*1 language indicates that trial his enforced, regulations generally is not Grady HIGGINBOTHAM, Michael Plain- prosecuted unless that hunters not tiff-Appellee-Cross Appellant, daily possession of more than
found that, constitu- urges Chew bag limit.3 COMPANY, FORD MOTOR Defendant- aside, regulation he is the tionality of Appellant-Cross Appellee, arbitrary enforcement. victim Henry Lee, Lee and John Veronica P. a “Motion point by first raised this Chew Defendants-Appellees. Appeal” in the dis- Trial on filed for New motion, In this filed after the court. No. 74-3716. trict conviction, court had affirmed his district Appeals, United States Appellant asserted that “the wishes Chew Fifth Circuit. additional which has been evidence to offer Oct. subsequent hearing to the aforesaid educed implementation guidelines as to Department The of the Interior.” court denied the in a Memo- motion
district 5,1974, and Order dated November
randum (1) indication there was no grounds was either proffered evidence (2) there probative, discovered” or
“newly jurisdiction in the court to no district (3) pending appeal,4 the motion
grant, jurisdiction evi- was no to receive
there conduct a trial in the
dence or de novo sitting appellate court as an court
district have magistrate’s decision. We not
from a
jurisdiction consider not of his appeal did from the denial
Chew for a new trial.
motion
AFFIRMED. recognizes holding “taking” who, Chew, that a Chew 25. While a hunter like killed requires possession might actual of the birds daily bag more than his limit but retrieved many some hunters to kill as birds as induce might guilty waste, fewer be found of wanton making attempt possible while to retrieve guilty Chew contends that he is not exceed- suggests at all. He who them that hunters daily ing bag limit. But see footnote practice engage in such a be liable for would supra. migratory game wanton waste to birds under regulations provide federal that “[n]o Chew filed motion on the date he same cripple any game person migratory shall kill or appeal filed notice this court. district part making any pursuant to this bird without pending appeal court felt that undermined effort bird and in- reasonable retrieve the jurisdiction to consider the motion. daily bag it in his C.F.R. 10.- clude limit.” 50 *3 death and injuries.
the Lees for the personal moved unsuccessfully judgment not- withstanding the It now appeals verdict. to this Court from the denial of that mo- tion; Higginbotham cross-appeals, alleging that the lower court in permitting erred jury to apportion damages between the two refusing co-defendants and in grant new trial limited to the issue of his injury claims. developed below, For the reasons *4 think that Ford prevail must in its direct appeal. Furthermore, we find an irrecon- jury’s cilable inconsistency in answers to the ambiguous proximate cause interrog- atory and the personal injury damages in- Therefore, terrogatory. although, appor- Jr., Bush, F. Weinberg, Clay Ben L. At- tionment of damages between Ford and the lanta, Ga., appellant. for Lees was appropriate principle, we must Carter, Hartwell, Ga., William 0. Sam S. remand the proximate issues of causation Gainesville, Ga., Harben, Jr., Higgin- apportionment and personal botham. award to the district court reconsidera- tion a new jury. Finally, because we Gainesville, Ga., Hulsey, Julius M. for J. agree that of the damages amount H. Lee and V. P. Lee. Higginbotham’s injuries was not as grossly Appeals from the United District States contends, insufficient as he we leave that Georgia. for the District of Middle finding from the first undisturbed. Thus, we affirm the district court’s denial partial of a new trial on amount of dam- BROWN, Judge, Before Chief and ages and reverse and remand on proxi- RONEY, Judges. Circuit GOLDBERG and mate apportionment cause and issues. GOLDBERG, Judge: Circuit I. FACTS case, diversity
