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Last Reviewed / Modified On 18 Feb 2016.

GEORGIA PRODUCT LIABILITY RESOURCES

Defect in Design – the feasibility of alternative designs and consumer expectations


Under Georgia law, a manufacturer is liable if its product has a design defect at the time it was sold that proximately caused the claimed injury. O.C.G.A. § 51-1-11(b)(1). Georgia employs the risk-utility balancing test for determining whether a product’s design is defective. Banks v. ICI Americas, Inc., 264 Ga. 732, 734-75, 450 S.E.2d 671, 673-74 (1994). Under this test, “risks inherent in a product design are weighed against the utility or benefit derived from the product.” Id.

A. Risk-Utility Test


The non-exhaustive factors to be considered by the jury are set forth in the Banks opinion, as well as in the form jury charge. Georgia Suggested Pattern Jury Instructions, Vol. 1, Civil Cases, 5th Edition, No. 62.650 provides as follows:

To determine whether a product suffers from a design defect, you must balance the inherent risk of harm in a product design against the utility or benefits of that product design. You must decide whether the manufacturer acted reasonably in choosing a particular product design by considering all relevant evidence, including the following factors:
1)       the usefulness of the product;
2)       the severity of the danger posed by the design;
3)       the likelihood of that danger;
4)       the avoidability of the danger, considering the user's knowledge of the product, publicity surrounding the danger, the effectiveness of warnings, and common knowledge or the expectation of danger;
5)       the user's ability to avoid the danger;
6)       the technology available when the product was manufactured;
7)       the ability to eliminate the danger without impairing the product's usefulness or making it too expensive;
8)       the feasibility of spreading any increased cost through the product's price or by purchasing insurance;
9)       the appearance and aesthetic attractiveness of the product;
10)       the product's utility for multiple uses;
11)       the convenience and durability of the product;
12)       alternative designs for the product available to the manufacturer; and
13)       the manufacturer's compliance with industry standards or government regulations.

If you decide that the risk of harm in the product's design outweighs the utility of that particular design, then the manufacturer exposed the consumer to greater risk of danger than the manufacturer should have in using that product design, and the product is defective. If after balancing the risks and utility of the product, you find by a preponderance of the evidence that the product suffered from a design defect, then the plaintiff is entitled to recover.

B. Alternative Design


While evidence of alternative design is not required as a matter of law, see Bodymasters Sports Indus., Inc. v. Wimberley, 232 Ga. App. 170, 173, 501 S.E.2d 556, 560 (1998), the Georgia Supreme Court in Banks noted it is considered the “heart” of a design defect case. Banks, 264 Ga. at 736, 450 S.E.2d at 674 (“The essential inquiry, therefore, is whether the design chosen was a reasonable one from among the feasible choices of which the manufacturer was aware or should have been aware.”); see also Jones v. NordicTrack, Inc., 274 Ga. 115, 118, 550 S.E.2d 101, 103 (2001) (noting that “the appropriate analysis” in a design defect case “includes the consideration of” alternative designs). Georgia Suggested Pattern Jury Instructions, Vol. 1, Civil Cases, 5th Edition, No. 62.660 provides as follows:

In determining whether a product was defective, you may consider evidence of alternative designs that would have made the product safer and could have prevented or minimized the plaintiff's injury. In determining the reasonableness of the manufacturer's choice of product design, you should consider
1)       the availability of an alternative design at the time the manufacturer designed this product;
2)       the level of safety from an alternative design compared to the actual design;
3)       the feasibility of an alternative design, considering the market and technology at the time the product was designed;
4)       the economic feasibility of an alternative design;
5)       the effect an alternative design would have on the product's appearance and utility for multiple purposes; and any adverse effects on the manufacturer or the product from using an alternative design..

C. Compliance with Industry Standards or Government Regulations


Proof of compliance with industry-wide practices or governmental safety regulations is relevant, but does not bar a defect claim. Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. 574, 577, 481 S.E.2d 518, 521 (1997) (“That is not to say that evidence of such compliance is not significant, for it is. But, instead of acting as an impenetrable shield from liability, compliance, more appropriately, is to be a piece of the evidentiary puzzle”). Georgia Suggested Pattern Jury Instructions, Vol. 1, Civil Cases, 5th Edition, No. 62.670 provides:

In determining whether a product was defective, you may consider proof of a manufacturer's compliance with federal or state safety standards or regulations and industrywide customs, practices, or design standards. Compliance with such standards or regulations is a factor to consider in deciding whether the product design selected was reasonable considering the feasible choices of which the manufacturer knew or should have known. However, a product may comply with such standards or regulations and still contain a design defect.

