Product Liability - Franklin P. Brannen, Jr. and Jacob E. Daly

• Publication year: 2010

Product Liability

by Franklin P. Brannen, Jr.* and Jacob E. Daly**

This Article surveys developments in Georgia product liability law between June 1, 2009 through May 31, 2010.¹ It covers noteworthy cases decided during this period by the Georgia appellate courts, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.

I. Failure to Warn

A. Existence of a Duty

"In failure to warn cases, the duty to warn arises whenever the manufacturer knows or reasonably should know of the danger arising from the use of its product."² The manufacturer has constructive knowledge if "by the application of reasonable, developed human skill and foresight," it should have known ofthe danger.³ The plaintiffbears the burden of proving that the manufacturer has actual or constructive

* 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, 61 MERCER L. REV. 267 (2009).

2. Chrysler Corp. v. Batten, 264 Ga. 723, 724, 450 S.E.2d 208, 211 (1994); see also Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 335, 319 S.E.2d 470, 476 (1984) (holding that "the manufacturer of a product which, to its actual or constructive knowledge, involves danger to users, has a duty to give warning of such danger"). A seller may also owe a duty to warn under certain limited circumstances. See, e.g., Farmer v. Brannan Auto Parts,

Inc., 231 Ga. App. 353, 355, 498 S.E.2d 583, 585 (1998) (en banc).

3. Bishop v. Farhat, 227 Ga. App. 201, 206, 489 S.E.2d 323, 328 (1997) (internal

quotation marks omitted).

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knowledge of the danger,⁴ and this burden may be satisfied with evidence ofprior complaints or injuries, documentation ofthe danger in relevant literature, recognition of the danger by industry experts, or alerts issued by relevant governmental agencies.⁵ But even if the manufacturer has actual or constructive knowledge of a danger associated with its product, it does not have a duty to warn users ifthat danger is open and obvious.⁶ Thus, the existence of a duty "depends upon [the] foreseeability of the use in question, the type of danger involved, and the foreseeability of the user's knowledge of the danger."⁷ The manufacturer's knowledge of the alleged danger was the central issue in Mather v. L'Oreal USA, Inc.⁸ The plaintiff used L'Oreal Paris Sublime Bronze self-tanning lotion twice a day for three days while she was vacationing at a beach. During that time she did not experience any problems, but while she was driving home, her skin became red with small pustules when it was exposed to direct sunlight through the windows of her car. Once she got home, her symptoms became progressively worse. She developed pus-filled abscesses that turned into a systemic infection, and she had to be given IV antibiotics. Lesions appeared all over her body, and her multiple sclerosis was exacerbated. She sued L'Oreal, the manufacturer of the lotion, alleging that it failed to warn her about the potential dangers of using the product. The manufacturer moved for summary judgment, and trial court granted the motion.⁹

The Georgia Court of Appeals affirmed on the ground that the manufacturer had neither actual nor constructive knowledge of the allergic reaction experienced by the plaintiff.¹⁰ The plaintiff first argued that the manufacturer knew about this danger because its own expert testified that the active ingredient in the lotion, hydroxyacetone, is generally accepted by dermatologists as safe for most people to use. Because the expert said "most" and not "all," the plaintiff argued that the lotion should have had a warning since it was not safe for some people to use.¹¹ The court rejected this argument based on comment j

4. John Crane, Inc. v. Wommack, 227 Ga. App. 538, 540, 489 S.E.2d 527, 530 (1997).

5. Bishop, 227 Ga. App. at 206, 489 S.E.2d at 328. These are by no means the only ways of proving the manufacturer's actual or constructive knowledge.

6. Vickery v. Waste Mgmt., Inc., 249 Ga. App. 659, 661, 549 S.E.2d 482, 484 (2001).

7. Battersby v. Boyer, 241 Ga. App. 115, 117, 526 S.E.2d 159, 162 (1999) (alteration in original) (internal quotation marks omitted).

8. 304 Ga. App. 163, 695 S.E.2d 693 (2010).

