Product Liability - Franklin P. Brannen, Jr. and Jacob E. Daly
| Publication year | 2011 |
Product Liability
by Franklin P. Brannen, Jr.* and Jacob E. Daly**
This Article surveys developments in Georgia product liability law between June 1, 2010 and May 31, 2011.1 It covers noteworthy cases decided during this period by the Georgia appellate courts, the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.
I. Failure to Warn
To prevail on a failure to warn claim, a plaintiff must come forward with evidence that: (1) the defendant knew or reasonably should have known that there is a danger that may arise from the intended use of the product; (2) a reasonable user of the product would be unaware of the danger; and (3) the defendant failed to exercise reasonable care in informing the user about the danger.2 "Whether a duty to warn exists . . . depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user's knowledge of the danger."3
In Kelley v. Hedwin Corp.,4 a hospital clinical engineer sued the manufacturer of a five-gallon collapsible plastic cube. At this hospital,
* Counsel in the firm of King & Spalding, LLP, Atlanta, Georgia. Yale University (B.A., 1992); Mercer University, Walter F. George School of Law (J.D., cum laude, 1996). Member, State Bars of Georgia, Alabama, Mississippi, and Florida.
** Of Counsel in the firm of Freeman Mathis & Gary, LLP, Atlanta, Georgia. University of Virginia (B.A., 1993); Mercer University, Walter F. George School of Law (J.D., cum laude, 2000). Member, State Bar of Georgia.
1. For analysis of Georgia product liability law during the prior survey period, see Franklin P. Brannen, Jr. & Jacob E. Daly, Product Liability, Annual Survey of Georgia Law, 62 Mercer L. Rev. 243 (2010).
2. Chrysler Corp. v. Batten, 264 Ga. 723, 724, 450 S.E.2d 208, 211 (1994); Carmical v. Bell Helicopter Textron, Inc., 117 F.3d 490, 495-96 (11th Cir. 1997).
3. Giordano v. Ford Motor Co., 165 Ga. App. 644, 645, 299 S.E.2d 897, 899 (1983).
4. 308 Ga. App. 509, 707 S.E.2d 895 (2011).
the container was used to store and dispense embalming fluid containing formaldehyde. One evening, the plaintiff received a call that liquid had spilled from the container onto the floor. Although the plaintiff was aware that the spilled liquid contained formaldehyde and the hospital's environmental services group had refused to clean up the liquid, he proceeded to clean without a mask or protective gear. Unsurprisingly, the plaintiff experienced shortness of breath and coughing.5
The plaintiff filed a lawsuit against the manufacturer of the container contending that the manufacturer should have warned that the gravity-fed spigot in the container could cause a large spill if the spigot were uncapped.6 The trial court granted the manufacturer's motion for summary judgment, and the Georgia Court of Appeals affirmed, emphasizing that, under Georgia law, "there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known."7 Here, the court of appeals concluded that it is common knowledge that opening a container and turning it on its side will allow the contents to spill.8 A manufacturer has no duty to warn a consumer about information that is known to a reasonable person.9
R&R Insulation Services, Inc. v. Royal Indemnity Co.10 arose from a fire at a chicken processing plant owned by Wayne Farms. Wayne Farms and its insurance subrogors filed suit against Crane Company, the manufacturer of fiberglass panels that were used as interior finish materials at the chicken plant, contending that Crane failed to properly warn regarding the installation of fiberglass panels using nylon rivets, instead of metal rivets. At the close of discovery, Crane moved for summary judgment on the failure to warn claim, but the trial court denied the motion.11
Crane's first argument on appeal was that it did not owe a duty to warn Wayne Farms because Crane did not have any knowledge of the alleged defect.12 But the Georgia Court of Appeals held that the instructions Crane provided to customers recommended using nylon rivets or non-corroding fasteners to install the fiberglass panels at issue, and it was a question of fact for the jury to decide whether Crane
5. Id. at 509-10, 707 S.E.2d at 897.
6. Id. at 510, 707 S.E.2d at 897-98.
7. Id. at 510-11, 707 S.E.2d at 897-98 (internal quotation marks omitted).
8. Id. at 511, 707 S.E.2d at 898.
9. Id.
10. 307 Ga. App. 419, 705 S.E.2d 223 (2010).
