ORDER
This case is presently before the Court on defendant’s Motion for Summary Judgment [23-1] and plaintiffs’ Motion for Reconsideration of the Court’s Order dated November 6, 2001 [34-4]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendant’s Motion for Summary Judgment [23-1] should be GRANTED in part and DENIED in part and plaintiffs’ Motion for Reconsideration of the Court’s Order dated November 6, 2001 [34-4] should be DENIED.
FACTUAL BACKGROUND
This is a product liability action. Plaintiff Robert Jones (“Mr. Jones”) and his wife Almarie Jones (“Mrs. Jones”) (collectively “plaintiffs”) filed suit alleging that a drain line clearer called “Liquid Fire” was defectively designed, manufactured, and marketed by defendant Amazing Products, Inc. (“Amazing Products” or “defendant”). Specifically, plaintiffs allege that Liquid Fire is unreasonably dangerous, improperly packaged, and accompanied with inadequate instructions under strict liability, negligence and gross negligence theories. Mr. Jones was severely injured when the product spilled on him.
Currently before the Court is defendant’s Motion for Summary Judgment [23] and plaintiffs’ Motion for Reconsideration of the Court’s Order dated October 6, 2000 [34-4]. Unless otherwise indicated, the Court draws the undisputed facts that underlie the allegations in the Complaint from “Defendant’s Statement of Undisputed Material Facts” (“SMF”) [23], If, however, plaintiffs have disputed a specific fact and pointed to evidence in the record supporting its version of events, the Court has viewed all evidence and factual inferences in the light most favorable to plaintiffs, as required on a defendant’s motion for summary judgment.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
On or about June 11, 1999, Mr. Jones purchased a container of Liquid Fire from an Ace Hardware store in Adel, Georgia in order to unclog his bathroom sink and bathtub drains. (R. Jones Dep. at 19-21.) He selected Liquid Fire based on the recommendation of his cousin, a licensed plumber. (SMF ¶ 1.)
1
Mr. Jones specifi
On June 14, 1999, approximately three days later, Mr. Jones decided to use the Liquid Fire he purchased to unelog his bathroom sink and bathtub drains. (R. Jones Dep. at 23.) Prior to using the product, Mr. Jones states that he sat down to read the warning/instruction label affixed to the container of Liquid Fire. (Id. at 22.) Despite the fact he was able to read, Mr. Jones only read selective portions of the warning/instruction label, however. (SMF ¶ 2.) A 64 year-old retiree, Mr. Jones states that the reason he failed to read thе entire label was because the typeface was too small for him to read, even while wearing his reading glasses. (Pis.’ Resp. to Def.’s Stmt, of Mat. Facts [35] (“PSMF”) ¶ 2.) Plaintiff did “read enough to know that [he] was scared” of the product and that the product was potentially dangerous. (R. Jones Dep. at 35.) He did not, however, ask someone else to read the warning/instruction label to him before using the product. (Id.) Despite having read only a sufficient amount of the warning/instruction label to understand he was dealing with a dangerous product, Mr. Jones elected to use the product. Mr. Jones states that he proceeded to use the product at that time because he was scheduled to leave on his honeymoon soon thereafter and wanted to leave the Liquid Fire in the drains while they were away on vacation. (R. Jones Dep. at 21-22.)
The label attached to the product indicates that it contains “concentrated sulfuric acid.” 3 (PSMF ¶ 4.) The label specifically warns the consumer to read the label before using the product. (See Warning/Instruction Label attached as Ex. A to Def.’s Br. In Supp. Of Mot. For Summ. J. [23] (hereinafter “Warning Label.”).) It further warns the consumer to “never transfer to another container.” (PSMF ¶ 5.) In addition, the label includes the warning to “never add water to LIQUID FIRE while in bottle because of violent reaction.” (Id.)
In preparation for use of the Liquid Fire solution, Mr. Jones decided to transfer the product into a gallon sized plastic container with a handle that formerly held Clorox bleach.
(Id.
at 32, 35.) He chose to transfer the product into the Clorox container because it had a handle.
(Id.)
Because the product was dangerous, he was concerned that he would not be able to properly hold the Liquid Fire container without the help of a handle, due to a shoulder condition that hindered his ability to grip and hold items.
(Id.
at 32.) The plaintiff had previously been using the empty Clorox bottle to water his plants.
(Id.
at 29.) Before transferring the product to the Clorox container, he held the container upside down to ensure no water was inside.
(Id.
at 40.) As he sat on the back steps of his
After transferring the “Liquid Fire” into the empty Clorox bottle, plaintiff immediately walked, with the Clorox bottle in hand, through his house towards the bathroom to use the product. (Id. at 43.) As he walked through the kitchen, he heard a “whoofh” noise, and the bottom fell out of the container. (Id. at 43.) The entire quart of concentrated sulfuric acid poured all over Mr. Jones’ right leg and foot. (Id. at 44, 45.) He cried out in pain, and his wife came to him and assisted him to the back yard, where she sprayed him down with a water hose. (Id. at 46.) Mrs. Jones then took Mr. Jones to the hospital. (Id. at 45.)
Mr. Jones suffered deep chemical burns. (Id. at 56.) His burns necessitated that he stay at various hospitals, including the South Georgia Medical Center, where a skin graft was performed, Memorial Hospital оf Adel and Phoebe Putney Memorial Hospital. (Id. at 56-58.) In addition, he was treated by the Wound Care Center and Plastic Surgery Associates. (Id.)
