Ogletree v. NAVISTAR INTERN. TRANSP., A97A0368.

• Decision Date: 26 January 1999
• Docket Number: No. A97A0368.,A97A0368.
• Parties: OGLETREE v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION.
• Court: Georgia Court of Appeals

511 S.E.2d 204

236 Ga. App. 89

OGLETREE v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION.

No. A97A0368.

Court of Appeals of Georgia.

January 26, 1999.

Certiorari Granted May 14, 1999.

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, Athens, for appellant.

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Jeffrey S. Burton, Tara R. Simkins, Atlanta, for appellee.

BEASLEY, Presiding Judge.

Now in its fifth appearance before this Court, this tortured and protracted litigation arising from a 1984 accident involving a cab and chassis manufactured in 1978 conjures up images of the generations-long odyssey of Jarndyce v. Jarndyce of Bleak House fame: "And thus, through years and years, and lives and lives, everything goes on, constantly beginning over and over again, and nothing ever ends. And we can't get out of the suit on any terms, for we are made parties to it, and must be parties to it, whether we like it or not."¹ The law sometimes weaves its garment painstakingly slowly.

Factual Background

Dickens' lament notwithstanding, we address the task at hand. We recap the facts from Ogletree v. Navistar Intl. Transp. Corp.² "On March 10, 1984, Campbell drove his fertilizer spreader truck to Colbert Seed Company to pick up a load of ammonia nitrate. The fertilizer was located in a compartmentalized bulk-transport trailer called a `Killebrew' which required off-loading from the side. The Killebrew was equipped with a hydraulic motor to transfer its contained material to the transport vehicle, which motor could be quite loud.

"The decedent, a salesman for an agricultural supply company, met Campbell at the seed company and rode on the running board of Campbell's truck to the area where the Killebrews were located. The decedent located the correct Killebrew, told Campbell, and disappeared from Campbell's view. Campbell pulled up and, aided by his rearview mirrors, began to back around to come up alongside a Killebrew different from the one designated by the decedent. Having turned his back to the approaching vehicle, the decedent was standing at the presenting end of the correct Killebrew; its engine was probably running. Campbell's view of the decedent being blocked by the fertilizer spreader body, Campbell struck and killed the decedent as Campbell mistakenly backed his truck up to the adjacent Killebrew.

"Defendant Navistar International Transportation Corporation's corporate predecessor manufactured the cab and chassis of the vehicle in 1978 and sold same to Penske Leasing. At that time, audible back-up alarms were available as optional equipment on the cab and chassis, but Penske did not request such a device, and one was not installed. Penske then had a van body installed on the vehicle, used the truck for some years, and then sold same to a Chevrolet dealership, which in turn sold the truck to Campbell. At Campbell's request, the dealership removed the van body before delivering it to him. After having a repair facility shorten the chassis and frame rail of the vehicle, Campbell employed Newton Crouch, Inc. to mount a fertilizer spreader body on the chassis. No back-up alarm was added at any time, and the vehicle did not have an alarm when it struck Ogletree. In approximately 20 years of being in the fertilizer business, Campbell had never seen a fertilizer spreader with a back-up alarm, nor had any other witness (expert or otherwise) who testified at trial."

Procedural Background

Mrs. Ogletree, individually and as administratrix, sued Navistar for product liability, alleging a design defect in Navistar's failure to install an audible back-up alarm as standard equipment on the original chassis. The court granted summary judgment to Navistar, reasoning that the absence of the back-up alarm was open and obvious.

In Ogletree v. Navistar Intl. Transp. Corp.³ ("Ogletree I") we reversed the grant of summary judgment to Navistar, holding the "open and obvious" rule inapplicable because Navistar did not establish that decedent subjectively knew of the immediate hazard or appreciated the danger he was in as the truck backed up. Four months later Weatherby v. Honda Motor Co.⁴ overruled Ogletree I, holding that to apply the open and obvious rule the injured party did not need to know subjectively of the danger but only objectively should have known. Weatherby specifically held summary judgment should have been granted to Navistar. ⁵

Navistar Intl. Transp. Corp. v. Ogletree⁶ ("Ogletree II") then held that under the law of the case rule, Navistar could not again seek summary judgment based on Weatherby unless the evidentiary posture of the case had changed, which it had not.

