Farmer v. Brannan Auto Parts, Inc. , 231 Ga. App. 353 ( 1998 )

Pope, Presiding Judge.

In this products liability case, plaintiffs Gerald and Paige Farmer sued defendant Brannan Auto Parts, Inc. d/b/a Lawrenceville Auto Parts to recover for injuries Gerald Farmer received in an explosion. The explosion occurred when Farmer attempted to repair a flat tire on his truck by welding a crack in the wheel’s metal rim with an acetylene blowtorch. The flat tire was still attached to the rim, and several months before this incident Farmer had inflated that tire with a can of “Snap Fix-a-Flat,” which injects a flammable pressurized gas and sealant. According to the complaint, the heat from the torch caused Fix-a-Flat remaining in the tire to explode. The Farmers alleged that Lawrenceville Auto Parts distributed this “dangerous” product to the retail store from which Gerald purchased the sealant without giving him adequate warning of its explosive properties.¹ The trial court granted summary judgment to Lawrenceville Auto Parts. We affirm the trial court’s grant of summary judgment in favor of Lawrenceville Auto Parts, as well as the trial court’s decision not to strike three affidavits filed by the defendant.

1. Whether termed “negligent distribution” or “negligent failure to warn,” Farmer’s claim charges that Lawrenceville Auto Parts distributed a product without telling consumers the dangers of that product. Although a distributor has a duty to communicate to customers and users the dangers of a product, we hold that duty did not arise here because the manufacturer of Fix-a-Flat had already warned consumers of the particular danger at issue.

In December 1991, one of the tires on Farmer’s pickup truck went flat. When inflating the tire with air did not solve the problem, Farmer purchased a can of Fix-a-Flat tire inflator from the “Highway 20 Store.” The evidence is undisputed that Farmer received a can of Fix-a-Flat and read a warning on the can, which informed him the substance was flammable; that it should not be used near heat or flame; and that it would remain flammable when transferred from the can into a tire. After reading the directions, Farmer sprayed the entire contents of the can into the flat tire on the date of purchase.

The tire continued to have a slow leak over the next few months, and Farmer added air to the tire four or five times. He believed that in doing so, he had replaced the inflator in the tire with air, as specified in the directions on the can. On March 23, 1992, after the tire had gone completely flat, Farmer inspected the tire and discovered a three-quarter-inch crack in the rim of the wheel. Farmer decided to repair the rim by welding it, without removing the wheel from the truck or separating the flattened tire from the rim. Shortly after Farmer touched the welding iron to the rim, the tire exploded, seriously injuring Farmer.

Farmer claims he did not understand that the substance would remain flammable “three and a half months” after he placed it in the tire and believed the Fix-a-Flat had dissipated by that time. The plaintiffs claim Lawrenceville Auto Parts had a duty to warn him of that danger. They point to the fact that, during 1991, a Lawrenceville Auto Parts vice-president learned that there had been “problems” with tire inflators such as Fix-a-Flat, including the fact that the propellant in some tire inflators mixed with air to form an explosive gas.

We agree with Farmer’s contention that the distributor “of a product which, to [its] actual or constructive knowledge, involves danger to users [has] a duty to give warning of such danger ... at the time of sale and delivery.” Beam v. Omark Indus., 143 Ga. App. 142, 145 (1) (b) (237 SE2d 607) (1977). See also Bishop v. Farhat, 227 Ga. App. 201, 206 (6) (489 SE2d 323) (1997). But Beam involved a situation in which the seller had separated from the product the manufacturer’s warnings and had given the buyer incorrect information about the safe use of the product. Beam, 143 Ga. App. at 145. Bishop, likewise, involved a situation in which the distributor knew of a potential allergic reaction to the product but failed to communicate any warning to consumers. Bishop, 227 Ga. App. at 206. These cases do not address the situation at hand, in which the distributor had knowledge of a danger but the manufacturer had already warned of such a danger.

Webster’s Ninth New Collegiate Dictionary defines “flammable” to mean “capable of. being easily ignited and burned quickly.” Such a definition is consistent with the defendant’s officer’s understanding of the dangers of Fix-a-Flat. In fact, Farmer himself knew from reading the label that the substance could explode if exposed to heat or flame. There is no evidence that Lawrenceville Auto Parts knew of a situation like Farmer’s, in which a consumer had used the product, refilled his tire with air numerous times over several months, and then suffered an explosive injury when he used an acetylene torch on the rim of a flattened tire. Additionally, no evidence in the record shows Lawrenceville Auto Parts knew or should have known the length of time the substance remained flammable or that the distributor knew or should have known consumers would misunderstand the manufacturer’s warning, which stated that the substance would remain flammable after users placed it in the tire.

“[W]hether a duty to warn exists depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. [Cit.]” (Emphasis supplied.) Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75 (1) (460 SE2d 532) (1995). While this question is often for the jury, this Court has held on numerous occasions that where a product is sold to a particular group or profession, there is no duty to warn of risks generally known to that group or profession. See, e.g., Exxon Corp. v. Jones, 209 Ga. App. 373, 375 (433 SE2d 350) (1993). Similarly, in this case we find that Lawrenceville Auto Parts had no duty to communicate to users a danger already clearly listed on the product itself. Given the circumstances, we may hold as a matter of law that a reasonable distributor, given the same knowledge of danger and the same manufacturer’s warning, would not foresee that a user would not understand that danger.

