Lodge v. Champion Home Builders Co. , 170 Ga. App. 21 ( 1984 )

Shulman, Presiding Judge.

This appeal involves a products liability claim brought by appellants against the manufacturer, Champion Home Builders Company, and the dealer, Irvin P. Wolfe, of a motor home that was completely destroyed when it exploded and burned. Appellants sought damages for personal injury and the loss of personal property and based their claims on theories of strict liability and negligence.

On June 8,1979, Brad McColl, accompanied by Wolfe, an authorized Champion dealer, purchased a motor home from Champion at its plant in Ellaville, Georgia. McColl sold the motor home to appellant/ Shelley Marrs on June 5, 1980. On October 26, 1980, appellants Owen Dewayne Lodge and Dennis McGuire borrowed the vehicle from Marrs and went to Florida. Early one morning, the heating system apparently malfunctioned resulting in a fire that injured Lodge and McGuire and totally destroyed the motor home. Lodge and McGuire sought damages for their personal injuries, and Marrs sought damages for the value of his lost property. Appellees’ motion for summary judgment was granted by the trial court on both counts, and this appeal followed.

1. Appellants argue that the trial court failed to consider the entire record before granting appellees’ motion for summary judgment because appellees’ answer to appellants’ interrogatories, though mailed to appellants’ counsel, were not filed with the trial court. However, OCGA § 9-11-29.1 states that discovery materials need not be filed except under certain specified circumstances. There is no evidence in the record that any of these circumstances existed in the present case. Therefore, this enumeration is without merit.

2. It is well settled that a dealer cannot be held strictly liable for injuries caused by a defective product he sold. Ellis v. Rich’s, Inc., 233 Ga. 573, 577 (212 SE2d 373). Accordingly, the trial court correctly granted Wolfe’s motion for summary judgment on the strict liability count.

3. In regard to the strict liability claim against Champion, “[t]he burden is on the party who moves for summary judgment to produce evidence which conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. [Cits.]” Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465). Appellants claim that the trial court erred in granting summary judgment because Champion failed to carry this burden. One fact appellants must prove in order to establish Champion’s strict liability is that the motor home was defective when sold by the manufacturer and, if so, that this defect was the proximate cause of the injuries sustained. Greenway v. Peabody Intl. Corp., 163 Ga. App. 698, 703 (294 SE2d 541). OCGA § 51-1-11 (b)(1).

Appellants’ expert witness testified that it was his opinion that the fire was started by a leak in the gas system of the motor home and that the existence of this leak was due to appellees’ failure to properly inspect the vehicle before it was sold. However, when asked whether his opinion would change if the gas system h\ád been used without incident 10 to 12 times before the time in question, he replied that if that were the case he would have to “look for some other rea-, son [than negligence] for it leaking.” McColl, the original owner of the motor home, stated in a signed affidavit that he had used the gas system approximately 15 times before he sold the vehicle to appellant and that the system had worked properly each time. Marrs attempted to rebut this testimony by claiming that McColl had never specifically told him that he had used the gas system and that Marrs had assumed the system had hot been used because the controls did not appear to have been touched. Additionally, appellees introduced into evidence the inspection sheet, signed by Wolfe and dated the day the motor home was sold to McColl, which showed that the gas system had been inspected and was found to be in proper working condition. No other evidence was offered by appellants. In light of the evidence presented by appellees, we believe that the “non-opinion” expressed by appellants’ expert witness and Marrs’ assertion that McColl had simply not mentioned that he had used the motor home’s gas system are not enough to establish that the condition that caused the fire existed when it was sold by Champion. Therefore, we hold that Champion sufficiently pierced the pleadings so as to authorize the trial court’s finding that no genuine issue of fact remained in regard to the strict liability against it.

Furthermore, after considering the foregoing evidence, we believe that no material issue of fact remains in regard to either appellee’s alleged negligence. The theory of res ipsa loquitur has no application in the present case because the fire was not necessarily of such an unusual or extraordinary nature that would not ordinarily occur in the absence of someone’s negligence. Also, the motor home had been out of appellees’ exclusive control for over a year. Hall v. Chastain, 246 Ga. 782 (1) (273 SE2d 12). See Darlington Corp. v. Finch, 113 Ga. App. 825, 827 (149 SE2d 861).

Decided January 31, 1984 — Rehearing denied February 28, 1984 — J. Wayne Parrish, for appellants. William A. Erwin, Kenneth B. Hodges, Jr., William E. Cannon, Jr., for appellee.

4. Since we have ruled that summary judgment was appropriately granted in the case at bar, we need not consider whether or not Marrs could have recovered his economic loss incurred pursuant to the destruction of his motor home.

Judgment affirmed.

Quillian, P. J., Banke, Birdsong and Sognier, JJ., concur. McMurray, C. J., Deen, P. J., Carley and Pope, JJ., dissent.