Morgan v

Sears, Roebuck & Co., 693 F. Supp. 1154 (N.D. Ga. 1988); Morgan v. Sears, Roebuck & Co., 700 F. Supp. 1574 (N.D. Ga. 1988). Soft drink franchisor, who manufactured and sold syrup to licensed bottling companies who then mixed it with other ingredients, was not liable as a ‘‘manufac- 51-1-11 turer’’ of the finished beverage product, which was sold by the bottlers for their accounts. Tyler v. Pepsico, Inc., 198 Ga. App. 223, 400 S.E.2d 673 (1990), cert. denied, 198 Ga. App. 899, 400 S.E.2d 673 (1991). ‘‘Not merchantable’’ defined. — Term ‘‘not merchantable and reasonably suited for the use intended,’’ under subsection (b) means that the manufacturer’s product when sold by the manufacturer was defective. A defective condition obtains only when the product is, at the time the product leaves the seller’s hands, in a condition not contemplated by the ultimate consumer. Center Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975); Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 248 S.E.2d 15 (1978). Term ‘‘not merchantable and reasonably suited to the use intended’’ as used in O.C.G.A. § 51-1-11 means ‘‘defective.’’ Giordano v. Ford Motor Co., 165 Ga. App. 644, 299 S.E.2d 897 (1983). ‘‘Personal property’’ defined. — Designation ‘‘personal property’’ as used in subsection (b) includes all items manufactured as personal property regardless of whether such item has been affixed to or incorporated into real property after manufacture. Garrett v. Panacon Corp., 130 Ga. App. 641, 204 S.E.2d 354 (1974). There is no reason for distinguishing between product itself and container in which it is supplied. Center Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975). Stream of commerce — Sale is not an absolute prerequisite to a finding that a product has been placed in the stream of commerce for purposes of subsection (b) of O.C.G.A. § 51-1-11. Monroe v. Savannah Elec. & Power Co., 267 Ga. 26, 471 S.E.2d 854 (1996). In determining whether electricity had been placed in the stream of commerce for purposes of strict liability, the relinquishment of control over the electricity and/or the marketable condition of that electricity were essential factors. Monroe v. Savannah Elec. & Power Co., 267 Ga. 26, 471 S.E.2d 854 (1996). Supply of blood by hospital not sale of property within subsection (b). — Hospitals supplying blood to patients do 91 Products Liability (Cont’d) 3. Definitions (Cont’d) so as part of the rendering of medical ‘‘services,’’ rather than as a ‘‘sale’’ of blood, and thus only negligence and not strict products liability is available to the injured patient. McAllister v. American Nat’l Red Cross, 240 Ga. 246, 240 S.E.2d 247 (1977). Product. — Engineering company that designed an allegedly defective reinforcing safety net that was installed in the soil above a combined sanitary and storm sewer, and which failed to prevent a hole from developing, could have been found liable under O.C.G.A. § 51-1-11 as the reinforcing safety net could have been considered a product under a theory of products liability. Tensar Earth Techs., Inc. v. City of Atlanta, 267 Ga. App. 45, 598 S.E.2d 815 (2004). 4. Applicability of Subsection (b) Manufacturer of defective article, which is inherently dangerous, is liable in tort for damages to any person injured by the manufacturer’s negligence, though there is no privity of contract. Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S.E. 118, 20 Am. St. R. 324, 5 L.R.A. 612 (1889); Woodward v. Miller, 119 Ga. 618, 46 S.E. 847, 100 Am. St. R. 188, 64 L.R.A. 932 (1904). Manufacturer is liable if product, when sold, was not merchantable and reasonably suited to use intended and the product’s condition when sold is the proximate cause of the injury sustained. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980). O.C.G.A. § 51-1-11 does not apply to distributors. Hatcher v. Allied Prods. Corp., 796 F.2d 1427 (11th Cir. 1986). Electricity is a product or ‘‘personal property sold as new property’’ when it is in the hands of and under the control of the consumer, intended to be available to the customer at a usable voltage. Monroe v. Savannah Elec. & Power Co., 219 Ga. App. 460, 465 S.E.2d 508 (1995), aff ’d, 267 Ga. 26, 47 S.E.2d 854 (1996). After the decedent was killed by electricity that was not transformed or intended to be transformed for use at the 51-1-11 customer’s facility, there was no basis for a claim against the electric company under paragraph (b)(1) O.C.G.A. § 51-1-11. Monroe v. Savannah Elec. & Power Co., 219 Ga. App. 460, 465 S.E.2d 508 (1995), aff ’d, 267 Ga. 26, 47 S.E.2d 854 (1996). Product seller not a manufacturer. — In an action by an employee for injuries suffered using a paper cutter, when