Sheckells v. AGV-USA Corp.

• Decision Date: 08 April 1993
• Docket Number: No. 92-8646,AGV-USA,92-8646
• Parties: Prod.Liab.Rep. (CCH) P 13,460 Charles SHECKELLS, Natural Father and Guardian of The Person of John R. Sheckells, An Incapacitated Adult, Plaintiff-Appellant, v.CORPORATION, Defendant, AGV, S.P.A., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1532

987 F.2d 1532

Prod.Liab.Rep. (CCH) P 13,460

Charles SHECKELLS, Natural Father and Guardian of The Person

of John R. Sheckells, An Incapacitated Adult, Plaintiff-Appellant, v. AGV-USA CORPORATION, Defendant, AGV, S.P.A., Defendant-Appellee.

No. 92-8646.

United States Court of Appeals, Eleventh Circuit.

April 8, 1993.

Guy E. Davis, Jr., Atlanta, GA, for plaintiff-appellant.

J. Robert Persons, Robert E. McLaughlin, Lord, Bissell & Brook, Atlanta, GA, Rudolph V. Pino, Jr., John F. Schutty, White Plains, NY, for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and BIRCH, Circuit Judges, and KAUFMAN ^*, Senior District Judge.

BIRCH, Circuit Judge:

Plaintiff Charles Sheckells ("Sheckells"), the natural father and guardian of John Sheckells, an incapacitated adult, appeals from the grant of summary judgment in favor of AGV, S.p.A ("AGV"), a defendant in the underlying product liability action. The grant of summary judgment in favor of AGV is AFFIRMED IN PART and REVERSED IN PART.

I. BACKGROUND

John Sheckells was injured when he lost control of his motorcycle after striking debris in the road. ¹ At the time of the accident, he was wearing a helmet manufactured by AGV. On behalf of his son, Sheckells filed suit against AGV and AGV-USA, ² alleging that the helmet was defectively designed and manufactured and that the defendants failed to warn that the helmet would not afford any significant protection from certain reasonably foreseeable impacts. On appeal, Sheckells has abandoned his theory of defective design and appeals the judgment only upon the failure to warn theory.

When purchased, the helmet contained a warning label affixed to the inside of the helmet, stating in substance that "some reasonably foreseeable impacts may exceed this helmet's capability to protect against severe injury or death." R2-Burton Depo. at 88. In addition, the helmet was packaged with a consumer notice that informs the purchaser that "[y]our helmet is the single most important piece of safety equipment you own and should be treated as such." Id., Ex. F. The notice further states that "NO HELMET, including your AGV helmet, can protect the wearer against all foreseeable impacts" and that "NO WARRANTY OR REPRESENTATION IS MADE AS TO THIS PRODUCT'S ABILITY TO PROTECT THE USER FROM ANY INJURY OR DEATH. THE USER ASSUMES ALL RISKS." Id.

In opposition to summary judgment, Sheckells offered the deposition testimony of Dr. Joseph L. Burton, the Chief Medical Examiner for the City of Atlanta. ³ With regard to the failure to warn claim, Dr. Burton testified that Department of Transportation and Snell Memorial Foundation impact tests are conducted at speeds of only 15 to 20 miles an hour and that no motorcycle helmet marketed today provides any assurance of protecting the wearer from facial or brain injury at speeds of 30 or 45 miles an hour. Further, he opined that the average purchaser of a helmet would not know these facts.

The district court entered summary judgment in favor of AGV on the failure to warn theory on the ground that it was open and obvious that the AGV helmet would not protect an operator traveling at 30 to 45 miles an hour. Sheckells appeals the grant of summary judgment.

II. DISCUSSION

Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on AGV's motion, the district court was required to view the evidence in the light most favorable to the plaintiff. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). AGV urges that under Georgia law summary judgment is appropriate based on the open or obvious nature of a product-related hazard in "plain and palpable cases." Coast Catamaran Corp. v. Mann, 171 Ga.App. 844, 321 S.E.2d 353, 357 (1984), aff'd, 254 Ga. 201, 326 S.E.2d 436 (1985). As discussed below, we do not consider that this case is either plain or palpable under Georgia law. Whether a factual issue is to be determined by the judge on motion for summary judgment or by the trier of fact after the presentation of evidence, however, is a procedural issue governed by federal law. ⁴

In this diversity action, AGV's duty to warn of hazards posed by the use of its products is determined by Georgia law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Georgia law, a manufacturer is subject to liability for failure to warn if it "(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous." Greenway v. Peabody Int'l Corp., 163 Ga.App. 698, 703, 294 S.E.2d 541, 545-46 (1982) (quoting Restatement (Second) of Torts § 388). Georgia law imposes no duty on a manufacturer to warn of a danger associated with the use of its product if that danger is open or obvious.

