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EVERHART et al. v. RICH'S INC. et al.
27297.
JORDAN, Justice.
1. In connection with a sale of goods having a potentiality of doing harm by normal, intended, and non-negligent use, where there is no fiduciary relationship between the seller and the purchaser, and no fraud, it is the duty of the seller to warn the purchaser at the time of sale and delivery, and a breach occurs at this time if there is a failure to warn.
2. The breach of a duty to warn occurs at the time of the sale and delivery of the goods, and the statute of limitation with respect to that breach begins to run at that time. However, on a tort claim for personal injury the statute of limitation begins to run at the time the tortious act and damage resulting therefrom occur. And if the tortious act is a continuing one, inflicted over a period of time. the statute of limitation does not commence to run until such time as the continued tortious act producing injury is eliminated by an appropriate warning in respect to the hazard.
3. Mere ignorance of the existence of a right of action does not toll a statute of limitation.
4. Natural wear and deterioration of an article in its intended, ordinary, non-negligent use may be a valid consideration in determining whether a claim of injury attributable to such deterioration is barred by, the statute of limitation, to the extent that the time of injury operates to commence the running of the statute, and absent other circumstances which operate to toll the statute, a continuing tort, fraud preventing discovery, and infancy or incapacity of the injured person.
Harold D. Everhart and Chrystal Smith Everhart, husband and wife, and their three minor children commenced an action in Fulton Superior Court on May 11, 1971, against Rich's, Inc., J. P. Stevens & Company, Inc., and Owens-Corning Fiberglass Corporation, seeking recovery for personal injuries and property damage allegedly caused by a set of gold draperies purchased from Rich's, a retail department store, in December 1964, by Chrystal Smith Everhart, and hung in the Master bedroom of the home occupied by the plaintiffs. The draperies were made from fabric manufactured by Stevens and composed primarily of fiberglass, the registered trademark of a glass fiber manufactured by Owens-Corning. In February, 1970, the plaintiffs began to suffer extreme personal discomfort and illness. Subsequently, the plaintiffs allegedly discovered that their discomfort and illness was caused, in whole or in part, by billions of fiberglass particles which had broken loose from the gold draperies and had been conducted throughout the house through the heating system. The plaintiffs further allege that the defendants gave no warning that the material could and would injure human skin. Count 1 of the petition is based on negligence in failing to warn of the danger, and Count 2 is based on a breach of implied warranty that the draperies were fit for the ordinary purposes for which they were used.
"1. When does the breach of a duty to warn occur in connection with a sale of goods having a potentiality of doing harm, there being no fiduciary relationship between the seller and the purchaser, and no fraud?
"2. If the answer to question number 1 indicates that the breach occurs at the time of the sale and delivery of the goods, does the statute of limitation on a claim of personal injury, Code 3-1004, begin to run from the date of the breach, i.e., the date of the sale, or does it begin to run only from the time it is discovered that injury and damage has resulted from the normal, intended and non-negligent use of the goods?
"3. Does ignorance of the purchaser as to facts constituting a right of action, or that his rights have been invaded, prevent the running of the statute of limitation?
"4. Is the matter of natural wear and deterioration of an article in its intended, ordinary, non-negligent use a valid consideration in determining whether a claim of injury attributable to such deterioration is barred by the statute of limitation?"