the complaint did not allege any facts showing that the defendant company was a manufacturer under O.C.G.A. § 51-1-11, or that the defendant sold the product as ‘‘new property,’’ the defendant could not be strictly liable. Mullins v. M.G.D. Graphics Sys. Group, 867 F. Supp. 1578 (N.D. Ga. 1994). Corporation which purchased the assets of a manufacturer and sold, but did not manufacture, a product of the design manufactured by its predecessor, was a ‘‘product seller’’ under O.C.G.A. § 51-1-11.1, not a ‘‘manufacturer’’ subject to strict liability under paragraph (b)(1) O.C.G.A. § 51-1-11. Farmex Inc. v. Wainwright, 269 Ga. 548, 501 S.E.2d 802 (1998). When an alleged injured party asserted product liability claims against several retailers for injuries incurred when a plastic gas container being used near a fire exploded, strict liability claims could not survive; market-share liability had been rejected in Georgia, the retailers were not ‘‘manufacturers,’’ and there was no issue regarding the duty to warn. Williamson v. Walmart Stores, Inc., No. (CDL), 2015 U.S. Dist. LEXIS 45657 (M.D. Ga. Apr. 8, 2015). ‘‘First sale’’ not applicable to person injured. — When a spinal plate was first sold for use or consumption in 1972, O.C.G.A. § 51-1-11 barred a patient’s medical product liability claim based on use of the plate in 1988. Pafford v. Biomet, 210 Ga. App. 486, 436 S.E.2d 504 (1993), modified on other grounds, 244 Ga. 540, 448 S.E.2d 347 (1994). Vehicle not manufactured by defendant. — Defendant used-car dealer could not be held liable under a complaint alleging that the plaintiffs’ decedent was killed while driving a used car purchased from the defendant which was defective when manufactured and that the car was cov- 92 ered by an express warranty of merchantability, issued by the defendant at the time of purchase, when the vehicle in question was not manufactured by the defendant. Ryals v. Billy Poppell, Inc., 192 Ga. App. 787, 386 S.E.2d 513 (1989). Proof of defect at time of sale or lease. — Failure of the brakes was not evidence that the brakes were defective at the time plaintiff leased the truck because there were several plausible explanations for the brake failure, including negligent brake repair or excessive trailer weight. Jenkins v. GMC, 240 Ga. App. 636, 524 S.E.2d 324 (1999). Offering for sale or lease, marketing, or placing in stream of commerce, invokes section. — When a manufactured item designed to be sold as new merchandise is initially offered for sale or lease, or otherwise marketed or placed in the stream of commerce, the coverage of O.C.G.A. § 51-1-11 is invoked. Thorpe v. Robert F. Bullock, Inc., 179 Ga. App. 867, 348 S.E.2d 55 (1986), aff ’d, 256 Ga. 744, 353 S.E.2d 340 (1987). Evidence of wilful, reckless, or wanton conduct. — In a negligence action based on the sale of an automobile with an allegedly defectively-designed seat belt retractor mechanism, evidence pertaining to an earlier design was insufficient as a matter of law to establish wilful, reckless, or wanton misconduct since the design had subsequently been modified and there was no evidence to suggest that the modifications were ineffective or failed to correct the earlier problems. Chrysler Corp. v. Batten, 264 Ga. 723, 450 S.E.2d 208 (1994). In the absence of evidence showing that any defendant acted with a willful, reckless, or wanton disregard for life or property, the willful misconduct exception to the statute of repose was inapplicable in an action based on the claim that the defendants were liable for failing to install an alarm on a truck which would have warned bystanders when the truck was moving backwards. Vickery v. Waste Mgmt. of Ga., Inc., 249 Ga. App. 659, 549 S.E.2d 482 (2001). Failure to warn. — Claims based on negligent failure to warn of the danger arising from a defectively-designed seat 51-1-11 belt were not barred by the statute of repose. Chrysler Corp. v. Batten, 264 Ga. 723, 450 S.E.2d 208 (1994). Statute of repose does not apply to ‘‘failure to warn’’ claims. Daniels v. Bucyrus-Erie Corp., 237 Ga. App. 828, 516 S.E.2d 848 (1999). Repairer of machine was not a manufacturer under O.C.G.A. § 51-1-11 because, although the repairer may have assembled component parts, the repairer did not do so for the purpose of having the machine sold as new property under the repairer’s own trade name. Barry v. Stevens Equip. Co., 176 Ga. App. 27, 335 S.E.2d 129 (1985). Product must be defective when sold. — In order to impose strict liability on the manufacturer of a product, the plaintiff must show that the manufacturer’s product when sold by the manufacturer was defective. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980). Test in products liability is whether the product was merchantable and reasonably suited to the use intended as determined at the time the product is sold and when a product is alleged to be ‘‘defective’’ for lack of safety devices, the manufacturer is entitled to have the ‘‘defectiveness’’ of the manufacturer’s product considered in the context of the overall original design of the item; this is especially true when the alleged defect in a product is the absence of safety features on a component of the product which would prevent injury in the event another component fails. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). Product is not in defective condition when the product is safe for normal handling and consumption. Center Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975). Product is not in a defective condition when the product is safe for normal handling. If injury results from abnormal handling, the manufacturer is not liable. Argo v. Perfection Prods. Co., 730 F. Supp. 1109 (N.D. Ga. 1989), aff ’d, 935 F.2d 1295 (11th Cir. 1991). Manufacturer’s duty to make product safe. — If a manufacturer does everything necessary to make the machine 93 Products Liability (Cont’d) 4. Applicability of Subsection (b) (Cont’d) function properly for the purpose for which the machine is designed, if the machine is without any latent defect, and if the machine’s functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands. Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 248 S.E.2d 15 (1978); Wansor v. George Hantscho Co., 595 F.2d 218 (5th Cir. 1979). Product must reach consumer without substantial change. — One of the conditions for imposition of strict liability against a manufacturer of ‘‘defective’’ products is that the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). Determination of whether a component manufacturer is insulated from liability depends upon the extent to which the product is altered by the assembler before the product reaches the ultimate user. Giordano v. Ford Motor Co., 165 Ga. App. 644, 299 S.E.2d 897 (1983). Product offered on trial basis. — When a manufacturer in the business of marketing the manufacturer’s product to an intended consumer offers the use of the product on a trial basis in order to make a sale, O.C.G.A. § 51-1-11 can be applied in a suit for an alleged injury occurring during the trial use. Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 353 S.E.2d 340 (1987). Paragraph (b)(2) operates retroactively. — Paragraph (b)(2) O.C.G.A. § 51-1-11 will operate retroactively to bar claim of a plaintiff injured several months after the limitation period went into effect. Weeks v. Remington Arms Co., 733 F.2d 1485 (11th Cir. 1984). Effects of alteration in product. — When a manufacturer is sued under O.C.G.A. § 51-1-11 for injuries proximately resulting from a defect in the design of the manufacturer’s product existing at the time of sale, obviously if the 51-1-11 design of that product has been independently altered, eliminated, and replaced by a third party after the sale and injuries then result, those injuries cannot be traced to or be the proximate result of the manufacturer’s original design which did not exist at the time of injury; at the time of the tragic accident, the thing being used was not the thing sold. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). Manufacturer may show alteration. — When the alleged defect in a product is the absence of safety features, a manufacturer is entitled to demonstrate that this alleged defect is ultimately based upon the failure of an integral part of the overall product, the original design of which component has been independently eliminated and replaced by another and that there is thus no causal connection between any defect in the product existing at the time of sale and the injury. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). As to product-design duty of manufacturer, standard which courts have established is traditional one of reasonable care. A manufacturer or a seller does not have the status of an insurer as respects products design. Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 248 S.E.2d 15 (1978). In designing a product, a manufacturer’s duty is one of reasonable care, under the circumstances. Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 321 S.E.2d 353 (1984), aff ’d, 254 Ga. 201, 326 S.E.2d 436 (1985), overruled on other grounds, Banks v. ICI Ams., Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). Manufacturer is under no duty to guard against injury from patent peril or from source manifestly dangerous, nor is there a duty on the manufacturer or seller to warn of obvious common dangers connected with the use of a product. Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 248 S.E.2d 15 (1978); Wansor v. George Hantscho Co., 595 F.2d 218 (5th Cir. 1979). Manufacturer is not an insurer. Center Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975). Neither a manufacturer nor a seller is 94 an insurer that their product is, from a design viewpoint, incapable of producing injury. Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 321 S.E.2d 353 (1984), aff ’d, 254 Ga. 201, 326 S.E.2d 436 (1985), overruled on other grounds, Banks v. ICI Ams., Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). Vendor has no general duty to test articles for defects prior to sale. — It is the general rule that a vendor or dealer who is not the manufacturer is under no obligation to test an article purchased and sold by the vendor or dealer for the purpose of discovering latent, or concealed defects, and that when the vendor or dealer purchases and sells an article in common and general use, in the usual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call the vendor’s or dealer’s attention thereto, the vendor or dealer is not negligent in failing to exercise care to determine whether it is dangerous or not. The vendor or dealer may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to inflict injury. Ellis v. Rich’s, Inc., 132 Ga. App. 430, 208 S.E.2d 331 (1974), aff ’d, 233 Ga. 573, 212 S.E.2d 373 (1975). If seller has reason to anticipate that danger may result from particular use seller may be required to give adequate warning of the danger, and a product sold without such warning is in a defective condition. Center Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975); Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). Duty to warn extends only as to foreseeable uses of product. — 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 a 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 de- 51-1-11 pends, initially, upon the foreseeability that the product would be put to that use. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). Duty to warn of danger in use of product extends only to use of product in manner reasonably contemplated and anticipated by manufacturer, and dumpster manufacturer could not be held to reasonably foresee that a small child would be permitted to play in a dumpster. Greenway v. Peabody Int’l Corp., 163 Ga. App. 698, 294 S.E.2d 541 (1982). No duty to warn as to effects of improper uses of product. — There is no duty to warn that a redesign and replacement of the integral and ultimately injurious component of a product will destroy the original design and may result in an essentially different product with new ‘‘dangerous propensities’’; the consumer’s conscious decision not to use the product as the product was originally manufactured and designed creates a danger readily apparent even without a warning. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). There is no duty to warn of the obvious danger of using a manufacturer’s product as the mere foundation from which a redesigned instrumentality will be produced. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). Adequacy of warning. — Strict liability is not imposed under subsection (b) of O.C.G.A. § 51-1-11 merely because a product may be dangerous. If products are properly prepared, manufactured, packaged, and accompanied with adequate warnings and instructions, the products cannot be said to be defective. Thornton v. E.I. Du Pont De Nemours & Co., 22 F.3d 284 (11th Cir. 1994). Since the defendant marketed the defendant’s lacquer thinner solely to professionals, and the product carried a warning of the hazards connected with the product’s use, which was reasonably calculated to reach the average user and contained clear and simple language, the defendant did not breach the defendant’s duty to warn of nonobvious foreseeable dangers from the normal use of the defendant’s product. Thornton v. E.I. Du Pont De Nemours & Co., 22 F.3d 284 (11th Cir. 1994). 95 Products Liability (Cont’d) 4. Applicability of Subsection (b) (Cont’d) Latent design defect must be shown. — Since the appellant was using a bulldozer manufactured by the appellees for the purpose of clearing felled trees from a construction site, when a tree jumped over the bulldozer blade and struck the appellant in the chest, the appellant’s injuries arose not from a latent design defect, but from an obvious one, the lack of a protective metal cage surrounding the driver’s seat, and such alleged defect was not actionable. Stodghill v. Fiat-Allis Constr. Mach., Inc., 163 Ga. App. 811, 295 S.E.2d 183 (1982). Absence of lawn mower safety device not a defect. — Absence of a ‘‘deadman device’’ that would automatically turn a lawn mower motor off