This is the sixth appearance of this case before us and the second time our Supreme Court has remanded it here. In its most recent opinion, the Supreme Court succinctly summarized the factual highlights and procedural history of this case:
The owner of a fertilizer spreader truck backed it over Mrs. Jack Ogletree’s husband, causing his death. Mrs. Ogletree brought this wrongful death action, alleging that Navistar International Transportation Corporation (Navistar), as manufacturer of the truck’s cab and chassis, had negligently breached a duty to install an audible back-up alarm on the vehicle. At trial, the jury returned a verdict in favor of Mrs. Ogletree, but awardеd damages for funeral and medical expenses only. Mrs. Ogletree made a motion for new trial on the issue of damages, and Navistar moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied both motions for new trial, but granted Navistar’s motion for judgment n.o.v. The case has a long apрellate history: Ogletree v. Navistar Intl. Transp. Corp.,194 Ga. App. 41 (390 SE2d 61 ) (1989) (Ogletree I); Navistar Intl. Transp. Corp. v. Ogletree,199 Ga. App. 699 (405 SE2d 884 ) (1991) (Ogletree II); Ogletree v. Navistar Intl. Transp. Corp.,221 Ga. App. 363 (471 SE2d 287 ) (1996) (Ogletree III); Ogletree v. Navistar Intl. Transp. Corp.,227 Ga. App. 11 (488 SE2d 97 ) (1997) (Ogletree IV); Ogletree v. Navistar Intl. Transp. Corp.,269 Ga. 443 (500 SE2d 570 ) (1998) (Ogletree V); Ogletree v. Navistar Intl. Transp. Corp.,( 236 Ga. App. 89 511 SE2d 204 ) (1999) (Ogletree VI). In Ogletree IV, the Court of Appeals applied the “open and obvious danger” rule and affirmed the trial court’s grant of Navistar’s motion for judgment n.o.v. On certiorari in Ogletree V, this Court held that the open and obvious danger rule was no longer viable in design defect cases, in light of our adoption of the risk-utility analysis in Banks v. ICI Americas,264 Ga. 732 (450 SE2d 671 ) (1994). On remand, the Court of Appeals again affirmed the judgment n.o.v. in favor of Navistar, on the grounds that Navistar was not negligent in failing to install a back-up alarm and that the risk of the cab and chassis without the alarm did not outweigh the usefulness of the product in that unequipped condition. Ogletree VI, supra at 94 (2). We granted certiorari to consider the opinion in Ogletree VI. Because there was some evidence that the risk outweighed the utility of the cab and chassis without the alarm, the issue of negligent design cannot be decided as a matter of law and, therefore, we reverse the judgment of the Court of Appeals.
Ogletree v. Navistar Intl. Transp. Corp.,
1. Since our Supreme Court has resolved the issue of whether the trial court еrred in granting Navistar’s motion for judgment n.o.v. on the issue of negligent design, we must address whether the trial court’s judgment is sustainable on any other basis. As we stated before,
the j.n.o.v. motion set forth three separate and independent grounds: (1) the law of the case rule no longer applied and thus the Weatherby [v. Honda Motor Co.,195 Ga. App. 169 (393 SE2d 64 ) (1990)] ruling controlled; (2) there was no evidence that Navistar was negligent in its design and manufacture of the cab and chassis; and (3) any possible defect in the design was not a proximate cause of the damages sustained.
(Punctuation omitted.)
Ogletree VI,
we review and resolve the evidence and any doubts or ambiguities in favor of the verdict. . . . [judgments n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. Thus, a judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the propеr judgment. If the evidence is conflicting, or if insufficient evidence exists to make a “one-way” verdict proper, judgment n.o.v. should not be granted. Further, when considering these motions, trial and appellate courts must view the evidence in the light most favorable to the party securing the jury verdict.
(Citation and punctuation omitted.)
Jakobsen v. Colonial Pipeline Co.,
As a general rule, issues of causаtion are for the jury to resolve and should not be determined by a trial court as a matter of law except in plain and undisputed cases.
Flanagan v. Riverside Military Academy,
[t]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. . . . [W]hen a jury renders a verdict that is not supported by the evidence, but is based solely on conjecture, it becomes the duty of the court to issue a judgment n.o.v.
(Citation omitted.)
Jakobsen v. Colonial Pipeline Co.,
Viewed in the light most favorable to Ogletree, the record reveals the following evidence on the issue of causation: Richard Ogletree died as a result of injuries he sustained when his friend Frank Campbell accidentally backed his fertilizer spreader truck into him, crushing him between the truck and a dry fertilizer storage bin called a “Killebrew.” The evidence is disputed regarding whether Ogletree knew Campbell was backing up and whether, under the circumstances, he would have heard a back-up alarm had one been installed and operational. Consequently, we cannot say that the presence of a functioning back-up alarm, under these circumstances, would not, as a matter of law, have prevented the accident. The trial сourt’s grant of judgment n.o.v. was nonetheless correct, however, if the undisputed evidence established that even if Navistar had installed the back-up alarm, the alarm, through no fault of Navistar’s, would not have been present and operational on the date of the accident. See
Gen. Motors Corp. v. Davis,
The
Penske Leasing bought the truck from Navistar in 1978 as part of a fleet of 11 identical cabs and chassis with the intention of fitting it with a 22-foot-long moving van body. Penske did not request the optional back-up alarm. There is no evidence that Penske was required by any local, state, or federal law or industry standard to operate the truck with an audible back-up alarm or to maintain such a device if it had been installed by Navistar. Penske modified the incomplete chassis, fitted it with a van body, used it for four years as a moving van, and put about 67,000 miles on it. Thе plaintiffs presented no evidence from Penske regarding its use and maintenance of the truck. Penske eventually sold the truck to McDonald Chevrolet, a retail car and truck dealership in Cornelia. The dealer removed the van body from the cab and chassis prior to reselling it. In August 1982, Campbell bought the used cab and chassis from the dealership.
