Product Liability

• Publication year: 2015

Product Liability

Franklin P. Brannan Jr.

P. Michael Freed

Jake C. Evans

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Product Liability

by Franklin P. Brannen, Jr.^* P. Michael Freed^** and Jake C. Evans^***

This Article surveys developments in Georgia product liability law between June 1, 2013 and May 31, 2015.¹ It covers noteworthy cases decided during this period by the Georgia Court of Appeals, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.

I. Elements of Product Liability Claims

A. Definition of Manufacturer

Georgia product liability law limits strict liability to the manufacturer of the product at issue.² Non-manufacturers in the sales chain may only be found liable under a negligence or breach of warranty theory. Defining whether a defendant is or is not a manufacturer, therefore, is a critical issue in many product liability cases. In Williamson v. Walmart Stores, Inc.,³ the United States District Court for the Middle

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District of Georgia addressed the definition of "manufacturer."⁴ The plaintiff in Williamson was injured when the plastic gas container she was holding near a fire exploded. The plaintiff filed product liability claims against several entities, including the alleged manufacturer of the product. The manufacturer filed a motion to dismiss on personal jurisdiction grounds.⁵ The court considered the issue of whether the complaint sufficiently alleged that the purported manufacturer actually designed the container such that jurisdictional discovery was warranted.⁶ The court noted that Georgia law considers both the manufacturer and designer of a product to be deemed the manufacturer for the purposes of strict liability.⁷ The court found that the complaint sufficiently alleged the defendant was a manufacturer based on the allegation that it designed the container.⁸ The court concluded, therefore, that the plaintiff was entitled to jurisdictional discovery.⁹

B. Causation

Proximate cause is an essential element of any product liability claim.¹⁰ This requirement applies regardless of the type of defect the plaintiff alleges (such as a design defect or manufacturing defect) or the theory of recovery (namely, strict liability or negligence). Any break in the chain of causation precludes the plaintiff's recovery. In Weaver v. PACCAR, Inc.,¹¹ the United States District Court for the Southern District of Georgia examined the oft-litigated issue of intervening causes.¹² In that case, the plaintiff was severely injured when the truck-tractor he was servicing ran over his legs. The plaintiff was working underneath the truck, attempting to locate an air leak in the brake line. After finding the apparent location of the leak, the driver cranked the truck to build the air pressure in the line to confirm the plaintiff had found the leak. The driver forgot, however, that he had left the brakes released and the truck in gear. When he cranked the truck, it moved forward and ran over the plaintiff's legs. The plaintiff sued the manufacturer of the truck, claiming the truck was defectively designed

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because it did not have a "neutral safety switch" that would prevent the truck from starting when not in neutral.¹³

The defendant moved for summary judgment, arguing that any defect was not the proximate cause of the plaintiff's injuries. Specifically, the defendant argued the driver's negligence in starting the truck while in gear and without the brake engaged was an intervening cause that broke the chain of causation.¹⁴ The court agreed.¹⁵ The court found that the driver's negligence was the proximate cause of plaintiff's injuries, and that his negligence was not reasonably foreseeable.¹⁶ The court then engaged in an extensive analysis of the foreseeability issue.¹⁷ The court concluded the defendant would have expected the driver to be trained in the operation of large trucks, and it was reasonable for the defendant to presume the driver would operate the vehicle in accordance with applicable rules and regulations.¹⁸ The court emphasized that the driver was trained and appreciated the risk of cranking the truck while it was in gear without the brake engaged, stating that his negligence "was not born out of ignorance, but absent-mindedness."¹⁹ The court concluded that "[d]efendant-manufacturers may be expected to foresee negligence born of ignorance, but they are not expected to foresee negligence from distraction, inattentiveness, or absent-mindedness."²⁰

In Thurmon v. A.W. Chesterton, Inc.,²¹ the United States District Court for the Northern District of Georgia addressed the "bare metal defense" in asbestos product liability cases.²² The plaintiffs alleged their decedent died from mesothelioma as a result of exposure to asbestos in valves, gaskets, and packing used in the paper mill where the decedent had worked for thirty-one years. The defendant manufactured the valve and its original gaskets and packing. The gaskets and packing, however, were regularly replaced due to normal wear and tear. The plaintiffs alleged the decedent was exposed to asbestos fibers that were released during the replacement of those valve components. However, the plaintiffs did not present any evidence showing the