In this confined as Erie,1 tracks of we are to the narrow Wednesday, On December near Georgia courts would Elberton, must decide how the Georgia, and Hig- Diann Michael arising treat a potpourri of issues out of a ginbotham’s 1970 Maverick Ford was in- collision between two automobiles. Plain- volved in a left front left front collision Higginbotham Grady tiff Michael sued with the Lees’ Dodge. According to testi- (Veroni- and the Lees Company Ford Motor mony trial, adduced at the when the two father, Henry) ca P. her John for the met, and vehicles force primary of the im- months, pact of his wife of six was driven wheel assem- Higginbotham, bly, suspension. Diann Bradshaw and for his which was tied to the trial, injuries.2 At the structure own of 1970 Mavericks was such the force on jury’s special interrogatories answers to the left front side of the car $40,000 against engine called for Ford caused the compartment awards rotate Tompkins, trial, however, During 1. Erie Railroad v. 304 U.S. as a defendant. plaintiff Ray Sales, S.Ct. 82 L.Ed. dismissed Ford Claude with prejudice. Transcript at 314-15. Recompiled and Plaintiffs Amended Com- Sales, Inc., Ray plaint also showed Claude counter-clockwise, passenger but com- party, that Ford had breached duty, and rotate with the front partment did not half. that other persons injuries. had caused the Instead, the left frame rail bent Similarly, in response to Count II Ford de- of the car was front section crushed into breaching any nied warranties and reassert- seat, injuring Michael killing the front ed the Count I defenses.
Diann.3 Jury’s II. Verdict expert
Plaintiff’s testified that if rails the two frame car had been tied The trial court plain- submitted both of together piece, with a solid in a manner tiff’s theories in the form of similar to construction of Ford’s Mus special interrogatories 49(a), under Rule tang, the frame rail would not have bent so Federal Rules of Civil Procedure.5 The in- badly. logical A deduction from this evi terrogatories, answers, with were the Mustang-type design dence is that as follows: substantially have would lessened As to defendants Lee: impact” injuries.4 “second 1. Who was driving the Maverick? complaint Plaintiff’s contained two Higginbotham ( ) Mr. alleged counts. Count I that Veronica Lee Mrs. Higginbotham (X) operated Dodge negligently, had negligent so, Was Miss Lee and if negligently designed Ford had and manu- was her negligence proximate *5 Maverick, factured the and that the Maver- cause of the collision? ick had latent defects of Ford was Yes; (X) ( ) No. aware; II charged Count that Ford had 3. Was the driver of the Maverick warranties, express implied breached and so, negligent negli- and if was that and that Ford’s breach of warranty coupled gence proximate cause of the col- negligence inju- with the Lees’ caused the lision? response I, ries and death. to Count Yes; (X) ) ( No. Ford allegations negligent decided the of design and manufacture and asserted as 4. If both Miss Lee and the Maverick plaintiff defenses that was the negligent driver were proximately negligent, description represents 3. Our of the accident coming allowing around now and that deciphering testimony our best effort at wheel to come in to what would be the fire- Brooks, plaintiffs expert, Mr. without the ben- wall and now the force is transmitted here drawing efit of the blackboard to which he puts puts which is the rocker then — the — constantly. referred Mr. Brooks first described panel bending position. in a the construction of the 1970 He Maverick. testimony The remainder of his dealt with what pointed out the location of the car’s center of changes prevented would have the frame rail gravity explained hitting and that a force bending going from and other details to the (where point clear) car at a certain is not will regret car’s reaction to a collision. We our Next, rotate it counterclockwise. he seemed to inability clearly, to describe this incident more say engine only thing amount was the clarity but we cannot create where none exists. structure, fortifying the forward and that great would shear if too a force were transmit- impact” 4. The “second refers to the reaction of Finally, ted to it. he testified that persons objects or inside a vehicle to the vehi- bumper tended ... in- object cle’s collision with some external such going vehicle, stead of down under the —the object. as another vehicle or an immobile up and, went and that the car climbed crashworthiness of the vehicle determines how course, spring spring coil in a Ford —the any injuries severe suffered as a result of the type type vehicle and General Motors vehi- impact actually second will be. It is an en- cle, slightly if the car is lifted in front the injuries theory, hancement of since some colli- stays spring wheel in contact because of the obviously sions would be so violent that pressure holding it down. So once it went— vehicle’s crashworthiness