Keaton v. A.B.C. Drug Co. , 266 Ga. 385 ( 1996 )

Fletcher, Presiding Justice,

concurring specially in part and dissenting in part.

I concur in Division 1 because a loose cap that allows bleach to spill under normal handling renders the bleach inadequately packaged and contained. Thus, Keaton has supported a claim under OCGA § 11-2-314 (2) (e). Keaton has not, however, supported a claim under OCGA § 11-2-314 (2) (c). Under the facts of this case, the loose cap relates solely to the packaging and does not render the bleach unfit for its ordinary purposes of cleaning and disinfecting.

While I agree that the jury’s verdict in favor of Keaton may stand based on an implied warranty of merchantability claim, I cannot agree with the majority’s analysis of the negligence claim. The majority focuses on the placement of the bleach on a high shelf as the dangerous condition. Even if we assume that placing a caustic substance on a high shelf is inherently dangerous, no rational basis exists for charging the store owner with greater knowledge of this dangerous condition than the average customer. Unlike Colonial Stores v. Donovan,² there is no allegation here that the store owner stacked the bleach in a manner that appeared safe, yet allowed other bottles in the display to fall when one was touched. Furthermore, any can or bottle, regardless of its contents, may cause a severe injury when a customer attempts to retrieve it from a high shelf and the can or bottle slips from the hand.

The problem in this case was a loose cap that was visible to no one. The majority’s suggestion that store owners now have a duty to place leakage protectors on bottles they sell is unreasonable and unwarranted. For these reasons, I respectfully dissent to Division 2.

Walker & Sweat, Forrest W. Sweat, Jr., Craig R. White, for appellee.

2 115 Ga. App. 330 (154 SE2d 659) (1967).