ICI Americas, Inc. v. Banks

• Decision Date: 26 June 1995
• Docket Number: No. A93A1303,A93A1303
• Parties: ICI AMERICAS, INC. v. BANKS et al.
• Court: Georgia Court of Appeals

Page 797

460 S.E.2d 797

218 Ga.App. 237

ICI AMERICAS, INC. v. BANKS et al.

No. A93A1303.

Court of Appeals of Georgia.

June 26, 1995.

Reconsideration Denied July 31, 1995.

Certiorari Granted Dec. 4, 1995.

Certiorari Denied Dec. 5, 1995.

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

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

ANDREWS, Judge.

In Banks v. ICI Americas, 264 Ga. 732, 450 S.E.2d 671 (1994), the decision of this Court in ICI Americas v. Banks, 211 Ga.App. 523, 440 S.E.2d 38 (1993), was affirmed in part, reversed in part, and remanded to this Court with directions. Accordingly, the portion of our decision which was reversed by the decision of the Supreme Court is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court.

In remanding the case, the Supreme Court directed "that a new trial be granted unless a new trial is precluded by the Court of Appeals' resolution of the remaining enumerations of error." Banks v. ICI Americas, supra at 737, 450 S.E.2d 671. In concluding that the plaintiffs are entitled to a new trial unless precluded by the remaining enumerations of error, the Supreme Court held that "a review of the record reveals that the evidence, the parties' objections thereto, and the arguments made during trial, as well as certain rulings of the trial court and the instructions given to the jury regarding its consideration of the evidence, were governed in reliance upon holdings of this Court using a legal analysis we now determine to be inapplicable to design defect claims. Hence, plaintiffs are entitled to a new trial on their claim that ICI's rodenticide was defectively designed, consistent with the appropriate test for design defect claims set forth in this opinion." Id. at 737, 450 S.E.2d 671.

Thus, after changing the existing rule and announcing a new rule for design defect claims, the Supreme Court held that the new rule be retroactively applied to the design defect claim against ICI in a new trial. ¹ Our task on remand is to determine whether a new trial applying the new rule would be precluded by any of ICI's remaining enumerations of error not previously addressed by this Court or the Supreme Court. Although it is difficult to understand how any claim of error in the first trial under the old rule could possibly preclude a new trial based on the new rule, we nevertheless address the following enumerations of error made by ICI based on the evidence admitted at the first trial.

1. ICI claimed that it was entitled to summary judgment or a directed verdict because the plaintiffs failed, as a matter of law, to prove that the design defects complained of were the proximate cause of the child's death. We cannot conclude that the plaintiffs would be unable to present evidence at a new trial under the new rule sufficient to create a jury question as to proximate cause. Accordingly, this enumeration does not preclude a new trial.

2. ICI contended that the plaintiffs failed, as a matter of law, to present evidence sufficient to support an award for punitive damages. This enumeration does not preclude a new trial on the design defect claim.

Nevertheless, we conclude that, under the law as it existed prior to the new rule adopted in Banks v. ICI Americas, supra, there was no evidence supporting an award of punitive damages against ICI for design defects. Although the Supreme Court has determined that the design defect claim must be re-tried under the new rule, we do not believe the Supreme Court intended retroactivity to also extend to the possible imposition of punitive damages against ICI if a jury finds it failed to comply with the new standard of conduct which did not exist when the case arose. "Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." OCGA § 51-12-5.1(b). Since ICI was not subject to imposition of punitive damages for its actions taken under the old design defect rule, we conclude that punitive damages may not be awarded against ICI under the provisions of OCGA § 51-12-5.1(b) in a new trial for any failure to comply with the new design defect standard adopted by the Supreme Court. See Tifton Bank & Trust Co. v. Knight's Furniture Co., 215 Ga.App. 471, 475, 452 S.E.2d 219 (1994); Cotton States Mut. Ins. Co. v. McFather, 251 Ga. 739, 743, 309 S.E.2d 799 (1983).

3. None of the remaining enumerations of error precludes a new trial. We address them only to the extent they raise legal issues which may recur in a new trial.

(a) We agree with ICI's claim that the trial court erred to the extent it instructed the jury with respect to any Environmental Protection Agency (EPA) reporting regulations which were not in effect during the period of time the plaintiffs claim ICI failed to comply with EPA reporting requirements.

(b) Any enumeration of error concerning the trial court's ruling on the adequacy of warnings given by ICI with respect to its product are controlled by the holding of this Court, affirmed by the Supreme Court, that the Federal Insecticide, Fungicide and Rodenticide Act preempts the plaintiffs' claims that warnings were inadequate or inaccurate. Banks v. ICI Americas, supra at 737, 450 S.E.2d 671.

(c) Since punitive damages against ICI are inapplicable in a new trial, plaintiffs' exhibit 150, admitted in the first trial for the purpose of showing financial condition on the issue of punitive damages, is no longer admissible for this purpose.

(d) Since the issue is not likely to recur on re-trial, we decline to address the claim that a proper foundation was not laid to authenticate plaintiffs' exhibit 40.

Since none of ICI's enumerations of error precludes a new trial, we remand the case to the trial...