[T]here is no duty resting upon the manufacturer or seller to warn of a product-connected danger which is obvious, or of which the person who claims to be entitled to warning knows, should know, or should, in using the product, discover.

294 S.E.2d at 546 (quoting Annotation, Products Liability--Duty to Warn, 76 A.L.R.2d 9, 28-29 (1961)). ⁵

At his deposition, Dr. Burton testified that, although no motorcycle helmet on the market today would provide any assurance of protecting an operator from facial or brain injury at a speed of 30 to 45 miles an hour, "the average buyer of a helmet would not know that." Burton Depo. at 66-67. Dr. Burton also testified that representations made by vendors of motorcycles and helmets may lull a purchaser into a false sense of security regarding the amount of protection provided by a helmet. Dr. Burton concluded that, in order to dispel this impression, some warning should accompany the helmet to educate the user that the helmet provides no significant protection at speeds exceeding 30 to 45 miles an hour. Thus, Dr. Burton's deposition, viewed in the light most favorable to the plaintiff, suggests that the failure of a motorcycle helmet to protect the wearer at speeds over 30 to 45 miles an hour is not an open or obvious danger.

AGV presented no evidence tending to show that it is open or obvious that its helmet would not protect the wearer at speeds of 30 to 45 miles an hour. That the parties' experts agree that no helmet currently marketed could protect a wearer traveling at speeds of 45 miles an hour does not mean that this fact is patent to a purchaser. Presumably, these experts are "expert" for the reason that they possess knowledge not generally shared with the public. As noted by the Greenway court, the focus of the open or obvious danger rule is upon "those for whose use the chattel is supplied." 294 S.E.2d at 545-46.

The district court relied on several Georgia cases for the proposition that "it is a matter of common knowledge that operating a motorcycle carries with it certain inherent dangers." R2-47-15 (citing Barnes v. Harley-Davidson Motor Co., 182 Ga.App. 778, 357 S.E.2d 127 (1987) and Hunt v. Harley-Davidson Motor Co., 147 Ga.App. 44, 248 S.E.2d 15 (1978)). While recognizing the inherent hazard of operating a motorcycle, these cases do not establish as a matter of Georgia law that safety precautions, such as a helmet, openly and obviously provide insignificant protection at speeds of 30 to 45 miles an hour. Further, those cases where the Georgia courts have concluded that a peril associated with a product is open or obvious suggest that summary judgment was inappropriate based on the factual record before the district court. The Georgia courts have determined that, under certain circumstances, operating a product without the safety features included by the manufacturer is an open or obvious hazard. See, e.g., Weatherby v. Honda Motor Co., 195 Ga.App. 169, 393 S.E.2d 64, 67 (1990) (danger in operating motorcycle with uncapped fuel tank is open and obvious). Additionally, the Georgia cases reveal that the observable absence of a safety feature is likely to be considered an open and obvious danger. See, e.g., Barnes, 357 S.E.2d at 130 (operating motorcycle with dim headlamp and no crash bars is open or obvious hazard); Hunt, 248 S.E.2d at 16 (absence of crash bars on motorcycle is open and obvious); Poppell v. Waters, 126 Ga.App. 385, 190 S.E.2d 815, 817 (1972) (open and obvious that riding bicycle at night without headlight or front reflector is dangerous). ⁶ In each of these cases, however, the absence of the safety feature in question was apparent to the purchaser by a simple visual inspection. By contrast, it is not obvious from an observation of the AGV helmet that this product provides only minimal protection against collision when the motorcycle is operated at speeds of 30 to 45 miles an hour. Conceivably, a purchaser might expect more from "the single most important piece of safety equipment" that he or she owns. R2-Burton Depo., Ex. F. Further, Dr. Burton's testimony suggests that the...