would be irrelevant. that, over and raised that front left corner— stays ground the wheel on the slightly front —the general 49(a), 5. For a discussion of rule see corner is elevated and all that force is Brown, Special Federal Verdicts: The transmitted to this wheel and since lapses Doubt this col- got Eliminator, (1968).. here then we’ve visualize all 44 FRD 338 28, 1974, May On the court entered a they each of 100% were much how plaintiff in the amount of judgment negligent? proximately $10,170 $42,500 against against Ford and 50% Miss Lee May this on the Lees. It amended 50% driver Maverick $40,000 against Ford.6 Ford award 100%) (Must total judgment its motion for n.o.v. or new filed Company: Ford Motor As to defendant 3, 1974, making vague allega- trial on June duty its perform (a) Did Ford tions verdict was constructing an auto- and designing contrary and weight of the evidence reasonably safe that was mobile 7, 1974, plaintiff June evidence. On filed being driven intended use of its judgment,” alter or amend the “motion to highways? roads and asserting appor- law forbids Yes; ( ) No. (X) joint tionment of verdicts between tort- duty (b) perform Ford Did $10,- feasors and that the full amounts of auto- constructing an and designing 170, $190,000, and should therefore latent or contained no mobile jointly severally against run and Ford cause which could defects hidden 7, plaintiff the Lees. Also on June moved inju- subsequent accident an for a new trial limited to the issue of the ries? injury damages, amount of his Yes; ( ) (X) No. were grossly inadequate. which he asserted rea- Maverick automobile The district court denied both Ford’s and Was this September 13, purposes Higginbotham’s motions on sonably suited for appeal intended? and this followed. commonly which it was Yes; (X) No. ( ) Denial of Appeal: Judgment III. Ford’s any portion the answer If Notwithstanding the Verdict No, was Ford’s breach preceding original appeal, In its briefs on duty proximate cause said of its argued judgment its motion for death and Higginbotham’s of Mrs. *6 granted have been because the n.o.v. should injuries? Higginbotham’s Mr. proof showed that no defect pleading and Yes; ( ) No. (X) Higginbotham’s Diann Maverick peculiar to Damages: existed, interrogatory jury yet the life of of the (a) The “full value” 1. unfavorably answered to Ford referred to $190.000.00. Higginbotham is Mrs. “this Maverick automobile.” After oral ar $2,500.00. of her death Expenses response request, to the Court’s gument, in $40.000.00of that (b) pay Ford is to argument it an to the effect that the added amount. Death statute7 Georgia Wrongful does not (a) Higginbotham’s 2. Mr. of warran comprehend an action breach $10.170.00. Georgia’s an under new strict ty or action $ Although per none of that we are not (b) pay is to statute.8 Ford original argument,9 suaded Ford’s our amount. recovery against order, explained the Lees for her death. See May 31 the court In the 17, infra. $2,500 expenses note award the death deletion of jury’s finding saying “Based on with a note (1968). negligent, there can 7. Ga.Code Ann. ch. 105-13 the decedent was that 50% $2,500.00 recovery the ex- of the be no moved to delete penses death.” Ford of her 8. Ga.Code Ann. 105-106 § judgment, explanation since the from the this only awarding agree reason correct of the 9. We with Ford that none testimo- against particular had ny the fact Ford was with the at the trial dealt $40,000. granted only purchased by Higginbotham. The court Diann authorized Maverick judg- Interrogatory footnote in its 2’s reference to “this” Maver- and deleted the If the motion only specific September effect of mean car involved in 1974. The ick could ment accident, negligence then Ford would be entitled to a finding is to bar of Diann’s 50% 768 compels us to from a crime or from criminal Georgia law or other
prediction of
negligence.”
for his
Ann.
cannot
recover
Ga.Code
105-1301
plaintiff
§
hold that
(1968).11 Thus,
Ford.10
wrongful
wife’s
is whether the
una-
However,
finding
add that
that “this
jury’s
we hasten to
Maverick automo-
wrongful death
was
vailability
“reasonably
of the
bile”
not
suited for the
claims for his
plaintiff’s
effect on
it
purposes
commonly
has no
for which was
intend-
will discuss the
injuries. We
personal
guilty
own
meant
that Ford was
ed”
“a crime
first,
then the
action
wrongful death
negligence.”
or
criminal or other
injury claim.
