*1
115
сan it
jurisdiction
Nor
be said that this case invokes the
of
equity
this
Any equitable
plaintiffs
Court.
relief which
seek is
ancillary
of
legal questions
properly
whether
bank
notified
of
the foreclosure
the bank’s
of
proceeding, whether
recital
notification
deed
validity
under
of sale
of
power
protected the
defendant’s
purchase, and
qualified
whether defendant
as a bona fide purchaser
Assn.,
of
v.
Homes
property.
See
Transferred July Sanders, Jerry D. appellants. for
Wood, TV, Odom & B. Edge, Edge Arthur appellee.
S01Q0568. NORDICTRACK, et al. JONES v. INC. et al. SE2d Hines, Justice.
This case is before the question Court a certified from the v. United Circuit.1 Jones Appeals States Court the Eleventh (11th 2000). NordicTrack, Inc., 236 F3d 658 The question Cir. certi- fied is:
Must a be in use2 the time of for a injury at defend- ant be held liable theories strict liаbility, negligence, or failure to warn?3 The liability answer is that a products action for defective the focus not on product. law, use Under proper in a analysis design defect case is to balance the risks inherent in a Banks product design designed. so Const., VI, VI, IV; Art. Sec. Par. OCGA 15-2-9. quеstion “use,” unneccessary attempt The does not define and it is for this Court purpose opinion. rulings define the term for the of this The the United States District Georgia giving Court Northern rise to the certification the United premised Appeals finding prod States Court of for the Eleventh Cirсuit were on the question injury. finding uct in was not in “use” at the time The at correctness of is not issue. question, liability theory we Under this limit consideration of for “failure to warn" as a (1) (450 Chrysler Batten, design. Corp. of defective See Ga. Ga.
v. ICI BACKGROUND arises from a products Circuit’s Eleventh husband, William Jones аnd her by Laura Jeanne brought action *2 NordicTrack, Inc. and seller Jones, manufacturer against Leonard (“NordicTrack”) United States in the Fitness at Home NordicTrack 1995, In Mr. Georgia.4 May for Northern District of District Court the “Achiever,” and the Ski Exerciser NordicTrack purchased Jones The approxi- machine had it in their recreation room. placed Joneses legs projecting straight up, front mately one-inch chrome square adjusted to to create the elevation of the machine be which allowed 3, 1996, walking Ms. Jones was July of On skiing uphill. the effect ski room when she fell the exerciser. through the recreation of Jones’s right thigh into the rear Ms. leg penetrated A blunt chrome and.buttock, thigh damaging artery two in her an severing veins grounds liability, in her The on of strict leg. and a nerve Joneses sued consor- warn, to for loss of negligence, damages and failure for tium. pleadings the to pursuant
NordicTrack moved on judgment (c), contending prod- use of Federal Rule Civil Procedure law, consequently, is a Georgia uct to under predicate injuries Jones’s because she that NordicTrack is liable Ms. the when was The Joneses using injured. was not ski exerciser she presented risk the metal responded by exposed the foreseeable designed. or the benefit of legs outweighs motion for on the judgment The District Court NordicTrack’s granted law, on theo- concluding Georgia recovery after pleadings to all ries of or failure warn liability, negligence, require strict and that the ski exer- arise from some use of injury product, The Cir- ciser was not in at the time of Ms. Jones’s fall. Eleventh use 18, 1997, complaint September in the Court filed initial on State Plaintiffs thеir 28,1997, County. On removed the case to the United States Dis Fulton October defendants pursu Georgia, alleging jurisdiction over action trict Court for the Northern District of 1332, might pursuant to 28 1441. § ant to 28 USC and that the action be removed USC On § January 21,1998, pursuant judgment pleadings to filed a motion for on the Fed defendants 8,1998. (c), May granted by Rule of Court on eral Civil Procedure May 18, 1998, plaintiffs judgment, judgment to alter amend to vacate On filed motion or (e) pursuant Civil Local Rule of and to reconsider to Federal Rule of Civil Procedure 59 7.2E, Practice for the United District Court for the Northеrn District of and a States complaint. to file a Plaintiffs filed a motion to set aside the motion leave second amended 5, taxing 16, August motions on 1998. of costs on June 1998. The District Court denied the Circuit, appealed Appeals Plaintiffs United States Court for the Eleventh Appeаls filed Eleventh Circuit December United States Court opinion certifying in this on Janu to this Court. case docketed Court 4, 2001, ary orally argued on March cuit although by concluded that the cases and statutes cited the Dis- trict Court could be in the by read manner described the District Court, Geоrgia necessity law was unclear on use.
