IN THE SUPREME COURT
STATE OF GEORGIA
JACKIE CONLEY OGLETREE,
Petitioner,
v.
NAVISTAR INTERNATIONAL TRANSPORTATION CORP.,
Respondent.
CASE NO. S99c0770
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AMICUS CURIAE BRIEF OF THE GEORGIA TRIAL LAWYERS ASSOCIATION
STATEMENT OF INTEREST
The Georgia Trial Lawyers Association
(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.
The GTLA is an association comprised of members of the State Bar of
Georgia which is committed to the preservation of the jury system.
The Association, through its Amicus Curiae Committee, frequently submits
briefs in favor of or in opposition to positions taken in the courts
on a variety of issues.
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THE COURT SHOULD ACCEPT CERTIORARI TO ENSURE CONSISTENT
APPLICATION OF ITS HOLDING IN BANKS V. ICI
INTRODUCTION In Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d
671 (1984), this Court provided its first significant guidance in
Georgia product liability law since 1975. In so doing, this Court
forthrightly acknowledged that it had allowed the lower courts to
become misguided in product liability law with the result that Georgia’s
product liability law had become conceptually incoherent. In Banks,
this Court issued a significant ruling that announced a new test for
determining when a product’s design is defective. This test,
the risk-utility balancing test, marked a significant departure in
the law and has understandably resulted in some struggles as the lower
courts have dealt with the myriad issues that will arise anytime a
significant new ruling is announced. For example, when this resilient
case was last before this Court, it arose in the aftermath of two
different Court of Appeals panels reaching directly opposite conclusions
as to whether the open and obvious rule survived the adoption of the
risk-utility test. Compare Ogletree v. Navistar Intern. Transp., 227
Ga. App. 11 (1997) with Bodymasters Sports Inc. v. Wimberly, 232 Ga.
App. 170 (1998).
It appears that the next major area in which the lower courts will
struggle without guidance is the issue of when the determination that
a product is defective should be decided by a court instead of the
jury by either summary judgment or j.n.o.v. In the Court of Appeals
decision which spawns this petition, it appears that the lower court
has misapplied the general rules relating to when a court should take
a decision of product defect away from the jury. Specifically, it
appears that the lower court itself performed a classic risk-utility
balancing test which ordinarily should be performed by a jury. The
problem with the lower court’s ruling is that it decided the
issue of product defect as a matter of law even though the Plaintiff
presented record evidence relevant to many of the Banks factors. Unless
this Court steps in and articulates a coherent analysis that outlines
when courts and not juries should decide whether a product passes
the risk-utility balancing test, the inevitable result will be inconsistent
case law with no clear guidance regarding the situations in which
summary judgment and j.n.o.v. are appropriate. Since summary judgment
is a critical step in every case, this is a case of significant importance
because if the lower court’s ruling is left uncorrected, summary
judgment will be granted in product liability cases differently than
other areas of civil law. Unless this Court accepts this petition
and clarifies when a jury question exists, the lower court’s
ruling will be cited for the proposition that the trial court should
perform its own balancing test in every case no matter what evidence
the Plaintiff presents.
There are two important principles of law which this amicus believes
should govern the propriety of taking the issue of product defect
from a jury. First, the issue of product defect after Banks is a balancing
test which requires a trier of fact to assess the reasonableness of
a product manufacturer’s design decisions. Second, under this
Court’s general principles relating to summary judgment, when
a defendant files a summary judgment motion (or motion for j.n.o.v.),
the plaintiff has to come forward with some admissible evidence in
support of her position on the issue, but if the plaintiff does so
summary judgment should always be denied. Lau’s Corp. v. Haskins,
261 Ga. 491, 405 S.E.2d (1991). This amicus is not taking the position
that all products cases should go to a jury, but where, as here, the
Plaintiff presents record evidence relevant to one or more of the
various Banks factors in support of the assertion that the product
at issue fails the risk-utility balancing test, the case must be decided
by a jury.
1ARGUMENT AND CITATION OF AUTHORITY1.
UNDER BANKS, THE RISK- UTILITY BALANCING TEST IS INHERENTLY A JURY
QUESTION EXCEPT IN THOSE SITUATIONS WHERE PLAINTIFF FAILS TO PRESENT
ANY EVIDENCE.
There should be no controversy about the proposition that Banks substantially
altered Georgia product liability law and that this Court’s language
evidenced a profound preference for design defect issues to be decided
by a jury. This Court used the phrase "trier of fact" and
"jury" numerous times in describing who was to render the
product defect decision. Moreover, the Court stressed that the underlying
theme of the Banks test was the concept of "reasonableness."
Banks, 450 S.E. 2d at 673. It is axiomatic in the common law that
in most situations the concept of "reasonableness" reflects
a case by case evaluation of the specific evidence at issue which
must be made by a jury except in the most extreme of cases. Moreover,
the concept of a "balancing test" strongly implies the operation
of a jury and not a judge in balancing evidence relevant to the numerous
risk-utility factors.
Thus, it would be difficult to read this Court’s holding in Banks
as anything other than a validation of the jury’s role in assessing
product defect claims. This concept was affirmed by this Court in
its most important post-Banks decision in this case’s last appearance
here, Ogletree V, in which this Court repudiated decades of product
liability law which had allowed courts to take cases from the jury
when the court perceived that the product’s danger was "open
and obvious." Ogletree, 500 S.E. 2d 570 (1998). In another important
post-Banks case, Doyle v. Volkwagenwerk Aktiengesellsschaft, 267 Ga.