The trial court’s discussion with counsel
prior
reading
charge
to the
Higgin-
of Diann
Wrongful Death
A.
2
Interrogatory
indicates that
was based on
botham
case of Friend v. General Mo-
Corp.,
tors
Next of ladies in- law of the Geor- Ford, there is a State of tended recog- was decided before Friend unreasonable risk in the event of a liability; allegations that nized (Emphasis added.) collision. reasonably suited was not use truck Reading Interrogatories 1(a) (b) and injight of implied an therefore stated war- intended instructions, these 1(a) seems evident that ranty claim. 1(b) negligence and all submitted theories to jury. argument, plaintiff At oral suggested contrast, (b) interrogatories 1(a)
13. In
and
were
1(a)
(b)
and
went to the
whether
concepts,
negligence
based
traditional
as
all,
the vehicle was
safe
drive
Corp.,
at
in Larsen v.
contrast
articulated
General Motors
'
which went to
771
212
Georgia
found that
S.E.2d at 376. Finally
the Northern District
the Howard
opinion recognized
in Howard v. The
that when
recovery
possible
was
the Georgia
Appeals
Court of
Co.,
(N.D.Ga.,
attempted
75-1096 A
to equate
Heil
Civil No. C
stat-
utory
liability
strict
in
14, 1975). He first noted that
tort with a
filed Nov.
satisfac-
tory showing of negligence,
has
in
Georgia Supreme
expressly
Court
Parzini v.
the
Co.,
Center
Chemical
134 Ga.App.
theory
liability
that
the
of strict
214
stated
(1975),
700
Supreme
S.E.2d
Court
Georgia.
available in
Center Chemical
vacat-
now
portion
opinion
ed that
of the
Parzini,
and held
v.
234
218
580
Ga.
S.E.2d
Co.
required
the claimant was not
Rich’s, Inc.,
prove
to
neg-
212
(1975); Ellis v.
Ga.
ligence.
at 582.
S.E.2d
(1975).
Pey
also Stokes
See
S.E.2d
v.
Inc.,
Next,
ton’s,
However, Erie Railroad duty under our 1188, 64, Higginbotham’s death 1933, 82 L.Ed. cause of Mrs. 304 U.S. mate Tompkins, injuries) to the same 817, try Higginbotham’s to to come and to is and Mr. 58 S.Ct. in the state (that Higgin- be reached 2 Mr. Damages Interrogatory would result that Co., Life Ins. American damages v. Pan in the amount Oliva suffered court. botham Stephens F.2d 217. See 448 $10,170). Higginbotham’s problem in exe- 5 Cir. Co., Ins. 5 Automobile Farm Mutual cuting against damages State Ford for these 1363; Lines, Air Delta F.2d 508 Cir. simple: jury expressly the found that Ford Corp., Douglas 5 Cir. v. McDonnell Inc. $10,170 The pay to none of the award. was denied, cert. F.2d jury ap- decision to let the district court’s 451; 1953, 44 L.Ed.2d 965, 95 S.Ct. U.S. portion damages between Ford and Co., 5 Cir. Ins. v. Allstate Benante Lees, apportionment and the actual Hill, cor opinion, in our Judge F.2d resulted, bring plaintiff’s us to the cross result in his probable rectly discerned appeal. consistency with The decision. Howard Supreme Court has ad Higginbotham’s Appeal IV. Cross wrong a strict construction hered to Higginbotham raises The two issues that statute, the notable difference ful death first, appeal whether the wording of the on his cross between statutes, permitted appor- the conserva to jury other should have been and most Georgia’s that characterized approach damages tive tion the between Ford and per all voyage Lees,17 second, into strict maiden whether the district we too must hold us that suade for a denying court erred in his motion encompass cannot wrongful death statute partial new trial limited to the issue of engine on the liability claim. The Although agree we damages. amount of reverse and simply will not Erie tracks appro- with was apportionment Ford that opposite destination. carry the train situation, priate in this we find an irrecon- grant on remand should district court jury’s inconsistency cilable between judgment notwithstand motion for Ford’s findings duty, that Ford breached its wrongful death as to the ing the verdict injuries, proximately breach caused claim. $10,170 damages in the amount of