Lead Opinion
In this products liability case, appellants Steve Bailey and Laura Bailey appeal the trial court’s order granting summary judgment under Indiana law to Cottrell, Inc. in the Baileys’ suit to recover for injuries Steve Bailey sustained when he fell from the top level of a car-hauler/tractor-trailer rig. Because we find that the trial court erred in failing to apply Georgia law to the Baileys’ claims, we reverse.
At all pertinent times, the Baileys were residents of Missouri. Cottrell, Inc. is a Georgia corporation engaged in the design, development and manufacture of car hauling equipment. Steve Bailey worked as a driver for a car-hauling company, Jack Cooper Transport (“JCT”), out of Wentzville, Missouri. The accident at issue occurred in Indiana on October 28, 2005, while Steve Bailey was loading pickup trucks onto his assigned car-hauler, a 1998 Cottrell rig owned by JCT. After Steve Bailey loaded an extended-cab pickup truck with a camper top onto an area called the “headramp,” which is located on top of the tractor, he stepped out of the pickup to dismount from the headramp’s upper level. Steve Bailey, who was wearing work gloves, stuck his right fingers into the top of the doorjamb above the
The Baileys allege that the car-hauler Steve Bailey was using was designed, manufactured and sold by Cottrell with inadequate space for maneuvering and with no fall prevention devices, such as safety chains or grab bars on the rig’s upper level, despite the fact that Cottrell knew that drivers like Steve Bailey would be required to load and unload automobiles from that area. Cottrell counters that Steve Bailey had knowledge of these supposed defects in the rig, as well as the knowledge of the specific risks of falling, and that he understood, appreciated and assumed these risks. The trial court, applying Indiana law, found that Steve Bailey voluntarily assumed the risk of working on the upper level of the car hauler and granted Cottrell’s motion for summary judgment.
On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
(Citations omitted.) Campbell v. The Landings Assn.,
1. The Baileys first argue that the trial court erred in applying Indiana law to their claims. Although the injury occurred in Indiana and the Baileys acknowledge that Georgia generally applies lex loci delecti (the law of the place where the tort was committed), they assert that the trial court should have applied the public policy exception to the general rule. The Baileys contend that Indiana law violates Georgia public policy in two respects: (1) Indiana law does not allow a strict liability claim for a product design defect with a risk-utility test, while Georgia does; and (2) Indiana law, as applied by the trial court, eliminated the voluntariness element for an assumption of risk defense, which they contend contravenes Georgia public policy.
In Georgia, “[u]nder lex loci delicti, tort cases are governed by the substantive law of the state where the tort or wrong occurred — in this case, [Indiana].” (Footnote omitted.) Bagnell v. Ford Motor Co.,
Even if an application [of the rule of lex loci delicti] renders the law of another state applicable, the forum, within constitutional limits, is not required to give the law of another state extra-territorial effect. That is only done as a matter of courtesy or comity, which will not be enforced if the law of the other state contravenes the public policy of the forum. See OCGA § 1-3-9; Commercial Credit Plan v. Parker,152 Ga. App. 409 (263 SE2d 220 ) (1979).
Fed. Ins. Co. v. Nat. Distrib. Co.,
(a) Georgia law recognizes a product liability claim based upon strict liability against “those actively involved in the design, specifications, or formulation of a defective final product or of a defective component part which failed during use of a product and caused injury.” (Citation omitted.) Davenport v. Cummins Alabama, Inc.,
The Indiana Product Liability Act generally imposes strict liability for physical harm caused by a product in an unreasonably dangerous defective condition. Ind. Code § 34-20-2-1. For actions based on an alleged product design defect, however, the Act departs from strict liability and specifies a different standard of proof: “(T)he party making the claim must establish that the manufacturer or seller failed to exercise reasonable care under the circumstances in designing the product.” Ind. Code § 34-20-2-2.