11. Id. at 419-20, 705 S.E.2d at 228-29.
12. Id. at 428, 705 S.E.2d at 233.
breached a duty through its recommendation to end users and whether any breach was the proximate cause of Wayne Farms' damages.13
Next, Crane argued that Wayne Farms should be considered a sophisticated user because Wayne Farms had previously used the fiberglass panels.14 But the court of appeals emphasized that, because this issue was being considered at the summary judgment stage, questions of fact remained regarding the extent of Wayne Farms' knowledge that would determine whether Wayne Farms was a sophisticated user.15
Then Crane argued the open and obvious defense—specifically, that it is common knowledge that plastic will melt or burn when exposed to flames.16 The court of appeals disagreed.17 Because there was evidence in the record that certain types of fiberglass panels are made with different levels of fire retardant, it is not obvious from looking at the panel whether it will burn rapidly and in the manner that Wayne Farms alleged it burned.18
Finally, Crane contended that Wayne Farms failed to come forward with evidence that any alleged failure to warn by Crane was the proximate cause of Wayne Farms' damages.19 In affirming the denial of summary judgment on this issue, the court of appeals referred to expert testimony from Wayne Farms' expert witnesses linking the fiberglass panels to the spread of the fire.20 In addition, to the extent that Crane claimed that Wayne Farms did not directly rely on any recommendations from Crane and thus there was no proximate cause to support the failure to warn claim, the court of appeals cited again the recommendations that Crane provided to consumers regarding the installation of the fiberglass panels.21
In Rivers v. H.S. Beauty Queen, Inc.,22 the plaintiff sustained burns to her face and chest while using a scented-oil burner when she attempted to extinguish the flame in the burner by blowing on the flame. Instead of putting out the burner, the flame grew larger and exploded in the plaintiff's face causing second-degree burns. The plaintiffbrought a lawsuit against the seller of the burner claiming, in part, that the
13. Id.
14. Id. at 428, 705 S.E.2d at 233-34.
15. Id. at 428, 705 S.E.2d at 234.
16. Id. at 429, 705 S.E.2d at 234.
17. Id.
18. Id.
19. Id.
20. Id. at 429, 705 S.E.2d at 234-35.
21. Id. at 429-30, 705 S.E.2d at 235.
22. 306 Ga. App. 866, 703 S.E.2d 416 (2010).
seller failed to warn her regarding foreseeable dangers associated with using the burner. After discovery, the trial court granted the manufacturer's motion for summary judgment.23
On appeal, the Georgia Court of Appeals affirmed the grant of summary judgment to the seller on the failure to warn claim because the seller had no independent duty to communicate warnings that the plaintiff already had received.24 While the seller had sold the burner without including any instructions or warnings from the manufacturer, the oil that was used in the burner was accompanied by written warnings including a warning not to allow the oil to contact an open flame.25 In her deposition, the plaintiff admitted that she had read this warning before using the burner.26 In addition, the court emphasized that "the danger of receiving a burn from the open flame of a candle is an obvious danger for which there is no duty to warn."27
In Kersey v. Dolgencorp LLC,28 the plaintiff, who had severe diabetic neuropathy, brought a lawsuit against Dolgencorp LLC, the manufacturer of a rub cream analgesic similar to Ben-Gay® or Icy Hot®. A few times in May 2008, the plaintiff applied some of the rub cream to her feet and then put on her shoes and socks. At the end of the month, the plaintiff developed ulcers on her feet.29 The plaintiff sued the manufacturer of the rub cream alleging, in part, that the manufacturer "knew or certainly had reason to know that the subject Muscle Rub was likely to be dangerous for the intended use of irritating the skin, dilating blood vessels and increasing local blood flow in high-risk diabetic persons."30 At the close of discovery, the manufacturer moved for summary judgment.31
The United States District Court for the Northern District of Georgia granted the manufacturer's motion on the failure to warn claim because it had no knowledge that diabetic users of the cream were susceptible to injury.32 All of the evidence in the record confirmed that the manufacturer had never received a complaint of any injury related to consumers' use of the cream after manufacturing more than eight million tubes of the cream, and there were no reports in the medical or scientific
23. Id. at 866-67, 703 S.E.2d at 416-17.
24. Id. at 869-70, 703 S.E.2d at 419.
25. Id. at 869, 703 S.E.2d at 419.
26. Id. at 867, 703 S.E.2d at 417.
27. Id. at 869-70, 703 S.E.2d at 419.
28. No. 1:09-CV-898-RWS, 2011 WL 1670886 (N.D. Ga. May 3, 2011).
29. Id. at *1.
30. Id. at *6 (internal quotation marks omitted).
31. Id.
32. Id.
literature regarding adverse reaction by diabetics who used this rub cream.33 In addition, the court noted that the plaintiff also had a problem establishing proximate cause.34 The plaintiff had ulcer issues with her feet from her diabetes before and after using the cream.35 The court implied that the plaintiff likely misused the product because she had used the product for about a year and only had an issue after she applied the cream to her feet and then put on her socks...
To continue reading
Request your trial