Opinion
No. 5:97-CV-179-3 (DF)
March 12, 2002
Attorneys for Plaintiff: John D. Carey and G. McGregor Jordan, Jr. of McKenney, Jordan Carey from Macon, GA.
Attorneys for Defendant: Joseph H. Chambless and David N. Nelson of Chambless, Higdon Carson from Macon, GA.
Attorney for Plaintiff-Intervenor: Eric Jones of Zirkle and Hoffman, LLP from Atlanta, GA.
ORDER
This is a products liability case that was tried to a jury for four days in March 2000. The jury returned a verdict for Defendant on March 23, 2000, and judgment was entered on March 31, 2000. On April 7, 2000, Plaintiff filed a motion for a new trial pursuant to Rule 59 (tab #78). That motion is now before the Court.
The judgment indicates that it was entered on March 30, 2000, but that date is clearly a clerical mistake because the judgment was not signed and filed until March 31, 2000. Therefore, the Court will consider the judgment to have been entered on March 31, 2000. See Fed.R.Civ.P. 60(a) (providing that clerical mistakes in judgments may be corrected by the court at any time). In any event, Plaintiff timely filed his motion regardless of which date is used. See Fed.R.Civ.P. 59(b) (providing that a motion for a new trial must be filed no later than 10 days after entry of the judgment).
Plaintiff argues that the Court committed twelve prejudicial errors during the trial that warrant a new trial. The errors asserted by Plaintiff relate to (1) jury instructions, (2) evidentiary rulings, and (3) closing argument. Plaintiff also argues that the verdict was contrary to the weight of the evidence. Because the Court finds that Plaintiff is entitled to a new trial based on Plaintiffs first enumeration of error, only that issue will be discussed.
Plaintiff argues that the Court failed to instruct the jury properly with respect to the issue of alteration. On that issue, Plaintiff submitted a proposed instruction, No. 9B, which provided as follows:
In this case Defendant has offered evidence that the palletizer machine was altered from its original condition when it was first sold by Defendant to Scotts/Hyponex Corporation. Defendant contends that the alterations to the machine were intervening acts absolving Defendant from liability from manufacturing a defective product.
In this regard I charge you than [sic] an alteration to the machine can serve as an intervening act absolving the Defendant from liability only if the alteration was not foreseeable by the Defendant, and the alteration was sufficient of itself to cause Plaintiffs injury.
Instead, in connection with its instructions regarding proximate cause, the Court instructed the jury as follows:
The plaintiff cannot recover if his injuries are not traceable to the original design of the defendant. And an injury is not traceable to the original design of the defendant if the machine was materially altered and if the alteration was sufficient of itself to cause the injury.
4 Trial Tr. at 79. Specifically, Plaintiff argues that the Court's instruction was erroneous and prejudicial because it omitted the concept of foreseeability that was contained in his No. 9B.
Plaintiff relies primarily on Yaeger v. Canadair, Ltd., 375 S.E.2d 469 (Ga.Ct.App. 1988), for his argument. In Yaeger, the Georgia Court of Appeals held that a modification to a product "can serve as an intervening act absolving [the manufactured from liability only if the independent, intervening act was not foreseeable by [the manufacturer], was not triggered by [the manufacturer's] act, and . . . was sufficient of itself to cause the injury." Id. at 471 (quoting Union Carbide Corp. v. Holton, 222 S.E.2d 105, 109 (Ga.Ct.App. 1975)). Yaeger, however, is not binding precedent in the Georgia courts because two of the three judges on the panel specially concurred. See Ga. Ct. App. R. 33(a) ("A judgment which is fully concurred in by all judges of the Division is a binding precedent; if there is a special concurrence without a statement of agreement with all that is said in the opinion or a concurrence in the judgment only, the opinion is a physical precedent only."); Grantham Transfer Co. v. Hawes, 169 S.E.2d 290, 293-94 (Ga. 1969) (recognizing that minority opinions of the court of appeals are not binding precedent, even if a majority of the judges concur in the judgment). Although a physical precedent may still be persuasive authority, see Benson v. Hunter, 360 S.E.2d 612, 613 (Ga.Ct.App. 1987) (en banc), the Court attaches no such persuasiveness to Yaeger In the more than thirteen years that have passed since Yaeger was decided, it has been cited in only three reported decisions of the Georgia appellate courts, and never for the proposition for which Plaintiff claims it stands.
