Ogletree v. Navistar International Transportation Corp.
271 Ga. 644
Ga.
1999
Check Treatment

OGLETREE et al. v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION.

S99G0770

Supreme Court of Georgia

October 18, 1999

November 15, 1999

271 Ga. 644 | 522 SE2d 467

CARLEY, Justice.

Lyons’ statement to the police was unreliable because his mental deficiency rendered him subject to intimidation and coercion. The court allowed the witness to testify with the admonition that the defense may “make whatever objections during his testimony” they deemed appropriate.

The defense made no objection to any question posed by the prosecutor or any response given by Dykes; thus, this enumeration provides nothing for review. See generally at (1).

10. The jury was fully instructed that they could return a verdict of guilty but mentally retarded under OCGA § 17-7-131, as an option to guilt or innocence. When the verdict was returned finding Lyons guilty of all charged offenses, it became apparent that the verdict form had erroneously provided the option of “guilty but mentally ill” instead of “guilty but mentally retarded.” The court immediately explained the error to the jury, repeated the charge under OCGA § 17-7-131, and instructed the jury to reconsider their verdict in light of the corrected verdict form. After further deliberations, the verdict was reissued with the same results. A poll of the jury revealed that each member agreed with the verdict.

We find that the court‘s curative actions were sufficient to render the error harmless. Accordingly, a new trial is not demanded. .

Judgment affirmed. All the Justices concur.

DECIDED OCTOBER 18, 1999 —
RECONSIDERATION DENIED NOVEMBER 15, 1999.

Sullivan & Kight, L. Jimmy Kight, Jr., for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellee.

S99G0770. OGLETREE et al. v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION.
(522 SE2d 467)

CARLEY, Justice.

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 awarded 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 appellate history: (Ogletree I); (Ogletree II); (Ogletree III); (Ogletree IV); (Ogletree V); (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 . 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. (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.

Division 2 of the Court of Appeals’ opinion engages in the risk-utility analysis only after separately applying general negligence principles in Division 1. However, those concepts cannot be treated as distinct theories of recovery. In a negligent design case, the risk-utility analysis applies to determine whether the manufacturer is liable. Thus, the mandate that a product‘s risk must be weighed against its utility incorporates the concept of “reasonableness,” so as to apply negligence principles in the determination of whether the manufacturer defectively designed its product. ; (1). Accordingly, the Court of Appeals should not have employed negligence principles separately, but only insofar as they are part of the risk-utility analysis delineated in Banks. Therefore, Division 1 of the Court of Appeals’ opinion does not furnish an independent basis for affirming the trial court‘s grant of judgment n.o.v.

A judgment n.o.v. is properly granted only when there can be but one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury‘s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion. [Cit.]

. See also . The Court of Appeals relied upon certain foreign cases involving the absence of back-up alarms and resulting in favorable rulings for the manufacturers. (2), fn. 22. However, those decisions are not the only authority on the subject. In other cases from one of the same jurisdictions and at least two additional ones, the courts have concluded that this particular issue of the absence of a warning device was for the jury. ; ; (applying Pennsylvania law). With regard to the applicable law of Georgia, we recently emphasized that “[t]he trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable. (Cit.)’ [Cits.]” . Moreover, in Banks, this Court indicated that it is for the trier of fact to consider the numerous factors which are pertinent in balancing the risk of the product against its utility or benefit. Of course, Banks does not mean that adjudication as a matter of law “is no longer appropriate in any case in which a design defect is alleged.” . Even so, determination of a product‘s risks and benefits as a matter of law, such as in the context of a motion for judgment n.o.v., “will rarely be granted in design defect cases when any of these elements is disputed.” 2 Am. Law Prod. Liab. 3d, § 28:16 (1997 Rev.). Indeed, the adoption of the risk-utility analysis in this state has actually increased the burden of a defendant, in seeking a judgment as a matter of law, to show plainly and indisputably an absence of any evidence that a product as designed is defective. .

In applying the risk-utility test in Division 2, the Court of Appeals set forth certain “undisputed facts” which were relevant to each of the factors enumerated in the non-exhaustive list in (2), fn. 6. However, this list of undisputed facts failed to include other evidence which weighed in favor of the verdict against Navistar. In determining whether a judgment is demanded as a matter of law, a court should not rely upon certain evidence merely because it is not specifically contradicted, while disregarding other relevant evidence which may be equally undisputed. . In reviewing the grant of a judgment n.o.v., an appellate court “must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. (Cit.) A judgment notwithstanding the verdict is improperly granted in the face of conflicting evidence. . . . (Cit.)’ [Cit.]” (Emphasis supplied.) . “A judgment notwithstanding the verdict may not be granted because the strength or weight of the evidence is on one side. [Cit.]” . Moreover, even if the facts in a case are entirely uncontradicted and uncontroverted, where “there is room for difference of opinion between reasonable men as to whether or not negligence should be inferred, the right to draw the inference is peculiarly within the exclusive province of the jury.’ [Cits.]” .

“Where there is any evidence upon which the verdict can be based, the jury is free to disbelieve whatever facts are inconsistent with their conclusion and the court cannot substitute its conclusion for that of the jury and enter a judgment notwithstanding the verdict. . . .” [Cits.]

(Emphasis omitted.) . Here, the trial court erred in granting judgment n.o.v. in favor of Navistar, “[a]s the evidence for the defendant was not ‘plain, palpable, and indisputable,’ there was some evidence supporting the verdict of the jury, and all of the evidence did not demand a verdict for the defendant. . . .” . Even though, as the Court of Appeals observed, this litigation has been “tortured and protracted,” we must reject any unauthorized shortcut around our jury system. Once again, therefore, we reverse the judgment of the Court of Appeals.

Judgment reversed. All the Justices concur, except Benham, C. J., and Fletcher, P. J., who dissent.

FLETCHER, Presiding Justice, dissenting.

The majority notes that does not preclude adjudication as a matter of law in a design defect action. I agree with this principle; however, I also agree with the well-reasoned opinion of the Georgia Court of Appeals that this is one of those cases that demands judgment as a matter of law. Therefore, I dissent.

I am authorized to state that Chief Justice Benham joins in this dissent.

DECIDED OCTOBER 18, 1999 —
RECONSIDERATION DENIED NOVEMBER 15, 1999.

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for appellants.

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Scott P. Hilsen, for appellee.

Brown & Shamp, Robert H. Brown III, King & Spalding, Chilton D. Varner, Philip E. Holladay, Jr., Amy M. Power, amici curiae.

Notes