incurred, were but that Ford was liable for Higgin- Injuries of Michael Personal B. damages. none of those botham lies in the problem The root of the Interrogatory 2 as ask Construing interrogatory proximate fact that was reason the 1970 Maverick ing whether in that it did not ambiguous cause was purposes for which ably suited for segregate the death claim and the intended, supra, commonly see note was injury jury’s specification claim. From the the record that from our review of we find $40,000 pay wrong that Ford was to for the support to evidence was sufficient injuries, it might ful death and none for the Interrogatory negative answer. jury’s possible actually be to infer that the however, only with the standard Ford dealt proximately caused the found Ford Equally essential to required to meet. was injuries. death but not the a conclu finding damages Such ultimate an however, sion, Interrogatory directly answers to flies in the face of were Higginbotham’s person- against guilty found that 17. The because Ford was of no $10,170, were and that Ford negligence, against al and he cannot recover pay of that amount. It also found none Higginbotham’s negli- Lees because Diann 50% $190,000 pay that Ford was recovery gence bars them under Geor- damages. of our Because deci- death See, gia’s comparative negligence g., rule. e. claim, respect need with sion Moore, 195 S.E.2d Kirkland validity apportioning those not consider the damages. Higginbotham cannot recover *11 omnibus if the jury’s “yes” parties joint tortfeasors, answer to the were then Accepting proximate cause. law clear that question they jointly are findings that the Maverick jury’s and liable for severally the full of amount use, reasonably suited for its intended plaintiff’s damages. Gilson, not Mitchell v. 233 caused unsuitability proximately 453, (1975). Ga. 744 211 S.E.2d See Gates v. injuries, amount- damages and that the DeWitt, Inc., L. G. 5 Cir. 528 F.2d $10,170, then even if apportionment to ed 413 follows (Georgia rule of no apportion- liable for permitted, Ford would be were joint tortfeasors). ment among than damages greater amount of zero. some Mitchell, the Georgia Su rational, non-speculative find no We can preme approved Court the following stan jury reconcile these two essential way to govern dard to the determination of when findings. apportionable: damages are it, we regret Much as we see no separate If the and independent acts remanding proximate alternative negligence of two or persons more or issue to the district for a rede cause court corporations combine naturally di- and Ford’s termination whether rectly produce a single inju- indivisible duty proximately Hig of its caused breach ry nuisance, other than a and if a rational injuries. This issue ginbotham’s basis does not exist apportionment for an sufficiently severable from issues seems resulting damages among the vari- damages of im amount of and breach causes, ous then the joint actors are tort- (or warranty liability) strict make a plied feasors, jointly and severally liable unnecessary. trial on all Cf. new issues the full plaintiff’s amount of damages, Inc., 1959, Lines, Magneau Freight v. Aetna notwithstanding the absence voluntary 1184, 1188, 273, 279, 79 3 360 U.S. S.Ct. concert intentional of action among them. (issue 1229 decedent L.Ed.2d whether employee so with ulti 211 745. Although was an interrelated S.E.2d at this standard liability damages issues of refers of “negligence,” mate and to acts we think that hearing not in the interest of fair a Georgia court would apply limited it to strict efficiency); Weymouth v. Colora liability products.18 ness for defective Unlike Co., 5 Cir. Interstate Gas the wrongful situation, do which in- trial in (appeal taken after second 87 volves a in derogation of the com- only remaining law, issue was market val parties mon whether joint are tort- 9 gas). generally natural