Campbell took the cab and chassis to Bagwell Brothers in Royston to be modified to accommodate a fertilizer spreader body. Although it was foreseeable that Navistar’s trucks would be modified by their immediate purchasers to accommodate a variety of uses, it was undisputed that Cаmpbell’s modifications were atypical. Navistar’s Products Integrity Group Manager testified that Bagwell Brothers significantly modified the chassis and “drastically altered” the truck’s wheelbase. Almost ten feet of frame rail up to and including where the rear axle was mounted was removed and the wheelbase was shortened by over five feet, a modification described as “extreme” and ‘Very unusual.” Typically, someone wishing to use a Navistar cab and chassis for a fertilizer spreader would purchase one with a short wheelbase and short frame rails. Campbell’s modifications resulted in the rear cross-members of the frame rail being completely cut off. Campbell had to replace the drive shaft and move the muffler and fuel tanks to accommodate the fact that the fertilizer spreader truck was agricultural equipment customarily driven in crop fields. After the chassis was modified, Campbell took it to Newton Crouch Company in Griffin, where the fertilizer spreаder body Campbell had bought in 1977 was installed and “refabbed.” The truck’s rear signal lamps were removed, rewired, and reconnected at the top of the fertilizer spreader body; the wiring was not Navistar’s original wiring; and the rear back-up lamps were not moved and were left disconnected.
Ogletree’s and Navistar’s experts agree that the modifications Campbell did would have resulted in the disconnection and removal of the back-up alarm. Moreover, Ogletree’s expert admitted there exists generally a potential that a back-up alarm would be removed and discarded. Although Ogletree’s expert opined that the alarm, had it been installed, would have been reconnected, he cited no factual basis — either from witness testimony, his personal experience, or any empirical study — in support of that opinion. Instead, he suggested that if Navistar had put warnings on the alarm instructing all purchasers and subsequent users of the truck to maintain, repair, or reconnect the alarm if necessary, it “may have been reused” by someone. Navistar, on the other hand, presented substantial evidence demonstrating that Campbell would not have reinstalled the alarm after Bagwell Brothers removed it.
Indeed, every lay and expert witness who testified on the subject admitted that he had
never
seen a fertilizer spreader truck with a back-up alarm. No federal, state, or local
When Newton Crouch rewired Campbell’s signal lamps at the top of the fertilizer spreader body, they did not move and reconnect the back-up lamps, the circuitry through which the alarm would have operated. Campbell has never requested that a manufacturer install a bаck-up alarm on any of his farm equipment. Campbell has never added a back-up alarm to his existing equipment, even though alarms are relatively inexpensive, easy to obtain, and simple to install. When Campbell bought another truck in 1992 to be used as a fertilizer spreader, he did not equip it with a back-up alarm.
As we stated above, the plaintiffs had the burden of proving the causal connection between Navistar’s alleged design defect and Ogle-tree’s injury. Plaintiffs’ expert’s opinion that Ogletree’s injury was attributable to Navistar’s alleged design defect is specifically premised on an assumption that the alarm would have survived Campbell’s modifications. Therefore, it was incumbent upon the plaintiffs to present some competent evidence from which the jury could reasonably infer that the alarm would have been retained and reinstalled by Campbell. Ogletree’s expert’s opinion testimony on that point, however, was founded solely upon the unsupported premise that a factory-installed alarm would tend to remain with the truck, or, in other words, that people generally tend to keep what they have been given. Such opinion testimony, at best, only gives rise to an inference that someone
might have
kept the alarm. However, because that inference is founded on speculation, it is without evidentiary value. See
Grant v. Ga. Pacific Corp.,
Moreover, because the unrebutted evidence establishes that Campbell’s unforeseeable modifications would have resulted in Navistar’s alarm being removed, and there is no competent evidence establishing that an alarm would have been reconnected, Campbell’s actions would constitute an intervening and efficient cause explaining the absence of a back-up alarm. As we have held,
Where the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of a third person, the defendant cannot be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury.
For these reasons, the evidence adduced was insufficient as a matter of law to establish the requisite factual and proximate causal connection between Navistar’s failure to install a backrup alarm and the accident that resulted in Ogletree’s death. Consequently, we conclude that the trial court properly granted Navistar’s motion for judgment n.o.v.
2. Our holding in Division 1 renders all remaining enumerations of error moot.
Judgment affirmed.