Ogletree v. Navistar International Transportation Corp.: the Demise of the "open and Obvious Danger" Defense - Richard L. Sizemore

• Citation: Vol. 50 No. 2
• Publication year: 1999

Ogletree v. Navistar International

Transportation Corp.: The Demise of the

"Open and Obvious Danger" Defense

After working its way through the appellate court system for almost a decade, the Supreme Court of Georgia made an important decision in Ogletree v. Navistar International Transportation Corp.¹ by rejecting the "open and obvious" danger rule in products liability cases and the absolute defense it provided.²

I. Factual History

On March 10, 1984, Frank Richard Ogletree was killed while assisting a customer in attaching a trailer to the customer's vehicle. Ogletree, an agricultural supply salesman, sold the customer a load of ammonia nitrate that was located in a bulk transport trailer called a "Killebrew." After locating the correct Killebrew, Ogletree turned his back to the customer's vehicle and stood beside an adjacent Killebrew. The customer, whose view of Ogletree was blocked by the Killebrew, mistakenly backed his vehicle toward the adjacent Killebrew, striking and killing Ogletree. The customer's vehicle, which was manufactured by Navistar International Transportation Corporation, did not have an audible back-up alarm.³

Consequently, Ogletree's wife brought suit against Navistar for "wrongful death, pain and suffering, and funeral, medical, and necessary expenses of her deceased husband," asserting that Navistar negligently failed to include an audible back-up alarm on the vehicle.⁴ In response, Navistar moved for summary judgment, contending that the vehicle was not negligently designed because "the absence of a back-up alarm was open and obvious to any user or bystander."⁵ The trial court granted

Navistar's motion, and Ogletree appealed to the Georgia Court of Appeals.⁶

In its first Ogletree decision ("Ogletree I"), the court of appeals considered "whether or not Navistar showed as a matter of law that it had no duty to install the alarm or that Ogletree's injuries and death resulted solely from his own negligence in that he assumed the risk of injury."⁷ The court concluded that Navistar was not precluded from liability because "it was reasonably foreseeable to the cab and chassis manufacturer that in normal operation, the completed product would be backed up and there would be people behind it who were unaware of its rearward movement towards them."⁸ However, four months later the court of appeals overruled Ogletree I in Weatherby v. Honda Motor Co.,⁹ noting that Ogletree was "predicated upon significant errors of law"¹⁰ because it required Navistar to prove that Mr. Ogletree had actual knowledge of the open and obvious danger.¹¹

After the court's decision in Weatherby, Navistar appealed, claiming that the trial court was bound by Weatherby to grant its motion for summary judgment.¹² In its second Ogletree decision ("Ogletree IF), the court of appeals concluded that the trial court was bound by the law of the case to follow Ogletree I¹³ and again rejected Navistar's motion for summary judgment.¹⁴ The case then proceeded to trial and the jury returned a verdict for Ogletree in the amount of $5576.¹⁵ Unhappy with the verdict, Ogletree moved for a new trial on the issue of damages. Navistar, also unhappy with the verdict, moved for a judgment notwithstanding the verdict or, alternatively, a new trial.¹⁶ The trial court granted Navistar's motion for judgment notwithstanding the verdict.¹⁷ However, the court did not rule on Navistar's motion for a new trial, and the case was again reviewed by the court of appeals.¹⁸

The court of appeals, in its third Ogletree decision ("Ogletree III"), determined that the trial court was required to rule on both Navistar's motion for a new trial and its motion for judgment notwithstanding the verdict at the same time to save money, time, and effort, and to force the trial court to make a decision while the case is "most fresh in the trial court's mind."¹⁹ The court of appeals remanded,²⁰ and the trial court subsequently denied Navistar's motion for a new trial.²¹ At this point, both Navistar and Ogletree appealed.²²

In its fourth Ogletree decision ("Ogletree IV"), the court of appeals concluded that the evidentiary posture of the case changed between the time Navistar moved for summary judgment after Ogletree I and the time the jury returned a verdict for Ogletree.²³ The court then affirmed the trial court's grant of judgment notwithstanding the verdict because the Weatherby interpretation of the "open and obvious" rule applied.²⁴

