Hall v. Scott USA, Ltd.

• Decision Date: 05 December 1990
• Docket Number: No. A90A1192,A90A1192
• Citation: 400 S.E.2d 700,198 Ga.App. 197
• Parties: , Prod.Liab.Rep. (CCH) P 12,759 HALL v. SCOTT USA, LTD. et al.
• Court: Georgia Court of Appeals

Page 700

400 S.E.2d 700

198 Ga.App. 197, Prod.Liab.Rep. (CCH) P 12,759

HALL v. SCOTT USA, LTD. et al.

No. A90A1192.

Court of Appeals of Georgia.

Dec. 5, 1990.

Rehearing Denied Dec. 20, 1990.

Certiorari Denied Jan. 31, 1991.

Bedford, Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, Atlanta, for appellant.

Duncan & Mangiafico, George E. Duncan, Jr., Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Robert W. Browning McLain & Merritt, Howard M. Lessinger, Atlanta, for appellees.

COOPER, Judge.

Appellant brought this products liability action for injuries to his eye sustained in a fall from a motorcycle during a motorcross event. At the time of his injury, appellant was wearing protective goggles, and attached to the goggle lens was a cleaning device called "Roll-Off's by Smith" which broke apart upon impact with the ground causing the injuries. The complaint alleged strict liability in tort and negligence and charged that under the names "Scott," "Smith Goggles" and "Smith Goggle Company," appellees Scott USA, Ltd. ("Scott") and its general partner, CTF Enterprises, Inc. ("CTF"), defectively manufactured and designed Roll-Off's and failed to provide warnings of the hazards of using the product. Appellees answered the complaint and denied designing, manufacturing, marketing or distributing Roll-Off's or its packaging and further denied doing business as "Smith Goggles" or "Smith Goggle Company." Appellees filed a third-party claim against DFG, Inc., Michael Brunnetto-Trustee, Irene Bardeen Alpine Trust and Smith Goggles alleging they were the actual designers, manufacturers and distributors. After discovery proceeded between appellees and third-party defendants, appellant amended his complaint to allege instead that appellees manufactured the lens and goggle in conjunction with third-party defendants; that third-party defendants, doing business as "Sport Optics" and "Smith Goggles," actually assembled Roll-Off's and attached it to the goggle lens; and that appellees authorized the marketing of its products under the names "Smith" or "Roll-Off's." Appellant moved to add third-party defendants as party defendants, and the trial court denied the motion. Appellees moved for summary judgment, and appellant requested a continuance of the hearing on the motion for summary judgment pursuant to OCGA § 9-11-56(f) to allow for additional discovery. The trial court denied appellant's motion for a continuance but granted the motion for summary judgment, and this appeal followed.

1. In his first enumeration of error, appellant contends the trial court erred in denying his motion to add and change the designation of third-party defendants. Appellant's injury occurred on February 1, 1987, and appellees' action against third-party defendants was filed on September 1, 1988. The two-year statute of limitation on appellant's action expired on January 31, 1989, and six months later, on July 28, 1989, appellant moved the court to add and change the designation of the parties pursuant to OCGA §§ 9-11-14 and 9-11-21. In the original complaint, in addition to naming Scott and CTF as defendants, appellant stated that he anticipated adding "some individuals who are all presently residents of the State of Idaho who participated in the design, fabrication and manufacture of the product giving rise to the within stated claim" and argues on appeal that on the basis of that statement which he contends constituted a proper "John Doe" pleading (OCGA § 9-11-10(a)), he should have been permitted to add or redesignate third-party defendants as party defendants pursuant to OCGA § 9-11-15(c) despite the running of the statute of limitation. Appellant argues that the third-party defendants received notice of the action and their defense would not have been prejudiced if they had been redesignated as party defendants.

