Ford Motor Co. v. Reese

• Decision Date: 16 September 2009
• Docket Number: No. A09A0871.,A09A0871.
• Citation: 684 S.E.2d 279,300 Ga. App. 82
• Parties: FORD MOTOR COMPANY v. REESE et al.
• Court: Georgia Court of Appeals

684 S.E.2d 279

300 Ga. App. 82

FORD MOTOR COMPANY v. REESE et al.

No. A09A0871.

Court of Appeals of Georgia.

September 16, 2009.

Owen, Gleaton, Egan, Jones & Sweeney, Philippa V. Ellis, Derrick L. Bingham, Atlanta, for appellant.

Daughtrey, Crawford, Fuller & Brown, Peter J. Daughtrey, Dustin T. Brown, Columbus, Peter A. Law, Atlanta, Ernest M. Moran, Albert H. Dallas, Thomson, for appellee.

BERNES, Judge.

Mary Bessie Reese was paralyzed and died 22 days after the 1994 Ford Tempo she was driving was rear-ended by a dump truck. Her surviving children brought this wrongful death and survival action against Ford Motor Company in which they contended that Reese's seatback collapsed in the rear impact due to a defective design, causing Reese to suffer more severe injuries than she otherwise would have suffered in the collision. The jury returned a verdict against Ford. On appeal, Ford contends that the trial court erred by instructing the jury on a duty to recall when no such duty exists under Georgia law; by giving an incomplete and misleading jury instruction regarding the crashworthiness doctrine; by allowing the plaintiffs to introduce complaints from other lawsuits against Ford to establish notice of the alleged seat defect; and by admitting the deposition testimony of the plaintiffs in five of the other lawsuits concerning the injuries they or their children suffered. As explained below, absent special circumstances not applicable here, Georgia law does not impose a duty upon a manufacturer to recall a product after the product has left the manufacturer's control. We therefore reverse the judgment and remand for a new trial.

The record shows that in the early morning hours of November 2, 2002, Reese was driving her 1994 Ford Tempo down a two-lane rural highway when a loaded 58,000 pound dump truck ran into the rear of her vehicle. The impact of the collision caused the Tempo to accelerate 15 miles per hour in a tenth of a second. The Tempo traveled 371 feet down a steep embankment before coming to a stop at the edge of the woods. Reese was paralyzed due to a fractured spine and died 22 days later in the hospital.

The plaintiffs sued Ford, alleging that Reese's seatback had collapsed at the time of the rear impact due to a design defect. They asserted claims for defective design under theories of negligence and strict liability, for negligent failure to warn of the alleged defect, and for negligent failure to recall the Tempo seat and seatback. At trial, the plaintiffs presented expert testimony that Reese's seatback was defective because the metal on the seat frame tore upon rear impact, causing the seatback to collapse rearward such that Reese's head and shoulders were thrown against the rear seat, and resulting in a T12 compression spinal fracture and fatal injuries to her head and brain. According to the plaintiffs' experts, Ford could have devised a warning that would have alerted customers to the potential risk of seatback collapse upon rear impact, and could have utilized an alternative seat design at the time of manufacture or retrofitted the Tempo through a recall campaign that would have made the seatback safer and would have prevented Reese's injuries and death.

Ford answered and defended by presenting its own expert testimony that the design of the Tempo seatback was reasonable, protected occupants better than more rigid seats in most accidents, and was consistent with the prevailing state of the art and industry standards. Ford also presented evidence that Reese's compression fracture and head injuries occurred, not as the result of the alleged collapse of the seatback, but in a second crash that occurred when the vehicle smashed into the bottom of the embankment before stopping at the edge of the woods.

After hearing the conflicting evidence, the jury returned a verdict in favor of the plaintiffs and awarded compensatory damages, but not punitive damages. The trial court entered judgment on the jury verdict and also awarded post-judgment interest against Ford. This appeal followed.

1. The plaintiffs sued Ford in part for negligent failure to recall the Tempo seat and seatback. Ford filed a motion to dismiss for failure to state a claim, which the trial court denied. Ford later filed a motion in limine to exclude all evidence and argument related to an alleged failure to recall, and the trial court denied that motion as well. After the close of the evidence, the trial court charged the jury over Ford's objection:

A negligent failure to warn or recall claim may arise from a manufacturer's post-sale knowledge acquired months, years, or even decades after the date of the sale of the first of these products.

In such cases, the duty to warn or recall arises whenever the manufacturer knows, or reasonably should know, of the danger arising from the use of the product.

The duty to warn or recall can arise even if the product is not defective but contains a danger or hazard that the manufacturer can anticipate.

