant to OCGA § 9-11-54 (b) as to both Redding and S&S Auto. The passengers now appeal from those orders, and the cases have been consolidated for
Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party.1
So viewed, the record shows that on September 19, 2006, Red-ding, a car dealership specializing in the sale of new and late model pre-owned vehicles, acquired a 1996 Chevrolet Sport passenger van (the “Van”) as a trade-in from a customer. On October 5, 2006, Redding sold the Van to S&S Auto, a licensed used car dealership, in a wholesale transaction. Redding sold the Van and another vehicle “as is” with no warranties or representation as to the Van’s condition.
On January 15, 2007, S&S Auto, a retail seller of used automobiles, sold the Van “as is” without any express warranty to Joe Pierce, Jr., the owner of a passenger-transportation company. Pierce never replaced or rotated the tires on the Van between the time he purchased the Van and the time of the accident.
The Van was one of three vehicles owned by Pierce that were used to transport workers to and from a local poultry processing plant, and Pierce charged each passenger a weekly fee. On May 6, 2008, sixteen months after Pierce purchased the Van, Kenneth Williams, an employee of the poultry processing plant, was driving eight passengers in the Van when it experienced tread separation in its left front tire which resulted in Williams losing control of the van. The Van went across the opposing lane of travel and collided with a tree. One of the passengers, Shantavious Johnson, was killed in the accident, and the other occupants, Chris Cason, Christopher Wilcher, Avia Cuyler, Randolph Norris, Daquan Johnson, Robert Jackson, and Derrick Pace, each sustained different degrees of bodily injuries.
The left front tire that failed on the Van was a passenger tire manufactured by Cooper Tire. Appellants provided the expert affidavit of Calvin Lucas, who opined that the left front tire failed because it “was loaded beyond the rated capacity for the tire when the vehicle was carrying eight passengers and a driver.” Lucas further noted that the Van should have been equipped with light truck tires which are “of a more substantial construction than a passenger tire and [are] designed to carry a heavier load.” Lucas also testified that
Appellants also provided the affidavit of Troy Cottles, an expert in tire failure analysis. Cottles opined that his examination and analysis of the tire involved in the present accident “revealed several manufacturing defects in the subject tire which led to failure of the tire,” and that “[t]he subject tire was of an improper size and construction for the vehicle it was on.” He explained that “[t]he tire which was on the [V] an was a passenger car tire [, and] [t]he tire which the [V]an was supposed to be equipped with is a Light Truck Tire.” Accordingly, Cottles testified that “[i]n my opinion the overloading of the tire combined with the manufacturing and design defects caused the tread belt separation” that caused the accident.
Appellants filed suit against Redding, S&S Auto, and Cooper Tire. In their complaints, appellants alleged that Redding and S&S Auto were negligent and reckless in selling the Van “with inappropriate load bearing tires” and in “failing to warn of the danger of driving a vehicle with inappropriate load bearing tires.” Appellants also asserted a breach of warranty claim against Redding and S&S Auto.
1. Appellants argue that the trial court erred in awarding summary judgment to Redding because the evidence presented created “an issue of fact as to whether Redding was negligent in not discovering a readily visible defect during its examination of the Van.” Redding counters that as a wholesale dealer that was remote from the transaction between S&S Auto and Pierce, it owed no duty to appellants, and thus “cannot be held liable for failing to discover and remedy or warn of any alleged defect with the [V]an’s tires.”
The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection*566 between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. This issue is a question of law.4
Under Georgia law, an automobile retailer “generally has no duty to disclose a latent product defect of which it had no knowledge”
In the present case, two Redding employees examined the Van for the purpose of determining the Van’s trade-in value and its re-sale value prior to selling it to S&S Auto. Appellants and Redding dispute whether this examination constituted an inspection giving rise to liability for Redding’s failure to discover or disclose that the Van was equipped with inappropriate tires. However, we need not resolve that issue because we find that the trial court correctly concluded that Redding had no duty to inspect the Van for latent defects and, thus, could not be liable for negligent inspection.
Redding argued, and the trial court agreed, that Redding had no duty to Pierce, the consumer purchaser of the Van, or to appellants, because it was a remote wholesale dealer that did not sell the Van directly to the consumer. Redding is a dealership that primarily sells new and late model pre-owned vehicles. Redding acquired the Van through a customer trade-in and deemed it to be unfit for sale on its lot because it was older and had higher mileage. The Van was parked behind a fence, out of public view, where it remained until it and another vehicle were sold in a wholesale transaction on an “as is” basis to S&S Auto, a licensed used car dealer.
