*1 No. A93A1269 Case considered, is found to A93A1269, having been Case No. dismissed. moot and is rendered been dismissed in Appeal No. A93A1417. Judgment in Case affirmed J., in P. concurs Smith, J., Beasley, concurs.
Case No. A93A1269. judgment only. 30, 1993
Decided November denied December Reconsideration appellant.
Kyle Yancey, for Lehman, Currie, Gold, Thomas J. & David S. Gray, Gilliland appellee. AMERICAS, et al. INC. v. BANKS ICI
A93A1303. Judge.
Andrews, nine-year- of a products liability arose from the death This action child, consuming poison product manufac- died after a rat old Americas, (ICI). poison by ICI Inc. ICI manufactured tured Talon-G, by the Environmental Protec- registered which was called Insecticide, (EPA) Fungicide and Ro- under the Federal Agency tion (FIFRA). As FIFRA Act, 136-136y part of the 7 USC denticide in a Talon-G was packaging labeling requirements, displayed warnings cau- EPA-approved labeling, container children; it kept of reach of tioning users that it should be out swallowed, origi- that it stored in its harmful or fatal if be to children. ICI sold Talon-G container in a location inaccessible nal operators. plaintiffs, the child’s professional pest control pest company servicing parents, produced evidence that control unmarked, in an container Boys placed Club the Talon-G unlabeled ap- Boys Club. The cabinet at stored unlocked child, who Boys parently found the container Club quantity consumed it. Boys settled claims pest company
After the and the Club control ICI them, proceeded negli- to trial plaintiffs against against gence claiming negligently Talon-G was and strict theories unreasonably dangerous to chil- defectively designed such that was dren, There was evidence that inadequately it was labeled. being consumed the rat would misused ICI, data and that ICI withheld children foreseeable to exposure product. Other evidence EPA on of human instances reduced, could have been showed humans, ingredients which would cause made safer the addition of rats, reject tasting, ingesting it as or vomit after it. but not bitter $510,000 plaintiffs compensa- and awarded found $1,000,000 tory punitive damages. damages Because $510,000 damages already compensatory more had received than *2 defendants, recovery their from their settlement with the other actual $1,000,000 punitive damages. to the as ICI was reduced awarded denying court erred in ICI contends trial its motion a prove product directed verdict because subject case, it “In negligent. product-design defective that was distinguishes negligence semantics the cause of action for and a pursuant [claiming liability cause of action to OCGA 51-1-11 strict § Mann, Corp. Coast Catamaran design].” for defective 171 App. Ga. (321 844, 350), (326 201, 848 SE2d aff’d 254 Ga. 202 SE2d In both judged causes action the manufacturer’s conduct is Co., Honda Id.; Motor Ltd. v. traditional reasonable care. Kimbrel, (376 Hunt Har 414, App. (1988); 189 Ga. 418 SE2d ley-Davidson Co., (248 Motor App. (1978); 147 Ga. SE2d Weatherby Ltd., v. Honda (393 Motor App. Ga. 64) (1990); Albany Center, Vax v. Lawn & Garden SE2d 209 Ga. (433 App. 371 SE2d
Rat is a useful designed rodent control which as and manufactured the purpose being eaten is obviously rats poisonous a designed substance to kill poisonous rats. Because of its character, may also harm kill beings poi- human it. The eat sonous character of rat is an inherent necessary characteristic to the product usefulness of the product rat killer. The is not defectively negligently designed simply it is poisonous, because nor solely it may possible because be for the manufacturer to make the reducing danger resulting poisonous from its Parzini, character. Co. 580) (1975); Weatherby, supra. imposes “[OCGA 51-1-11] liability
strict products. for defective It does not attach the condition the defective must ‘unreasonably dangerous’ limitation is included the classic of strict liability. definition We can not liability read this into the imposed statute. Strict is not under merely the statute dangerous. Many prod- ucts can not completely be made use safe for and some can not be made safe at products may all. such be useful and desirable. If they prepared, manufactured, are properly accompa- instructions, nied adequate warnings can not be said to be defective. To hold discourage marketing otherwise would many products because some attended their use. We find nothing strictly makes a manufacturer lia- [OCGA § 51-1-11] supra products Center Chemical defect.” absent a for such ble containing (question almost drain cleaner industrial was whether defective). predi- products pure case “In a sulfuric acid was duty imposed negligence, of rea- is traditional one cated on provide, need the manufacturer care and sonable standpoint, injury. Georgia incapable producing law does occupy require an insurer with the status of a manufacturer to not respect obliga- product design. under no . . . The manufacturer is foolproof, [product] proof more even accident tion make a predominant legislature public policy is enunciated safe. The factor omitted.) punctuation our determination.” Weatherby, supra at 170. necessary everything
“Generally, [i]f manufacturer does purpose [product] properly is for which it function for the make the any [product] defect, if its func if latent without peril tioning user, then not known creates (Citations and law’s demands.” has satisfied the the manufacturer omitted.) Poppell Waters, 815) (1972); designed supra Hunt, “[I]f so intended, is not de for the use that it is fective even safe *3 injury capable producing injury
though re where the of supra patent peril.” Catamaran, at Coast sults an obvious or “patent “open Georgia Moreover, or under the and obvious” defectively designed danger” product if the of a rule is not absence duty safety open obvious, warn an and there is to of device is danger generally Newton, Tool Co. v. Ream obvious or one known. (433 “open App. Under the 209 Ga. obvious” 228-229 SE2d posed by knowledge by danger “[a]ctual
