English v. Crenshaw Supply Co. , 193 Ga. App. 354 ( 1989 )

Beasley, Judge,

concurring in part and dissenting in part.

I agree with the trial court that defendant Fesco is entitled to summary judgment, but I concur with the majority of this court regarding Crenshaw.

As to the alleged original manufacturer Fesco, the undisputed evidence from Fesco’s president is that Fesco “has never manufactured, designed, distributed or sold the . . . brackets or the type . . . brackets depicted in photographs labeled . . . P-4, P-5, and P-6 . . . Fesco Inc. has not been connected in any manner at any time with said . . . brackets.”

Plaintiff testified in deposition that the bracket depicted in these three photos, which bracket is one from his employer’s supply, was the kind of bracket in use when he fell. He could not say it was the bracket. He said the kind in use, however, was not like that depicted in photographs P-1, P-2, and P-3, which had an arm or brace attached. It was a new bracket purchased from Titan.

Crenshaw, who obtained unpainted brackets from Fesco until 1976 and painted them red before selling them, could not say that the bracket depicted (which had been identified as being like but not necessarily the bracket actually involved) was obtained from Fesco. The inescapable inference is that he could not state that the actual bracket in use when plaintiff fell in 1983 originated with Fesco. William Crenshaw also said the brackets bought from Fesco were similar to photographs P-1 through P-3, rather than P-4 through P-6.

Fesco was not Crenshaw’s only source of brackets prior to the time of the tragedy. Ayers Manufacturing, Inc., Titan’s predecessor, was a source following Fesco, from 1976 to 1979 and from 1980 to 1982. The representative of Titan, who had been president of Ayers and prior to its incorporation its sole proprietor, stated that none of these companies had ever manufactured, designed, distributed, or sold the brackets depicted in P-4 through P-6, but he did not mention P-1 through P-3.

There was no evidence such as could overcome the affirmative direct evidence from defendant Fesco excluding it as manufacturer of the brackets in use when plaintiff fell. This differs from Scott v. Owens-Illinois, 173 Ga. App. 19, 22 (3) (325 SE2d 402) (1984), where there was no affirmative evidence negating either manufacturer of the two possible ones as the source of the exploding bottle.

Decided November 1, 1989. Reynolds & McArthur, Charles M. Cork III, for appellant. Neely & Player, Richard K. Hines V, Richard Kopelman, Taylor T. Daly, Drew, Eckl & Farnham, Samuel P. Pierce, Jr., Benny C. Priest, for appellees.

Here the allegedly faulty brackets cannot be produced so as themselves to be identified as having been manufactured by some certain manufacturer. Nor can plaintiff prove even by circumstantial evidence and reasonable inferences that Fesco was the source of those brackets, as he cannot even prove by such a method that Fesco manufactured the brackets in P-4 through P-6, which he says are “like” the ones which caused his fall.

In order to give rise to a duty of Fesco towards English, English would have to be able to prove by a preponderance of the evidence, that is, that it is more likely than not, that Fesco manufactured the bracket being used when he fell. Fesco has shown that plaintiff cannot do that, and its own evidence establishes without legally cognizable contrary evidence that it did not.

Summary judgment for Fesco should be affirmed.