Summary
recognizing that a negligent failure to warn claim may be brought concomitantly with the analogous strict liability claim
Summary of this case from Jones v. Ethicon, Inc.Opinion
A99A1540, A99A1541.
DECIDED: NOVEMBER 24, 1999
Product liability, etc. Cherokee State Court. Before Judge Mills.
Chambers, Mabry, McClelland Brooks, Edwin L. Hamilton, Christopher K. Annunziata, for appellant (case no. A99A1540).
Whelchel, Brown, Readdick Bumgartner, Richard A. Brown, Jr., for appellant (case no. A99A1541).
William M. Ordway, for appellees.
Plaintiff Jeanne Boyer was riding as a passenger on a four-wheel all-terrain vehicle operated by her thirteen-year-old son when it flipped over and landed on top of her, injuring her back. She and her husband (plaintiffs) filed a products liability action based on negligence, strict liability and breach of warranty against the manufacturer of the vehicle, American Honda Motor Company, Inc. and Honda Motor Company, LED and the seller of the vehicle, Eric BATTERSBY d/b/a Cherokee Cycle ATV and Small Engines seeking damages for her personal injuries and his loss of consortium. Both Honda and Battersby filed motions for summary judgment, and in separate orders, the trial court granted partial summary judgment to both defendants. We granted defendants' applications for interlocutory review; Battersby's case was docketed in the court as Case Number A99A1540 and Honda's case was docketed in this court as Case Number A99A1541.
Case No. A99A1540
1. The record shows that plaintiffs purchased the used ATV for their 13-year-old son from defendant Battersby. The trial court granted summary judgment to Battersby on plaintiffs' strict liability and failure to warn claims, but denied summary judgment to Battersby on plaintiffs' breach of warranty claims. Battersby contends the trial court erred because the trial court specifically found that plaintiffs had failed to present evidence that the ATV was defective, and plaintiffs must show that the ATV was defective to maintain an action for breach of an implied warranty under OCGA section 11-2-314. Ream Tool Co. v. Newton, 209 Ga. App. 226, 229(4) ( 433 S.E.2d 67) (1993); see also Jones v. Marcus, 217 Ga. App. 372, 373(1) ( 457 S.E.2d 271) (1995). We agree that the trial court erred in denying Battersby summary judgment on this claim. Merchantable goods are defined in OCGA § 11-2-314(2)(c) as goods which "[are fit for the ordinary purposes for which such goods are used[.]" See also Moore v. Berry, 217 Ga. App. 697, 698(1) ( 458 S.E.2d 879 (1995). "Where there is a defect in the goods which renders them unfit for the ordinary purposes for which such goods are used, the vendor may be held liable under the UCC." (Citation and punctuation omitted.) Dixon Dairy Farms v. Conagra Feed Co., 239 Ga. App. 233, 235(1) ( 519 S.E.2d 729) (1999). Plaintiffs presented no evidence that the ATV was unfit or unsafe for only one rider. And there is also no evidence that Battersby knew that plaintiffs intended to operate the vehicle with a passenger. See OCGA § 11-2-315; Jones v. Marcus, 217 Ga. App. at 373-374(3) (1995). Battersby was entitled to summary judgment on plaintiffs' breach of warranty claims. Accordingly, the trial court's order in Case Number A99A1540 is reversed.
Plaintiffs have not appealed the adverse portions of the trial court's orders, and we therefore render no opinion on the propriety of those rulings.
Case No. A99A1541
2. Finding that the plaintiffs "failed to set forth specific facts showing a defect in the design, manufacture or assembly of the all terrain vehicle in question" the trial court granted summary judgment to Honda on plaintiffs' claim of strict liability, but denied Honda's motion for summary judgment on plaintiffs' failure to warn claim, finding an issue of fact remained concerning whether the warning Honda placed on the vehicle was adequate. Honda argues that the trial court erred in denying it summary judgment on the failure to warn claim because plaintiffs presented no evidence of a foreseeable danger that it had a duty to warn against. But Honda had already placed a warning on the vehicle warning of the danger of operating the vehicle with a passenger. Plaintiffs were not required to show that the product needed a warning that the vehicle was dangerous when operated with a passenger because the manufacturer had already made that determination.