The principle stated in Beam and Bishop must be confined to those situations in which evidence shows a distributor or seller is aware of a danger either not communicated by the manufacturer’s warning or substantively different from the dangers the manufacturer has included in a warning label. To hold otherwise would create a jury question in any case where the manufacturer has included a warning label on the product and the seller has read that warning and is aware of that danger.

While the dissent speaks of a distributor’s duty to inspect for defects, there is no evidence that Fix-a-Flat is otherwise “defective” as that term is used in the case on which the dissent relies, Sirmons v. Derst Baking Co., 221 Ga. App. 127, 128 (470 SE2d 515) (1996). There is certainly no precedent for holding Lawrenceville Auto Parts responsible under any theory of defective design. Compare Banks v. ICI Americas, 264 Ga. 732, 733 (1) (450 SE2d 671) (1994), holding manufacturers strictly liable for safe design of products under a risk-utility balancing test. As the Supreme Court noted in Banks, 264 Ga. at 733, except for design defects, even under a strict liability analysis, products which “[are] properly prepared, manufactured, packaged and accompanied with adequate warnings and instructions can not be said to be defective.” (Citation and punctuation omitted.) See Center Chem. Co. v. Parzini, 234 Ga. 868, 870 (4) (218 SE2d 580) (1975). Sirmons itself involved a manufacturing defect, as a dime had apparently fallen into a honeybun during the baking process. Here, other than the issue of the warning’s adequacy, no evidence shows Fix-a-Flat was otherwise defective. As the trial court properly granted summary judgment to Lawrenceville Auto Parts on the failure to warn claim, no other issue remains for trial.

Furthermore, it appears that the failure of Lawrenceville Auto Parts to provide Farmer with its knowledge of the danger did not proximately cause Farmer’s injuries because Farmer already knew the substance was flammable and remained flammable when placed in a tire. See Exxon Corp. v. Jones, 209 Ga. App. at 375-376 (plaintiff’s injuries from LP gas explosion were not caused by defendant’s negligent failure to warn of dangerous propensities of LP gas, as plaintiff was already aware of those dangers).

Under the principles set forth by the Supreme Court in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), summary judgment for Lawrenceville Auto Parts is proper because no evidence shows the defendant failed to warn Farmer of any danger of Fix-a-Flat other than the danger already communicated by the warning label, and about which Farmer was aware. The dissent’s citation to Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997) does not persuade us to reach a contrary conclusion. In Robinson, the Supreme Court carved a narrow exception to Lau’s Corp. That exception, however, applies only to situations where the question is not whether the defendant was negligent, but rather is whether, despite the defendant’s negligence, the plaintiff failed to exercise due care to avoid the injury. Here, the evidence shows Lawrenceville Auto Parts breached no duty to Farmer. Therefore, summary judgment is proper. And our resolution of this issue renders it unnecessary to address whether Lawrenceville Auto Parts did, in fact, distribute the can of Fix-a-Flat that Farmer bought.

2. The Farmers enumerate as error the trial court’s failure to grant their motion to strike the affidavits of Jeffrey Mize, Coy Baker, and Hazel Weathers. Their motion was based upon the affidavits’ failure to state that they are based upon the personal knowledge of the affiants. See OCGA § 9-11-56 (e).

With respect to the affidavit of Jeffrey Mize, this affidavit states that Mize is the vice-president of Lawrenceville Auto Parts, and that he “personally directfs] and oversee[s] the operation of Lawrenceville Auto Parts Store.” “Although the affidavit of [Jeffrey Mize] . . . did not specifically state that it was made of his own personal knowledge, it is presumed that the facts are within the personal knowledge of the affiant by reason of his position as [vice-president of the auto parts store].” McGregor v. First Nat. Bank of Brunswick, 156 Ga. App. 521, 522 (2) (275 SE2d 107) (1980).

Coy Baker’s and Hazel Weathers’ affidavits also do not state that they were made on personal knowledge. “However, the affidavits] also [include] statements which clearly are based on personal knowledge.” Moon v. Yancy, 186 Ga. App. 19, 20 (1) (366 SE2d 357) (1988). Coy Baker’s affidavit lists his responsibilities for selling, as a traveling salesman, parts and supplies for Lawrenceville Auto Parts. This is clearly within his personal knowledge. The statements made in Hazel Weathers’ affidavit are also within her personal knowledge, as they detail what steps she took, as Lawrenceville Auto Parts’ inventory control manager, to determine whether or not Lawrenceville Auto Parts had ever purchased or distributed any Snap products. Furthermore, all three affidavits are largely cumulative of deposition testimony given by the respective affiants. Accordingly, the trial court did not err in failing to strike these affidavits.

Judgment affirmed.

Andrews, C. J., Beasley, Johnson and Smith, JJ., concur. McMurray, P. J, and Blackburn, J., dissent.

1 The Farmers also sued the manufacturer of the tire inflator and the retailer, but neither of those defendants is a party to this appeal.