Nevertheless, the Court agrees with Plaintiff because Georgia law recognizes that the concept of foreseeability is relevant to a design defect claim. As explained by the Georgia Supreme Court, "a manufacturer has a duty to exercise reasonable care in manufacturing its products so as to make products that are reasonably safe for intended or foreseeable uses." Chrysler Corp. v. Batten, 450 S.E.2d 208, 211 (Ga. 1994) (emphasis added). Similarly, the Georgia Court of Appeals has held,
The Court emphasizes that Plaintiff has not challenged the instructions on the duty and failure to warn. Regardless, the Court finds no error as to those instructions because they included the concept of foreseeability.
It is true that when the use to which a product was being put at the time of injury is not that originally intended by the manufacturer, liability of the manufacturer depends initially upon the foreseeability of that particular use. However, it is likewise true that the maker of an article for sale or use by others must use reasonable care and skill in designing it . . . so that it is reasonably safe for the purposes for which it is intended, and for other uses which are foreseeably probable.Ford Motor Co. v. Stubblefield, 319 S.E.2d 470, 476 (Ga.Ct.App. 1984) (citation and internal quotation marks omitted). Moreover, the factors identified by the Georgia Supreme Court as relevant to the risk-utility test, which is the test governing design defect claims in Georgia, confirm that the concept of foreseeability is relevant to a design defect claim. Among those factors are the usefulness of the product, the likelihood of the danger posed by the design, the avoidability of that danger, and the product's utility for multiple uses, see Banks v. ICI Americas, Inc., 450 S.E.2d 671, 675 n. 6 (Ga. 1994), each of which implicates the foreseeability of the product being used in a particular manner. Finally, as one commentator on Georgia products liability law has stated,
So far, Georgia courts have limited design defect actions to those situations where it can be reasonably foreseen that a danger will be created from a normal or expected use. . . .
In summary, Georgia courts in design defect cases concentrate on the conduct of the manufacturer. They consider whether its actions were reasonable in view of what it knew or could foresee at the time the product was designed.
David J. Maleski, Georgia Products Liability § 6-2, at 115-16 (2d ed. 1993).
At the same time, Georgia law also recognizes that "[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., 279 S.E.2d 264, 269 (Ga.Ct.App. 1981); see also Carmical v. Bell Helicopter Textron, Inc., 117 F.3d 490, 494 (11th Cir. 1997) (applying Georgia law); Lamb ex rel Shepard v. Sears, Roebuck Co., 1 F.3d 1184, 1188-89 (11th Cir. 1993) (applying Georgia law). Therefore, a manufacturer cannot be liable on a design defect theory of liability for an injury proximately caused by an unforeseeable post-sale alteration to its product made by a third party. A post-sale alteration is unforeseeable if it is so substantial that the injury cannot be traced to the manufacturer's original design. See Talley, 279 S.E.2d at 269; Pepper v. Seng Chem. Indus., 288 S.E.2d 693, 696 (Ga.Ct.App. 1982) (holding that a substantial alteration is unforeseeable as a matter of law).
The problem in this case is not that the Court's instruction on the issue of alteration misstated the law; rather, the problem is that the Court's instruction was incomplete because it did not instruct the jury with respect to the foreseeability of the alteration made by Plaintiffs employer. As the Georgia Court of Appeals observed in Talley,
In some cases it may be a jury question as to whether the product's original design has been merely slightly or somewhat modified. In such cases, the jury must determine whether the original manufacturer's design was defective and, if so, whether the proximate cause of the injuries sustained was the original defective design or the subsequent modification. However, where . . . the evidence is uncontroverted that the original design of the manufacturer's product has been totally eliminated and replaced so that the only similarity between the old and the new is the mere basic function to be performed, no such issue remains.279 S.E.2d at 269. In light of this, the Court should have instructed the jury that Defendant could be liable if the alteration was foreseeable, but that Defendant could not be liable if the alteration was substantial (and therefore unforeseeable as a matter of law). Thus, although the Court's instruction adequately reflected the law as to the substantiality of the alteration, it did not adequately reflect the law as to the foreseeability of the alteration.
The phrasing used in this order is not intended to have any limiting effect on how the Court instructs the jury on retrial.