C. ue of See feasors is a nonstatutory question wholly Miller, &'A. Federal Practice and Wright within the common law. The rule requiring 2505 If the second § Procedure strict construction of the wrongful death that Ford’s not cause finds Maverick did act govern therefore does not this determi- injuries passenger nation, over and any we are free to reconcile the new those that if the above would have occurred existing statute with case law as a reasonably been to its in might. car had suited court use, there. tended then the case would end The two recent Georgia Su however, If, proxi it finds that Ford was preme cases construing Ga.Code Ann. injuries, cause of such the issue mate then 105-106 make it clear that Georgia is now will surface apportionment state, a strict and that the theoreti reason, again. appro For that deem cal basis of claim is in tort. Center point. to set priate forth our views on Parzini, Chemical v. Co. 234 Ga. 218 (1975); permits apportionment Rich’s, Inc., of S.E.2d 581 Ellis v. more) only (or parties if the two Ga. S.E.2d 373 (1975). The joint way, Georgia not tortfeasors. Put another have courts held that the fact that already support verdict can found that Ford’s We have on a supra. liability theory. page persons differing degrees proximate cause, two owe of care finds it should be injured differing party or duties toward the asked to set out the relative amount by being joint prevent does not them from which the defective automobile enhanced Schettino, Ga.App. Higginbotham’s tortfeasors. Isom injuries specific dollar — 73, 199 (1973); Diplomat figures unnecessary. S.E.2d Gosser would be Because the Restaurant, Inc., 188 percentage by which damages were en- Co., *12 (1972); Hanger Piller v. separable S.E.2d Gab hanced is a issue from the amount 260,154 damages, Al of S.E.2d we see no reason to disturb the though yet has not directed its first Georgia jury’s finding on amount. place liability attention to the of strict in scheme, we think that it would view V. Conclusion simply a liability degree strict as different We have been compelled by the abnor- by
of care owed the manufacturer. If the mally language restrictive of the Georgia care, duty manufacturer breaches his and Wrongful Death statute to reverse the party’s his act combines with another tor $40,000 award Higgin- Diann produce single inju tious act to indivisible botham’s death. Although the quality of ry, appor and if no rational basis exists for Georgia mercy is strained indeed in the damages, tionment of then the two should wrongful area, as a federal court joint be considered tortfeasors under Geor sitting in a diversity case we are forced to gia law. by prediction abide our of the result that a Georgia court
We have no trouble here with the
would reach. Our task has
been to
duty
single
schedule the
injury
breach
indivisible
correct Erie run and to
However,
attempt to clear the
components of this test.
the fact
track of legal debris.
Erie can
only
injuries
that
is
for the
be a stern disciplinarian,
Ford
liable
over
com-
manding
strict,
us to follow
and above those that would have occurred
even the
if not
antiquated,
crashworthy
in a
car convinces us that a
substantive law of a state. Yet
must,
obey we
apportionment
rational basis for
exists.
when we are certain of the
result
proximately
only
Just as Ford
caused
would be reached in a state
court.
injuries,
regard
With
enhancement of
so should it be
to the
injury
claim, the
ambiguity
proximate
liable
for the amount
cause
product
injuries.
interrogatory
and our inability
defective
enhanced
to reconcile
Thus,
retrial,
existing
jury
proximate
on
if the
finds
affirmative answer with a
causation,
finding appor
liability
it should also be
damages
asked to
requires
us to remand
personal injury
tion the total amount of the
this issue for a second jury’s
more
precisely
between Ford and the Lees.
directed consideration.
