IN THE SUPREME COURT

STATE OF GEORGIA 

ONTARIO SEWING COMPANY, LTD and TEXMATIC MACHINERY, LTD., Petitioners,

v.

REGINA SMITH, Respondent.

CASE NO. SO1G1233

AMICUS CURIAE BRIEF OF THE

GEORGIA TRIAL LAWYERS ASSOCIATION

 
STATEMENT OF INTEREST

 The GTLA is a voluntary organization comprised of approximately 2100 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 LOWER COURT OPINION DOES NOT ERRONEOUSLY

EXPAND THE DUTY OF MANUFACTURERS

WITH RESPECT TO DANGEROUS PRODUCTS

 
SUMMARY OF THE ARGUMENT
Georgia law has long imposed a duty on manufacturers, like everyone else, to act reasonably. For manufacturers, this duty applies not just to the initial design of its products, but continues through the manufacturing and distribution process. Since there is no logical reason why a manufacturer's duty to act reasonably dissolves once the consumer buys the product, this Court has affirmed that a manufacturer's duty of reasonable care continues after the product is sold so that if the manufacturer learns that its product is dangerous after it is sold it must act reasonably to address this danger.

In product liability cases, longstanding Georgia tort law imposes post-sale duties on the creator of a dangerous product. Indeed, this amicus will show that the general tort law of Georgia imposes post-sale duties on anyone who participates in creating a hazard, that these duties include post-sale warnings or additional positive steps to remove the hazard if the warning does not suffice, and that the majority opinion below was fully consistent with these principles of general tort law. Just as a manufacturer must act reasonably to protect consumers from a dangerous product while it is in the design or manufacturing stage, so also must a manufacturer continue to act reasonably to protect consumers after the design and manufacture process is complete and while the product is in use. Like every other instance in the tort law where the duty to act reasonably applies to a person or company, the post-sale duties of manufacturers are

adjudicated on a case by case basis, because reasonableness necessarily depends on the particular facts of a case. In the opinion below, the majority examined the very peculiar facts of this case and held that a jury question existed as to the reasonableness of Ontario Sewing's actions after it learned of a danger in its product. The opinion of the court below is fundamentally consistent with and grounded in prior Georgia law and therefore should be affirmed.

ARGUMENT AND CITATION OF AUTHORITY

INTRODUCTION

 In granting certiorari, this Court asked the parties to address the question of whether the lower court's opinion constitutes an erroneous expansion of a manufacturer's post-sale duty. The answer is it does not. The lower court has simply articulated a manufacturer's post-sale duty where, as here, there is a product which the manufacturer knows is dangerous. On these facts, the court below held that a manufacturer must take reasonable steps to remove the danger when a general warning is not sufficient. This holding, on these facts, is simply an articulation of, and not an expansion upon, a manufacturer's duty of reasonable care. To understand this, it is helpful to look initially at the Georgia law generally regarding dealing with a known danger and then address more specifically this concept in the context of a product manufacturer.

 
A. General Duty of Reasonable Care After a Risk is Created

Georgia law imposes a general duty on the creator of a hazard to remove the hazard or warn of it, so as to prevent foreseeable injuries. In United States v. Aretz, 248 Ga. 19 (1981), this Court stated the general principle as follows:
[W]here one by his own act, although without negligence on his part, creates a
dangerous situation, he is under a duty to remove the hazard or give warning
of the danger so as to prevent others from being injured where it is
reasonably forseeable that this will occur.
In Aretz, a material used for flares was improperly classified by the government as a low fire hazard when it should have been classified as a high fire hazard. The government failed to communicate this fact not just to the corporate independent contractor that was making flares, but also to the independent contractor's employees. This Court found that the government liable for failing to remedy the danger it had created. Id. at 24. In reaching this result, the Court relied heavily upon a motor vehicle accident case, Hardy v. Brooks, 103 Ga. App. 124 (1961), in which the defendant struck and killed a cow on the highway, but left the carcass there, where the plaintiff eventually hit it. In finding the defendant subject to liability, this Court held that after creating the hazard, the defendant had a duty to remove the hazard or to warn subsequent motorists about it. Id. at 126-27. The Hardy court relied on public nuisance cases in which the defendant has a duty to remove or warn of obstructions it places on the highway even by involuntary acts and without negligence.