Because a general verdict form was used in this case, there is no way of knowing what the basis of the jury's verdict was. The jury may well have decided that Plaintiffs employer substantially altered the palletizer, but the jury could have based its verdict on any number of other reasons. For example, the jury may have decided that Plaintiff assumed the risk when he reached into the area containing the chain and sprocket, in which case the Court's failure to instruct the jury as to the foreseeability of the alteration would be harmless error. See Fed.R.Civ.P. 61 (providing that "any error or defect in the proceeding which does not affect the substantial rights of the parties" is not a ground for granting a new trial). It however, the verdict was based on the jury's belief that Plaintiffs employer had substantially altered the palletizer, the jury may not have understood that Defendant could be liable if the alteration was foreseeable and not substantial. Without knowing this, the Court cannot be sure that the jury understood the issues and was properly guided in its deliberations. See Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1543 (11th Cir. 1996) (discussing the standard for evaluating a motion for a new trial based on erroneous and prejudicial jury instructions). Accordingly, the Court finds that Plaintiff is entitled to a new trial. On retrial the Court will not be inclined to use a general verdict form.
Admittedly, the Court has some misgivings about its decision because of perceived uncertainties in Georgia law. Primarily, the Court notes that Georgia law appears to be unclear as to whether there is a distinction between negligence and strict liability in design defect cases. The Georgia Supreme Court has often recognized that negligence and strict liability are distinct theories of liability in design defect cases. See, e.g., Banks, 450 S.E.2d at 674 n. 3; Ford Motor Co. v. Carter, 238 S.E.2d 361, 364 (Ga. 1977); Ctr. Chem. Co. v. Parzini, 218 S.E.2d 580, 581-82 (Ga. 1975). More recently, however, the Georgia Supreme Court has suggested that there is no significant distinction between negligence and strict liability in design defect cases. See Jones v. Nordic Track, Inc., 550 S.E.2d 101, 103 n. 5 (Ga. 2001); Ogletree v. Navistar Int'l Transp. Corp., 500 S.E.2d 570, 572 (Ga. 1998); see also Maleski, supra, § 6-2, at 116 (concluding that Georgia is "firmly in the group of jurisdictions that do not distinguish between strict liability and negligence in design defect cases"). Although it is unclear how such a distinction matters in this case, it must nonetheless matter to an extent. See O.C.G.A. § 51-1-11(c) (2000) (recognizing a distinction between negligence and strict liability by creating an exception to the statute of repose for certain types of negligence claims); Carter, 238 S.E.2d at 365 (holding that "[t]he usual defenses pertaining to negligence of a defendant may not be invoked" in a strict liability case). Additionally, the Court is unclear as to (1) whether there is a difference between product misuse and alteration under Georgia law, and (2) whether Georgia law considers product misuse and alteration to be an affirmative defense or simply an aspect of proximate cause. See Maleski, supra, § 10-4. However, the Court is uncertain as to whether these questions would make a difference in this case.
Plaintiff originally asserted three theories of liability: (1) strict liability, (2) negligence, and (3) breach of implied warranty. However, he subsequently amended the complaint by striking the counts alleging negligence and breach of implied warranty. Thus, the only theory involved at trial, and in Plaintiff's motion, is strict liability.
Because the resolution of these uncertainties could be determinative of the alteration issue raised by Plaintiff, this case would be an ideal candidate for certification to the Georgia Supreme Court. Unfortunately, however, the Georgia Constitution, Georgia Code, and Rules of the Georgia Supreme Court do not currently permit federal district courts to certify questions to the Georgia Supreme Court; only the federal appellate courts have that authority. Thus, the Court wants to take this opportunity to support the proposal of the Federal Practice Committee of the Appellate Practice Section of the State Bar of Georgia to amend the Georgia Constitution, Georgia Code, and Rules of the Georgia Supreme Court to allow federal district courts to certify questions to the Georgia Supreme Court. In the Court's view, this proposal would better promote judicial economy and efficiency by not requiring a federal district court to resolve an uncertain issue of Georgia law only to have a federal appellate court certify the issue to the Georgia Supreme Court for a definitive resolution.
For the foregoing reasons, Plaintiffs motion is GRANTED. The judgment of March 31, 2000, is vacated, and this case will be scheduled for retrial during the Court's June 2002 trial term. Because of the Court's ruling on Plaintiffs motion, Defendant's Bill of Costs (tab #80) must be DENIED.
SO ORDERED.