If
that jury finds that the uncrashworthiness
point
The last
we must consider of the vehicle enhanced Higginbotham’s in-
jury
is whether the
per
second
should be
juries, it should indicate by what propor-
mitted to re-evaluate the absolute amount
tion, so that the court may properly appor-
Higginbotham’s personal injury
dam
$10,170
tion the
award. Finally, we hold
ages.
argues
gross
He
that the award was
that the amount of damages on
person-
evidence;
light
in
ly inexcessive
al
claim awarded by the
first
by disputing
point,
and in the
responds
undisturbed;
must remain
the lower court’s
by arguing that the amount
alternative
is denial of
partial
new trial was correct.
with
so intertwined
issue that a
We therefore affirm the district court in
preferable
new trial on all issues would be
part, and reverse and
part
remand in
partial
light
new trial.
further proceedings in accordance with this
that went
documentary
evidence
opinion.
room,
find the
we do not
award so
inadequate
require
PART,
as to
a new
grossly
trial
AFFIRMED IN
REVERSED
remand,
to this issue. On
limited
if the AND REMANDED IN PART.
BROWN,
Judge,
concur-
speak
subject.
R.
Chief
courts
on this
JOHN
I can
dissenting
part:
assert, however,
ring
part
safely
the majority
unreasonably limited itself in its search for
in the rest of the ma-
Although I concur
the law which a
court
apply.
would
from its
opinion, I must dissent
jority’s
Surely the
many
juris-
fact that
American
wrongful death stat-
ruling
Georgia’s
today
dictions
allow strict liability recovery
encompass
ute does not
under
death statutes2
play
should
claims.
part
some
in our Erie determination when
holding
said for the
The best that can be
directly
there is no
law
point.
it
“one of those situations where
is that
Yet
majority’s reasoning
fails to take
right
is bound to be
because
the decision
this factor
In making
into account.
our
Corp.
.”
wrong
is so
.
.
Gulf Oil
determination,
may
Erie
also look to
Cir., 1969,
Corp., 5
Panama Canal
law,
trends in
escape
and there is no
24, 26.
from the conclusion that
the trend toward
spoken to
Georgia appellate court has
No
*13
imposing
liability
injuries
strict
ease,
at hand.1 In such a
specific
issue
resulting
defectively
death
from
manufac-
may
“Federal
look to all resources
Court
products
proportions
tured
has assumed the
states, fed-
including ‘the decisions of other
Georgia’s
of an avalanche.3
recent
trans-
general weight
decisions or the
au-
eral
liability
only
formation to a strict
state4
federal
thority,’
goal being
‘that
Again,
serves to underscore this fact.
probably
that would
court reach the result
majority
rely
does not
on this factor.
litigated
to be
reached were
be
”
Also, there is a fact which the majority
court.’
Cottonwood Mall v.
in a state
Co., Cir.,
recognizes,5
plays
part
Power
440 F.2d
but which
in its
Utah
three fac-
majority,
relying
40. The
that Georgia
conclusion
courts would allow
“consistency with which the
tors —the
Geor-
liability recovery
no strict
for wrongful
has adhered to a strict
gia Supreme Court
death. This is that the rule
by
announced
statute,
wrongful
death
construction
today
person
the Court
only
who is
—that
wording
the notable difference between
injured
aby
defectively-made product may
Georgia
and most other stat-
theory
recover
under a
of strict
utes,
approach that
and the conservative
liability,
person
while a
by
who is killed
Georgia’s
voyage
maiden
into
characterized
may
same defect
not —creates a distinction
liability”
that “we too must
palpably unjust,
—rules
which is
if not completely
wrongful
statute cannot
hold that the
We,
irrational.6
as a Federal Court en-
encompass
a strict
claim.”
su-
gaged
tricky
attempting
in the
task of
to
772.
pra, at
behavior,
predict
pause
State Court
should
long
concluding
and hard before
say
majori-
cannot
for certain that
that a
I
irrationally
Court would act
ty’s prediction of
law is incorrect.
