IN THE SUPREME COURT
STATE OF GEORGIA
Jackie Conley Ogletree, Petitioner
v.
Navistar International Transportation Corp., Respondent.
Case No. S97C1697
------------------------------------------------------------------------
AMICUS CURIAE BRIEF OF THE GEORGIA TRIAL LAWYERS ASSOCIATION
STATEMENT OF INTEREST
The GTLA is a voluntary organization comprised of
approximately 2700 trial lawyers licensed to practice in this State
whose clients have an interest in this Court’s rulings on the
important issues presented by this appeal.
In the past few years the GTLA has consistently appeared as Amicus
Curiae in various matters presented before the appellate courts of
Georgia. The intent of the GTLA is not to support the petitioner or
the respondent as Amicus Curiae. Rather, the GTLA desires and attempts
to aid the Court to a proper resolution of this case by seeing that
the law is correctly and thoroughly followed.
------------------------------------------------------------------------
THIS COURT SHOULD ABOLISH THE OPEN AND OBVIOUS DANGER DOCTRINE
1. INTRODUCTION.
This Court has directed the parties to address the viability
of the open and obvious danger rule in light of this Court’s ruling
in Banks v. ICI, 264 Ga. 732, 450 S.E.2d 671 (1994). The parties have
extensively briefed this issue, with a particular emphasis on its impact
on the outcome of this specific case. This amicus has no interest in
the outcome of this case. Rather, this amicus is keenly interested in
the broad implications of the important issue that this Court has taken
on with this case as the vehicle to address this issue. Accordingly,
this brief will focus on the broader issue before the Court, which is
the viability of the open and obvious danger rule in all product liability
cases.
The time has come for this Court to bring Georgia into line with the
jurisprudence of the rest of the country and to abandon the use of the
"open and obvious danger" rule as an absolute defense in product
liability cases. Recently, this Court has provided clarity to product
liability law in Banks v. ICI, 264 Ga. 732, 450 S.E.2d 671 (1994). However,
as explained below, Banks is simply incompatible with the current Georgia
law regarding the obvious danger rule. Moreover, since the purposes
sought to be achieved by the rule are adequately protected by including
the obviousness of a product’s danger in the balancing test of
Banks and by the proper application of the affirmative defense of assumption
of risk and the doctrine of comparative negligence, there is no conceptual
or policy reason for adherence to this anachronistic rule of law. This
Amicus therefore respectfully urges the Court to bring Georgia into
line with the prevailing law on this issue of great practical importance
to the public and to announce that the open and obvious rule is no longer
an absolute defense in product liability design defect cases.
2. ABOLITION OF THE OBVIOUS DANGER RULE IS MANDATED
BY THIS COURT’S HOLDING IN BANKS.
In Banks, this Court adopted the risk-utility balancing
test as the appropriate manner for juries to evaluate whether a product
is defectively designed. Under the holding in Banks, a manufacturer
has a duty to provide a safety feature (such as a backup buzzer in the
subject case) if its utility outweighs the costs associated with addressing
and eliminating the risk. This Court emphasized that it was not creating
new law out of whole cloth but rather was articulating a new test of
product defect which was premised on the fundamental underpinnings of
Georgia law--the duty to exercise reasonable care. Under the risk-utility
analysis, the Court identified the obviousness of the danger in its
list of various factors to be balanced by a jury.
Given that the obviousness of a danger is now one of many considerations
for a jury in analyzing a manufacturer's satisfaction of its duty of
reasonable care, it is completely inconsistent to retain the obvious
danger rule as an absolute bar to a claim. The obvious danger rule defines
a manufacturer’s duty in terms of not having to design a product
in ways that avoid obvious risks. The risk-utility test imposes a duty
of reasonable care in which the manufacturer’s choices are assessed
by evaluating a number of factors including the obviousness of the danger.
How can the law on one hand identify obviousness of a danger as but
one of many factors in a balancing test and on the other hand provide
that this single factor alone is determinative as a matter of law? Certainly
the obviousness of a danger, like the availability of a warning, does
not exclude the possibility that a safer design exists which passes
a risk-utility test, and the obviousness of the danger should only be
one factor in a balancing test of the reasonableness of the product
design, not a per se finding of no defect.
The abolition of the obvious danger rule does not mean that plaintiffs
can always recover no matter how stupid or unreasonable their conduct.
The affirmative defense of assumption of the risk remains a potent defense
to defeat claims in which the plaintiff appreciates a danger but nevertheless
voluntarily encounters it. Additionally, for claims that get to a jury,
the doctrine of comparative negligence allows the jury to assess the
culpability of both the plaintiff and the defendant in deciding what
damages, if any, to award. Thus, the law will continue to protect the
interests of defendants in those cases in which recovery on a set of
facts is not warranted.