TRW Vehicle Safety Systems v. Moore,
In Alexander v. Gen. Motors Corp.,
Although Indiana recognizes strict liability for manufacturing claims, its failure to recognize a strict liability claim for design defects presents a substantive legal difference. A claim of negligence in an Indiana defective design product liability case differs from a strict liability claim in Georgia in that Georgia has specifically adopted the risk-utility test for determining strict liability as to such claims, while the State of Indiana has specifically rejected this test in favor of a common law negligence analysis. Compare Banks v. ICI Americas,
This comparison demonstrates that Indiana law and Georgia law are sufficiently dissimilar that applying Indiana law in this case would contravene the public policy of this State as expressed in OCGA § 51-1-11, and the Baileys are entitled to have Georgia law, including Georgia law regarding any defenses to such a claim, e.g., assumption of risk, applied to their claims against Cottrell. See Alexander v. Gen. Motors Corp.,
(b) Cottrell argues, however, that the Baileys failed to preserve this public policy argument for appeal, because they did not brief it in connection with the parties’ motions for summary judgment. Cottrell is correct that “absent special circumstances,
Following a conference with the trial court, the Baileys filed an expedited motion for summary judgment seeking a determination that Georgia law, not Indiana law, applied to their claims. They asserted two bases for this motion: (1) the untimeliness of Cottrell’s notice of intent to rely on Indiana law and (2) their assertion that Indiana substantive law would apply Georgia law to the claims in this case. The motion further stated:
Should this motion be granted it would obviate the need for the Court and parties to delve into the details of Indiana tort law that Defendants seek to apply. Consequently, Plaintiffs do not waive any arguments that Indiana law does not apply on a basis that involves comparing the particular points of Indiana and Georgia tort and damages law; for example, the argument that Indiana law violate[s] the public policy of Georgia.
Also pending at the time of the Baileys’ motion was Cottrell’s motion for summary judgment based upon Indiana law. In opposing this motion, the Baileys argued that Cottrell’s asserted defenses based upon an “open and obvious” defect and assumption of risk, as Cottrell interpreted Indiana law, would contravene Georgia public policy. The Baileys did not, however, brief any argument that Indiana’s failure to recognize a strict liability defective design claim contravened Georgia’s public policy. Nevertheless, at the summary judgment hearing, the Baileys’ counsel raised what he described as a “monkey wrench” argument that Indiana’s negligence only approach to defective design claims “runs afoul of Georgia public policy,” citing the Supreme Court of Georgia’s opinion in Alexander v. Gen. Motors Corp., supra. This argument was sufficient to preserve the issue for our review. See Pfeiffer v. Ga. Dept. ofTransp.,
Therefore, because the trial court erred in applying Indiana law, which contravenes Georgia public policy, we reverse the trial court’s order granting Cottrell’s motion for summary judgment.
2. Given our holding in Division 1 above, we need not consider the Baileys’ remaining arguments.
Judgment reversed.
Notes
The opinion in S KHand Tool Corp. v. Lowman,
The Supreme Court noted that “[sjpecial circumstances could include ‘a jurisdictional challenge, a claim of sovereign immunity, a serious issue of public policy, a change in the law, or (an) error that works manifest injustice.’ See 19 Moore’s Federal Practice, sec 205.0512] at 205-58 (Matthew Bender 3d ed.).” Pfeiffer v. Ga. Dept. of Transp.,
Concurrence Opinion
concurring specially.
I do not agree with the holding of the majority that the court below should have applied Georgia law in this case, but I do agree that the judgment below ought to be reversed, and for that reason, I specially concur. As to whether Georgia or Indiana law applies, I am unconvinced that the law of the two states is so “radically dissimilar,” see Alexander v. Gen. Motors Corp.,
Nevertheless, I think the court below erred when it awarded summary judgment to Cottrell based on the Indiana doctrine of incurred risk. On appeal, the Baileys argue that, even if Indiana law applies, incurred risk requires a voluntary act, and when an employee is required to perform a specific act as a part of his employment, it is for a jury to decide whether his performance of the act is voluntary. Cottrell responds that an amendment of the Indiana Product Liability Act did away with the voluntariness requirement and that, in any event, any question of voluntariness in this case is not one for the jury. I find the arguments of the Baileys on these points persuasive.
At one time, the Indiana Product Liability Act provided that it is a defense to a product liability claim that “the user or consumer . . . knew of the defect and was aware of the danger and nevertheless
Under Indiana law, when an employee is required to perform a specific act as a part of his employment, his performance of that act may be rendered involuntary by the circumstances of his employment. See Cole,
The Georgia standard is more specific, in the sense that the Supreme Court of Georgia has identified specific factors that must be considered in assessing “the reasonableness of a manufacturer’s decision-making process.” Banks,
Cottrell says that we should not look to the decision of the Indiana Court of Appeals in Vaughn because it was vacated by the Indiana Supreme Court. No one disputes that Vaughn is not a binding precedent in Indiana. But the Indiana Supreme Court decided the case on another ground, and it did not even discuss voluntariness. Especially in the absence of other authority, I think we still can consider what two Indiana appellate judges have said about the subject, even if their Supreme Court later reversed them on other grounds.
To the extent that Ferguson v. Modern Farm Systems, Inc.,