Branton v. Draper Corp., 75577

Citation185 Ga.App. 820,366 S.E.2d 206
Decision Date12 February 1988
Docket NumberNo. 75577,75577
Parties, Prod.Liab.Rep. (CCH) P 11,738 BRANTON v. DRAPER CORPORATION.
CourtUnited States Court of Appeals (Georgia)

B. Randall Blackwood, Atlanta, for appellant.

Karen L. Jenkins, G. Michael Banick, Atlanta, for appellee.

BIRDSONG, Chief Judge.

Houston Branton brings this appeal from the grant of summary judgment to appellee Draper Corporation. Appellant has filed only selected portions of the record for inclusion in this appeal. Not included are the complaint and the answer. Hence, we have difficulty in determining the precise issues alleged as a basis for this action. The pre-trial order describes the complaint as seeking recovery of "medical expenses, lost services, loss of incidental expenses, loss of conjugal rights, support and consortium" by Branton, for injuries to his wife, Willie Ruth Branton, alleged to have been caused by "the negligent, wanton, careless decision of the Draper Corporation to design, manufacturer [sic] and install unreasonably dangerous components on its looms sold to the Bibb Company...." Mrs. Branton worked as a weaver, i.e. a loom operator, for the Bibb Company in its Columbus, Georgia mill for over 27 years. On April 20, 1982, when she walked between two operating looms, her apron was caught on an exposed flywheel and she was dragged into the loom and injured. She was hospitalized and ultimately her knee had to be replaced. She collected workers' compensation for her injury. On February 26, 1986, almost four years after her injury, her husband filed this action.

Appellee, Draper Corporation, moved for summary judgment. Appellant proceeded on the theory that Draper had defectively designed and manufactured its looms by having an exposed, rotating flywheel with spokes and set-screws mounted on an 8-inch drive-shaft extension, without a shield or guard, and these defects caused the injury to Mrs. Branton. Appellee contends there was no defective design, and if the design was dangerous, it was open, obvious, and patent to Mrs. Branton, and the cause of the injury was the negligence of Mrs. Branton in wearing a long apron which was tied about her body. Further, appellee asserted the defenses of the statute of limitations, assumption of risk, and contributory negligence, inter alia. The trial court granted appellee's motion for summary judgment, holding that a manufacturer is not under a duty to make a machine accident-proof and is under no duty to warn against a patent peril. The court also found that Branton's claim for lost wages, lost earning capacity and medical expenses for his wife's injury were not properly includable within the consortium claim and were barred by the statute of limitations. Branton brings this appeal. Held:

1. "A loss of consortium has been defined as a loss of the love, society, companionship, and comfort of the wife or husband." Brown v. Hauser, 249 Ga. 513, 514, 292 S.E.2d 1; see also Smith v. Tri-State Culvert Mfg. Co., 126 Ga.App. 508, 510, 191 S.E.2d 92. A claim for "loss of consortium" does not include lost wages, medical expenses, or loss of earning capacity. See generally OCGA § 51-12-4; Blanchard v. Westview Cemetery, 133 Ga.App. 262, 269, 211 S.E.2d 135, as modified 234 Ga. 540, 216 S.E.2d 776; Old Dominion Freight Line v. Martin, 153 Ga.App. 135, 264 S.E.2d 585 (medical expenses). The Code provides a two-year statute of limitations for personal injuries and a four-year limitation period for loss of consortium. OCGA § 9-3-33. A claim for loss of consortium does not extend the period during which damages may be asserted for physical injuries to the person. Central of Ga. R. Co. v. Harbin, 132 Ga.App. 65(1), 207 S.E.2d 597. The trial court properly ruled that these claims were barred by the two-year statute of limitations.

2. Appellant contends the trial court erred "in ruling that the Open and Obvious Rule is an absolute defense and that comparative negligence is not an issue in an action for compensatory damages based on unrebutted evidence of defendant's gross negligence or conscious indifference to the consequences." Appellant has failed to direct our attention to the record where this ruling can be found and our review of the record has failed to uncover such ruling.

The trial court held "that manufacturers are not under a duty to make a machine accident proof and have no duty to guard against injury from a patent peril. Under Georgia law, if the machine FUNCTIons properly for the purpose for which it was designed without any latent defect, and if its functioning creates no danger or peril that is not known to [the] user, the manufacturer has produced a machine that is reasonably safe." (Emphasis deleted.) The court reasoned that "because the alleged design defect was not latent but was in plain view, and ... because the functioning of the loom created no danger or peril not known to the user" appellee Draper was entitled to summary judgment. This is the general law of this state. " 'If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine 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. We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof.... [H]e is under no duty to guard against injury from a patent peril or from a source manifestly dangerous.... In other words, the manufacturer is under no duty to render a machine or other article "more" safe--as long as the danger to be avoided is obvious and patent to all.

" 'To impose upon a manufacturer the duty of producing an accident-proof product may be a desirable aim, but no such obligation has been--or, in our view, may be--imposed by judicial decision. Suffice it to note that, in cases dealing with a manufacturer's liability for injuries to remote users, the stress has always been upon the duty of guarding against hidden defects and of giving notice of concealed dangers.' " Stovall & Co. v. Tate, 124 Ga.App. 605, 610-611, 184 S.E.2d 834; accord Trailmobile v. Smith, 181 Ga.App. 134, 135, 351 S.E.2d 528; Coast Catamaran Corp. v. Mann, 171 Ga.App. 844, 848, 321 S.E.2d 353, aff'd 254 Ga. 201, 326 S.E.2d 436; Ford Motor Co. v. Stubblefield, 171 Ga.App. 331, 335, 319 S.E.2d 470; Giordano v. Ford Motor Co., 165 Ga.App. 644, 645, 299 S.E.2d 897; Vance v. Miller-Taylor Shoe Co., 147 Ga.App. 812(2), 251 S.E.2d 52; Poppell v. Waters, 126 Ga.App. 385, 388, 190 S.E.2d 815. "Conceivably, any manufactured good is capable of inflicting injury; and, indeed, the use of certain products, such as, for example, firearms, powersaws, and perhaps motorcycles, may be considered intrinsically dangerous. Recognizing this fact, we held in Hunt v. Harley-Davidson Motor Co., 147 Ga.App. 44 (248 SE2d 15) (1978), that a manufacturer has no duty to warn of obvious common dangers connected with the use of a product.... Although the 'patent danger rule' has its roots in a New York decision [which is no longer followed] it is still viable in this state." Stodghill v. Fiat-Allis Constr. Machinery, 163 Ga.App. 811, 813, 295 S.E.2d 183.

Assuming arguendo there was a design defect in this loom which was manufactured by appellee, from an exposed flywheel without a safety guard, Mrs. Branton had been working on the same type of loom at the same company for 27 years, and the alleged peril or danger, caused by the unguarded rotating flywheel, was clearly obvious and patent. She had been warned by management to be careful when walking between the looms, i.e., by the flywheel, she was aware of the location of the flywheel and knew not to come into contact with it when it was rotating. The record contains a "Job Analysis" sheet, purportedly bearing the signature of "Ruth Branton," on which a job hazard is listed as involving the "handwheel," and the action required of the worker to avoid injury is: "Don't wear long aprons and always use a safety pin instead of...

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