3. THE OPEN AND OBVIOUS DANGER RULE HAS BEEN REJECTED
BY VIRTUALLY EVERY STATE BUT GEORGIA BECAUSE IT IS INCONSISTENT WITH
THE FUNDAMENTAL PURPOSES OF TORT LAW.
Georgia borrowed the open and obvious danger rule from
the 1950 New York case of Campo v. Scofield, 301 N.Y. 468 (1950). The
rule provides that a manufacturer has no duty to design a safer product
if the danger of the product is obvious, even if a safer design is readily
available. Many other states similarly followed New York’s lead
and adopted the defense as an absolute bar to product liability actions.
After the rule was subjected to the careful scrutiny of the commentators,
bench, and bar, however, a general consensus was reached that the rule
not only unfairly punishes the individual parties in any given lawsuit,
but also completely undermines the underlying purpose of the tort system
which is to encourage the development of safer products and to limit
the dangers inherent in those products. Thus, New York, the very state
whose lead Georgia followed in the first place, itself abandoned the
rule in the 1976 case of Micallef v. Miehle Co., 39 N.Y.2d 115 (1976).
Virtually every other state has followed suit and abandoned the rule
except Georgia.
There are good reasons why the rule has long ago been universally abandoned
elsewhere. It is conceptually inconsistent with the basic principles
of tort law, and it undermines the policies which have motivated the
development of tort law. As this Court recognized in Banks, Georgia
product liability law is predicated on the fundamental tort principle
of reasonableness in which a manufacturer has a duty to provide a reasonably
safe product. This fundamental premise comports fully with the generally
accepted view that injury prevention is one of the overriding goals
of the tort system and product liability law in particular. See, eg.,
Priest, Modern Tort Law and its Reform, 22 Val. U. L. Rev. 1, 5 (1987)
("There are two goals of modern tort law that all can agree upon:
to reduce the accident rate as much as practical, and to provide a sensible
and coherent system of compensation insurance for those... who suffer
product or service related accidents.")
Georgia’s continued use of the obvious danger rule as an absolute
defense to basic product liability claims flies in the face of these
principles and goals. In short, the law should not encourage a manufacturer
to bypass a feasible safety device simply because a product’s danger
may be apparent. A product’s danger may be obvious, and yet the
manufacturer’s design decision is still unreasonable simply because
the danger could be so easily avoided. In fact, it is often the obviousness
of the risk itself that should compel the manufacturer to incorporate
a safety feature, particularly where there is a safety feature readily
available. Thus, the obvious danger rule undermines the safety-enhancing
thought process which the law should be motivating the manufacturer
to undertake because the rule provides the manufacturer with absolute
immunity for making dangerous products.
Consider the example of a lawn mower designed without a guard to shield
objects from being hurled from the mower. The Georgia Court of Appeals
has held that the potential danger of objects being ejected from the
mower is obvious, See Stovall v. Tate, 124 Ga. App. 605, 184 S.E.2d
834 (1971), but since it costs very little to place a guard over the
mower’s exit space to deflect objects, it is apparent that a simple
design change would eliminate a real danger. This analogy also raises
a further problem with the obvious danger rule which is: to whom is
the danger obvious? In the mower example, the user likely knows that
objects can be shot out at high speeds, but is this danger obvious to
the bystander walking his child nearby who may not be aware of the danger?
As the commentators have noted, "if anything is obvious about the
obvious danger rule, it is that courts cannot agree on the definition
of ‘obvious’ risks." Jacobs, Toward a Process-Based Approach
to Failure to Warn Law, 71 N.C.L. Rev. 121, 134 (1992).
Thus, it is not surprising that even the Georgia Court of Appeals has
become so confused with the law in this area that it has in this very
case issued a ruling that it shortly thereafter announced was premised
on a confused understanding of the law. Compare Ogletree v. Navistar,
194 Ga. App. 41, 390 S.E.2d 61 (1989) with Weatherby v. Honda Motor
Co., 195 Ga. App. 169, 393 S.E.2d 64 (1990).
4. THE APPELLEE HAS FAILED TO OFFER A COMPELLING
ARGUMENT THAT THE OBVIOUS DANGER RULE SHOULD BE RETAINED.
The appellee advances a number of reasons why the Court
should not eliminate the obvious danger rule as an absolute defense.
It seems to this amicus that none of these reasons addresses the fundamental
incompatibility pointed out above between the functional Banks approach
of incorporating all relevant factors into a balancing test and the
outdated, inflexible approach of the obvious danger rule which considers
only one factor in determining whether a product is defective and ignores
any compelling evidence that a given product danger can be easily avoided.