rule of the user necessary. deciding] peril product . [Rather, is . . whether a from which not patent, injury is an is latent or the decision made results product, subjective objective view of the on the basis of party (Emphasis perceptions injured of are irrelevant.” the user Weatherby, generally original.) supra at 171-172.The manufacturer is product, injury resulting from an abnormal use of the not liable foreseeably probable. particular Mann unless the unintended use was (326 (1985); Corp., v. Catamaran SE2d Coast 254 Ga. (319 App. 331, Stubblefield, Ford SE2d Motor Co. Ga. (1984). functioning as “if in the normal peril [objec designed tively] functioning danger not such creates bystander, lia known then the manufacturer is user danger. injuries proximately Thus, such the manu ble caused knowledge, product which, to its actual or constructive facturer of duty danger give warning danger.” of such involves to users has a omitted.) supra Co., Ford Motor danger to the “A in the use of extends warn reasonably contemplated product in use of the the manner antici pated by the use which the the manufacturer. When originally being put injury not at the time intended liability may manufacturer, the determination whether strict be as theory recovery serted as a viable whether manufacturer liability insulated from and because the use of the was ‘abnormal’ initially, upon foreseeability intervening depends, that the Talley City put Corp., to that use.” Tank would Foreseeability this con foreseeably probable objectively text means which would be expect, merely Greenway might reasonable to what occur. 541) (1982); Peabody Corp., App. 698, Intl. supra Co., Ford Motor at 335. may gathered foregoing principles that,
From where a functioning, designed, in its as normal creates a latent dan ger, arising foreseeably probable use, from a unintended and the user injured party objective point appreciate could not from an of view may danger, the latent the manufacturer be held on a liable claim of negligent design failing adequately defective or warn of the danger. supra; supra; Poppell, foreseeable Ford Motor supra; supra. Catamaran, see Mann v. Coast In the present product performed case, evidence showed that in as killing poison. However, tended as an effective the facts were suffi cient for a to conclude that in the normal use of Talon-G as a rat poison, danger as created a latent it would appreciated by children, be consumed children who mistook it as use could not be dangerous food, and that this unintended foreseeably probable Compare Weatherby, supra ICI. “open (discussing ap and obvious” versus latent plied objective appreciation danger by injured of such child); Greenway (not Peabody Corp., supra Intl. fore trapped seeable to manufacturer that child killed when between dumpster play dumpster). doors would inside analysis Georgia law, This makes clear that under whether ICI negligence be liable under the and strict claims made *4 plaintiffs depends gave adequate warning on whether of the fore- danger. danger, seeable of Evidence a foreseeable latent combined by with other evidence that ICI could have made the reducing support designed. by children, the of misuse was not alone sufficient to finding defectively negligently the or requirement imposed by There is no statute or common law support defectively negli- that would the claim that Talon-G was or gently designed solely product safer, did because ICI not make the or attempt incorporate safety the features evidence. There product, comply any spe- evidence that the “ impose upon manufacturer the ‘To or state standard. cific federal aim, accident-proof product may be a desirable duty producing — — or, view, may imposed obligation been our no such has but ” Indus., Hunt, supra 47; Rhodes v. R. G. decision.’ by judicial (revolver 465) (1984) for not defective lack child from three-year-old safety prevented device that would it). discharging testimony expert warn- Although plaintiffs presented
2. inadequate, by labeling ICI on the ings given gone to claims should not have labeling warning and Labeling FIFRA. of rodenticides preempted these issues were impose FIFRA, “shall provides that a state not governed by labeling packaging addi- any requirements continue effect subchapter.” 7 required under this from those tion or different (b). [plaintiffs’] require claims “To the extent that the USC 136v § should have included addi- showing labeling packaging that [ICI’s] tional, stated, pre-empted clearly warnings, those claims are or more omitted.) Papas v. Upjohn [by and FIFRA].” 1993). (11th warnings Cir. Even claims that 985 F2d pre- labeling given were not packaging other than those on signs, “[A]ny point-of-sale claim that consumer empted FIFRA. notices, adequately warn other informational materials failed warnings pro- plaintiff necessarily challenge adequacy pesticide If product’s labeling packaging. manufac- vided on the packaging of its places EPA-approved warnings turer the label satisfied, adequate warning issue to warn is EPA- obtaining plaintiffs’ ends.” Id. at 519. regarding approved packaging, label and ICI failed disclose data Talon-G, exposure may subject ICI to FIFRA incidents of human (a) (see (1) (E)), penalties 136j 7 USC but whether misbranding incomplete, if so approved labeling is inaccurate or what EPA, changes should made is a matter determination state court. Id. plaintiffs’ product ultimately grounded claims are adequate warning, warning pre-empted the issue of issue is undisputed law FIFRA. it is federal under Since warnings, EPA-approved at issue carried FIFRA ICI was entitled to directed verdict. light In in Divisions 1 and we need not our conclusions
address ICI’s additional enumerations of error. J., J., Birdsong, P. P.