In Robinson v. Bomar, 122 Ga.App. 564(2), 177 S.E.2d 815 (1970), this court held that leave of court is required to change a third-party defendant to a party defendant concluding that the change materially altered the status and exposure of the third-party defendant. In Robinson, since the plaintiffs did not obtain leave of court and no order was taken making the third-party defendant a party defendant within the applicable statute of limitation, the court held that the plaintiffs were barred by the statute of limitation from asserting their claim against the third-party defendant. Robinson, supra at 568, 177 S.E.2d 815. In the instant case, appellant sought leave of court six months beyond the statute of limitation; however, appellant argues on appeal that the instant case is distinguishable because the original complaint was filed as a "John Doe" pleading. "OCGA § 9-11-10 provides that a complaint may designate a party whose name is not known by any name and when the true name is determined, 'the pleading may be amended accordingly.' OCGA § 9-11-15 allows for amending pleadings to change parties at any time before the pretrial order is entered ... such an amendment will relate back for purposes of the applicable statute of limitation [if certain conditions are met]." Harper v. Mayor etc. of Savannah, 190 Ga.App. 637(1), 380 S.E.2d 78 (1989). In the instant case, appellant named only Scott USA and CTF Enterprises and did not designate an unknown defendant by "John Doe" or any other fictitious name; therefore, the complaint was not an effective "John Doe" pleading pursuant to OCGA § 9-11-10. However, OCGA § 9-11-15 has not been restricted to instances in which parties are substituted, but OCGA § 9-11-15(c) has been broadly interpreted "to sanction relation back of amendments which add or drop parties...." Cobb v. Stephens, 186 Ga.App. 648, 649, 368 S.E.2d 341 (1988). None of the cases interpreting the statute in this regard has done so in the context of the addition of the third-party defendant after the expiration of the statute of limitation. In Robinson, concerning the addition of a third-party defendant, this court held that "the adding or dropping of parties requires the exercise of a discretion by the court...." Robinson, supra at 567, 177 S.E.2d 815. In the exercise of its discretion in determining whether to add parties pursuant to OCGA § 9-11-21, the trial court should consider "whether the new party will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and serve the new party previously. [Cits.]" Horne v. Carswell, 167 Ga.App. 229, 230, 306 S.E.2d 94 (1983). In Bil-Jax, Inc. v. Scott, 183 Ga.App. 516, 517, 359 S.E.2d 362 (1987), the court stated that motions to amend were to be left to the discretion of the trial court, which would consider whether the party sought to be added "knew or should have known that the [action] would have been brought against it." Bil-Jax, supra at 517, 359 S.E.2d 362. While the record demonstrates that third-party defendants were aware of the appellant's charges against appellees at least as of the filing of the third-party complaint on September 1, 1988, and were defending against appellees' claims by October, 1988, appellant offered no excuse for the delay in attempting to add third-party defendants. Accordingly, we find that in the exercise of its discretion, the trial court did not err in denying appellant's motion.

2. Appellant next contends the trial court erred in granting the motion for summary judgment on the basis that appellees did not design, fabricate, manufacture, market or distribute Roll-Off's, nor were they aware of modifications or alterations made to its lens by subsequent purchasers which required appellees to warn against such alterations. Viewing the evidence in favor of appellant, the party opposing the motion for summary judgment, we find the following: The packaging indicates that Roll-Off's is a film advance system manufactured by Smith Goggle. It consists of a roll of clear plastic which extends in front of a goggle lens so that when mud is thrown on the lens, the film can be advanced from a canister mounted on one side of the lens to a canister on the other end thereby providing the wearer with a clear view through the plastic film. Roll-Off's can be purchased pre-mounted on lenses made by Smith and by appellees, yet are also adaptable to many other lenses and shields. In the instant case, the Roll-Off's was pre-mounted on a lens manufactured by appellees and worn by appellant in goggles also manufactured by appellees. The box in which the product was purchased bore Scott's name in two places. The back of the box read, "Roll-Off's are available premounted on SMITH or Scott goggle lenses. Adaptable to many other lenses and shields," and the side read, "Mounted on SCOTT Lexan Lens." Most prominent on the box, however, was the name of the product, Roll-Off's by Smith. Interrogatory responses reveal that Smith Goggle was a trademark owned by Sport Optics, a general partnership of which Irene Bardeen Alpine Trust was a principal, and that Sport Optics had a contract with DFG, Inc., for the assembly of the canisters, the mounting of the canisters to lenses and distribution of the product. Appellant'...