574 (1997), this Court reversed another line of prior law and rejected
an argument that a manufacturer’s compliance with federal regulations,
of itself, is an absolute defense in design defect cases and held
that such compliance was but one of the many possible factors for
a jury to consider.
2. UNDER THE GENERAL LAW RELATING TO SUMMARY JUDGMENT AND J.N.O.V.,
A JURY SHOULD DECIDE ANY CASE IN WHICH THE PLAINTIFF PRESENTS RECORD
EVIDENCE IN SUPPORT OF THE BANKS FACTORS.
In Lau’s Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d (1991), this
Court articulated the general rule as to when summary judgment should
be granted. The Court stated that when a defendant files a motion
for summary judgment, the burden is on the plaintiff to come forward
with some admissible evidence in support of her position, but if she
does so, then summary judgment is inappropriate. Since that opinion,
this Court has consistently maintained the position that a plaintiff
need only present some evidence to avoid summary judgment; the plaintiff
need not convince the trial court that her position is superior to
the defendant.
The flaw in the lower court’s opinion here is that the lower
court finds as a matter of law that the Plaintiff’s claims are
barred in spite of record evidence that the Plaintiff presented that
the product failed the Banks test. Specifically, as explained below,
the Plaintiff offered significant evidence relevant to the following
Banks factors showing from which a jury could find the product defective:
BANKS FACTOR:
|
BANKS FACTOR:2
|
PLAINTIFF’S EVIDENCE
|
| 1) the usefulness of the product |
Testimony by Plaintiff’s experts,
Nathan Ware and Daniel Pacheco, that backup alarms would be both
necessary and desirable without impairing the usefulness of the
product. (T-396; 829-30). |
| 2) the gravity and severity |
The absence of the alarm directly
resulted of the danger posed by the design in the death of the
Plaintiff’s decedent which would not have occurred had there
been a warning. |
| 3) the likelihood of that danger |
Injury or death is an obvious likelihood
anytime a person is behind a backing truck and cannot discern
that it is moving toward him. Plaintiff’s expert, Nathan
Ware, testified that the particular use of the product at the
time of the injury was foreseeable to Navistar. (T-390-91). |
| 4) the avoidability of the danger |
There was expert testimony that the
primary stage manufacturer (Navistar) is in the best position
to decide whether to install backup alarms as standard equipment,
rather than delegating the decision to secondary manufacturers.
(T-395, 396, 400, and 405). |
| 5) the user's ability to avoid danger |
As occurred in the subject case,
if a bystander is unaware of the approaching vehicle, he or she
has no ability to avoid the danger. Plaintiff’s expert, Nathan
Ware, testified that Mr. Ogletree would have heard a backup alarm
if it had been present. (T-418-21). Plaintiff’s expert, Dr.
Dennis Runcie, testified that an automatic alarm would have saved
Mr. Ogletree’s life here. (T-892-94, 931-35). |
| 6) the state of the art at the time |
Plaintiff’s expert, Nathan Ware,
testified that the product is manufactured the industry practice
of delegating the decision to install backup alarms to secondary
manufacturers is not reasonable in light of the foreseeability
that secondary manufacturers would not do so. (T-405-06). |
| 7) the ability to eliminate the danger |
It was uncontradicted that Navistar
could without impairing the usefulness of have installed a backup
alarm had it chosen the product or making it too expensive to.
Plaintiff’s expert, Daniel Pacheco, (ie., reasonable alternative
design) testified that automatic backup alarms were sufficiently
durable and long-lasting to be in working condition at the time
of injury. (T-831-34, 838-39). |
Given that the record contains this evidence, it is
impossible to read the lower court’s opinion as anything other
than a usurpation of the jury’s role. What the lower court has
done is perform the risk-utility balancing test itself and announce
which way it perceives that the scales tip. In rejecting the Plaintiff’s
evidence which was relevant to a determination as to whether the absence
of a backup alarm constitutes a design defect, the lower court improperly
assessed the sufficiency of the Plaintiff’s evidence rather than
allow a jury to do so.
CONCLUSION
This Court should accept certiorari here because the
lower court’s opinion is likely to be read as an invitation for
courts rather than juries to decide conflicting evidence of product
defect. The lower court’s opinion will be cited as support for
the proposition that a court should assess for itself the merits of
the evidence in every product liability case because in this case the
Plaintiff presented a significant quantum of admissible evidence in
support of her position that Navistar’s truck was defective under
Banks. This case is sufficiently important to warrant certiorari because
the issue of the relative role of courts and juries is pivotal in every
product liability case. At some point, this Court is going to be compelled
to provide additional guidance regarding the day to day operation of
the Banks analysis, and this case squarely provides an early opportunity
to do so. Moreover, contrary to Navistar’s argument that this lawsuit
has endured too long already, it would be a shame for the last word
in this litigation to be the lower court’s erroneous analysis here.
This _______day of April, 1998.
/s/ R. Hutton Brown
Brown & Shamp
225 Peachtree Street, Suite 1410
Atlanta, Ga. 30303
(404) 893-9400
Footnotes
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1. This amicus is focusing primarily on the propriety
of summary judgment rather than j.n.o.v. because it is apparent that
summary judgment issues arise more frequently than j.n.o.v. issues.
Conceptually, there is no difference between the two in this context
since both concepts employ the "any evidence" standard.
2. The factors below are taken directly from this Court’s listing
of factors in footnote 6 of Banks.top
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