Recent Developments in Georgia Product Liability

• Publication year: 2001
• Pages: 0001
• Citation: Vol. 7 No. 3 Pg. 0001

Georgia Bar Journal Volume 7.

GSB Vol. 7, No. 3, Pg. 1. Recent Developments in Georgia Product Liability

Georgia State Bar Journal
Vol. 7, No. 3, December 2001

"Recent Developments in Georgia Product Liability"

By R. Hutton Brown and Laura M. Shamp

A lawnmower threw out a sharp rock that hit a child in the face, costing him his vision in the right eye. The family has come to you for advice. You learn that the lawnmower did not have a guard to prevent such objects from being expelled. You initially think that you have a strong product liability case, but since it has been a while since you handled such a case, you recognize that you need to research whether Georgia law would support such a claim. If you researched Georgia law chronologically, you would initially be skeptical about the advisability of taking the case. In 1971, in Stovall v Tate1 the Georgia Court of Appeals held that a lawnmower without such a guard was not defective as a matter of law because the mower worked as it was intended (i.e., it cut grass) and because the danger of the mower without the guard was open and obvious.2 The law, however, has changed significantly since Stovall

During the last few years, Georgia product liability law has shifted toward allowing most cases to be decided by a jury In 1994, the Georgia Supreme Court adopted a risk-utility balancing test for determining whether a product is defective.3 In 1998, it eliminated the notorious open and obvious danger defense.4 In 1999, it minimized the role of summary judgment.5 Finally, in 2001, it clarified the rule that holds evidence of another incident of a product defect is not admissible unless there is a showing of substantial similarity.6

This article briefly summarizes the recent developments in Georgia product liability law. First, it provides a brief introduction to product liability law and the chaotic foundation from which the recent decisions arose. Next, it examines the landmark adoption of the risk-utility balancing test for determining defective product design. The article then discusses several subsequent refinements to product liability law. Finally, it suggests that there is still room for additional development in the law, as the courts continue to decide new cases under the reworked framework of product liability law.

Product Liability: A Primer

Georgia product liability law provides a tort remedy to individuals who are injured by a defective product. "Defective" is a term of great importance, because liability does not attach until the product meets the legal test of "defective" - indeed, much of the case law in the last 25 years has been about the seemingly simple question of when a product is legally defective.7 Although additional remedies may arise under different legal principles, such as warranty laws8 and consumer protection statutes,9 the primary remedy by which an injured person in Georgia recovers from the manufacturer of a product that produced the injury is provided by product liability law.

Because product liability cases place an emphasis on extensive discovery from the manufacturer defendant and involve significant use of expert testimony, they tend to be difficult and expensive both to pursue and to defend. Thus, it is important for the practitioner to appreciate the recent developments in this area of the law. Failure to do so could easily result in either pursuit of a case that is imperiled legally, or in improper development of the evidence necessary to meet these new legal standards.

Common Law Hodgepodge of Rules

Product liability law in Georgia is a distinct area of tort law, which has developed, however haphazardly, through application of basic tort principles such as the duty of reasonable care. In 1968, the Georgia legislature enacted a product liability statute that provided a remedy for products that were "not merchantable and reasonably suited to the use intended." 10 In 1975, the Georgia Supreme Court, in Center Chemical Co. v. Parzini,11 declared that manufacturers will be held strictly liable for "defective" products. Significantly, the Court explicitly left open any functional definition of what constituted a "defective" product, stating that the definition would have to be worked out on a case-by-case basis. For example, in the Stovall lawnmower case, the court dismissed the action after finding that the danger of a mower expelling objects was open and obvious, applying a concept imported from the case law of New York.12

From this activity arose a general recognition of what have become known as the three traditional theories of product liability - negligence, strict liability and breach of warranty. Of these, the Georgia courts have been most active in developing the negligence and strict liability line of cases.13 Negligence actions require the plaintiff to prove a breach of a duty owed by a manufacturer to a consumer, which invokes all of the traditional negligence principles such as foreseeability of the injury, and requires proof of duty, breach, causation and damages.14 A product-based strict liability case, on the other hand, focuses solely on whether the product is defective; the conduct of the manufacturer is theoretically irrelevant.15

Although a plaintiff must therefore prove that the product is "defective" under both negligence and strict liability theories of liability, Georgia courts struggled with providing a definition or test for "defect" since the adoption of the statute in 1968.16 The courts also struggled to maintain the distinction between the two theories, occasionally saying that only semantics separated the two theories while elsewhere actually treating the two theories as distinct. 17 As a result, a hodgepodge of rules developed without any coherent framework, and practitioners were left with little guidance as to how to go about proving a manufacturer's liability.

"Defect" Defined

In 1994, the Georgia Supreme Court began to turn chaos into order when it adopted the "risk-utility balancing test" for determining design defect cases in Banks v. ICI Americas, Inc.18 In Banks, nine-year-old Marlo Strum died after ingesting rat poison that he found in an unmarked, unlabeled container he apparently mistook for candy.19 Unfortunately, the poison's...