ICI Americas, Inc. v. Banks, A93A1303

• Citation: 211 Ga.App. 523,440 S.E.2d 38
• Decision Date: 03 December 1993
• Docket Number: No. A93A1303,A93A1303
• Parties: , Prod.Liab.Rep. (CCH) P 13,825 ICI AMERICAS, INC. v. BANKS et al.
• Court: Georgia Court of Appeals

Page 38

440 S.E.2d 38

211 Ga.App. 523, Prod.Liab.Rep. (CCH) P 13,825

ICI AMERICAS, INC. v. BANKS et al.

No. A93A1303.

Court of Appeals of Georgia.

Dec. 3, 1993.

Reconsideration Denied Dec. 20, 1993.

Certiorari Granted March 17, 1994.

Rogers & Hardin, Phillip S. McKinney, Susan D. Burnell, Schweber, Izenson & Anderson, Barry L. Anderson, Atlanta, Hagler, Hyles & Adams, M. Stephen Hyles, Columbus, for appellant.

Richard A. Childs, Columbus, Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Atlanta, Kelly, Denney, Pease & Allison, Ray L. Allison, Columbus, Doffermyre, Shields, Canfield & Knowles, Robert E. Shields, Atlanta, for appellees.

ANDREWS, Judge.

This products liability action arose from the death of a nine-year-old child, who died after consuming a rat poison product manufactured by ICI Americas, Inc. (ICI). ICI manufactured a rat poison called Talon-G, which was registered by the Environmental Protection Agency (EPA) under the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC § 136-136y (FIFRA). As part of the FIFRA packaging and labeling requirements, Talon-G was packaged in a container with EPA-approved labeling, which displayed warnings cautioning users that it should be kept out of reach of children; that it may be harmful or fatal if swallowed, and that it be stored in its original container in a location inaccessible to children. ICI sold Talon-G only to professional pest control operators. The plaintiffs, the child's parents, produced evidence that a pest control company servicing the Boys Club placed the Talon-G in an unmarked, unlabeled container stored in an unlocked cabinet at the Boys Club. The poison was apparently found in the container at the Boys Club by the child, who consumed a quantity of it.

After the pest control company and the Boys Club settled claims against them, the plaintiffs proceeded to trial against ICI on negligence and strict liability theories claiming Talon-G was negligently or defectively designed such that it was unreasonably dangerous to children, and that it was inadequately labeled. There was evidence that the danger the rat poison would be misused by being consumed by children was foreseeable to ICI, and that ICI withheld data from the EPA on instances of human exposure to the product. Other evidence showed that the danger could have been reduced, and the product made safer by the addition of ingredients which would cause humans, but not rats, to reject it as bitter tasting, or vomit after ingesting it. The jury found for the plaintiffs and awarded $510,000 in compensatory damages and $1,000,000 in punitive damages. Because plaintiffs had already received more than $510,000 in compensatory damages in their settlement with the other defendants, their actual recovery from ICI was reduced to the $1,000,000 awarded as punitive damages.

1. ICI contends the trial court erred in denying its motion for a directed verdict because plaintiffs failed to prove that its product was defective or that it was negligent. "In the subject product-design case, only semantics distinguishes the cause of action for negligence and a cause of action pursuant to OCGA § 51-1-11 [claiming strict liability for defective design]." Coast Catamaran Corp. v. Mann, 171 Ga.App. 844, 848, 321 S.E.2d 353, aff'd 254 Ga. 201, 202, 326 S.E.2d 436 (1985). In both causes of action the manufacturer's conduct is judged by the traditional duty of reasonable care. Id.; Honda Motor Co., Ltd. v. Kimbrel, 189 Ga.App. 414, 418, 376 S.E.2d 379 (1988); Hunt v. Harley-Davidson Motor Co., 147 Ga.App. 44, 248 S.E.2d 15 (1978); Weatherby v. Honda Motor Co., Ltd., 195 Ga.App. 169, 171, 393 S.E.2d 64 (1990); Vax v. Albany Lawn & Garden Center, 209 Ga.App. 371, 433 S.E.2d 364 (1993).