For consideration in answering the above questions, the Court of Appeals cites the following: " Crawford v. Gaulden, 33 Ga. 173 (8); Lilly v. Boyd, 72 Ga. 83; Gould v. Palmer & Read, 96 Ga. 798 (22 SE 583); Schofield v. Woolley, 98 Ga. 548 (25 SE 769); McClaren v. Williams, 132 Ga. 352 (4) (64 SE 65); Davis v. Boyett, 120 Ga. 649 (2) (48 SE 185); Maxwell v. Walsh, 117 Ga. 467 (43 SE 704); Freeman v. Craver, 56 Ga. 161; Irvin v. Bentley, 18 Ga. App. 662 (3) (90 SE 359); Barrett v. Jackson, 44 Ga. App. 611 (162 SE 308): Silvertooth v. Shallenberger, 49 Ga. App. 133 (174 SE 365); Silvertooth v. Shallenberger, 49 Ga. App. 758 (176 SE 829); Bryson v. Aven, 32 Ga. App. 721 (124 SE 553): Colvin v. Warren, 44 Ga. App. 825 (163 SE 268); Tabor v. Clifton, 63 Ga. App. 768 (12 SE2d 137); Dowling v. Lester, 74 Ga. App. 290 (2) (39 SE2d 576); Saffold v. Scarborough, 91 Ga. App. 628 (86 SE2d 649); Parker v. Vaughn, 124 Ga. App. 300 (183 SE2d 605); Crawford v. McDonald, 125 Ga. App. 289 (187 SE2d 542); Mobley v. Murray County, 178 Ga. 388, 394 (173 SE 680); Chitty v. Horne-Wilson, Inc., 92 Ga. App. 716 (89 SE2d 816); Chitty v. Horne-Wilson, Inc., 92 Ga. App. 721 (89 SE2d 820); Wellston Co. v. Sam M. Hodges, Jr. & Co., 114 Ga. App. 424 (151 SE2d 481); Hunt v. Star Photo Finishing Co., 115 Ga. App. 1, 5 (153 SE2d 602); Whiten v. Orr Construction Co., 109 Ga. App. 267 (136 SE2d 136); Morgan Construction Co. v. Kitchings, 110 Ga. App. 599 (139 SE2d 417); Hamilton v. Lockridge, 123 Ga. App. 609 (1) (181 SE2d 910); Carroll County Gas Co. v. Parker, 125 Ga. App. 27 (189 SE2d 913); Cheney v. Syntex Laboratories, 277 F. Supp. 386 (N.D. Ga.); Anno. 4 ALR3rd 821."
1. The first headnote, as an answer to the first certified question, requires no elaboration. See Code 105-103, 105-104; 65 CJS 1078, 1082, Negligence, 100(2)a.
where, however, there is a breach of a duty owed to another, e.g., the failure to warn of the existence of a hazard capable of producing injury, and exposure to the hazard or the cumulative effects of continued exposure results in injury, a cause of action accrues when exposure to the hazard first produces ascertainable injury. While the tort is then complete in the sense that it will support a claim, it is nevertheless a tort of a continuing nature which tolls the statute of limitation so long as the continued exposure to the hazard is occasioned by the continued failure of the tortfeasor to warn the victim, and the statute of limitation does not commence to run under these circumstances until such time as the continued tortious act producing injury is eliminated, e.g., by an appropriate warning in respect to the hazard. The theory of a continuing tort was adopted, applied, and limited to surgical malpractice in Parker v. Vaughan, 124 Ga. App. 300 (183 SE2d 605). Today we recognize and extend this theory, as here explained, to those factual situations analogous to the situation here involved where any negligent or tortious act is of a continuing nature and produces injury in varying degrees over a period of time.
For a discussion of the practical problems in fixing a specific date of injury, and the rules for determining the time of injury or "accident" under the workmen's compensation law, as distinguished from general tort law, with respect to a disease caused by injurious and hazardous exposure, e.g., loss of hearing and silicosis, see Shipman v. Employers. Mut. Liab. Ins. Co., 105 Ga. App. 487 (125 SE2d 72); Patterson v. Employer's Mut. Liab. 99 Ga. App. 325 (108 SE2d 146); Free v. Associated Indem. Corp., 78 Ga. App. 839 (52 SE2d 325).
3. The third certified question must be answered in the negative. The appellate courts of this State have held that mere ignorance of the existence of a right of action, absent the element of fraud, does not toll a statute of limitation. see Crawford v. Gaulden, 33 Ga. 173, 188; Davis v. Boyett, 120 Ga. 649 (48 SE 185, 66 LRA 258, 102 ASR 118, 1 AC 386); Mobley v. Murray County, 178 Ga. 388 (3) (173 SE 680).
4. Headnote 4 as an answer to the fourth certified question requires no elaboration.
Questions answered as stated in the opinion. All the Justices concur.
Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Alfred L. Evans, Jr., J. Lee Perry, Assistant Attorneys General, amicus curiae.
Carter, Ansley, Smith, McLendon & Quillian, W. Colquitt Carter, Gerald A. Friedlander, Nail, Miller & Cadenhead, D. N. Love, Powell, Goldstein, Frazer & Murphy, for appellees.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, Robert W. Beynart, for appellants.
ARGUED JULY 11, 1972 -- DECIDED DECEMBER 4, 1972.
Friday May 22 14:36 EDT


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