All the cases cited by appellants involving claims against a dealer for negligent inspection of a vehicle arose from a retail sale where the vehicle was sold from a dealer directly to a consumer-purchaser or inspected by the dealer at the request of the consumer-purchaser.
The Underwood case arose out of an accident that occurred when a truck’s right front tire blew out causing the driver to lose control and strike another vehicle.
The present case, unlike Underwood, however, does contain an intervening party, such as that set forth in Thrash. In Thrash, the plaintiff lost control of his truck and crashed when a lock ring that was not designed to fit the wheel of his car failed.
The Ohio court found that “the U-Drive-It Company sold its used motor truck outright in the condition it was and assumed no obligation and exercised no control with respect to its future disposal.”
where the owner of a used motor vehicle sells the same “as is” to a dealer in those articles for such disposition as the dealer may make of it, such owner may not ordinarily be held liable for injuries occasioned to one who purchased the vehicle from the dealer or for injuries to another, because of faults or imperfections in the vehicle which existed or occurred during the time it was in the possession of such owner.22
Similarly, in the present case, Redding made no representations as to the safety of the Van or its tires to S&S Auto because it sold the Van outright, in the condition it was in, on an “as is” basis. Further, Redding assumed no obligation and no control with respect to the Van’s future disposal.
Appellants argue that Thrash is no longer good law in Ohio, citing to the unreported federal district court decision of Adams v. Lift-A-Loft Corp.
Accordingly, we find the rationale set forth in Thrash to be persuasive under the facts of the present case and find that because Redding was a remote wholesale dealer that did not sell the Van directly to the consumer, but instead sold it to a licensed used car dealer without any representation as to the safety of the Van or its tires, and Redding assumed no obligation and no control with respect to the Van’s future disposal, it owed no duty to Pierce or the appellants to inspect the Van in a nonnegligent manner.
Further, as more fully discussed in Division 2, infra, we find that summary judgment in favor of Redding was appropriate because there is no evidence that Pierce or the appellants knew about or relied upon Redding’s inspection of the Van to their detriment. In each of the cases cited by appellants where liability was imposed on a retail dealer, there had been some element of reliance by the consumer.
Based upon the above, we find that the trial court did not err in awarding summary judgment in favor of Redding.
2. Appellants contend that the trial court erred in granting summary judgment in favor of S&S Auto because questions of material fact remain regarding whether S&S Auto undertook a duty to inspect the Van prior to selling it to Pierce and whether S&S Auto negligently performed or failed to perform that inspection. We disagree.
Dallas Stewart, the partner at S&S Auto who purchased the Van from Redding, stated that when deciding whether to purchase the Van, he “did a cursory walk around to observe the general condition of the van, and... also took it for a test drive.” Stewart testified that he
did not notice any obvious defects with the van, and there was nothing that drew [his] attention to the tires. [He] did*570 not otherwise perform any mechanical inspection of the van, and [he] did not make any inspection of the tires. [He] did not check the brand, tread depth, or model of the tires.
Appellants contend that Stewart’s “cursory walk around” and test drive of the Van prior to purchasing it constituted an inspection, such that S&S Auto owed a duty to Pierce to conduct such inspection nonnegligently, and thus, was liable for failing to discover that the Van’s tires were of improper size and construction. We disagree.
Under Georgia law, it is a general rule that a retailer who is not the manufacturer of an item
is under no obligation to test an article, purchased and sold by him, for the purpose of discovering latent or concealed defects, but that when he purchases and sells in the usual course of trade, an article in common and general use, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not.29
However, if a dealer does undertake the duty to inspect or test its merchandise, it must do so nonnegligently.
In Georgia cases upholding a plaintiff’s cause of action on a negligent inspection theory against a car dealer, the dealer conducting the inspection did so with the specified goal of discovering concealed defects in a car that would affect its safety and with the understanding that the purchaser of the vehicle knew about and would rely upon the results of such inspection. In Glynn Plymouth, Inc. v. Davis,
In all of the negligent inspection cases cited above, the dealer conducting the inspection did so with the knowledge that the consumer would rely upon its findings because a state safety inspection sticker was affixed to the car or because the inspection was done in anticipation of a consumer purchasing the car. Unlike those cases, the undisputed evidence in this case shows that Stewart conducted his “cursory walk around to observe the general condition of the [V]an” and took it for a short test drive in order to determine if he wanted to add it to S&S Auto’s used car inventory. Appellants have provided no evidence that Stewart’s brief examination of the Van was conducted for the benefit of a consumer or with the understanding that a consumer would rely upon the results of his inspection. Accordingly,
Plaintiffs argue that such a ruling creates a new element to the negligent inspection cause of action, requiring a plaintiff to prove that it knew about, and relied upon, the inspection. This is not a diversion from established Georgia law. In Underwood,
Appellants argue that this ruling will necessarily result in the dealers asserting that any inspection they conduct was not done for the benefit of the consumer. This is not the case. This ruling will certainly not apply in a situation where a dealer sells a vehicle on an
Judgments affirmed.
