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

• Publication year: 2006

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, the Eleventh Circuit Court of Appeals, and United States district courts located in Georgia. In addition, this 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, which provides that the manufacturer of personal property sold as new is strictly liable to individuals who are injured by that property.² 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.³ 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."⁴

A. Manufacturers and Product Sellers

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. 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 then sells the assembled item as a single item under its own trade name.⁵ Despite these seemingly broad definitions, courts strictly construe the Georgia strict liability statute,⁶ holding 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."⁷

While manufacturers are subject to strict liability in Georgia, product sellers are specifically excluded from such liability pursuant to O.C.G.A. section 51-1-11.1.⁸ This statute defines a product seller as a person who "leases or sells and distributes; installs; prepares; blends; packages; labels; markets; or assembles pursuant to a manufacturer's plan, intention, design, specifications, or formulations; or repairs; maintains; or otherwise is involved in placing a product in the stream of com-merce."⁹

Because an entity may simultaneously display the traits of a manufacturer and a product seller, courts are often required to evaluate the undisputed evidence to determine whether the Georgia strict liability statute applies. In many instances, the dispute is the subject of a motion for summary judgment in which the defendant argues that it is not subject to strict liability because it is merely a product seller. Such was the case in Tomlinson v. ResQline, Inc.¹⁰

In Tomlinson the plaintiffs sued for damages arising from personal injuries Herbert Tomlinson sustained while using an evacuation system comprised of a cable and harness. The plaintiffs contended that ResQline, Inc. and Carl Stahl Sava Industries, Inc. ("Sava") were strictly liable because they designed, manufactured, assembled, marketed, and sold the system.¹¹ The evacuation system, known as the SafirRosetti ResQline System, was designed by Moshe Mellor and was marketed and sold by ResQline.¹² Sava, a manufacturer of cables and harnesses, was contacted by ResQline and asked to supply a cable with a minimum breaking strength of 1,300 pounds. Because Sava did not manufacture such a cable, Sava purchased the cable from another company, Indusco, Inc. Upon receipt of the cable from Indusco, Sava tested the cable to ensure that it met ResQline's specifications, modified both ends of the cables in accordance with ResQline's instructions, and sent the cable to ResQline so that it could be incorporated into the system. Sava did not participate in the "integration of the cable assembly into the System."¹³

Relying upon O.C.G.A. section 51-1-11(b)(2), the plaintiffs alleged that Sava was strictly liable because it manufactured the defective cable and cable system that caused the plaintiff's injuries. Sava denied liability for the plaintiff's injuries, arguing in its motion for summary judgment that it was merely a product seller and was not liable as a manufacturer on grounds of strict liability.¹⁴ The district court agreed with Sava, observing that Sava simply assembled the cable pursuant to the plan, intention, design, specifications, and formulation of ResQline.¹⁵ Because Sava did not manufacture the cable, did not play an active role in the design or selection of the cable, and did not participate in the integration of the cable assembly into the system,¹⁶ the court determined that "Sava was not the manufacturer of a defective component part the failure of which caused plaintiff's injury."¹⁷ Accordingly, the district court granted Sava's motion for summary judgment on the plaintiffs' strict liability claim.¹⁸

The Georgia Court of Appeals recently examined the strict liability statute in a similar case involving a product seller. In Boyce v. Gregory Poole Equipment Co.,¹⁹ the plaintiff brought a product liability/wrongful death action arising out of a forklift accident. At the time of his death, the decedent, Robyn Embry, was operating a stand-up forklift that lacked a rear guard. When Embry's forklift made contact with a parked forklift, the forks on the parked forklift entered the operator's compartment and fatally injured Embry. As a result, the plaintiff asserted a strict liability claim against Gregory Poole Equipment Company, alleging that the forklift Embry was operating should have been equipped with a rear guard.²⁰

The forklift Embry was operating was designed and manufactured by Material Handling Associates ("MHA") and Caterpillar. It was sold to Embry's employer by Gregory Poole Equipment Company ("Gregory Poole"). Because the general manager of Gregory Poole served on the advisory board of the MHA design team for the forklift, the plaintiff maintained that Gregory Poole also manufactured the product and was therefore liable under Georgia's strict liability statute.²¹ The trial court disagreed with the plaintiff's argument and granted Gregory Poole's motion for summary judgment on the plaintiff's strict liability claim.²²

After reviewing the evidence submitted in support of Gregory Poole's motion, the Georgia Court ofAppeals concluded that Gregory Poole could not be held strictly liable because it was merely a seller of a product manufactured by MHA.²³ In making this decision, the court rejected the plaintiff's claim that Gregory Poole became a manufacturer simply because its employee served on the advisory board for the design team of the manufacturer.²⁴ As the court observed, the strict liability statute must be "strictly construed to apply to actual manufacturers or designers only."²⁵

While the courts in Tomlinson and Boyce granted summary judgment in favor of product sellers, the Georgia Court of Appeals recently permitted a plaintiff to survive summary judgment because there was some evidence that the product seller also had significant input in the manufacture of the product. In Buchan v. Lawrence Metal Products, Inc.,²⁶ the plaintiff brought suit for injuries he sustained when the vinyl, retractable tape on a crowd-control barrier detached from a metal post and struck him on the arm. The plaintiff's claims were based on theories of negligence and strict liability. The defendant, Lawrence Metal Products, Inc. ("Lawrence Metal"), moved for summary judgment on the plaintiff's strict liability claims, asserting that there was no evidence that it manufactured the Tensabarrier crowd-control system. According to Lawrence Metal, the retractable tape cassettes used in the system were designed and manufactured by another company, and Lawrence Metal merely produced the metal posts in which the cassettes were inserted. The trial court granted Lawrence Metal's motion, finding that Lawrence Metal could not be held liable on theories of negligence or strict liability because it was merely a seller of the product. The trial court concluded that Lawrence Metal was not a manufacturer, despite the fact that Lawrence Metal manufactured the metal posts and labeled, marketed, and sold the crowd-control system.²⁷

The Georgia Court of Appeals re-evaluated the evidence and reversed the trial court's ruling.²⁸ While the court of appeals recognized that Lawrence Metal did not have a role in the design or production of the retractable tape cassette, the court concluded that Lawrence Metal had an active role in the production, design, and assembly of the overall system.²⁹ The court was persuaded by the fact that the system consists of both the cassettes and the posts, the system cannot function without the posts, and the plaintiff alleged that the system—and not just the tape cassette—was defective.³⁰ "Considering its role as assembler of the crowd-control system and sole designer and producer of the component intended to hold the retractable tape in place, there is evidence that Lawrence Metal had significant input into the manufacture of the crowd-control system."³¹ Because Lawrence Metal func- tioned as both a manufacturer and a product seller, "it [was] not entitled to the protections afforded a mere product seller."³²

B. Recall Evidence

While evidence of a product recall may be admissible to show that a defect was present when the product left the manufacturer, it does not relieve a plaintiff from proving that the alleged defect proximately caused his or her injuries.³³ "Strict liability is imposed for injuries which are the proximate result...