Thus, the proposition that a person or business has a duty to address a danger upon actually or constructively learning of it is a long standing concept that has been applied in any number of areas of tort law. It is not a remarkable proposition at all that the general duty of reasonable care extends to everyone who has created a hazard to act reasonably to eliminate the possibility of harm from the hazard.

B. Product Manufacturers Have A Duty to Act Reasonably When They Create Dangers.

A manufacturer has a continuing duty to act reasonably, just as any other person or business does. This Court has stated that the "heart" of a product liability case is the reasonableness of a manufacturer's decisions. Jones v. Nordictrack, Inc., 274 Ga. 115, 550 S.E.2d 101, 103 (2001). This duty of reasonable care exists not only in the design and manufacture of a product but continues to exist after a product is sold. For example, Georgia courts have traditionally held that when a manufacturer learns of a danger in its product after it is sold, the manufacturer has a duty to warn of the danger. In fact, this duty has been incorporated in the product liability statute which provides that "[n]othing contained in this subsection shall relieve a manufacturer from the duty to warn of a danger arising from use of a product once that danger becomes known to the manufacturer." OCGA § 51-1-11(c).

This Court has recognized that a manufacturer's "duty to warn arises... whenever the manufacturer knows or reasonably should know of the danger arising from the use of its product." Chrysler Corp. v. Batten, 264 Ga. 723, 724, 450 S.E. 2d 208 (1994). Construing the statute of repose, this Court observed that the General Assembly also recognized a post-sale duty to warn that "may not emerge until long after the statute of repose has extinguished any cause of action arising out of the product's sale" and that this duty arises "once the danger becomes known." Id. at 727.

 
C. In Some Instances, the Manufacturer's Duty May Only Be Satisfied by Warning End Users

Ontario Sewing asserts that requiring a manufacturer to warn end users of the dangers of its products constitutes a great expansion of the law. This is demonstrably false. Ontario Sewing's duty did not flow merely to Smith's employer, it flowed to Smith and the other users of the machine. It is well-established under Georgia law that "[w]here a duty to warn arises, … 'this 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.'" Battersby v. Boyer, 241 Ga. App. 115, 118, 526 S.E.2d 159, 163 (citing Thornton v. E.I. Du Pont & Co., 22 F.3d 284, 289 (11th Cir. 1994)); Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75, 460 S.E. 2d 532 (1995). See also Watkins v. Ford Motor Co., 190 F.3d 1213, 1219 (11th Cir. 1999) (dealing with a post-sale duty to warn under Georgia law and stating that a manufacturer breaches its duty to warn if it fails to communicate to the ultimate user).

The adequacy of warnings is generally a jury question. Whether a manufacturer can discharge its duty to end users by giving some notice to employers of those end users depends on the circumstances. In Carter v. EI DuPont deNemours & Co., Inc., 217 Ga. App.139, 143, 456 S.E. 2d 661 (1995), the Court of Appeals addressed the factors that must be balanced in determining whether the warning is adequate: the burden of the warning, the likelihood that the intermediary will warn end users; the likely efficacy of the warning; the degree of danger posed by absence of warning; and the nature of the potential harm. It rejected the notion that a manufacturer can always rely upon intermediaries to deliver warnings to end users.

D. In Some Instances a Recall May Be Necessary to Satisfy a Manufacturer's Duty

The Court of Appeals also addressed the issue of whether a manufacturer may, in some instances, have a duty to go beyond a post-sale warning and issue a recall if the warning is inadequate to address the particular danger at issue. As an initial matter, it would appear that this Court need not address whether there is a so-called duty to recall because, in this case, the manufacturer actually took steps to remove the product from the factory. The Plaintiff asserts that, having undertaken such a recall, Ontario Sewing had a duty to do so reasonably, and as the court below found a jury could easily conclude that Ontario Sewing's recall letter was woefully inadequate to remedy the danger caused by its machines.(1)

Should this Court see fit to address whether there is a generalized duty under Georgia law to recall a defective product, this amicus urges the Court to hold that such a duty may exist depending on the facts of the case and whether other lesser efforts (such as a post-sale warning) suffice to address the danger. As an initial matter, it should be noted that this Court has previously endorsed a theory of negligent failure to recall a product. In Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 540, 436 S.E. 2d 635 (1993) , this Court affirmed a compensatory damages award where the jury found, in response to special interrogatories, that a manufacturer was "liable on the basis of its "negligent failure to recall or warn.'" Id. at 540. This Court affirmed the verdict and held that it was supported by Georgia negligence (as opposed to strict liability) law which imposes a duty to act reasonably after the sale of a product. Id. (2)