For example, in its brief, Navistar cites this Court’s holding
in an important post-Banks case, Doyle v. Volkwagenwerk Aktiengesellsschaft,
267 Ga. 574 (1997), as authority for the proposition that "the
obviousness of a hazard should still be a determinative factor in design
defect claims arising under Georgia law." (Appellee’s brief,
p. 12.) In fact, the exact opposite conclusion should be drawn from
the Doyle holding. In Doyle, this Court rejected an argument that a
manufacturer’s compliance with federal regulations, of itself,
is an absolute defense in design defect cases. Although prior Georgia
case law (the Kimbrel doctrine) had indicated that federal standards
could define a manufacturer’s duty under Georgia law, this Court
held that it was inconsistent with Banks to have one factor define the
extent of a manufacturer’s duty:
The Kimbrel doctrine predated our decision in Banks and is inconsistent
with a risk-utility analysis. Under the risk-utility test, compliance
with federal standards or regulations is a factor for the jury to
consider in deciding the question of reasonableness, that is, whether
the product design selected was a reasonable one from among the feasible
choices of which the manufacturer was aware or should have been aware.
It does not render a manufacturer's choice of design immune from liability.
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.
Id. at 577 (emphasis added).
Thus, Doyle actually provides strong support for the position that the
open and obvious rule can no longer be maintained after Banks. Both
cases represent this Court’s adoption of a flexible and functional
approach to defining a manufacturer’s duty, an approach that does
not arbitrarily assign predetermined (much less dispositive) weight
to any one factor and does not ignore what may in any given case be
compelling evidence that a manufacturer has unreasonably chosen to design
a product that fails to be as safe as it reasonably should be.
Navistar also predicts doom and gloom if the Court rejects its position
and makes manufacturers the "insurer" of their products. (Navistar
brief, p. 15.) It is hard to take seriously the notion that rejection
of the obvious danger rule as an absolute defense will result in manufacturer’s
being an insurer of its products. To be an insurer in this context means
that manufacturers will always be held liable when someone is injured
while using a product. First, Rule 56 of the Civil Practice Act still
applies in product liability cases, so that a trial court is still empowered
to enter summary judgment if a plaintiff fails to come forward with
evidence that a product does not pass the risk utility test. Second,
the defendant’s argument is insulting to the citizens of Georgia
because it implies that juries will always rule for plaintiffs if courts
no longer have the ability to dismiss cases involving allegedly obvious
dangers.
Finally, this Court should not accept the appellee’s invitation
to change the focus of this case to a question of failure to warn. There
is a critical difference between the obvious danger rule in design defect
cases such as this case and Banks and classic failure to warn cases
(which typically involve a manufacturer’s printed statement regarding
the danger of a product).
The Banks risk utility test is a test of the reasonableness of a manufacturer’s
design decisions; it is not a test of the adequacy of a manufacturer’s
warnings. Beginning at page 21 of its brief, however, Navistar changes
the focus of its presentation to the failure to warn issue. Whatever
Navistar’s motivation for doing this, it is imperative to remember
that this case involves an alleged design failure (the failure to include
a backup buzzer). It is not a warnings case anymore than a case where
a manufacturer failed to incorporate a horn in an automobile would be
a warnings case. Moreover, the Court’s charge to the parties in
granting certiorari was limited to the applicability of the obvious
danger rule in light of Banks which dealt only with establishing a design
defect test. There may well be reasons for dealing differently with
the obvious danger rule in classic failure to warn cases, but this Court
has not invited consideration of that issue here, and it is not otherwise
relevant on the facts of this case.
5. CONCLUSION.
Even defense lawyers throughout the state have shaken
their heads in bemused amazement at what they can get away with under
the obvious danger rule. The reasons for abolishing the rule as an absolute
defense are many: it runs counter to the purposes of the tort system;
it is doctrinally inconsistent with both the law of Georgia and elsewhere;
it is unnecessary to accomplish any legitimate purpose because of the
availability of the assumption of risk defense and the comparative negligence
doctrine; and it is simply unfair to many litigants who are wrongly
deprived of their day in court through the implementation of such an
outdated and anachronistic doctrine. The Court does not need to implement
an upheaval in the tort system to eradicate the doctrine because the
doctrine is inconsistent with existing principles, and its abolition
would stabilize, not confuse, tort law.
This _______day of February, 1998.
/s/ R. Hutton Brown
Brown & Shamp
230 Peachtree Street, Suite 1501
Atlanta, Ga. 30303
(404) 893-9400
|
