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

• Publication year: 2007

Product Liabilityby Franklin P. Brannen, Jr.^* Richard L. Sizemore^** and Jacob E. Daly^***

This Article surveys recent developments in Georgia product liability law.¹ It covers noteworthy cases decided during the survey period by Georgia appellate courts, United States district courts located in Georgia, and the United States Court of Appeals for the Eleventh Circuit. In addition, the Article discusses relevant legislative enactments by the Georgia General Assembly revising the Official Code of Georgia Annotated ("O.C.G.A.").

I. Strict Liability

Georgia's product liability practice is centered upon O.C.G.A. section 51-1-11,² which provides that the manufacturer of personal property sold as new is strictly liable to individuals who are injured by that property.³ To establish a strict liability claim under this statute, a plaintiff must prove that (1) the defendant was the manufacturer of the product, (2) the product was defective when it left the control of the manufacturer, and (3) the product's defective condition proximately caused the injury to the plaintiff.⁴ The purpose of the statute is to "ensure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market."⁵

Because the manufacturer is in the best position to discover dangerous product defects and determine how to correct such defects, product liability actions for strict liability can be brought only against the manufacturer of a product.⁶ In Georgia, an entity is classified as a manufacturer if (1) the entity actually designs or manufactures the product, (2) the entity is a manufacturer of a component part that failed and caused injury to the plaintiff, or (3) the entity is an assembler of component parts who sells the assembled product as a single item under its own trade name.⁷ Despite these seemingly broad definitions, courts strictly construe the strict liability statute,⁸ finding that it only applies to "actual manufacturers—those entities that have an active role in the production, design, or assembly of products and placing them in the stream of commerce."⁹

During the survey period, the Georgia Court of Appeals revisited the statutory definition of a product manufacturer. In Davenport v. Cummins Alabama, Inc.,¹⁰ the plaintiff was injured when a wood chipper he was operating caught fire and exploded. The plaintiff maintained that the explosion occurred when a hydraulic fuel hose ruptured, releasing a cloud of flammable vapor that caught fire when it came into contact with the hot engine.¹¹

In addition to suing Precision Husky, the company that designed and assembled the chipper, the plaintiff brought a product liability action against Cummins Alabama, Inc., the distributor of the engine that was installed in the chipper. The plaintiff asserted that Cummins was a manufacturer of the chipper subject to strict liability under O.C.G.A. section 51-1-11 because a Cummins representative actively participated in the design of the chipper and the placement of the hydraulic pumps near the hot engine.¹² According to the plaintiff, the Cummins representative directed Precision Husky to relocate the hydraulic pumps "in dangerous proximity to very hot engine parts where a foreseeable leak of hydraulic fluid would ignite a fire."¹³ The trial court disagreed with the plaintiff's argument and granted Cummins's motion for summary judgment, concluding that Cummins was not actively involved in the design of the chipper and could not be classified as a manufactur-er.¹⁴

After reviewing the evidence submitted in support of Cummins's motion, the Georgia Court of Appeals affirmed the trial court's ruling, noting that the evidence of record "belies [the plaintiff's] argument and supports only one conclusion: Cummins Alabama did not actively participate in the conception, design, or specification of the chipper."¹⁵ While the court acknowledged that a Cummins representative "told Precision Husky representatives they would have to relocate the hydraulic pumps to the rear of the engine," the court observed that "[r]epresentatives of Precision Husky made all the design decisions relating to the change, with no input from [Cummins]."¹⁶ As a result, Cummins's input was limited to stating, in essence, that a particular engine would perform adequately in a chipper with a hydraulic pump located at the rear of the engine rather than the front of the engine.¹⁷ The court concluded that "such input does not constitute the type of active role in the design of the final product as will subject the distributor of a component part to liability as a manufacturer of the allegedly defectively designed product."¹⁸ Because Cummins could not be classified as a manufacturer of the chipper, the court agreed that summary judgment in favor of Cummins was warranted on the plaintiff's strict liability claims.¹⁹