Mr. Jones’ right foot is disfigured, and he continues to have pain related to the acid burns. (Id. at 61.) He has deep gashes in his leg and foot, and states that he cannot wear sandals or shorts anymore. (Id.) He notes that the injured leg is very tender and limits his ability to walk. (Id. at 62.)
On June 12, 2000, plaintiffs filed suit in the Superior Court of Fulton Country, Georgia. Subsequently, on July 5, 2000, defendant removed this case to the United States District Court for the Northern District of Georgia, Atlanta Division. Plaintiffs are both Georgia residents and defendant is a Kentucky corporation licensed to conduct business in the State of Georgia. Plaintiffs seek damages in excess of $75,000. (Notice of Removal [1] ¶ 4.) Accordingly, this Court has jurisdiction pursuant to 28 U.S.C. § 1332.
DISCUSSION
I. Standard for Summary Judgment Motion
Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ” FED. R. CIV. P. 56(c). A fact’s materiality is determined by the controlling substantive law.
Anderson v. Liberty Lobby, Inc.,
Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandatеs the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party’s case on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett,
The movant bears the initial responsibility of asserting the basis for his motion.
Id.
at 323,
II. Legal Standards for Claims in This Complaint: Distinctions between Strict Liability Claim and Negligence Claims
Plaintiffs’ Complaint [1] alleges three claims 4 of liability that are before this Court on the present motion for summary judgment. 5 (Am. Compl. [7] ¶¶ 7-20.) In Count One, plaintiffs allege that defendant is strictly liable to plaintiff for placing into the stream of commerce a product that was unreasonably dangerous because of design, manufacturing, and marketing defects. (Id. ¶¶ 7-9.) The gist of this claim is that defendant is strictly liable because it manufactured a product that was unreasonably dangerous, regardless, of whether the design of the container or the express warnings found on the container were adequate. In effect, this part of the claim alleges that Liquid Fire should not be on the market and that defendant is strictly liable for allowing the product to be sold to the general public. This strict liability count also contends that, even if its product were lawfully on the market, the defendant improperly designed the container and failed to include, or “bundle,” necessary safety equipment with the product. Finally, as the last component of its strict liability claim, plaintiff contends that, as marketed, Liquid Fire contained inadequate labeling that failed to detail the dangers that could occur from the use of the product.
In Count Two, plaintiffs allege that defendant was negligent in the design, manufacturing, and marketing of its product. (Id. ¶¶ 10-14.) In Count Three, plaintiffs allege that defendant’s conduct amounted to gross negligence as it demonstrated an entire want of care and a conscious indifference to thе safety of Mr. Jones. (Id. ¶¶ 15-16.) These negligence claims echo the same contentions that inhere in the strict liability claims: that Liquid Fire was unreasonably dangerous, that its container was improperly designed and the product should have included necessary safety equipment, and that the product was inadequately labeled.
A. Strict Liability Claims
In order to establish a claim based on strict liability, plaintiffs are required to demonstrate that, when sold, defendant’s product was “not merchantable and reasonably suited to the use intended, and its condition when sold [was] the proximate cause of the injury sustained.” O.C.G.A. § 51-1-11. A plaintiff can state a claim based on strict liability by showing that the product at issue was “not merchantable” due to one of three types of product defects: manufacturing defects, design defects, and marketing/packaging defects.
See Banks v. ICI Americas, Inc.,
A manufacturing defect is a defect that is “mеasurable against a built-in objective standard or norm of proper manufacture.”
Banks,
While a “manufacturing defect” is a fairly straightforward concept, a “design defect” is a far more diffuse proposition under Georgia Supreme Court precedent, as the latter calls for the finder of fact to employ a loose balancing test to determine whether the manufacturer properly designed the product. Specifically, in
Banks v. ICI Americas, Inc.,
[t]his risk-utility analysis incorporates the concept of ‘reasonableness,’ i.e., whеther the manufacturer acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk. When a jury decides that the risk of harm outweighs the utility of a particular design (that the product is not as safe as it should be), it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have.
Id.
at 734,
Finally, the third species of defect — a marketing/packaging defect — does not appear to carry its own set of criteria, but instead appears to be a sub-set of a manufacturing defect or a design defect, depending on the particular facts. Thus, if a container is faulty because it deviates from the manufacturer’s specifications for a container or if a particular label is inadequate because it omits a line that is contained in the company’s prototypical label,
B. Negligence Claims
Count Two of plaintiffs’ Amended Complaint [7] sets forth a negligence claim against defendant, contending that defendant was negligent in the design, manufacture, and marketing of Liquid Fire. The Amended Complaint [7] further contends that defendant knew, or in the exercise of ordinary care, should have known, that the product and its container were defective and unreasonably dangerous to its likely consumers. Under Georgia law, to recover for negligence, a plaintiff must show “(1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiffs legally protected interest as a result of the alleged breach of the legal duty.”
Bradley Ctr., Inc. v. Wessner,
As noted, Georgia case law has typically assumed that a strict liability “design defect” claim” carries the same elements as a negligence claim aimed at the same alleged shortcomings in the product. “In the subject product-design case, only semantics distinguishes the cause of action for negligence and a cause of action pursuant to O.C.G.A. § 51-1-11 [claiming strict liability for defective design].”
