Plaintiff Jeanne Boyer was riding as a passenger on a four-wheel all terrain vehicle operated by her thirteen-year-old son when it flipped over and landed on top of her, injuring her back. She and her husband (plaintiffs) filed a product liability action based on negligence, strict liability and breach of warranty аgainst the manufacturer of the vehicle, American Honda Motor Company, Inc. and Honda Motor Company, LED and the seller of the vehicle, Eric Bat-tersby d/b/a Cherokee Cycle ATV & Small Engines, seeking damages for her personal injuries and his loss of consortium. Both Honda and Battersby filed motions for summary judgment, and in seрarate orders, the trial court granted partial summary judgment to both defendants. We granted defendants’ applications for interlocutory
Case No. A99A1540
1. The record shows that plaintiffs purchased the used ATV for their 13-year-old son from defendant Battersby. The trial court granted summary judgment to Battersby on plaintiffs’ strict liability and failure to warn claims,
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but denied summary judgment to Bat-tersby on plaintiffs’ breach of warranty claims. Battersby contends the trial court erred because the trial court specifically found that plaintiffs had failed to present evidence that the ATV was defective,
and plaintiffs must show that the ATV was defective to maintain an action for breach of an implied warranty under OCGA § 11-2-314.
Ream Tool Co. v. Newton,
Case No. A99A1S41
2.
Finding thаt the plaintiffs “failed to set forth specific facts showing a defect in the design, manufacture or assembly of the all terrain vehicle in question” the trial cоurt granted summary judgment to Honda on plaintiffs’ claim of strict liability, but denied Honda’s motion for summary judgment on plaintiffs’ failure to warn claim, finding an issue of fact remained concerning whether the warning Honda placed on the vehicle
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was adequate. Honda argues that the trial court erred in denying it summary judgment on the failure to warn claim because plaintiffs presented no evidence of a foreseeable danger that it had a duty to warn against. But
3. Honda next argues the trial court’s failure to grant it summary judgment on the failure to warn claim was inconsistent with the finding that the ATV was not defectively designed, manufactured, and assembled. We disagree. In its order the trial court prop
erly distinguished plaintiffs’ claims based on strict liability and negligent failure to warn. “Georgia lаw has long recognized [a distinction] between negligence and strict liability theories of liability.”
Banks v. ICI Americas, 264
Ga. 732, 735, n. 3 (
The distinction between these causes of action reflects the different duties that devolve upon mаnufacturers. While a manufacturer has a duty to exercise reasonable care in manufacturing its products so as to make products that are rеasonably safe for intended or foreseeable uses, the manufacturer of a product which, to its actual or constructive knowledge, involves dаnger to users, has a duty to give warning of such danger. Breach of these different duties hence gives rise to separate and distinct claims.
(Citations and punctuation omitted.)
Chrysler Corp. v. Batten, 264
Ga. 723, 724 (1) (
A product is not in a defective condition when it is safe for normal handing and consumption. If the injury results from abnormal handling!,] the seller is not liable. Where, however, he has reason to anticipate that danger may result from a particular use!,] he may be required to give adequate warning of the danger!,] and a product sold without such warning is in a defective condition. However, there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known. The same rule applies where it appears that the pеrson using the product should know of the danger, or should in using the product discover the danger. Whether a duty to warn exists thus depends upon [the] foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner.
(Citation and punctuation omitted.)
Yaeger v. Stith Equip. Co.,
4. Lastly, Honda argues that the trial court’s finding that an issue of fact remains concerning the adequacy of the warning placed on the ATV is inconsistent with the trial court’s finding that Bat-
tersby had no duty to warn of the dangers of riding the ATV with a passenger because Hоnda had already warned of that danger. Again, however, the trial court’s order is not inconsistent, but merely reflects the differing duties devolving upon manufacturers аnd sellers of products. We have previously held that a seller’s duty to warn consumers of a particular danger associated with the use of a product may be extinguished when the manufacturer has already warned consumers of the particular danger at issue.
Farmer v. Brannan Auto Parts,
“It is ... a jury question whether or not the mаnufacturer was negligent in failing to place a warning in such position, color and size print or to use symbols which would call the user’s attention to the warning or cause the user to be more likely to read the label and warning than not.” (Emphasis supplied.) Eldridge’s Georgia Products Liability, Theories of Negligence, § 2-24, p. 49. Where a duty to wаrn arises, . . . “(t)his 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.” Thornton v. E. I. Du Pont &c. Co.,22 F3d 284 , 289 (12, 13) (11th Cir. [1994]).
Wilson Foods Corp. v. Turner,
Judgment affirmed in Case No. A99A1541. Judgment reversed in Case No. A99A1540.
Notes
Plaintiffs have not appealed the adverse portions of the trial court’s orders, and we therefore render no opinion on the propriety of those rulings.
The following warning appeared on the back of the seat of the ATV: “Warning — Operator Only — No Passengers.”
In Hester,