Deere & Co. v. Brooks

• Decision Date: 25 January 1983
• Docket Number: No. 39099,39099
• Citation: 299 S.E.2d 704,250 Ga. 517
• Parties: DEERE & COMPANY v. BROOKS et al.
• Court: Georgia Supreme Court

Page 704

299 S.E.2d 704

250 Ga. 517

DEERE & COMPANY v. BROOKS et al.

No. 39099.

Supreme Court of Georgia.

Jan. 25, 1983.

Dissenting Opinion Feb. 10, 1983.

As Amended on Denial of Rehearing Feb. 16, 1983.

[250 Ga. 520] Edmund A. Landau, Jr., Albany, for Deere & Co.

Jesse G. Bowles, III, Cuthbert, Jack G. Slover, Jr., Camilla, for Ohlan Robert Brooks et al.

MARSHALL, Presiding Justice.

We granted certiorari in this product-liability case to determine whether, as held by the Court of Appeals, the trial court's charge to the jury on the issue of assumption of risk was error. Brooks v. Douglas, 163 Ga.App. 224, 292 S.E.2d 911 (1982). We conclude that it was not. We therefore reverse the judgment of the Court of Appeals.

The evidence shows that on March 5, 1973, the plaintiff, Brooks, was driving his automobile in a westerly direction on Ga. Hwy 216. After traversing the crest of a hill, his automobile collided with the rear end of a tractor driven by defendant Douglas and manufactured by defendant Deere & Company. The plaintiff sued Douglas on a negligence theory, and Deere & Company was sued by the plaintiff on negligence and product-liability theories. As to his product-liability claim, the plaintiff alleges that there was a defective design and manufacture of the tractor's rearend lighting system, as well as a slow-moving-vehicle safety emblem located on the rear of the tractor.

The plaintiff testified at trial that as he approached the tractor from the rear, he encountered the "whitest piercing bright light that I had ever encountered in over 40 years of driving." The assumption-of-risk defense is based on the plaintiff's own testimony that he saw the lights of the tractor when he was over 1,000 feet away and did not apply his brakes until he was at the tractor. A highway patrolman testified that the plaintiff had told him after the accident that he did not see any lights on the tractor. The defendants also produced the testimony of other witnesses that the lights on the tractor are not so bright as to be distracting and that, at the time of the accident, the tractor's brightest lights were not even turned on. It is also argued that the evidence shows that the alleged defects in the tractor's lighting system could not have been the proximate cause of the accident.

Initially, the superior court granted the defendants' motions for summary judgment on the ground that the plaintiff was guilty of gross negligence as a matter of law. In Brooks v. Douglas, 154 Ga.App. 54, 267 S.E.2d 495 (1980), the Court of Appeals reversed, holding that this is a jury question. At trial, the jury returned a verdict in favor of both defendants. On appeal, the Court of Appeals affirmed as to defendant Douglas, but reversed as to defendant Deere & Company.

As to both the negligence and product-liability counts of the plaintiff's complaint, the trial judge charged the jury: "When a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the taking of such a risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, he cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of such other person." The Court of Appeals held that this is an incorrect statement of law applicable to a product-liability case. As 1. "Notwithstanding some judicial language indicating the contrary, the case law generally is in accord with the Restatement of Torts in holding that contributory negligence is not a defense to a claim of strict liability for product-caused harm. Under this rule, it is held that strict liability recovery is not barred by evidence of nothing more than that the injured person failed to discover a defect in the product which injured him. Similarly, contributory negligence consisting of a careless act by the injured person with respect to the product is no defense, where the actual cause of the injury arises from an unanticipated defect in the product itself, and not from the careless act of the plaintiff.

                authority, the Court of Appeals cited product-liability cases of this court in which it was held:  " ' "If the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, he is barred from recovery."   63 Am.Jur.2d 155, § 150'."  Ford Motor Co. v. Lee, 237 Ga. 554, 555, 229 S.E.2d 379 (1976);  Center Chemical Co. v. Parzini, 234 Ga. 868, 870, 218 S.E.2d 580 (1975)
                

"On the other hand, the cases, and the Restatement, are agreed that strict liability recovery is barred by evidence establishing assumption of risk. Under this rule, it is held that if the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, he is barred from recovery." 63 Am.Jur.2d, supra, at pp. 154-155.

2. "There are at least four different theories under which a defendant may assert that a plaintiff's own conduct precludes him from being able to hold the defendant strictly liable in tort: (1) that the plaintiff negligently failed to discover the defective...