Judgment Beasley, reversed. Johnson Smith, J., J., JJ., Pope, Cooper P. and Black- McMurray, concur. C. burn, JJ., dissent. *5 Judge, dissenting. Chief
Pope, son, Mario, poison rat nine-year-old discovered some Plaintiffs’ Boys in a at a Club pellets thought a container behind counter and they candy. poison, anticoagulant thinning that kills vessels, of the was breaking down walls blood slow blood days later, by design. symptoms Mario showed no until four acting days, began when his nose to bleed. After several more Mario’s condi- put hospital worsen he for blood tion continued to in- By transfusions. the time the doctors discovered that Mario had poison, it late to gested rat was too for the antidote work. Although poison it was foreseeable that rat would be con- candy, who mistook it ICI sumed children add an agent product. produced expert or an emetic aversive Plaintiffs testimony any ingests that will an emetic cause human who vomit, poison immediately thereby poison, expelling but will not have the same effect rats do on because not have a vomit They expert reflex. agent also submitted evidence that the aversive Bitrex would make the taste bad to children but would not it; keep eating variety prod- rats that Bitrex was use a 1970s; early ucts as as the late there and that was no reason ICI could begun testing not have its use at that time. Viewing this (this in a light evidence most favorable appeal from a jury plaintiffs), jury verdict for could find ICI’s failure that to add agent emetic aversive was unreasonable. majority nonetheless holds ICI that cannot liable because label, its adequate had an warning citing Parzini, 580) (1975) Co. v. pro- for the position perfectly that a long need not be safe as as it is adequate with an warning label. there was no evi- dence in Center Chemical question could have case, hand, been made In safer. this on the other (and did) could find that safer, could have been made effectiveness, losing without its if defendant had taken reasonable steps to do so. Center Chemical holds that manufacturer should not be liable for producing necessarily dangerous but useful long as the is packaged adequate label; with an warning does not hold that manufacturer can steps take reasonable dangerous product make its liability by avoid plac- can instead ing Thus, warning label on package. agree plaintiff’s while I inadequate labeling claim I pre-empted,1 would hold that ICI’s di- portion quoted by majority, Based on the of FIFRA at least four federal circuits approved EPA, agency ruled where a defendant’s label has been the federal charged responsibility FIFRA, administering alleging with state law tort claims inade quate labeling pre-empted they require plaintiff are to show that the defendant plaintiffs’ respect denied properly motion verdict rected negligence. defect based McMurray, Judge Presiding Judge I state am authorized join this dissent. Blackburn Cooper Judge 3, 1993 Decided December 20, 1993 denied December Reconsideration *6 Burnell, McKinney, D. Hardin, Susan Phillip S. Rogers & Anderson, & Anderson, Hagler, Hyles Barry L. Schweber, Izenson & Adams, Stephen Hyles, M. appellant. Stair, & Childs, Webb, Carlock, Copeland, Semler A.
Richard Allison, Allison, Ray L. & Denney, Pease Copeland, Kelly, KWade Shields, Knowles, E. ap- Shields, Robert & Doffermyre, Canfield pellees. et al. HOSLEY v. DAVIDSON
A93A1305. Judge. Andrews, sister Bar- of the estates his Hosley, as administrator Eddie son, Hosley, brought her minor Al-Sufi illegitimate bara Wilson and They April on wrongful deaths. died this action to recover for their 1989, with a passengers a vehicle in which collided when Davidson, had left on an operator, truck which its defendant stalled employer, Davidson’s highway. interstate truck was owned liability by Computer Company, and insured as to North- Transport Computer Casualty Company. Transport Property brook & Insurance Northbrook were also named as defendants. 27, 1992, summary on the July judgment On Davidson moved for expenses and for the full basis that the claims funeral and burial brought by proper party value of the decedents’ lives were not limitation, applicable two-year within statute of OCGA a motion for sum- July 9-3-33. On the other defendants filed mary ground. judgment on the same requirements. King v. failed to meet a “in addition to or different from” FIFRA See standard (1st 1993); Brands, v. Dow F2d
E. I. DuPont de Nemours &
996 F2d 1346
Cir.
Shaw
994
(7th
1993);
(11th
1993);
Papas
Upjohn
&c.
F2d
Cir.
Arkansas-Platte
Cir.
(10th
&c.,
(10th
1992),
F2d
Cir.
v. Van Waters
F2d 158
Cir.
adhered to at 981
S._(112
Liggett Group,
upon
light
Cipollone
reconsideration in
505 U.
SC
(N.
CIBA-Geigy Corp.,
Hopkins
C.
LE2d