Until the instant case, the Georgia courts have not had occasion further to explore this duty. It should not be considered radical or controversial that a duty to recall may exist in some instances. As noted, it is firmly established that a manufacturer has a continuing duty to act reasonably to protect consumers from its dangerous products as a specific aspect of the general duty "to remove the hazard or give warning of the danger so as to prevent others from being injured." Aretz, 248 Ga. at 26. In many instances a warning or other method of communicating the danger may suffice to satisfy this duty. If a warning will not suffice to avoid the danger, however, why should a manufacturer not have to take other steps "to remove the hazard," such as by recalling the product? At a minimum, this amicus urges the Court, if it undertakes to examine the duty to recall issue, to allow sufficient flexibility in the law so that in future cases, where circumstances warrant, a manufacturer's duty of reasonable care in its post-sale reaction to the existence of a dangerous and defective product may not always be satisfied with an inadequate or ineffective warning that does not reasonably deal with the danger its product has presented.

CONCLUSION

Ontario Sewing's brief would have this Court believe that the lower court's opinion, which under any fair reading is tremendously dependant upon the peculiar facts of this case, imposes "absolute liability for the manufacturers of defective products." (Petitioner's brief, p. 25, emphasis in original.) In other words, Ontario Sewing complains that in every product liability case a plaintiff will automatically win under the lower court opinion. This position ignores the repeated statements by the lower court that the evidence here creates a jury question as to this manufacturer's negligence. 249 Ga. App. at 365. Such a ruling does nothing more than apply long standing, well-settled principles to the facts of this case. Accordingly, this amicus urges that this Court affirm the opinion below.

 

This ____of April, 2002.

/s/R. Hutton Brown

1. Ontario Sewing takes the position that the lower court opinion would require a recall in every case in which the product is defective. This is inconsistent with the entirety of the opinion which goes to great lengths to explain that the decision is premised on the unique features of this case where Ontario Sewing was both a manufacturer and a seller and that it had precise information about the manner in which its product was being used, and moreover, that its "warning" was not being followed. 249 Ga. App. at 373.

2. This duty to recall is consistent with authority elsewhere. See eg., Braniff Airways, Inc. v Curtiss-Wright Corp., 411 F.2d 451 (2d. Cir. 1969) (when latent dangerous product defects come to a manufacturer's attention post-sale, the manufacturer has a duty either to remedy the defect, or at least give users adequate warning if a remedy is not feasible); Bell Helicopter Co. v Bradshaw, 594 S.W.2d 519 ( Tex Civ App. 1979) (the manufacturer had assumed the duty to improve upon the safety of its helicopter, post-sale, where evidence showed that the manufacturer had regular contact with the helicopter when it was brought in for service); Downing v Overhead Door Corp.,707 P.2d 1027 (Colo. App. 1985) (a manufacturer of a garage door opener had a post-sale duty to remedy any dangerous latent defect which comes to its attention; if a complete remedy is not feasible, the manufacturer has a duty to give users adequate warnings or instructions concerning how to minimize the danger);

W.M. Bashlin Co. v Smith, 277 Ark 406, 643 S.W.2d 526 (1982) (the court recognized that a manufacturer can be found negligent for failure to institute a recall of its non-defectively designed product if the manufacturer becomes aware of a safety problem with its product); Lally v Printing Machinery Sales and Service Co., Inc. 240 N.J. Super 181, 572 A.2d 1187 (1990) ( a manufacturer has a continuing duty to provide safety devices, even if the danger was not recognized at the time of manufacture); Smith v Selco Products, Inc. 96 N.C. App. 151, 385 S.E.2d 173 (1989) (a manufacturer has a continuing duty to guard against hidden defects even if it learned of those defects post-sale); Gracyalny v Westinghouse Electric Corp. 723 F.2d 1311 (7th Cir.1983) ( a manufacturer may have a duty to install safety devices to remedy defects discovered after its product is marketed): Kociemba v G.D. Searle & Co. 707 F. Supp. 1517

(D.C. Minn. 1989) (a manufacturer has the continuing duty to protect users of its product by way of warning or recall once the manufacturer learns that the product is potentially dangerous); Reed v Ford Motor Co. 679 F. Supp. 873 (S.D. Ind. 1988) (the court concluded that the order of a recall was not preempted by federal law and that a jury could find that the manufacturer acted recklessly by not voluntarily recalling its defective trucks).