(Punctuation and footnote omitted.) McLemore v. Genuine Parts Co., 313 Ga. App. 641 (722 SE2d 366) (2012).
Appellants also asserted causes of action against Cooper Tire for negligent design, breach of warranty, and strict liability. However, the trial court did not award summary judgment in favor of Cooper Tire and, thus, those issues are still pending in the trial court below.
None of the appellants enumerate as error the grant of summary judgment on their claims for breach of warranty.
(Footnote omitted.) Perkins v. Kranz, 316 Ga. App. 171, 172 (1) (728 SE2d 804) (2012).
(Citation omitted.) Underwood v. Select Tire, Inc., 296 Ga. App. 805, 811 (2) (a) (676 SE2d 262) (2009).
Holman Motor Co. v. Evans, 169 Ga. App. 610, 613-614 (2) (c) (314 SE2d 453) (1984). Accord Thompson v. Hardy Chevrolet-Pontiac-Buick, Inc., 203 Ga. App. 499, 507 (417 SE2d 358) (1992) (Sognier, C. J., concurring specially).
Fruehauf Corp. v. Lakeside Chevrolet Co., 117 Cal.App.3d 783 (II) (1981); Ikerd v. Lapworth, 435 F2d 197, 201 (7th Cir. 1970); Thrash v. U-Drive-It Co., 110 NE2d 419 (158 Ohio St. 465) (1953) (abrogated in part by Adams v. Lift-A-Loft Corp., 1999 WL 33105610 (S.D. Ohio 1999)).
Supra at 809 (2) (a).
Id. at 807 (1).
Id. at 806-807 (1).
Id. at 805.
Supra.
Underwood, supra at 808 (2) (a).
Thrash, supra at 420-421.
Id. at 420.
Id.
Id.
Id. at 423.
Id.
1999 WL 33105610 (S.D. Ohio 1999).
Id. at *2.
Id. at *9.
Id. at *9-10.
Fruehauf Corp., supra at 783 (II) (relying upon Thrash, supra); Ikerd, supra at 201 (same); Bruce v. Martin-Marietta Corp., 418 FSupp. 837, 844-845 (D.C. Okla. 1975) (same).
See Holman, supra; Gen. Motors Corp. v. Davis, 141 Ga. App. 495, 499 (6) (233 SE2d 825) (1977); J. C. Lewis Motor Co. v. Simmons, 128 Ga. App. 113 (195 SE2d 781) (1973); Glynn Plymouth, Inc. v. Davis, 120 Ga. App. 475 (170 SE2d 848) (1969).
(Citation and punctuation omitted; emphasis in original.) Holman, supra at 613-614 (2) (c).
Id. Accord Gen. Motors Corp., supra at 499 (6).
(Citations and punctuation omitted.) Holman, supra.
Supra.
Id. at 487 (2) (a).
Id.
Supra.
Id. at 499 (6).
Supra.
Id. at 114-115 (1).
Supra.
Id.
Supra.
(Emphasis supplied.) Id. at 812.
(Emphasis supplied.) Id. at 812-813 (quoting Universal Underwriters Ins. Co. v. Smith, 253 Ga. 588, 591 (322 SE2d 269) (1984)).
245 Ga. 248 (264 SE2d 191) (1980).
266 Ga. App. 365 (596 SE2d 807) (2004).
Id. See also Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1991) (“Where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking, that act must generally be performed with ordinary or reasonable care.”) (citation omitted; emphasis supplied).
Dissenting Opinion
dissenting.
I dissent from the majority’s opinion because the record evidence presents a jury question as to whether the defendants acted negligently in selling a van with clearly defective tires, and therefore making the entry of summary judgment erroneous.
“Whether there has been negligence and whether there was a causal relation and proximate cause to the alleged injuries are questions of fact for jury resolution, except where the circumstances are such that they will support but one result.” (Citation and punctuation omitted.) Underwood v. Select Tire, Inc., 296 Ga. App. 805, 811 (2) (a) (676 SE2d 262) (2009).