DISCUSSION Whether of a is predicate liability is controlled by Georgia statutory both starting and case law. The point Geor- (b) gia’s strict liability provision, OCGA 51-1-11 which states: The manufacturer any personal property sold as new property dirеctly a dealer or other through any person tort, shall be liable irrespective privity, any natural use, consume, person, who or reasonably be affected the property and who suffers injury person his property the property because when sold the manufacturer was not merchantable and reasonably intended, suited to the use and its condition when sold is proximate cause of the injury sustained.
(Emphasis supplied.) The plain language of the statute extends man- *3 ufacturer liability only to those may who use the but property, рersons also to those may who “consume” the or property “reasonably (404 by be affected” Panned, it. See v. Ga. Mansfield 104) (396 227) Pierce, (1991); SE2d v. SE2d Diefenderfer (1990). The fact that the statute also states that a is manufacturer when the property liable is “not reasonably merchantable suited to the use intended” does not set forth a use, requirement product for such language means the merely must show that plaintiff the is product Co., defective. v. Stiltjes Ridco Ga. Exterminating (347 (1) 568) 255, 256 (1986); SE2d Parzini, Center Chemical Co. v. (2) (218 234 Ga. SE2d
This adoption Court’s of the in risk-utility analysis Banks ICI v. Americas, suрra, product affirms that a need not be “in use” a manufacturer to be in negligence held liable or strict liability injuries proximately by product.5 very caused the facts Banks difficulty illustrate the defining “use” the context of injury prox imately caused an alleged product, therefоre, defective the fallacy of the need for a of “use” as a In finding predicate liability.6 recognized significant This Court has negligence that there is no distinction between liability purposes risk-utility analysis. Ogletree Transp. strict of the v. Navistar Intl. Corp., 269 Ga. SE2d 77) Intl., Similarly, Figgie although Rose v. 229 Ga. involv ing manufacture, product difficulty analysis a defective because of its illustrates the premised product plaintiff allegedly injured assembly on use. There the was after the nozzle a rodenticide ingesting died after case, nine-year-old boy a aat in an unmarked container found stored in a cabinet which he boy’s Id. at 732. The company. pest serviced a control boy’s club sued, alia, inter the manufac of his estate and administrator parents liabil and strict negligence the under theories turer of rodenticide inadequately and thаt design, for defective ity a were entitled to labeled. This Court determined defectively rodenticide new on their claim that trial (2). use, in Yet, not in certainly Id. designed. at 737 manner, rodenticide, to characterize any attempt any misuse, “use,” i.e., unintended as a poison typе boy’s ingestion wholly unnecessary. is use, use of the abnormal is design of a defect case the reasonableness The “heart” adopting among product designs from alternative selecting (1). at v. Conse supra safest feasible one. Banks ICI does not the use analysis depend quently, appropriate defined, but rather narrowly broadly as that be product,8 to adopt of whether the defendant failed includes consideration would have reduced foresee reasonable alternative Id.; see the Restate presented by оf harm product.9 able risks (Third) Ogletree 2. See also Liability, ment of Torts: Products (1998). 443, 445 Corp., Intl. Transp. Navistar in the negative. the certified must be answered Accordingly, Question All concur. answered. the Justices Justice, Fletcher, Chief concurring. “use”,
I
at least
inso-
concur with
conclusion thаt
majority’s
actually
far as
“use” means
defec-
operating
allegedly
the word
law. I write
liability
tive
is not a
product,
predicate
not a
finding
predicate
because
separately
in a
plaintiff
does not mean that a
defectively designed product
safеr,
case,
reasonable,
who has
alterna-
presented
merely stored,
extinguisher,
spontaneously exploded
separated
from
of a fire
which was
*4
canister,
disperse
apartment.
causing
plaintiff’s
in the
a cloud of chemicals to
Id.
7
holding
plaintiffs’
inadequate
Appeals’
The Court of
that
claim of
inaccurate
labeling
preempted
law was affirmed.
federal
8
Co.,
App.
Hatch v.
Motor
163
2d 393
P2d
Court cited
Ford
Cal.
similar,
case,
factually
consequently,
analysis applicable.
its
In that
a child
as
injured
parked
when he wаlked into a
car. The court concluded that
automobile
duty
it
to
did
owe a
to manufacture
automobile with which was safe
manufacturer
collide,
not
However,
rather
it is
at 397.
but
to “make it safe
the use
intended.” Id.
Co.,
Long
Grady
though
Mfg.
even
Hatch was cited in
&c.