II. Failure to Warn

A. General Elements

A manufacturer who has reason to anticipate that its product has the potential for doing harm when used for a particular purpose "'may be required to give adequate warning of the danger.'"²⁰ The manufacturer's duty to warn depends upon a number of factors, including the "foreseeability of the use in question, the type of danger involved, and the foreseeability of the user's knowledge of the danger."²¹ If the manufacturer has a duty to warn, the manufacturer may breach the duty by (1) failing to adequately warn of the product's potential risks or (2) failing to adequately communicate the warning to the user.²² Failure to adequately communicate a warning generally requires an evaluation of the location and presentation of the warning, including the color, font size, and use of symbols to draw attention to the warning.²³

In addition to establishing a duty to warn and a breach on the part of the manufacturer, the plaintiff must also establish that the breach proximately caused the alleged injuries.²⁴ In cases premised upon the content or sufficiency of a warning, the failure to actually read the instructions or warning may prevent the plaintiff from recovering.²⁵ However, if the plaintiff contends that the manufacturer failed to adequately communicate the warning, the failure to read the warning does not bar recovery.²⁶ In fact, in cases challenging the location and presentation of the warning, the plaintiff's failure to read the warnings may actually be circumstantial evidence of the inadequacy of the warning.²⁷

Georgia courts had occasion to evaluate several failure to warn claims during the survey period, and in each reported instance, the court determined that the plaintiff submitted sufficient evidence to support the elements of a failure to warn claim. In Dozier Crane & Machinery, Inc. v. Gibson,²⁸ the plaintiffs brought suit against Dozier Crane for injuries they sustained when the boom of a crane touched a power line while the plaintiffs were guiding a load of metal rebar to the ground. The plaintiffs asserted that Dozier Crane, a company that buys, refurbishes, and sells used equipment, was negligent for failing to properly warn of the dangers associated with operating a crane near electrical power lines. Dozier Crane moved for summary judgment on this failure to warn claim, asserting that (1) it did not have a duty to warn of the dangers of electrocution because it sold the crane "as is, where is" and had no control over its maintenance after the sale date, and (2) even if a duty existed, the plaintiffs failed to show any evidence that the failure to warn proximately caused their injuries. The trial court denied the motion but certified its order for immediate review.²⁹

The Georgia Court of Appeals granted the request for interlocutory review, evaluated the evidence submitted by the parties, and affirmed the judgment of the trial court.³⁰ The court rejected Dozier Crane's argument that it had no duty to warn, observing that "[a]s a supplier of refurbished equipment, Dozier owed a duty to third persons to warn of the foreseeable dangers associated with its refurbished equipment, including the risk of electrocution."³¹ While the burden of warning was "slight," the court observed that Dozier Crane generally applied decals on its refurbished equipment which warned of the dangers of electrocution.³² According to the court, "[t]he requirement of applying the decals in this case would serve not only to inform the crane operator of any dangers but to continually remind him to check for power lines and prompt him, or others on the construction site, to point out the danger to the plaintiffs."³³

The court similarly rejected the argument that the plaintiffs failed to provide any evidence that the alleged failure to warn proximately caused their injuries.³⁴ The court acknowledged that it would be difficult to prove the causation element of a failure to warn claim if the plaintiffs were merely bystanders who did not see or pay attention to the allegedly defective product.³⁵ However, the court held that the evidence indicated the plaintiffs "were working directly with the crane operator in moving the rebar, looked at the crane, and thus may have seen warning decals had they been attached."³⁶ Because there was sufficient evidence to create a genuine issue of material fact regarding the elements of the plaintiffs' failure to warn claim, the court of appeals affirmed the trial court's judgment.³⁷

The Middle District of Georgia undertook a similar analysis in Folsom v. Kawasaki Motors Corp. U.S.A.³⁸ In Folsom the plaintiffs filed suit against Kawasaki Motors Corp. U.S.A. and others to recover for the death of their son. The suit arose out of an accident involving a Kawasaki Jet Ski. On the date of the accident, the Jet Ski was being used by a novice operator who temporarily lost control of the watercraft, causing the rear of the Jet Ski to strike the decedent in the head. The decedent was knocked unconscious, and he sank to the bottom of the lake where he ultimately died as a result...