Viewing the evidence in the light most favorable to the plaintiffs, the evidence shows that the accident occurred as a result of tread belt separation on the left front tire of the van. The left front tire on the van was a passenger-rated tire that had never been changed from the time Redding Swainsboro Ford Lincoln Mercury, Inc. (“Redding”) acquired it as a trade-in. The subject tire was of an improper size and construction for the van because the van required light truck tires that were of more substantial construction and designated to carry a heavier load than passenger tires. An expert in tire failure analysis
Generally, the owner of a motor vehicle “must exercise reasonable care in the inspection of his machine to discover any defects that may prevent its proper operation, and is chargeable with knowledge of any defects which such inspection would disclose.” (Citation and punctuation omitted.) Cruse v. Taylor, 89 Ga. App. 611, 615 (1) (80 SE2d 704) (1954). At the time the defendants each acquired the van, both Redding and S&S Auto became the respective owners of the van and thus, had a duty to inspect it to ensure its proper operation. Id. While Redding and S&S Auto had no obligation to test the van for the purpose of discovering latent or concealed defects, see Holman Motor Co. v. Evans, 169 Ga. App. 610, 613-614 (2) (c) (314 SE2d 453) (1984), in this case, one of the van’s “defects” was that it had the wrong size and type of tire, which was in fact a patent defect. Notably, Cal Lucas, one of the plaintiffs’ expert witnesses, testified that he had worked in the tire and automotive business for 46 years, and that he had done tire inspections for used car dealers on a frequent basis. Lucas testified that based on his experience, used car dealers are aware of the necessity of inspecting the tires on a vehicle for correct size and construction before selling the vehicle. Lucas further testified that the size and construction of a tire is readily visible to any person inspecting a tire. According to Lucas, determining a vehicle’s correct tire requirements can easily be accomplished by looking at the tire placard on the inside of the driver’s door or by referring to the owner’s manual. Viewing the evidence in the light most favorable to the plaintiffs, Redding and S&S Auto knew or should have known the van had a patent defect — tires of the wrong size and construction — that was not obvious to the buyer and that created a dangerous condition. See Underwood, supra, 296 Ga. App. at 810-811 (2) (a) (company that sold trailers knew or should have known that tires had patent defect — “regrooving” • — because it was in the business of buying and selling vehicles).
Moreover, as to Redding, the majority notes that the parties dispute whether Redding’s inspection of the van gave rise to liability for failure to discover that the van was equipped with the inappropriate tires. The majority concludes that it need not resolve the issue since the trial court correctly concluded that since Redding had no duty to inspect for latent defects, it therefore could not be liable for negligent inspection. The majority misstates the law, however, regarding negligent inspection and contravenes longstanding principles that evidence in the record must be viewed in the light most favorable to the nonmoving party.
Although Redding did not sell the van to the driver, this fact does not absolve Redding from its duty to protect others from an unreasonable risk of harm. “[A] legal duty may arise from the general duty one owes to all the world not to subject them to an unreasonable risk of harm. Negligence is conduct which falls below the standard established by law for the protection of others against this risk.” (Citation and punctuation omitted.) Underwood, supra, 296 Ga. App. at 809 (2). While the majority concludes that Redding could not be held liable because of the intervening acts or omissions of S&S Auto,
[t]he rule that an intervening act may break the causal connection between an original act of negligence and injury to another is not applicable if the nature of such intervening act was such that it could have reasonably been anticipated or foreseen by the original wrongdoer. It is not necessary that an original wrongdoer shall anticipate or foresee the details of a possible injury that may result from his negligence.
(Citation and punctuation omitted.) Coleman v. Atlanta Obstetrics & Gynecology Group, 194 Ga. App. 508, 510-511 (390 SE2d 856) (1990), aff’d, Atlanta Obstetrics & Gynecology Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). Whether Redding’s alleged wrongful acts were the proximate cause of the plaintiffs’ injuries is a question of fact that should be reserved for the jury’s determination. See Smith v. Southeastern Fidelity Ins. Co., 258 Ga. 15, 16 (3) (365 SE2d 105) (1988) (issues of proximate causation generally are reserved for the jury and are not appropriate for summary adjudication).
Since fact issues remain regarding the defendants’ alleged negligence and causation, I would reverse the grant of summary judgment to the defendants.
I am authorized to state that Presiding Judge Phipps joins in this dissent and that Presiding Judge Doyle joins in this dissent as to Division 2.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.