The following warning appeared on the back of the seat of the ATV: "Warning Operator Only No Passengers".
3. Honda next argues the trial court's failure to grant it summary judgment on the failure to warn claim was inconsistent with the finding that the ATV was not defectively designed, manufactured, as assembled. We disagree. In its order the trial court properly distinguished plaintiffs' claims based on strict liability and negligent failure to warn. "Georgia law has long recognized [a distinction] between negligence and strict liability theories of liability." Banks v. ICI Americas, 264 Ga. 732, 735 fn.3 ( 450 S.E.2d 671) (1994) and cites. These are separate and distinct claims arising from different duties owed by the manufacturer to consumers.
The distinction between these causes of action reflects the different duties that devolve upon manufacturers. While a manufacturer has a duty to exercise reasonable care in manufacturing its products so as to make products that are reasonable safe for intended or foreseeable uses, . . . 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. Breach of these different duties hence gives rise to separate and distinct claims.
(Citations and punctuation omitted.) Chrysler Corp. v. Batten, 264 Ga. 723, 725 ( 450 S.E.2d 208) (1994). Ziegler v. Clowhite, 234 Ga. App. 627, 629 (2) ( 507 S.E.2d 182) (1998). Thus, a duty to warn can arise even if a product is not defective.
A product is not in a defective condition when it is safe for normal handing and consumption. If the injury results from abnormal handling[,] the seller is not liable. Where, however, he has reason to anticipate the danger may result from a particular use[,] he may be required to give adequate warning of the danger[,] and a product sold without such warning is in a defective condition. (Cits.) However, there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known. The same rule applies where it appears that the person using the product should know of the danger, or should in using the product discover the danger. Whether a duty to warn exists thus 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. Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner.
(Citation and punctuation omitted.) Yaeger v. Stith Equipment Co., 177 Ga. App. 835, 836 ( 341 S.E.2d 492) (1986). See also Zeigler v. Clowhite, 234 Ga. App. at 629 (2).
4. Lastly, Honda argues that the trial court's finding that an issue of fact remains concerning the adequacy of the warning placed on the ATV is inconsistent with the trial court's finding that Battersby had no duty to warn of the dangers of riding the ATV with a passenger because Honda had already warned of that danger. Again, however, the trial court's order is not inconsistent, but merely reflects the differing duties devolving upon manufacturers and sellers of products. We have previously held that a seller's duty to warn consumers of a particular danger associated with the use of product may be extinguished when the manufacturer has already warned consumers of the particular danger at issue. Farmer v. Brannon Auto Parts, 231 Ga. App. 353 ( 498 S.E.2d 583) (1998). Although a seller in this position may be "entitled to assume that the manufacturer has done its duty" Hester v. Human, 211 Ga. App. 351, 353(3) ( 439 S.E.2d 50) (1993), this means only that the seller in that circumstance does not have to second guess whether the manufacturer's warning was adequate. But it is not inconsistent to say that the consumer's challenge to the adequacy of the manufacturer's warning is foreclosed.
In Hester, 211 Ga. App. at 354, we found that the sellers duty to warn "is governed by the same principles which relate to distribution of the [product] itself" meaning that when the seller knows of no defects in the equipment, he is entitled to assume that the equipment was properly manufactured and not defective when placed on the market by the manufacturer.
"It is . . . a jury question whether or not the manufacturer was negligent in failing to place a warning in such position, color and size print or to use symbols which would call the user's attention to the warning or cause the user to be more likely to read the label and warning than not." (Emphasis supplied.) Eldridge's Georgia Products Liability, Theories of Negligence, § 2-24, p. 49. Where a duty to warn arises, . . .`(t)his duty may be breached by (1) failing to adequately communicate the warning to the ultimate user or (2) failing to provide an adequate warning of the product's potential risks." Thornton v. E. I. Du Pont c. Co., 22 F.3d 284, 289 (12, 13 (11th Cir.[1994]).
Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75(1) ( 460 S.E.2d 532) (1995). The trial court did not err in finding an issue of fact remained concerning the adequacy of the warning Honda placed on the ATV; accordingly the judgment in Case No. A99A1541 is affirmed.
Judgment reversed in Case No. A99A1540; judgment affirmed in Case No. A99A1541. Smith and Eldridge, JJ., concur.