Rat poison is a useful rodent control product, which as designed and manufactured for the purpose of being eaten by rats is obviously a poisonous substance designed to kill rats. Because of its poisonous character, it may also harm or kill human beings who eat it. The poisonous character of rat poison is an inherent characteristic necessary to the usefulness of the product as a rat killer. The product is not defectively or negligently designed simply because it is poisonous nor solely because it may be possible for the manufacturer to make the product safer by reducing the danger resulting from its poisonous character. Center Chemical Co. v. Parzini, 234 Ga. 868, 870, 218 S.E.2d 580 (1975); Weatherby, supra. "[OCGA § 51-1-11] imposes strict liability for defective products. It does not attach the condition that the defective product must be 'unreasonably dangerous' which limitation is included in the classic definition of strict liability. We can not read this into the statute. Strict liability is not imposed under the statute merely because a product may be dangerous. Many products can not be made completely safe for use and some can not be made safe at all. However, such products may be useful and desirable. If they are properly prepared, manufactured, packaged and accompanied with adequate warnings and instructions, they can not be said to be defective. To hold otherwise would discourage the marketing of many products because some danger attended their use. We find nothing in [OCGA § 51-1-11] that makes a manufacturer strictly liable for such products absent a defect." Center Chemical Co., supra 234 Ga. at 870, 218 S.E.2d 580 (question was whether industrial drain cleaner containing almost pure sulfuric acid was defective). "In a products liability case predicated on negligence, the duty imposed is the traditional one of reasonable care and the manufacturer need not provide, from a design standpoint, a product incapable of producing injury. Georgia law does not require a manufacturer to occupy the status of an insurer with respect to product design.... The manufacturer is under no obligation to make a [product] accident proof or foolproof, or even more safe. The public policy enunciated by the legislature is a predominant factor in our determination." (Citations and punctuation omitted.) Weatherby, supra at 170, 393 S.E.2d 64.

"Generally, [i]f a manufacturer does everything necessary to make the [product] function properly for the purpose for which it is designed, if the [product] 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." (Citations and punctuation omitted.) Poppell v. Waters, 126 Ga.App. 385, 387, 190 S.E.2d 815 (1972); Hunt, supra 147 Ga.App. at 46, 248 S.E.2d 15. "[I]f the product is designed so that it is reasonably safe for the use intended, the product is not defective even though capable of producing injury where the injury results from an obvious or patent peril." Coast Catamaran, supra at 847, 321 S.E.2d 353. Moreover, in Georgia under the "open and obvious" or "patent danger" rule a product is not defectively designed if the absence of a safety device is open and obvious, and there is no duty to warn of an obvious danger or one generally known. Ream Tool Co. v. Newton, 209 Ga.App. 226, 228-229, 433 S.E.2d 67 (1993). Under the "open and obvious" rule "[a]ctual knowledge by the user of the danger posed by a product is not necessary.... [Rather, in deciding] whether the peril from which an injury results is latent or patent, the decision is made on the basis of an objective view of the product, and the subjective perceptions of the user or injured party are irrelevant." (Emphasis in original.) Weatherby,supra at 171-172, 393 S.E.2d 64. The manufacturer is generally not liable for injury resulting from an abnormal use of the product, unless the particular unintended use was foreseeably probable. Mann v. Coast Catamaran Corp., 254 Ga. 201, 202, 326 S.E.2d 436 (1985); Ford Motor Co. v. Stubblefield, 171 Ga.App. 331, 335, 319 S.E.2d 470 (1984). However, "if in the normal functioning of a product as designed such functioning creates a danger or peril that is not [objectively] known to the user or bystander, then the manufacturer is liable for injuries proximately caused by such danger. Thus, the manufacturer of a product which, to its actual or constructive knowledge, involves danger to users has a duty to give warning of such danger." (Citations and punctuation omitted.) Ford Motor Co., supra at 335, 319 S.E.2d 470. "A duty to warn of danger in the use of a product extends only to the use of the product in the manner reasonably contemplated and anticipated by the manufacturer. When the use to which the product was being put at the time of injury is not that originally intended by the manufacturer, the determination of whether strict liability may be asserted as a viable theory of recovery or whether the manufacturer is insulated from liability because the use of the product was 'abnormal' and intervening depends, initially, upon the foreseeability that the product would be put to that use." Talley v. City Tank Corp., 158 Ga.App. 130, 137, 279 S.E.2d 264 (1981). Foreseeability in this context means that which would be foreseeably probable or objectively reasonable to expect, not merely what might occur. Greenway v. Peabody Intl. Corp., 163 Ga.App. 698, 704, 294 S.E.2d 541 (1982); Ford Motor Co., supra 171 Ga.App. at 335, 319 S.E.2d 470.

From the foregoing principles it may be gathered that, where a product in its normal functioning, as designed, creates a latent danger, arising from a foreseeably probable unintended use, and the user or injured party could not from an objective point of view appreciate the latent danger, the manufacturer may be held liable on a claim of defective or negligent design for failing to adequately warn of the foreseeable danger. Ford Motor Co., supra; Poppell, supra; Center Chemical Co., supra; see Mann v. Coast Catamaran, supra. In the present case, evidence showed that the product performed as intended as an effective rat killing poison. However,...