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defendant manufactured the replacement parts.²³ The issue the court addressed on summary judgment was whether the "bare metal defense" barred plaintiffs' claims—that is, whether the defendant-manufacturer of the valve can be liable for asbestos-containing component parts used with its bare metal product if it did not manufacture those component parts.²⁴

Despite noting the absence of Georgia case law unequivocally recognizing the bare metal defense, the district court concluded that the defense applied.²⁵ In doing so, the court relied upon the Georgia Court of Appeals holding in Toole v. Georgia-Pacific, LLC,²⁶ which the court found to be an "implicit endorsement of the bare metal defense."²⁷ The holding was rooted in Georgia law's requirement that a plaintiff show that his or her injury was proximately caused by a defect that existed in the defendant's product at the time it was sold.²⁸

Put another way, if a plaintiff cannot establish that the asbestos-containing packing and gaskets added post-sale to a defendant's bare metal product were also manufactured by that defendant, the plaintiff fails to show proximate causation and, at the same time, succumbs to a defendant's bare metal defense, which is available because the defendant cannot point to asbestos exposure stemming directly from one of the defendant's products.²⁹

Applying this principle, the court granted the defendant's motion for summary judgment based on the lack of evidence that it manufactured the replacement parts used in the valve.³⁰

In Roberts v. Tractor Supply Co.,³¹ the United States District Court for the Northern District of Georgia addressed the pleading requirements for a product defect claim.³² The plaintiff filed negligence and strict liability claims against the manufacturer of a tree stand. The plaintiff specifically alleged the tree stand was defective because the

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necessary straps and assembly instructions were not permanently attached to the stand. As a result, the plaintiff attempted to assemble and mount the tree stand without instructions, which were not included with the stand because he bought the floor model. The manufacturer filed a motion to dismiss, arguing the plaintiff's complaint failed to adequately allege a product defect that proximately caused the plaintiff's injuries.

For the product defect issue, the manufacturer argued that the plaintiff's assembly of the tree stand without instructions was an abnormal handling of the product that precluded the plaintiff's product defect claim. The manufacturer also argued that it could not be liable because the plaintiff's injuries resulted from an open and obvious danger.³⁴ The district court rejected both arguments.³⁵ First, the court found the plaintiff's injuries occurred while he was attempting to mount the tree stand, which was the intended purpose of the product.³⁶ The court concluded that the plaintiff's factual allegations were sufficient to infer the manufacturer reasonably anticipated that danger.³⁷ Because the plaintiff alleged he was not provided assembly instructions, the court similarly found it was unable to determine that the plaintiff's injuries resulted from an open and obvious danger on a motion to dismiss.³⁸ For those reasons, the court concluded the plaintiff sufficiently pled a product defect.³⁹

The court also found the plaintiff's complaint sufficiently alleged the required element of proximate causation.⁴⁰ First, the court found that the plaintiff's allegations that it was foreseeable the product would be sold outside its original packaging without the assembly instructions, and that the product typically required assembly when sold, were sufficient to satisfy the plaintiff's burden to allege facts that "plausibly state the proximate cause element" of a product liability claim.⁴¹ Second, the court rejected the manufacturer's argument that the plaintiff's assembly of the tree stand without the instructions and the retailer's sale of the product without the instructions and necessary components were intervening causes.⁴² The court relied on the

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principle that proximate cause issues are generally left for the jury to decide.⁴³

In Fouch v. Bicknell Supply Co.,⁴⁴ the Georgia Court of Appeals addressed what proximate cause evidence a plaintiff must provide to survive summary judgment in a toxic tort product liability case.⁴⁵ The plaintiff in Fouch was diagnosed with silicosis from overexposure to silica during his eleven years working as a sandblaster. The trial court granted summary judgment to the defendants, finding that the plaintiff did not establish proximate causation because he failed to present evidence showing the exact amount of exposure to silica he experienced while...