Coast Catamaran Corp. v. Mann,
This Court will deal with the overlap in legal concepts by first addressing that part of plaintiffs strict liability claim that alleges a manufacturing defect. Second, the Court will address, under both a strict liability theory and a negligence theory, plaintiffs complaint that Liquid Fire was improperly marketed as result of shortcomings in the design of its container and of defendant’s failure to “bundle” or attach other safety devices with the product. Third, the Court will address, under both a strict liability theory and a negligence theory, plaintiffs complaint that Liquid Fire’s label was inadequate and that it omitted
Upon analysis of each of these claims, the Court has concluded that defendant is entitled to summary judgment as to plaintiffs claim of manufacturing defects and as to plaintiffs claim that Liquid Fire is unreasonably dangerous, no matter what improvements defendant could conceivably make in its design or in the warnings it provides. The Court concludes, however, that plaintiff has proffered sufficient evidence to create a jury question as to plaintiffs claim that the container was inadequately designed and marketed and his claim that defendant’s warnings were insufficient to alert a consumer as to the great potential for danger created by this product.
III. Manufacturing Defect
Plaintiffs have alleged that defendant is strictly liable for manufacturing defects in selling a product that is unreasonably dangerous and that is in a container with an unreasonable risk of spillage and with an insufficient warning included with the package. (Am. Compl. [7] ¶ 7.) Defendant argues that it is entitled to summary judgment as to all claims based on strict liability for manufacturing defects. (Def.’s Br. in Supp. of its Mot. for Summ. J. [23] at 17.) The Court agrees with the defendant that plaintiffs fail to state a claim for strict liability based on manufacturing defects as a matter of law.
A manufacturing defect is a defect that is “measurable against a built-in objective standard or norm of proper manufacture.”
Banks,
The record is devoid of any evidence demonstrating that the Liquid Fire product purchased by Mr. Jones was improperly manufactured. Specifically, even though рlaintiffs allege that defendant’s product was unreasonably dangerous, they present no evidence to support the contention that the product had a manufacturing error specific only to the container of Liquid Fire purchased by Mr. Jones. In other words, they present no evidence that Mr. Jones’ product was not manufactured in accordance with its design. Furthermore, they present no evidence that indicates that the alleged inadequacy of the warning label was due to a manufacturing error. Simply alleging that a product is dangerous, absent evidence of a deviation from the “perfect” or prototypical bottle of Liquid Fire, is not sufficient to demonstrate the existence of a manufacturing defect.
See Center Chemical Co. v. Parzini,
IV. ALLEGED DEFECTS IN CONTAINER AND MARKETING OF PRODUCT
A. Defects in Design of Container
Plaintiff contends that the Liquid Fire container is defective in design because it creates an unreasonable risk of spillage and was not coupled with safety
1. Negligence Principles
The Court will first examine this claim of container defects under negligence principles. As noted, to recover for negligence, a plaintiff must show “(1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiffs legally protected interest as a result of the alleged breach of the legal duty.”
Bradley Ctr., Inc. v. Wessner,
In a products liability case predicated on negligence, the duty imposed is the traditional one of reasonable care, and the manufacturer need not provide, from a design standpoint, a product incapable of producing injury. “Generally, if a manufacturer does everything necessary to make the [product] function properly for the purpose for which it is designed,
if the [product] is without any latent
defect>
and if its functioning creates no danger or peril that is not known to the user,
then the manufacturer has satisfied the law’s demands.”
Poppell v. Waters,
The manufacturer is generally not liable for injury resulting from an abnormal use of the product, unless the particular unintended use was foreseeably probable.
Mann v. Coast Catamaran Corp.,
if in the normal functioning of a product as designed such functioning creates a danger or peril that is not [objectively] known to the user or bystander, then the manufacturer is liable for injuries proximately caused by such danger... When the use to which the product was being put at the time of injury is not that originally intended by thе manufacturer, the determination of whether ...[negligence] may be asserted as a viable theory of recovery or whether the manufacturer is insulated from liability because the use of the product was ‘abnormal’ and intervening depends, initially, upon the foreseeability that the product would be put to that use.
ICI Americas, Inc. v. Banks,
From the foregoing principles it may be inferred that where a product, in its normal functioning, creates a latent danger as designed, arising from a foreseeably probable unintended use, and the user or injured party could not from an objective point of view appreciate the latent danger, the manufacturer may be held liable on a claim of negligent design.
Ford Motor Co.,
It is unclear why this chemical reaction occurred. 11 Plaintiff alleges that he had been using the Chlorox bottle to water plants and had emptied it before pouring the Liquid Fire into it. Defendant contends, however, that Liquid Fire can be stored safely in an ordinary plastic Clorox container, so long as that container is completely devoid of any water or residue of the Clorox product. (SMF ¶ 8.) To buttress this claim,- defendant offered the testimony of James Whitlock, the Vice President of Amazing Products, who conducted an experiment in which he poured Liquid Fire into an empty Clorox container, waited five minutes, and observed “no reaction.” (Whitlock Aff. ¶ 5.) When Whitlock placed four ounces of water into an empty Clorox container and then added four ounces of Liquid Fire to the same container, however, he states that the Liquid Fire underwent a chemical reaction with the water and “the bottom of the Clorox container became soft and warm.” (Id. ¶ 6.) This Court, however, must accept the facts in the light most favorable to the plaintiff and, in doing so, the Court concludes that there was no water residue in the bottle.
