My friend and fellow trial lawyer, Lester Tate, and I are representing a young man in a case against Kawasaki, the manufacturer of the motorcycle he was riding when he was severely injured because it stalled on him. Months later, he received a recall notice that said the voltage regulator on his motorcycle was defective. The minute he received the notice he thought that sure explained what happened to him the day his world was turned upside with a catastrophic motorcycle wreck. The case was heard yesterday before the 11th Circuit Court of Appeals, our appellate court for cases that are filed in Federal Court, here in the Northern District of Georgia. One of the issues on appeal involves Kawasaki’s duty to warn its customers who have bought or used that particular motorcycle about a known defect with the motorcycle’s voltage regulator. So, a manufacturer’s duty owed to its consumer is heavily on mind right now.
What exactly is a manufacturer’s duty to want its customers of a potentially defective product? Under Georgia law , when the manufacturer of a product has actual or constructive knowledge that its product involves danger to users of the product, the manufacturer has a duty to warn users of the danger. Battersby v. Boyer, 526 S.E. 2d 159, 162 (Ga. App. 1999). O.C.G.A. § 51-1-11(b)(1) provides that “[t]he manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” The term “not merchantable and reasonably suited to the use intended” as used in this statute means “defective.” Giordano v. Ford Motor Co., 165 Ga. App. 644, 645(1983). “In a product liability case, the existence of a duty to warn depends upon the foreseeability of the use in question and the type of danger involved, and the foreseeability of the user’s knowledge of the danger.” Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 781 (Ga. App. 1987). A manufacturer may be subject to liability for failing to warn the user adequately of the known or foreseen danger if there is no reason to believe the user will realize the dangerous condition.” Id. at 477; see Ford Motor Co. v. Stubblefield, 319 S.E.2d 470, 477 (Ga. App. 1984). When a duty to warn arises, the duty may be breached in one of two ways: (1) failure to communicate the warning to the ultimate user; or (2) failure to provide an adequate warning of the product’s potential risks. Battersby, 526 S.E.2d at 163; see Wilson Foods Corp. v. Turner, 460 S.E.2d 532, 534 (Ga. App. 1995) (citing Thornton v. E.I. Du Pont De Nemours &Co. Inc., 22 F.3d 284, 290 (11th Cir. 1994)). “This duty to warn is a continuing one and may arise “months, years, or even decades after the date of the first sale of the product.” Watkins v. Ford Motor Co., 190 F.3d 1213, 1218 (11th Cir. 1999). “Some products are defective solely due to an inadequate or absent warning.” Chrysler Corp. v. Batten, 264 Ga. 723, 724, 450 S.E.2d 208, 211 (1994).
The issue of failure to warn, including the lack of any warning or the adequacy of any warning, is one that the jury must resolve. See, e.g., Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 782 (Ga. App. 1987); Bryant v. BGHA, Inc., 9 F. Supp. 3d 1374, 1389-90 (M.D. Ga. 2014); Giordano v. Ford Motor Co., 165 Ga. App. 644, 645 (1983)(“Whether a duty to warn exists thus depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. See Greenway v. Peabody International Corp., 163 Ga.App. 698, 294 S.E.2d 541 (1982). Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner. Beam v. Omark Ind., Inc., 143 Ga.App. 142, 145, 237 S.E.2d 607 (1977).”).
For example, in Bullock v. Volkswagen Group of America, Inc., WL 221301(USDC M.D. Georgia, May 11, 2015), the plaintiff alleged their Volkswagen Passat had a defective turbocharger that caused the car to accelerate suddenly, causing the plaintiff to lose control of the car. The Bullock trial Court denied the Defendant summary judgment on the failure to warn claim and held: “The issue here is not whether an existing warning was adequately worded or placed, which could under certain circumstances require expert testimony to resolve. The issue is whether a warning should have been given at all. Plaintiffs contend that Defendants knew of risks with the design but provided no warning. A jury can understand this issue without a warnings expert. The Court declines to grant summary judgment on Plaintiffs’ failure to warn claim.”
The burden to show proximate causation is extremely low in a failure to warn case. All the plaintiff must show is that had there been an appropriate warning, the plaintiff would have read it and considered it and that would have resulted in nonuse of the product. Plaintiff need show nothing more to get to a jury. In Morris v. Harley Davidson Co., 2010 WL 2723079 (M.D. Ga. 2010), the court upheld the denial of defendant’s motion for summary judgment on a plaintiff’s failure to warn claims. The plaintiff asserted that the defendant breached its duty to warn by failing to communicate the warnings adequately regarding the dangers of the motorcycle so that an operator could read and understand them. Id. at 7. There were no warnings on the motorcycle that alerted a user that it was rated to carry only 420 pounds. Id. at 6. The court allowed the plaintiff to testify that he would have understood warnings about overloading the motorcycle if such warnings had been adequately communicated to him. Id. The court found that genuine issues of material fact existed as to whether the failure to warn proximately caused the accident, because the record established that the plaintiff did not read any of the warnings in the owner’s manual, however he testified that he would have understood any warning if it had been adequately communicated to him. Id. at 10. Under Georgia law, Plaintiff does not even have to have an expert to establish a failure to warn claim. See Wright v. Case Corp., 2006 WL 278384 at 8 (N.D. Ga., Feb. 1, 2006) (court denying summary judgment or a failure to warn claim even though there was a lack of expert testing).
The quantum of evidence a plaintiff must produce to on causation to get to a jury is de minimis under Georgia law. There simply must be “some evidence” that plaintiff, had he been properly warned, would not have used the product. See Ford Motor Co. v. Gibson, 283 Ga. 398, 403, 659 S.E.2d 346, 351 (2008)(“as there exists some evidence from which a jury could conclude that Ms. Gibson was unaware of (and could not have obviously known about) the potential dangers posed by the Marquis, that Ford was aware of the dangers and failed to adequately warn Ms. Gibson of them, and that the very dangers of which Ford failed to warn Ms. Gibson came to fruition during the car accident that ultimately killed her, this argument is without merit.); Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 336, 319 S.E.2d 470, 477 (1984)(“The evidence showing knowledge on the part of Ford of a potentially unsafe condition and the marketing of the product with such knowledge and without adequate warning to users was sufficient to carry the issues of negligence and proximate cause to the jury.”); Stapleton v. Kawasaki Heavy Indus., Ltd., 608 F.2d 571, 573 (5th Cir. 1979) opinion amended on denial of reh’g, 612 F.2d 905 (5th Cir. 1980)(“Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury.”) cited in Reynolds v. General Motors Corp., WL 4498921(N.D. Ga.)(2008).
So “failure to warn” claims are alive in well in Georgia and continue to be a path to force manufacturers to change their conduct and make their products safer. Stay safe out there, Georgia!
Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.