Tractor
140 Ga.
(1)
105) (1976),
proposition,
upon
Hatch
it was relied
for a different
question.
approach
this
has not
for resolution of what is at issue in
certified
been utilized
noted,
relationship
previously
between “use” and “failure
As
couches
So,
foreseeability
design.
focus remains on the
to warn” in terms of a claim of defective
danger
the risk of harm or the
involved.
Georgia
jury
automatically
design,
law does
to a
trial.
is entitled
tive
not
today,
adopting
manu-
require,
a rule
and the Court is
being
undergo jury
always
products
a
trial before
must
facturers
person
design
alleged
A
is not enti-
defects.
absolved
trips
jury
just
chair,
a
coffee
and falls on
because she
tled to a
table,
trial
injury. Manufac-
and sustains a severe
household item
or other
plastic,
products rounded,
all household
do not need to make
turers
padded.
risk/utility
аdoption
test in
stated,
of the
has
As this Court
adjudication as a matter
mean that
any
ICI Americas10
“does not
Banks v.
longer appropriate
is
in which a
defect
in
case
of law is no
the
When a
alleged.”
designs
plaintiff
of their
falls onto a
law does not
products
requirе
are
incapable
manufacturers to
was not
being operated,
producing
ensure that
injury.12
did
being
than
fall,
had no role other
not cause
object upon
plaintiff landed,
trial court should
then the
which the
judgment
appropriate.
summary
strongly
Manu
whether
consider
they
part
ensure,
of the risks that
to
should not have
facturers
must
persons
design,
products
choosing
safe from
their
are
in
foresee
products.
happenstance
Otherwise,
with their
who collide
products
home, from
in the
intended for use
manufacturers of
all
lamps
maсhines,
faced with
will be
chairs to exercise
tables to
trips
jury
every
those items.
and lands on
time someone
trial
liability,
though
prerequisite
Finally,
“use”,
is not a
even
broadly
narrowly
operation more
mean actual
whether defined
may
encompass
ways
utilized,
in which the
сould be
alleg-
utility
balancing
the risk versus the
still be considered
edly
machine
instance,
the exercise
For
whether
defective
design.13
sitting
being operated
recreational room
dormant
versus
was
versus
alleg-
away
how the risk of the
in the attic
affect
stored
design.
edly
Likе-
of that
balances
determining
part
mer-
whether
wise,
use remains
reasonably
time of
uses at the
suited for its intended
chantable
sale.14
July 16, 2001.
(450 SE2d
Corp.,
Transp.
Ogletree
Int’l
271 Ga.
v. Navistar
Banks,
including usefulness of avoidability danger). danger, (b) (1). See OCGA 51-1-11 *5 Shields,
Doffermyre, Devine, Canfield, Devine, Knowles & R. Foy for appellants.
Robins, Ciresi, Kaplan, Miller & Daniel A. Ragland, Timothy Pramas, Yoedicke, Patricia for appellees.
S01Y0857. THE IN MATTER OF J. MALIK ABDULLAH
FREDERICK. Per curiam.
This disciplinary matter is before the Court on J. Malik Abdullah Frederick’s petition seeking voluntary suspension of his license pend- ing of his appeаl criminal conviction in federal court. See Bar Rule (f) (1). 4-106 Because we agree that such a suspension is appropriate, we accept Frederick’s petition.
On January 2001, Frederick was convicted jury empaneled in the United States District Court for the Northеrn Dis- trict Georgia of various federal felony By conviction, offenses. Frederick, who has been a member the Bar since violated (a) (2) (d) Rule of Professional Conduct 8.4 of Bar Rule 4-102 (violation of rules of conduct for a lawyer to be convicted of a felony), thereby himself subjecting to the provisions of Bar Rule 4-106. Accordingly, the State Bar successfully moved for appointment of a special master, see Bar Rule (a), 4-106 and Frederick filed this peti- tion for voluntary suspension of license in which he stated his intent his appeal convictions; waived his right to any hearings provided (a) Bar (e); Rules 4-106 and requested that this Court suspend his license pending resolution of his federal appeal. Bar has indicated that it has no objection to the acceptance of Frederick’s petition, and the Special Master recommends accepting it. Based on our record, review of the we agree with the Special Master that Fred- petition erick’s should be accepted. Accordingly, Frederick hereby is suspended from practice of law in this State until further order this Court.
Frederick (c). is reminded of his duties under Bar Rule 4-219 Suspension until order this Court. All the Justices con- further cur. July 16, III,
William P. Smith General Bar, Counsel State E. Duane