Accordingly, the more precise question becomes whether the defendant could have reasonably foreseen that a user might transfer the product into another container. The Court concludes that a jury question is presented as to whether the defendant should have foreseen such a possibility. At the outset, the Court notes that the president of Amazing Product, Jenny Duffy, testified in her deposition that the company assumes that the majority of Liquid Fire purchasers are untrained consumers.
(Id.
at 16, 21-23.) The Court therefore concludes that the
The questions then are whether the defendant designed a container that might encourage such a transfer and whether the defendant adequately warned the user of such dangers. As to the first question, 13 the Court concludes that a finder of fact might determine that the design of defendant’s container either implicitly encouraged a transfer of the liquid or failed to make such a transfer unnecessary. First, the warning label consisted of three columns of information, with one column in the “centér” of the bottle and the other two columns designated as side panels. See Court’s Exhibit 1, attached to this Order. Some information was in large red print, with other information in a smaller size bold black print, and with a great deal of additional information (approximately 24 lines) in very small black print. The largest red print indicated that the product was dangerous because it was poison and because it could cause severe burns. At the beginning of the side panel labeled “CAUTIONS,” the directions exhorted the user to avoid spillage and leakage. 14 Also, on each of the three columns, language in red print warned of the danger of violent eruption. 15 Thus, the average user should be concerned about spilling the product.
Further, although language in the middle of the small, fine print section of the cautionary side column indicated that the user should not transfer the product to another container, quantity usage language in much bolder print on the directions side panel seemed to direct such a transfer. That is, in larger red print, the panel stated “MAXIMUM QUANTITY USAGE,” followed a few lines below by bold, black print setting out the maximum amounts to be used for particular fixtures.
16
The maximum quantity usage di
Thus, the directions clearly envisioned and even directed the user to measure the product before using it. Measuring a product invariably requires one to transfer it to another container. Moreover, other parts of the directions arguably encouraged not only a transfer of the product into a measured container, but also could have encouraged a user to use a container that would give one more control, such as a container with a handle and/or a drip-proof spout. Specifically, in the middle of the small black print part of the directions, the latter provide: “Pour proper amount of acid SLOWLY at arm’s length while at same time with other hand have inverted pail or pan tilted down over same drain opening to protect against possible eruption of acid. DO NOT LOOK INTO DRAIN.” (emphasis added; capitalization in original). By insisting that the user pour only a small amount of the acid, that he do so slowly and at arm’s length, while the other hand is holding a pail near the drain, and while admonishing the user not to look at the product while he was pouring it’ the directions seem to invite use of a container over which one would have maximum control, a container that would not spill on one’s hand or arms, and a container into which one had pre-measured the precise quantity of product. Taking all these admonitions together, with the language earlier cited that suggested that a measuring device might need to be used, the directions appear, if not to direct a transfer of the product to another container, to at least suggest that the user should transfer the product. 17
Thus, the Court concludes ■ that a jury could conclude that the defendant should have foreseen that a user might transfer the liquid into another container, which is exactly what occurred here. Having conceded that a transfer of the product could result in injury to a user, defendant should also have foreseen the consequences of such an action and should have taken measures to forestall this result. Leaving aside the inadequacy of the warnings,
18
some of the measures that defendant could arguably have taken to prevent a need to transfer the product would have been to design a see-through bottle with measurement units or pre-measured “dose” con-
Defendant has argued that because plaintiffs decision to transfer the Liquid Fire was not motivated by the above concerns, the foreseeability of any of these occurrences becomes insignificant, as defendant’s negligence would not have been the proximate cause of the injuries. Specifically, defendant notes that plaintiffs decision to transfer the Liquid Fire into a handled container was not motivated by a concern about spillage, but instead that plaintiff was concerned that he would not be able to properly hold the Liquid Fire container because he had undergone shoulder surgery in the past, which had reduced his ability to grip items tightly. (Def.’s Br. in Supp. of its Mot. for Summ. J. [23] at 14-15). The Court disagrees; it appears that spillage was precisely the plaintiffs concern. The fact that plaintiff had an intensified concern about spillage as a result of his shoulder condition does not negate the fact that any reasonable user should have been concerned about the dangers resulting from spillage.
Defendant also argues that plaintiff could have purchased Liquid Fire in a handled container. (Id. at 15.) Plaintiff testified that the dealer where he purchased the product indicated that he had only had a non-handled bottle. Indeed, defendant has acknowledged that it did not manufacture a handle for pint or quart size containers, and plaintiff purchased a pint size container. Finally, it is true that plaintiff did not transfer the product for purposes of measurement. Nevertheless, given all the admonitions discussed above, the defendant could have reasonably foreseen that, for a variety of reasons, a user might wish to transfer’the product.
In summary, while a manufacturer is generally
not
liable for injury resulting from an abnormal use of the product, unless the particular unintended use was foreseeably probable, a finder of fact could conclude that defendant could have foreseen that, in the normal use of Liquid Fire as a drain clearer, a user might transfer the product to another container and that the product could react violently when transferred into certain containers or when it comes into contact with water residue. Further, the finder of fact could conclude that the average consumer might not appreciate the above dangers.
Compare Weatherby v. Honda Motor Co., Ltd.,
2. Strict Liability Claim Regarding Design of Container
As noted
supra
at 1238, like the parties, the Georgia courts tend to treat strict liability and negligence claims interchangeably in the context of alleged design defects. The Georgia Supreme Court in
Banks
recognized that the risk-utility analysis that it promulgated for strict liability claims “bespeaks negligence” and that pri- or Georgia appellate decisions indicate that the same analysis used in negligence claims will be used in design defect types of strict liability claims-.