9. Id. at 163-64, 695 S.E.2d at 694.

10. Id. at 165, 695 S.E.2d at 695.

11. Id. at 164, 695 S.E.2d at 695.

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to section 402A of the Restatement (Second) of Torts,¹² which provides as follows:

The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number ofthe population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger.¹³

The plaintiffwas unable to satisfy this standard because "there [was] no evidence that the product contained an ingredient to which a substantial number of the population is allergic, rather, just the opposite."¹⁴

Next, the plaintiff attempted to satisfy her burden of proving the manufacturer's knowledge by arguing that the manufacturer improperly excluded certain people during its testing ofthe lotion. The manufacturer excluded people who had an illness that contraindicated participation, who had certain skin conditions, and who were using medications that could either affect the skin's tolerance of the lotion or enhance or suppress adverse effects of the lotion. What the plaintiff failed to answer, however, was that it would have been unethical for the manufacturer to have included these people. Finally, the plaintiff contended that the manufacturer knew or should have known about the danger because of problems experienced by testing participants and consumers. During testing, seven out of forty-two people who had sensitive skin reported an adverse event.¹⁵ However, the court disregarded the reactions experienced by these seven people because they "were characterized as 'mild' and ... in no way resembled the reaction experienced by [the plaintiff]."¹⁶ After testing, the manufacturer received six complaints from consumers who had used the lotion, but the court held that these complaints did not satisfy the plaintiff's burden because "[t]here were no complaints of any reaction of the type

12. Id. at 164-65, 695 S.E.2d at 695.

13. Restatement (Second) of Torts § 402A cmt. j (1965) (emphasis added).

14. Mather, 304 Ga. App. at 165, 695 S.E.2d at 695.

15. Id.

16. Id.

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experienced by [the plaintiff]."¹⁷ Accordingly, the court held that the manufacturer was entitled to summary judgment.¹⁸

The open and obvious nature of the alleged danger was at issue in Cochran v. Brinkmann Corp.¹"⁹ The plaintiffs' son sustained severe burns when he knocked over a turkey fryer and hot peanut oil spilled onto his back. In their complaint, the plaintiffs alleged that the turkey fryer was defective, unfit for use, inherently dangerous, and lacked adequate warnings. The manufacturer moved for summary judgment, and as to its alleged failure to warn, it argued that it did not owe a duty to warn because the dangers associated with the turkey fryer were open and obvious.²⁰ Noting that the plaintiffs did not contend that the dangers of using a turkey fryer were latent, the court agreed with the manufacturer and held that "[t]he dangers associated with the turkey fryer here are inherent, objectively open and obvious, and no reasonable jury could conclude otherwise, nor would they require a warning for the obvious danger at issue in this case."²¹

B. Causation

Proximate cause is an essential element of a failure-to-warn claim.²² Many failure-to-warn claims are improper as a matter oflaw because the plaintiff failed to read the available warnings, which means that additional warnings would not have altered the plaintiff's conduct that resulted in the injuries at issue in the lawsuit.

This shortcoming was present in Mascarenas v. Cooper Tire & Rubber Co. ,²³ a lawsuit in which the plaintiffs sued both the tire manufacturer and the vehicle manufacturer for an allegedly defective tire that ruptured and caused the rollover of a sport-utility vehicle.²⁴ In their failure-to-warn claim against the SUV manufacturer, the plaintiffs contended that the sun visor warning in the SUV "did not mention the stability and handling/skate risks posed by the automobile at all."²⁵ But the driver of the SUV admitted that she did not read the owner's

17. Id.

18. Id.

19. No. 1:08-cv-1790-WSD, 2009 WL 4823854 (N.D. Ga. Dec. 9, 2009).

20. Id. at *2-3, *7.

21. Id. at *7; see also Biles v. Tyson Foods, Inc., No. 1:95-CV-777WBH, 1996 WL 684134, at *3 (N.D. Ga. Aug. 21, 1996) (holding "that the danger of cooking food in hot oil over an open flame is plainly an open and obvious danger and that a reasonable jury could not conclude otherwise").

22. Powell v. Harsco Corp., 209 Ga. App. 348, 349-50, 433 S.E.2d 608, 609-10 (1993).

23. 643 F. Supp. 2d 1363 (S.D. Ga. 2009).

24. Id. at 1367.

25. Id. at 1374-75.

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manual that accompanied the SUV, and she could not remember...