The ruling by the court of appeals in Ogletree TV to apply Weatherby and the "open and obvious" rule prompted the Supreme Court of Georgia to grant certiorari to determine whether the "open and obvious" rule applies in design defect cases.²⁵ In reconsidering this rule, the court examined a number of different jurisdictions that previously held the "open and obvious" danger rule inapplicable in design defect cases.²⁶ The court concluded that the "open and obvious" rule, also known as the patent danger doctrine, encourages manufacturers to eliminate safety devices and to make hazards obvious to escape liability.²⁷ Instead of retaining the open and obvious rule as an absolute defense, the court determined that it was only one of many factors to weigh in a risk-utility formula²⁸ and that there was no justification to preclude liability for design defect cases brought in strict liability or in negligence.²⁹ In so holding, the court overruled Weatherby and reversed Ogletree IV.³⁰

II. Legal Background

The patent clanger doctrine, otherwise known as the "open and obvious" defense, was first articulated in 1950 by the Court of Appeals of New York in Campo v. Scofield³¹ when the court stated that a manufacturer is "under no duty to guard against injury from a patent peril or from a source manifestly dangerous ... as long as the danger to be avoided is obvious and patent to all."³² Twenty-one years later in Stovall & Co. v. Tate,³³ the Georgia Court of Appeals introduced the "open and obvious" defense into Georgia law.³⁴ In Stovall plaintiff was hit by a rock expelled from a lawnmower while she was sitting in her classroom.³⁵ Plaintiff sued the manufacturer, claiming, among other things, that the manufacturer was negligent for not providing a device to deflect objects thrown from the mower blade.³⁶ In holding that the "open and obvious" danger rule applied, the court observed that '"there are ... on the market vast numbers of potentially dangerous products as to which the manufacturer owes no duty of warning or other protection.'"³⁷ The court added that "[ajlmost every physical object can be inherently dangerous or potentially dangerous in a sense .... The law does not require him to warn of such common dangers."³⁸

While over the next two decades other states debated the issue of "risk-utility"³⁹ and the "open and obvious" danger doctrine,⁴⁰ Georgia continued to apply the "open and obvious" defense to products liability cases and refused to implement a risk-utility approach.⁴¹ In Ogletree I the Georgia Court of Appeals appeared to change subtly the doctrine by stating that the "open and obvious" danger defense should absolve a manufacturer of liability only when it can prove that the consumer had subjective knowledge of the danger.⁴² The following year, the Georgia Court of Appeals reversed this decision in Weatherby, concluding that Ogletree I was "predicated upon significant errors of law."⁴³ In Weatherby plaintiffs sued Honda Motor Co. for failing to attach safety features to the gas tank of Honda motorcycles.⁴⁴ The court stated that "[w]hile the 'open and obvious rule' has been the subject of considerable criticism and has been abandoned in some other jurisdictions ... it continues to be the law in Georgia."⁴⁵ Thus, the court in Weatherby overruled Ogletree I⁴⁶ and determined that "[ajctual knowledge by the user of the danger posed by a product is not necessary in order to invoke the 'open and obvious rule.'"⁴⁷

Throughout the 1990s, Georgia appellate courts applied the "open and obvious" danger defense.⁴⁸ In Vax v. Albany Lawn & Garden Center,⁴⁹ for example, the court of appeals applied Weatherby in a case concerning a consumer who was injured while operating her riding lawnmower.⁵⁰ In that case, a seven-year-old lawnmower "reared up," causing the consumer to fall off the mower and injure her leg on its blade.⁵¹ The consumer sued the manufacturer, distributor, and retailer of the mower "alleging claims of negligence, strict liability, and breach of warranty."⁵² The trial court granted summary judgment for defendants and the court of appeals affirmed, noting that "[d]espite criticism of the 'open and obvious' rule, it remains law in this state."⁵³

The Supreme Court of Georgia supported "risk-utility balancing" in defective design claims in a 1994 decision, Banks v. ICI Americas, Inc.⁵⁴ In that case, the parents of a nine-year-old child sued the manufacturer of a rat poison, alleging that the poison had been defectively designed and inadequately labeled.⁵⁵ The jury found for plaintiffs and awarded a large verdict, including punitive damages.⁵⁶ The court of appeals reversed on the ground that there was not sufficient evidence to find that the poison was inadequately labeled.⁵⁷ The Supreme Court of Georgia granted a writ of certiorari,⁵⁸ and after reviewing treatises and decisions from other jurisdictions, concluded that there was "a general consensus regarding the utilization in design defect cases of a balancing test whereby the risks inherent in a product design are weighed against the utility...