Misuse of Products


“Product misuse is defined as use of a product in a manner that could not reasonably be foreseen by the defendant. Misuse of a product may bar recovery against the manufacturer where the misuse is the sole proximate cause of damage, or where it is the intervening or superseding cause.” Thornton v. E.I. Du Pont De Nemours & Co., Inc., 22 F.3d 284, 288 (11th Cir. 1994); Lee v. CNH Am., LLC, 322 Ga. App. 766, 773, 746 S.E.2d 243, 248 (2013); ” Ctr. Chem. Co. v. Parzini, 234 Ga. 868, 869, 218 S.E.2d 580, 582 (1975). Georgia Suggested Pattern Jury Instructions, Vol. 1, Civil Cases, 5th Edition, No. 62.681 provides:

A product that is safe if used in a normal manner is not ordinarily a defective product. If a person uses a product in an abnormal manner and is injured because of such abnormal use, the manufacturer is not liable for such injury. However, if the manufacturer had reason to anticipate or foresee that the product might be used in this abnormal manner and that such use might result in injury and, knowing these facts, failed to give adequate warning against using the product in this manner, then the manufacturer may be held liable for the resulting injury.

Unanticipated, Unforeseeable, or Unintended Use of Products


Please see comments above with respect to misuse of a product

Alteration of Products


“A manufacturer has the absolute right to have his strict liability for injuries adjudged on the basis of the design of his own marketed product and not that of someone else.” Talley v. City Tank Corp., 158 Ga. App. 130, 135, 279 S.E.2d 264, 269 (1981). “`One of the conditions for imposition of strict liability against a manufacturer of ‘defective’ products is that the product ‘is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.’” Hall v. Scott USA, Ltd., 198 Ga. App. 197, 200, 400 S.E.2d 700, 703 (1990) (citation omitted) (emphasis in original). As such, “if the design of that product has been independently altered, eliminated and replaced by a third party after the sale and injuries then result, those injuries cannot be traced to or be the proximate result of the manufacturer's original design which did not exist at the time of injury.” Talley, 158 Ga. App. at 135, 279 S.E.2d at 269. But see, Dixie Grp., Inc. v. Shaw Indus. Grp., Inc., 303 Ga. App. 459, 464, 693 S.E.2d 888, 893 (2010) (post-sale alteration of the product not a defense because, despite the alteration, the product operated as designed); Dorsey Trailers Southeast, Inc. v. Brackett, 185 Ga. App. 172, 174, 363 S.E.2d 779, 781 (1987) (post-sale misrepair of a bucket-truck motor that led to plaintiff's injury did not provide an “alteration” defense because the misrepair could be traced back to the manufacturer's original design, which “facilitated” the alteration).

Unavoidably Unsafe Products


A product is not defective simply because it is dangerous. A product that is inherently dangerous or unavoidably unsafe, if properly prepared, manufactured, packaged, and accompanied with adequate warnings and instructions, cannot be said to be defective. Center Chemical Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580, 17 U.C.C. Rep. Serv. 1211 (1975). A manufacturer of such a product must use reasonable care in warning consumers and users of the particular risks inherent in its use. Walker v. Merck & Co., Inc., 648 F. Supp. 931 (M.D. Ga. 1986).

Duty to Warn - Dangerous or Obviously Unsafe Conditions


“Under Georgia law, a manufacturer has a duty to warn of nonobvious foreseeable dangers from the normal use of its product.” Thornton v. E.I. Du Pont De Nemours & Co., 22 F.3d 284, 289 (11th Cir. 1994) (citations omitted).

a. Duty: Georgia Suggested Pattern Jury Instructions, Vol. 1, Civil Cases, 5th Edition, No. 62.680 provides as follows:


A manufacturer has a duty to give an adequate warning of known or reasonably foreseeable dangers arising from the use of a product. The manufacturer owes this duty to warn to all persons whom the manufacturer should reasonably foresee may use or be affected by the product. A manufacturer's duty to warn may be breached by
a) failing to provide an adequate warning of the product's potential dangers or
b) failing to adequately communicate to the ultimate user the warning provided.


