Sharpnack v. Hoffinger Industries, Inc.
| Decision Date | 05 December 1996 |
| Docket Number | No. A96A1229,A96A1229 |
| Citation | 223 Ga.App. 833,479 S.E.2d 435 |
| Parties | , Prod.Liab.Rep. (CCH) P 14,841, 96 FCDR 4398 SHARPNACK et al. v. HOFFINGER INDUSTRIES, INC. |
| Court | Georgia Court of Appeals |
Mozley, Finlayson & Loggins, Robert M. Finlayson, II, Richard D. Hall, Atlanta, for appellants.
Finley & Buckley, Timothy J. Buckley, III, Atlanta, for appellee.
Stephen Sharpnack suffered injuries which rendered him a quadriplegic when he dived from a mini-trampoline into an above ground swimming pool owned by Jerry Morris and Mary Ann Morris. This incident occurred the first day the Morrises opened their pool for use in 1989. Stephen Sharpnack, then 15 years old, had used the pool on several occasions the previous summer and was familiar with the pool's uniform three and a half to four foot depth. He was also familiar with hazards associated with diving into such shallow water, explaining during his deposition that he and other swimmers at the Morrises' pool always performed dives "at an angle" to avoid hitting that pool's bottom. He judged, however, that the "watermelon" dive he executed from the surrounding deck at the Morrises' pool was safe because this particular dive called for an immediate "flip" or somersault upon contact with the water's surface. He deposed that he would have never attempted this or any other dive at the Morrises' pool had there been visible warning signs cautioning him against diving into the pool's shallow water.
Patricia Sharpnack, individually and as Stephen Sharpnack's mother, guardian and next friend, filed a products liability action against the manufacturer of the Morrises' pool, Hoffinger Industries, Inc., and the pool's retail distributor, Olympus Pools, Inc., asserting negligence claims against both Hoffinger and Olympus and strict liability claims against Hoffinger, under OCGA § 51-1-11(b), for placing the allegedly defectively designed pool on the market without adequate warning signs. The Sharpnacks later filed an amended complaint, alleging in pertinent part that Hoffinger and Olympus negligently administered two retrofit and notification campaigns aimed at providing customers, such as the Morrises who purchased their pool on April 17, 1984, with warning signs and information regarding known hazards associated with using Hoffinger's above ground swimming pools.
The Sharpnacks dismissed their claims against Olympus after settlement negotiations and moved to strike Hoffinger's defensive pleadings based on alleged discovery abuses. The trial court entered an order questioning Hoffinger's good faith and candor in responding to discovery requests, but found that striking Hoffinger's answer was not an appropriate sanction at that time. The Sharpnacks filed another amended complaint, alleging Hoffinger's fraudulent discovery abuses resulted in the destruction of material evidence. 1
The trial court entered an order granting Hoffinger's motion for summary judgment. This order provides: This appeal followed.
1. We agree with the trial court that Stephen Sharpnack assumed the risk of his injuries. In this tragic case, Sharpnack's own actions constituted the sole proximate cause of his injuries. The dissent in this case, while agreeing with the trial court that Sharpnack assumed the risk of his injuries, would reverse the trial court, based on the Supreme Court's holding in Banks v. ICI Americas, 264 Ga. 732, 450 S.E.2d 671 (1994), and allow a jury to apply the risk-utility analysis adopted in that case. Banks does not mean that summary judgment is no longer appropriate in any case in which a design defect is alleged. The Supreme Court, in adopting the risk-utility analysis, clearly did not intend to preclude summary judgment in a case such as the one before us, in which it is palpably clear that the plaintiff assumed the risk of his injuries and as clear that his own action was the sole proximate cause of his injuries.
Although Banks was decided almost two years ago, whether the risk-utility analysis itself, or the language of our Supreme Court in adopting that analysis in Georgia, precludes summary adjudication in product liability cases is an issue which has not been before us for consideration. At least two federal district courts in Georgia have addressed the issue, however. In Morris v. Clark Equipment Co., 904 F.Supp. 1379 (M.D.Ga.1995) the middle district granted summary judgment to the defendant-manufacturer based on the application of the open and obvious danger rule. Under the facts of that case, the court found that the risk-utility balancing test under Banks was satisfied as a matter of law by the plaintiff's acknowledgement that he was aware of the potential danger of moving parts on the forklift which caused his injuries and his admission that he could have totally avoided the danger. Id. at 1383(11).
In denying defendant-manufacturer's motion for summary judgment based on an open and obvious defense, the northern district in Raymond v. Amada Co., Ltd., 925 F.Supp. 1572 (N.D.Ga., 1996) observed that "the Georgia Supreme Court's recent decision in Banks has impliedly overruled the open and obvious doctrine as applied to products liability design defect cases." But the court noted that its finding did not necessarily foreclose summary judgment in all products liability cases decided after Banks. Id. at 1578. After distinguishing between the open and obvious rule from the defense of assumption of the risk, the court concluded that assumption of the risk remains a viable defense in product defect cases. Id. at 1579. In reaching this conclusion, the court reviewed the law in the jurisdictions cited by the Supreme Court in Banks and found that assumption of the risk remains a defense in those jurisdictions which have adopted a risk-utility analysis. While the court in Raymond found summary judgment inappropriate on the facts of that case, it is instructive to us for its conclusion that summary judgment based on an assumption of the risk defense is not barred by Banks. It would be a misuse of judicial resources to require that those cases in which the facts are clear, palpable and indisputable be submitted to a jury.
2. Contrary to the Sharpnacks' assertions, we find that the trial court did not manifestly abuse its discretion in refusing to strike Hoffinger's answer because of Hoffinger's alleged discovery abuses. Relying on Millholland v. Oglesby, 223 Ga. 230, 154 S.E.2d 194 (1967), the Sharpnacks argue that a trial court has the inherent power to sanction a party who has abused the discovery process. They argue that the court has the inherent power to strike an answer or, as in Millholland, indefinitely stay an action when a party's conduct has been so opprobrious as to deny the opposition its constitutional due process rights. After reviewing the voluminous record in this case it is clear that Hoffinger repeatedly abused both the letter and spirit of the Civil Practice Act. We share the trial court's doubts about the good faith and candor of Hoffinger. Nonetheless, Sharpnack has not been deprived of his constitutional rights, and the trial court's refusal to exercise its inherent authority to sanction under OCGA § 24-4-22 by striking Hoffinger's answer was not reversible error.
3. The trial court did not grant or deny summary judgment with regard to the claims asserted in the Sharpnacks amended complaint. We therefore have no jurisdiction to consider issues not ruled upon by the trial court.
Judgment affirmed.
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