On appeal, Ford maintains that the trial court committed reversible error by instructing the jury on a duty to recall when Georgia law does not impose such a general duty upon manufacturers. We apply the "plain legal error" standard of review in evaluating an allegedly erroneous jury instruction. Horton v. Hendrix, 291 Ga.App. 416, 418(1), 662 S.E.2d 227 (2008). "In order for a trial court's jury instruction to constitute reversible error, the party challenging the instruction must establish that the instruction was both legally erroneous and harmful." Lawyers Title Ins. Corp. v. New Freedom Mtg. Corp., 285 Ga.App. 22, 24(1), 645 S.E.2d 536 (2007). Applying this standard, we agree with Ford that the trial court committed reversible error requiring a new trial.

(a) The Jury Instruction Was Legally Erroneous. The propriety of the jury instruction at issue here turns on the question of legal duty. "The threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care. Whether a duty exists upon which liability can be based is a question of law." (Citation omitted.) Holcomb v. Walden, 270 Ga.App. 730, 731, 607 S.E.2d 893 (2004). In the absence of a legally cognizable duty, there can be no fault or negligence. DaimlerChrysler Motors Co. v. Clemente, 294 Ga.App. 38, 58(13), 668 S.E.2d 737 (2008).

As an initial matter, we reject the plaintiffs' contention that the question of whether a manufacturer has a duty to recall a product was resolved by Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 540-541(1), 436 S.E.2d 635 (1993), and Smith v. Ontario Sewing Machine Co., 249 Ga.App. 364, 368(b), 548 S.E.2d 89 (2001). Although the plaintiffs in Mack Trucks, Inc. had brought a claim "for negligent failure to recall or warn," 263 Ga. at 539, 436 S.E.2d 635, there was no challenge or ruling on appeal as to the validity of that claim. Id. at 540-541(1), 436 S.E.2d 635. Rather, the issue on appeal was whether a negligence claim for a defective product was a "product liability" cause of action under the punitive damages statute. Id. Likewise, while this Court in Smith purported to recognize a duty to recall, 249 Ga.App. at 368(b), 548 S.E.2d 89, the Supreme Court of Georgia granted a writ of certiorari, expressly disapproved of this Court's resolution of that issue, and held that it was unnecessary for the Supreme Court to resolve the issue given the posture of the case, thereby acknowledging that the question of whether such a duty existed had not yet been decided by that Court. See Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 685-686(1), 572 S.E.2d 533 (2002). Accordingly, the question of whether a manufacturer has a duty to recall remains unsettled under Georgia law.¹

We conclude that absent special circumstances,² no common law duty exists under Georgia law requiring a manufacturer to recall a product after the product has left the manufacturer's control. Under our products liability jurisprudence, a manufacturer's duty to implement alternative safer designs is limited to the time the product is manufactured, not months or years later when technology or knowledge may have changed. See Banks v. ICI Americas, Inc., 264 Ga. 732, 736(1), 450 S.E.2d 671 (1994) ("[T]he trier of fact may consider evidence establishing that at the time the product was manufactured, an alternative design would have made the product safer than the original design and was a marketable reality and technologically feasible."). Any other rule would render a manufacturer a perpetual insurer of the safety of its products, contrary to established Georgia law. See id. at 737(1), 450 S.E.2d 671 ("[A] manufacturer is not an insurer that its product is, from a design viewpoint, incapable of producing injury.").

It is true that Georgia law imposes a continuing duty upon manufacturers to warn of a danger arising from a product after its sale or distribution. See Chrysler Corp. v. Batten, 264 Ga. 723, 724-725(1), 450 S.E.2d 208 (1994); Wabash Metal Products v. AT Plastics Corp., 258 Ga.App. 884, 886(1), 575 S.E.2d 683 (2002). But the continuing nature of that duty was expressly sanctioned by the General Assembly in OCGA § 51-1-11(c), which specifically omits duty to warn claims from the statute of repose otherwise applicable to claims arising out of the sale of a defective product.³ See Chrysler Corp., 264 Ga. at 727(4), 450 S.E.2d 208 (subsection (c) "reflects the legislature's recognition of the possibility that [the duty to warn] may not emerge until long after the statute of repose has extinguished any cause of action arising out of the product's sale"). As such, when the General Assembly intends for Georgia law to impose a continuing duty upon product manufacturers, it knows how to do so, and "[w]e must presume that its failure to do so [in this instance] was a matter of considered choice." (Citation and punctuation omitted.) Inland Paperboard etc. v. Ga. Dept....