State
and un-
certainty
justly,
will come
when the
in a manner completely
Such
at odds with
Co.,
Etheridge Georgia
supra,
But
Power
No.
see
5. See
1.
at 774.
C-12911, Superior
County,
of Fulton
Court
16, 1976,
Georgia,
holding
June
Judge Friendly’s pithy
surely
6.
comment
fits
permits recovery
law
death under
compulsion
by my
here: “The
felt
brothers
theory
of strict
in tort.
palpably
to reach what seems a
un-
just result reminds me of Chief Justice Erie’s
See,
Bailey,
and H.
R. Hursh
American Law
predilection
observation as to the occasional
Prosser,
Liability
(1974);
§
Products
2d 4:19
judges
decision,’ wit,
strong
the best of
for ‘a
to
(4th
1971);
Torts 903
ed.
22 Am.Jur.2d Death
‘opposed
one
to common-sense and to common
” Spanos
convenience.’
v. Skouras Theatres
Cir., 1966,
Corp.,
Prosser,
(4th
1971).
3. See
Torts 657-58
ed.
Rich’s, Inc., 1975,
4. See Eilis
233 Ga.
American ty. legislature I think the trying Finally, majority disregards the obvi- say that such claims would take the course purpose legislature in its enact- ous damage sounding tort, of the usual suit disparages ment 105-106. The §§ is, negligence. based on The code cre- mold, it because it is not in the ALI but is species negligence ates a new —failure merchantability reminiscent of the UCC reasonably manufacture an article suited Actually merchantability test. the so-called expected use. more than the may standard be liberal oth- predict Supreme I decline to prove er. In the ALI test one has to unrea- Court of will read a new section as danger sonable formidable —sometimes applicable only nonfatal consequences merchantability task. On the standard one thereby bringing about a result both shock- thing only prove need failed under its ing unjust. I predict they will construe expected originating Far usual use. from precedential the death statute and materi- ancestors, common law UCC or its als to have been modified the new code is the classic case of unseaworthi- Unfortunately, section. even if I have this probably the ness—a standard most liberal prescience, assumed Grady will not do the law. in all fields of Higginbotham Michael any good. He and part Of course we not on which of the just the estate will be another victim of concepts two is more or less liberal or strict. past Erie—unable to recall a mistake in is the failure to construe What differ on determination of local law.7 *14 the ancient death statute in terms of the change Georgia’s recent marked idea on n what can constitute “tort” —which is an- descriptive magic “negli- for the
other word
gence.” only imposes new section not
The stan- manufacturer, performance
dard of on the consequences
it then characterizes the tort,
nonperformance as a “in irre- persons injured.
spective privity” majority disregards specific legis-
lative characterization that the breach con- Florida, Georgia, receipt It is unfortunate that unlike certification, Cir., of answers 5 Alabama, proce- Louisiana does not have a 1976, 98; Equities, H. S. 530 F.2d Inc. v. certifying questions Supreme dure for Co., Indemnity Cir., Hartford Accident & 5 Georgia. 1975, 1277; Reynolds, Nardone v. 512 F.2d 5 City Talladega, See Cincinnati Ins. Co. v. Cir., 1975, 660, certification, Fla., 508 F.2d on Cir., 1976, 718; Rayonier, ITT Inc 5 529 F.2d 25; and cases cited in Nar 333 So.2d Wadsworth, Cir., 1976, 1033; 528 F.2d Reynolds, supra, 6; done v. at 663 n. Smith, Cir., Corp. Southeastern Financial Secretary Army, Coastal Petroleum v. 1233; Tyler v. Insurance Co. 526 F.2d Cir., 1973, 489 F.2d 779 n. on rehear America, Inc., Cir., 1975, of North 520 F.2d ing, 973; and in Allen v. 491 F.2d 341; Barnes v. Atlantic & Pacific Life Ins. Carman, Cir., 1971, Estate of Co., Cir., 1975, F.2d on certifica 1277 n. 1. tion, 1975, 295 Ala. 325 So.2d