A jury awarded Ogletree funeral and medical expenses only, with nothing for the life of the decedent or for pain and suffering. The court denied Ogletree's motion for new trial, granted Navistar's j.n.o.v. motion, and did not rule on Navistar's conditional motion for new trial. Both parties appealed, and in Ogletree v. Navistar Intl. Transp. Corp.⁷ ("Ogletree III") we remanded the matter for a ruling on Navistar's conditional motion for new trial. The trial court denied that motion.

Ogletree v. Navistar Intl. Transp. Corp.⁸ ("Ogletree IV") held that the evidence at trial was materially different from that submitted on the earlier motion for summary judgment, and therefore the open and obvious rule discussed in Weatherby controlled to require j.n.o.v. in Navistar's favor.

The Supreme Court reversed in Ogletree v. Navistar Intl. Transp. Corp.⁹ ("Ogletree V"), holding that Banks v. ICI Americas¹⁰ had implicitly overruled Weatherby and the "open and obvious" rule followed therein. The Court held that in adopting the risk-utility analysis for determining whether a product was defectively designed, Banks enumerated numerous factors, of which the patency of the defect was but one and was not alone determinative.¹¹ The matter has now been remanded to us.

1. As we stated in Ogletree IV, "[t]he j.n.o.v. motion set forth three separate and independent grounds: (1) the law of the case rule no longer applied [and thus the Weatherby ruling controlled]; (2) there was no evidence that Navistar was negligent in its design and manufacture of the cab and chassis; and (3) any possible defect in the design was not a proximate cause of the damages sustained."¹² Because we affirmed on the first ground, we did not reach the second or third ground. Having been reversed on the first ground, we now address the second ground and affirm on that basis.

The question of negligent or defective design need not always be decided by the jury. The burden is on the plaintiff to present evidence that the manufacturer acted negligently, by showing the risks inherent in a product design outweigh the utility or benefit derived from the product. "This risk-utility analysis incorporates the concept of `reasonableness,' i.e., whether the manufacturer acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk.

"`When a jury decides that the risk of harm outweighs the utility of a particular design (that the product is not as safe as it should be), it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have. Conceptually and analytically, this approach bespeaks negligence.'"¹³

Thus, the general negligence principles discussed in Ogletree I apply. Ogletree I cited OCGA § 51-1-2, which provides that "ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.... The absence of such diligence is termed ordinary negligence."¹⁴ To obtain summary judgment, Ogletree I held that Navistar had to show "as a matter of law that an ordinarily prudent manufacturer would not install the alarm."¹⁵ Relevant to the inquiry were "the trade custom and industry practice" and the foreseeability of this harm.¹⁶ Banks pointed out that "a manufacturer's proof of compliance with industry-wide practices, state of the art, or federal regulations does not eliminate conclusively its liability for its design of allegedly defective products."¹⁷ Nevertheless, "[t]hat is not to say that evidence of such compliance is not significant, for it is. But, instead of acting as an impenetrable shield from liability, compliance, more appropriately, is to be a piece of the evidentiary puzzle."¹⁸

With these principles in mind, we turn to the undisputed evidence. It demonstrates that (a) no fertilizer spreader vehicle has ever had a back-up alarm; (b) no government regulation, industry standard, trade custom, industry practice, nor industry study requires nor recommends a back-up alarm on this vehicle; (c) the industry practice is that original manufacturers do not install back-up alarms as standard equipment on cab and chassis units; (d) the industry practice is also that the body builder or the final stage manufacturer will install back-up alarms where needed or requested by the customer; (e) there was no evidence that a fertilizer spreader had previously injured someone while backing up; (f) the operation of a fertilizer spreader truck rarely involves backing up, for the spreader will not work unless the truck is going forward; (g) the normal operation of a fertilizer spreader is in a rural environment with no people around; (h) a wide variety of bodies could have been placed on the cab and chassis at issue, some of which would have no need for a back-up alarm and some of which require that alarms be placed on the truck body, not the chassis;¹⁹ (i) at the time Navistar sold the cab and chassis to Penske, Navistar offered a back-up alarm option, which Penske chose not to accept; and (j) the absence...