Bunch v. Maytag Corp. , 211 Ga. App. 546 ( 1993 )

Beasley, Presiding Judge,

concurring specially.

I concur fully in the opinions in Case Nos. A93A1874 and A93A1875.1 concur in the opinion in Case No. A93A1422 but, considering that the dissent is based on the absence of a certain fuse, believe it necessary to explain why plaintiff cannot prevail upon this theory.

Plaintiff’s expert testified that the exact cause of the fire could not be detected because of the fire damage. In his opinion, it was either a ground fault or a component failure. A ground fault would not have been attributable to Maytag because it did not install the oven unit, as acknowledged by the expert in his affidavit. A component failure would have been due to a defective component, he said. But he could only say that it was possible, not even probable, that there was a component failure.

Thus, the alleged negligence is that Maytag failed to include a fuse which would prevent a fire from a ground fault or a component failure. There had been a fuse in the design earlier. Plaintiff’s expert was of the opinion that if such a fuse had been included, but at a different location than originally in the design, it would have protected the entire circuitry from all faults, including a component failure. This was nothing more than hindsight. As he said, “It would have been better if that fuse was still there, and it would have been better if that fuse had been placed in a different place in the circuit.”

The key is that he was not of the opinion that the absence of the fuse was an improper design. He said so twice.

On this evidence, a jury would be precluded from finding negligence on the part of the manufacturer.