While we recognized that the determination of whether a product was defective (involving the reasonableness of a manufacturer’s design decisions), which is a basic inquiry for strict liability purposes, generally will overlap the determination of whether the manufacturer’s conduct was reasonable, which is a basic inquiry for negligence purposes, we cannot agree that the use of negligence principles to determine whether the design of a product was “defective” necessarily obliterates under every conceivable factual scenario the distinction Georgia law has long recognized between negligence and strict liability theories of liability.
Moreover, even ignoring the negligence claim, the plaintiff has stated a claim under the risk-utility approach, for the same reasons discussed above in the negligence portion of this discussion. See discussion supra at 1240-44. Accordingly, the Court DENIES defendant’s Motion for Summary judgment as to plaintiffs strict liability claim based on a defective design of the container.
B. Defendant’s Failure to “Bundle” Other Safety Paraphernalia With the Product
Defendant further argues that it should be granted summary judgment as to plaintiffs’ claims that the Liquid Fire was defectively packaged because it failed to include additional safety items, such as face shields. Requiring the inclusion of additional safety products with the sale of every container of liquid fire would purportedly impose a burdensome duty on the defendant and would magnify its responsibility in such cases because the defendant
The Court agrees with defendant that liability cannot be basеd on its failure to provide additional safety equipment with the “Liquid Fire” product. Imposing such a duty on the defendant is contrary to Georgia law in that a manufacturer does not occupy the status of an insurer and is under no duty to make a product that is accident or fool proof.
See Hunt v. Harley-Davidson Motor Co.,
V. Inadequate Warnings of Danger by Defendant
As a result of the above ruling, both the negligence and strict liability claims will be submitted to the jury with regard to the alleged design defect in defendant’s container. To clarify the issues to be presented at trial, the Court will also address the question whether defendant is entitled to summary judgment on plaintiffs strict liability and negligence claims arising out of defendant’s allegedly inadequate warnings of the danger prеsented by a transfer of the liquid to another container. There is some potential overlap in the Court’s resolution of the “container” claim, as that claim relates to plaintiffs “inadequate warnings” claim, although the Court concludes that a contributory negligence defense is potentially available for the latter, but not the former claim.
Plaintiffs claim that defendant provided “inadequate warning of the dangers of use of the product.” (Am. Compl. [7] ¶ 8.) The Court has previously discussed the warnings set out on the label.
See
discussion
supra
at 1242-43 and Court’s Exhibit 1, attached.
21
The duty to
In a products liability case, whether or not grounded in a strict liability or negligence theory, a manufacturer’s duty to warn depends on the foreseeability of the use in question, the type of danger involved, аnd the foreseeability of the user’s knowledge of the danger.
See Wilson Foods Corp. v. Turner,
A plaintiffs failure to read a warning will not, however, bar recovery as to the first prong of the test: namely, where the plaintiff is challenging the
adequacy
of the defendant’s efforts to communicate the dangers of the product to the user, not the
substance
of those warnings.
Wilson Foods Corp.,
Despite the fact that plaintiffs fail to specifically articulate this argument, they do refer often to the fact that Mr. Jones attempted to read the label, but failed to read the entire label because the small print size prevented him from doing so.
23
Accordingly, the Court concludes that plaintiff has presented a jury question as to whether the defendant adequately communicated the prohibition against transferring the liquid and the Court therefore DENIES the defendant’s Motion for Summary judgment as to this part of the duty to warn claim. 24
VI. Whether Liquid Fire Was So Unreasonably Dangerous That it Should Not have been Marketed in any Form
Plaintiffs also argue that, no matter how safe defеndant made its containers or how adequate and prominent were its warnings, Liquid Fire is nonetheless too dangerous to be distributed to the public. According to plaintiff, this inherent dangerousness constitutes a design defect. Under this theory, defendant’s liability would arise merely by the fact that it chose to market this product.
As noted, design defect cases are analyzed under the standards set forth in
Banks v. ICI Americas, Inc.,
[t]his risk-utility analysis incorporates the concept of ‘reasonableness,’ i.e., whether the manufacturer acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk. When a jury decides that the risk of harm outweighs the utility of a particular design (that theproduct is not as safe as it should be), it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have.
Id.
at 734,
Defendant first argues that because plaintiff has failed to show that an alternate “design” for the product existed, plaintiff can prove no design defect in the formulation of the product. Defendant correctly asserts that the evidence indicates that no alternative chemical formulation was feasible. To support this conclusion, defendant notes the concession of plaintiffs’ own expert,-Professor Wabeke, that an alternative design featuring a lower concentration of sulfuric acid is not a viable option because it would be ineffective in unclogging drains and yet still be hazardous in terms of potential injury. (Wabeke Dep. at 56, 59.) Because a safer solution design is not feasible, defendant argues, plaintiffs cannot establish that Liquid Fire’s current design is unreasonable despite its inherent dangerousness.
Plaintiffs do not respond directly to defendant’s argument. Nevertheless, the Court has read
Banks
and concludes that its holding does not necessarily require a plaintiff to show that a safer, feasible alternative existed, in order to avoid summary judgment. Admittedly, most of the discussion in that case deals precisely with the availability of alternative designs and the feasibility of those designs, in terms of a cost-benefit analysis.