A product, however well or carefully made, that is sold without an adequate warning of such danger may be said to be in a defective condition. If you find by a preponderance of the evidence that the manufacturer did not warn or did not adequately warn when a warning should have been given, then you may find the product to be defective for that reason, and the plaintiff is entitled to recover.


b.       Foreseeable and Unforeseeable Uses: Georgia Suggested Pattern Jury Instructions, Vol. 1, Civil Cases, 5th Edition, No. 62.681 provides as follows:


A product that is safe if used in a normal manner is not ordinarily a defective product. If a person uses a product in an abnormal manner and is injured because of such abnormal use, the manufacturer is not liable for such injury. However, if the manufacturer had reason to anticipate or foresee that the product might be used in this abnormal manner and that such use might result in injury and, knowing these facts, failed to give adequate warning against using the product in this manner, then the manufacturer may be held liable for the resulting injury.


c.       Open and Obvious Defense: Georgia Suggested Pattern Jury Instructions, Vol. 1, Civil Cases, 5th Edition, No. 62.682 provides as follows:


However, a manufacturer is not required to warn of danger that should be known, obvious, or apparent to the user of the product.
              
It is important to note that “under the open and obvious rule whether the peril from which an injury results is latent or patent is to be determined by an objective view of the product; the subjective perceptions of the user in this regard are irrelevant.” Ream Tool Co. v. Newton, 209 Ga. App. 226, 229, 433 S.E.2d 67, 71 (1993) (emphasis supplied) (citations omitted).


d.        Post-sale Duty to Warn: Unlike some states, Georgia recognizes a post-sale duty to warn. Georgia Suggested Pattern Jury Instructions, Vol. 1, Civil Cases, 5th Edition, No. 62.683 provides as follows:


A manufacturer's duty to warn arises when the manufacturer knows or reasonably should know of the danger presented by the use of a product. Therefore, a manufacturer has a continuing duty to adequately warn the public of defects in a product even after that product has left the control of the manufacturer to be sold or distributed to the consumer.


e.        Identity of Defendant:
The duty to warn is different for component part suppliers and distributors. See respectively Giordano v. Ford Motor Co., 165 Ga. App. 644, 644, 299 S.E.2d 897, 898-99 (1983) (“Generally, the determination of whether the component manufacturer is insulated from liability depends upon the extent to which the product is altered by the assembler before it reaches the ultimate user.”); Farmer v. Brannan Auto Parts, Inc., 231 Ga. App. 353, 354, 498 S.E.2d 583, 585 (1998) (“the distributor of a product which, to its actual or constructive knowledge, involves danger to users has a duty to give warning of such danger at the time of sale and delivery.”) (citations and internal punctuation marks omitted). Non-manufacturers generally do not have a post-sale duty to warn. DeLoach v. Rovema Corp., 241 Ga. App. 802, 804, 527 S.E.2d 882, 883 (2000) (“Georgia law imposes a duty on a seller to warn only of dangers actually or constructively known at the time of the sale.”) (emphasis added); Bishop v. Farhat, 227 Ga. App. 201, 206, 489 S.E.2d 323, 328 (1997) (“a distributor . . . could be held liable for negligent failure to warn only if, at the time of the sale, it had ‘actual or constructive knowledge’ that its product created a danger for the consumer.”) (emphasis added) (citations omitted).

State of the Art Defenses


Evidence that a product is designed in accordance with the state of the art existing when the product was manufactured (not the state of the art existing at the time of the injury at issue or the time of trial) is relevant to the jury’s risk-utility analysis. Banks v. ICI Americas, 264 Ga. 732, 737 n.6, 450 S.E.2d 671, 677 n.6 (1994)..

Government Contractor Defense


This is a special defense applicable to actions seeking damages for injuries caused by the defective design of military equipment supplied to the United States pursuant to a federal procurement contract. Georgia courts have made clear that the government contractor defense articulated in Boyle v. United Technologies Corp., 487 U.S. 500 (1988) only applies to allegations of design defect – not manufacturing defect. Schwindt v. Cessna Aircraft Co., No. CV485-472, 1988 WL 148433, at *2-3 (S.D. Ga. Aug. 31, 1988). Moreover, the doctrine only applies where proceeding with a state law tort claim “would contravene the Government’s interest in preserving military secrets.” Carmichael v. Kellogg, Brown & Root Servs., Inc., 450 F. Supp. 2d 1373, 1379-80 (N.D. Ga. 2006)..

Statutes of Limitation and of Repose

       
Georgia has a two-year statute of limitation for personal injury actions (O.C.G.A. § 9-3-33), a four-year statute of limitation for loss of consortium (O.C.G.A. § 9-3-33), and a four-year statute of limitation for property damage actions (O.C.G.A. § 9-3-32). All of these statutes accrue at the time of the alleged defect in the product causes injury – not when the product is manufactured or sold.

Georgia’s statute of repose bars strict liability claims in cases commencing more than “ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.” O.C.G.A. § 51-1-11(b)(2). The statute of repose does not extinguish plaintiffs’ failure to warn claims or negligent design claims (if negligent design is proven by a willful, reckless, or wanton standard).

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