Banks,
Indeed, the reasonableness of choosing from among various alternative product designs and adopting the safest one if it is feasible is considered the “heart” of design defect cases... since it is only at their most extreme that design defect cases reflect the position that a product is simply so dangerous that it should not have been made available at all. See O’Brien, supra,463 A.2d at 306 ; Prosser and Keeton, the Law of Torts (5th ed.) ¶ 96, pp. 688-689.
Thus, the court indicates that there might be an extreme case in which a defendant is liable, even where there was no alternative design, if the jury concluded that the product should simply not be marketed. Clearly, the above statement was gratuitous, as the
Banks
facts did not implicate the highlighted language and, in making the statement, the court appeared merely to be completing the quote from the cited authority. Indeed,
Banks
involved a case in which a child had eaten roach poison that had a candy like shape and color that would appeal to children. Beside the fact that the manufacturer could have arguably adopted a different design for the packaging of the product, the evidence also showed that the manufacturer could have added ingredients which would cause humans, but not rats, to reject thе poison as bitter tasting or to vomit it after ingesting it.
Banks v. ICI Americas, Inc.,
Thus,
Banks
was a case in which there were clearly alternative design options and
Nevertheless, given the significant ramifications that the majority’s dictum poses to long-standing tort law, this Court is uncertain what effect to give the dictum. The ramification of the holding, as interpreted by plaintiff, would mean that a jury could effectively decide to prohibit a potentially dangerous product for which all warnings had been given and for which the safest design possible had been chosen, even if the consumer explicitly' accepted the risk and wanted to purchase the product. Traditionally, legislatures and regulatory bodies, not juries, make policy decisions concerning whether a given product is too inherently dangerous to be marketed in any form. 25
Further, even endeavoring to apply the language, this Court is uncertain how to gauge whether a particular case is or is not an “extreme” case, under the Georgia Supreme Court’s definition. 26 Even attempting to intuit the meaning of the term “extreme case,” however, this Court concludes that the facts in this case do not trigger the requisite “extremeness” alluded to by the Georgia court. Central to this Court’s conclusion is the evidence that the Consumer Product Safety Commission (“CPSC”) conducted an extensive evaluation of sulfuric acid drain clearers and unanimously concluded that products like “Liquid Fire” were no more dangerous than any other type of drain clearer on the market. (SMF ¶ 9.) (See CPSC Report attached as Ex. C to Def.’s Br. In Supp. Of Mot. For Summ. J. [23].) Specifically, the CPSC found that the number of incidents involving sulfuric acid drain clearers were not proportionately greater than the number of incidents involving other non-sulfuric drain clearers. (Id.) To state it slightly differently, the CPSC asserts that incidence of sulfuric-acid drain clearer injuries appears proportional to the market share of sulfuric-acid drain clearers. The CPSC also found that the “severity of injuries from the other drain clearers equals or surpasses those of sulfuric acid.” (Id.)
The plaintiffs dispute the soundness of the CPSC’s decision,
27
but the fact remains
Finally, in addition to the merits of the matter, the Court concludes that summary judgment on this claim is also warranted on practical grounds. This Court has determined that plaintiff shall reach a jury as to his design defect claim concerning the container and as to his claim that the defendant did not adequately, communicate the necessary warning. If a jury .decides against plaintiff on both of those claims, as a logical matter, it would necessarily decide against plaintiff on his theory of inherent dangerousness, with the latter claim being a much more up-hill challenge for the plaintiff than the other two claims. Conversely, if the jury rules for plaintiff on either of these two claims, there will have been no need to present this very problematic claim concerning the inherent dangerousness of the product. Besides potentially endangering the validity of any verdict that the plaintiff might receive on these two claims, presentation of a theory of inherent dаngerousness would pose significant challenges in the crafting of an instruction to make intelligible a concept that the Georgia Supreme Court has not fleshed out. Such an instruction would undoubtedly confuse the jury.
VII. Gross Negligence Claim
Count Three of plaintiffs’ Amended Complaint [7] sets forth a gross negligence claim against defendant, contending that the acts and omission of defendant described in the strict .liability and negligence sections showed more than momentary thoughtlessness, inadvertence, or error of judgment. Rather, plaintiffs claim that defendant showed actual conscious indifference to the rights, welfare, and safety of plaintiffs and others using its product. Failure to exercise slight care constitutes “gross negligence.”
Werbell v. Walters,
As the Court has determined that two negligence claims — negligence relating to the design of the container and the failure to adequately communicate the necessary warning — survive defendant’s motion for summary judgment, the Court will likewise allow the claims of gross negligence with regard to these matters to survive, as well, for the moment. Prior to trial, however, plaintiff will need to explain how a gross negligence claim adds anything to his case. If the claim is nothing more than an additional way of casting plaintiffs existing negligence claims, the Court will be reluctant to confuse the jury by submitting these claims to them.
Accordingly, the Court GRANTS, in part, and DENIES, in part, summary judgment as to all gross negligence claims, consistent with the foregoing language.
VIII. Plaintiffs Motion for Reconsideration
Plaintiffs have moved this Court to reconsider its Order dated November 6, 2001[37] where the Court found no basis for plaintiffs’ Emergency Motion for Rule 37(b) Sanctions. In their Motion for Reconsideration [34-4], plaintiffs fail to present to the Court any new arguments in support of its previous Emergency Motion. Because this Motion for Reconsideration, like the Emergency Motion for Sanctions before it, is without basis and further wastes both this Court’s time and the time of the defense counsel, the Court DENIES plaintiffs’ Motion for Reconsideration [37]. The Court extends the November 6, 2001 Order to cover all defense attorney’s fees and expenses related to the cost of reviewing and responding to plaintiffs’ Motion for Reconsideration.
CONCLUSION
For the foregoing reasons, the Court finds that defendant’s Motion for Summary Judgment [23-1] should be GRANTED in part and DENIED in part and plaintiffs’ Motion for Reconsideration of the Court’s Order dated October 6, 2001 [34-4] should be DENIED.
Notes
. Defendant contends that it does not advertise its “Liquid Fire” product or participate in any other marketing effort. (SMF ¶ 12.) Plaintiffs, however, dispute this claim arguing
. Since the 1980’s, Amazing Products has manufactured the Liquid Fire bottles, but has made no changes in the container design. ((J. Duffy Dep. at 15-16.)
. Mr. Jones was not aware that the product contained concentrated sulfuric acid. If he had been aware that the product contained concentrated sulfuric acid, he claims that he would never have used “Liquid Fire.” (SMF ¶ 3.)
. Plaintiffs had originally alleged a fourth claim, which alleged that the defendant breached the express and implied warranties that the Liquid Fire product and its container were fit for the purposes for which they were intended. (Am. Compl. [7] ¶ 18.) In response to defendant’s Motion for Summary Judgment, plaintiffs have voluntarily dismissed their breach of warranty claims. (Pis.’ Resp. to Def.'s Mot. for Summ. J. [35] at 20.) Accordingly, the Court DISMISSES plaintiffs' breach of warranty claims.
. The fifth count of Plaintiffs' Amended Complaint [7] alleges loss of consortium, which is only compensable upon a finding of fault in the underlying claims, and therefore is not before the Court at this time. Accordingly, when the Court uses the singular term, "plaintiff,” it is referring to the victim of the accident, plaintiff Robert Jones.
. In recognition of the similarity between a strict liability and negligence action under Georgia law, plaintiffs “incorporate by reference all the arguments set forth in the section of [the] brief basеd on strict liability.” (Pis.’ Br. In Opp. To Def.'s Mot. For Summ. J. [35] at 17.) Defendant also acknowledges that the negligence standard mirrors the strict liability standard. (Def.'s Br. In Supp. Of Mot. For Summ. J. [23] at 21-22.) Because of the inherent similarity between a negligence and a strict liability action under Georgia law, the analysis of plaintiffs' strict liability claims largely applies to an examination of the negligence claim.
. In contrast, "[i]t is only in design defect cases that the court is called upon to supply the standard for defectiveness: the term 'defect' in design defect cases is an expression of the legal conclusion to be reached, rather than a test for reaching that conclusion.”
Banks,
. In fact, the risk-utility analysis employed in design defect cases is a much more loosely defined "standard" than is a traditional negligence test. In a traditional negligence case, the finder of fact determines what a "reasonable” person would do in a particular situation. While there may be differences of opinion as to whether a defendant exercised reasonable care in the given situation, the finder of fact and reviewing court are both seeking to identify a single standard of reasonableness. With a risk-utili1y analysis, however, there is no single standard of reasonableness that the finder is attempting to identify. Instead, there are two competing standards of reasonableness. The first standard of reasonableness is an economic standard by which a manufacturer attempts to reduce costs and maximize profits. The second standard of reasonableness requires the manufacturer to attempt to design a product that will result in no accidents, an effort that will often increase costs and reduce profits. Adding to the complexity of this endeavor for the manufacturer is the existence of competitors who may not be as cautious in their design decisions, meaning that the manufacturer who leans toward assuring the most beneficial design, no matter the cost, will also have to factor in the loss of business that it will suffer as a result of taking a more cautious approach. Logically, a jury will also have to consider these competitive pressures in applying the risk-utility analysis.
Because the risk-utility analysis adopts no meaningful standard by which a jury can make its balancing decision, the jury is effectively free to choose whatever result it wishes, without any real ability for a reviewing court to examine that decision and to determine whether, as a matter of law, it is a sustainable decision. Accordingly, while the Georgia courts have treated the risk-utility analysis as synonymous with a negligence inquiry, the former actually imposes a different, more difficult, and less reviewable inquiry than does the latter.
. See n. 7, supra.
. By way of example, an open and obvious danger might be that inherent in a revolver.
Rhodes v. R.G. Industries,
. Defendant has not offered an expert opinion on this matter. Likewise, plaintiff has offered no expert opinion to explain why the melting occurred.
. Defendant's vice-president, Mr. Whitlock, testified that notwithstanding his belief that no chemical reaction would have occurred had the Chlorox bottle been completely emptied of any substance, Liquid Fire should never be transferred to another container, for, as Whitlock testified, "[i]f Liquid Fire were stored in a metal container, the acid would react with the metal and could, eventually, eat through the metal container.” (Id. ¶ 4.) Moreover, if the product were stored in a glass container, the “container could be dropped and the sulfuric acid could burn skin if contacted.” (Id.)
. The Court will discuss the adequacy of the warnings and any issue concerning plaintiff's contributory negligence in the next section, infra at 1246 et seq.
. The direction said that "To avoid damage against spillage, leakage, or uncapping while transporting, secure in upright position.”
. The "directions” side panel said, "TO AVOID VIOLENT ERUPTION NEVER USE BEFORE, WITH, OR AFTER OTHER DRAIN OPENERS.” The center panеl stated: "Never pour into drain containing other chemical drain openers and/or hot water as LIQUID FIRE MAY ERUPT VIOLENTLY FROM DRAIN — sending hot acid and drain contents onto persons in area, causing severe burns, personal injury or disfigurement.” (All caps denote print that is red and also in all caps on the label; the rest of the quote designates small black print on the label).
. The directions stated:
Standard drains; Sinks,
Showers 4 ounces
Tubs (1/4 pint)
Toilet Bowls 6-8 ounces (1/2 pint)
Septic Tanks 3-4 gallons
If any measuring device is used, empty thoroughly; rinse after use and before reusing and/or storing.
. The Court has assumed that no water remained in plaintiff’s Chlorox bottle. To the extent that even a few drops remained in the bottle, however,- the label does not address that phenomenon, although it discusses the presence of water in several different contexts. The label's admonitions do state that one should "never add water to LIQUID FIRE while in bottle because of a violent reaction." (Id.) The label further admonishes users "never [to] pour [Liquid Fire] into [a] drain containing other chemical drain openers and/or hot water as LIQUID FIRE MAY ERUPT VIOLENTLY FROM DRAIN — sending hot acid and drain contents onto persons in area, causing severe burns, personal injury or disfigurement.” (Id.)‘ (emphasis added) Yet, as part of the instructions for proper use, the bottle instructs a consumer to wait fifteen minutes and then "SLOWLY flush a drain with COLD water.” (Id.) (emphasis added; capitalization in original). The label also instructs a consumer to rinse the bottle three times with cold water once the bottle is completely empty to avoid burns. (Id.) (emphasis added).
If the difference in reaction between Liquid Fire and water is based on the temperature of the water, the label does not explicitly state such, nor does the label indicate whether the water in the drain to be unclogged should be tested for temperature prior to the use of the product. And if Liquid Fire is ingested by a person, the bottle recommends in part that the person consume "large amounts of water,” with no indication as to the water’s temperature (Id.)
. Discussed more at length infra at 1246-47 et seq.
. In the strict liability context, the Georgia Court of Appeals has held that ''[w]hen the use to which a product was being put at the time of the injury is not that originally intended by the manufacture!):], the determination of whether strict liability may be asserted as a viable theory of recovery or whether the manufacturer is insulated from liability ... depends, initially, upon the foreseeability that the product would be put to that use.”
Ford Motor Company v. Stubblefield,
. To avoid confusing the jury and sending it two claims, when one claim would do, the Court directs the parties to decide, when they submit the pretrial order whether both claims should be submitted to the jury, and, if so, why. Further, if both strict liability and negligence claims are to be submitted to the jury as to the same contention and core facts, the parties will need, by the time of trial, to devise instructions that will explain to the jury the difference in the two claims.
. In addition to the safety warning/instruction label on the bottle, Liquid Fire is supposedly sold with a hang-tag detailing the recommended safety precautions recommended for a consumer. (J. Duffy Dep. at 35.) Mr. Jones testified, however, that no hang-tag was attached to the product purchased by him. (R.
. "It is also a jury question whether or not the manufacturer 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.” Eldridge’s Georgia Product Liability, Theories of Negligence, § 2-24, p 49.
. The label supplied by defendant appears to be designed for a gallon sized container. The Court has not examined a label for a pint size container. Presumably, the print would be smaller.
. In theory, the Court could grant a motion for summary judgment as to plaintiffs challenge of the
substance
of the warning.
See Wilson Foods Corp. v. Turner,
.In support of his argument that defendant’s product is too dangerous to be marketed in any form, plaintiff notes that sulfuric-acid based drain clearers are banned in Tennessee as a hazardous substance too dangerous for sale to the public. (Pis.’ Br. in Opp. to Def.’s Mot. for Summ. J. [35] at 11.) The flip side of this argument, however, is the fact that such clearers have not been banned by the Georgia legislature. Plaintiff's argument reinforces the traditional notion that perhaps the best place for a determination whether a product should be banned is a legislative or regulatory body, not a court.
. The plaintiff has not cited any precedent, nor is this Court aware of any decision, in which the Georgia Supreme Court has actually allowed a jury to find a manufacturer liable simply on the ground that a product was inherently dangerous, without a showing of the existence of an alternative design, a hidden defect, a failure to warn, or the like.
. The plaintiffs point to the opinion of Professor Wabeke, who has researched the reporting of drain-clearer related injuries in emergency rooms.
(See
Wabeke Letter dated March 5, 2001 attached as Ex. E. to Pis.' Resp. to Def.’s Mot. for Summ. J. [35] (herein
. By this holding, the Court does not intend to endorse the conclusion of the CPSC. Professor Wabeke appears to have spent many years researching this issue and indicates an apparently sincere conviction that sulfuric-acid based drain cleaners are too dangerous to be marketed. His recommendation may ultimately carry the day, as sulfuric-acid based cleaners do appear to pose serious hazards.
. Plaintiff proffers the testimony of the president of Amazing Product that, since 1988, between twenty five and fifty lawsuits have been brought against Amazing Products that relate to injury that occurred from the use of this product. (J. Duffy Dep. at 66-67.) Yet, plaintiff never elaborates on the circumstances that underlay these lawsuits and therefore'this Court can draw no firm conclusions concerning their significance to the present litigation.