once the operator left the driver’s seat did not, in and of itself, render a lawn mower ‘‘defective’’ and, therefore, as a matter of law, the manufacturer could not be held strictly liable for the injury suffered by the plaintiff when the plaintiff fell off the mower, which continued to operate, eventually injuring the plaintiff ’s leg. Pressley v. Sears-Roebuck & Co., 738 F.2d 1222 (11th Cir. 1984). Failure to install deadman control on rototiller. — Finding that the alleged defect of failing to install a deadman control on the rototiller’s forward gear was open and obvious, liability is barred under each of the plaintiff ’s theories of recovery: strict liability, negligence, and inadequate warning. Smith v. Garden Way, Inc., 821 F. Supp. 1486 (N.D. Ga. 1993), aff ’d, 12 F.3d 220 (11th Cir. 1993). Black bicycle helmet was not defective since the helmets lack of conspicuity was observable from a simple visual inspection. Berkner v. Bell Helmets, Inc., 822 F. Supp. 721 (N.D. Ga. 1993), aff ’d, 9 F.3d 121 (11th Cir. 1993). Firearm is not inherently defective merely because its firing resulted in the death of an innocent bystander. Rhodes v. R.G. Indus., Inc., 173 Ga. App. 51, 325 S.E.2d 465 (1984). Manufacturer of spermicide. — In a products liability action against a corpo- 51-1-11 ration which manufactured and marketed a spermicide, to recover damages arising from multiple birth defects suffered by an infant, the corporation knew or should have known of the potential danger that its product might cause birth defects because various studies suggesting this risk were available well before the infant’s mother first obtained the product. This potential danger required a warning, and the absence of such a warning constituted a defect in the product. Wells ex rel. Maihafer v. Ortho Pharmaceutical Corp., 615 F. Supp. 262 (N.D. Ga. 1985), aff ’d in part sub nom. Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950, 107 S. Ct. 437, 93 L. Ed. 2d 386 (1986). Manufacturer of automobile. — Vehicle owner’s negligent design claim did not fall within the statute of repose exception under O.C.G.A. § 51-1-11(c) because no reasonable trier of fact could have found that the manufacturer’s conduct was willful and wanton; the vehicle performed well on tests that were designed to evaluate rollover propensity. Ivy v. Ford Motor Co., 646 F.3d 769 (11th Cir. 2011). Manufacturer of vaccine. — Drug manufacturer was not liable for injuries to a child born after the mother had been injected with a measles-mumps-rubella vaccine for which the manufacturer had taken all precautions necessary to warn of any potential injury to an unborn fetus, and the injection was received from a licensed practical nurse who was aware of the risks and had read and understood a circular accompanying the vaccine. Walker v. Merck & Co., 648 F. Supp. 931 (M.D. Ga. 1986), aff ’d, 831 F.2d 1069 (11th Cir. 1987). Motor vehicle striking fallen electric wire. — Strict liability provided for in subsection (b) of O.C.G.A. § 51-1-11 is not applicable to make a power company liable for injuries sustained when a motor vehicle struck a fallen electric wire since the accident did not involve any ‘‘personal property sold as new property.’’ Georgia Power Co. v. Collum, 176 Ga. App. 61, 334 S.E.2d 922 (1985). Doughnut fryer functioned properly for the fryer’s intended use and was not defective as a matter of law, since 96 the danger attendant to its use was patent and a doughnut shop employee’s injuries did not result from any malfunction due to product design but instead occurred when another person dislodged the fryer from the fryer’s position on a table. Orkin Exterminating Co. v. Dawn Food Prods., 186 Ga. App. 201, 366 S.E.2d 792, cert. denied, 186 Ga. App. 918, 366 S.E.2d 792 (1988). Propane heater and valve incorporated into the heater as a component part were not defective products when manufactured, and the manufacturers could not have reasonably foreseen that the automatic safety shut-off switch on the valve would be taped down by an industrial user so as to defeat the valve’s safety function. Argo v. Perfection Prods. Co., 730 F. Supp. 1109 (N.D. Ga. 1989), aff ’d, 935 F.2d 1295 (11th Cir. 1991). Manufacturer of chemical known as methyl ethyl ketone provided adequate warnings of the product’s potential danger, since the label affixed to the outside of its container clearly and graphically advised that the chemical was both flammable and explosive and that it should not be exposed to sparks. Copeland v. Ashland Oil, Inc., 188 Ga. App. 537, 373 S.E.2d 629, cert. denied, 188 Ga. App. 911, 373 S.E.2d 629 (1988). Fireman’s Rule. — Fireman’s Rule prevents a fireman injured in the course of his duties from bringing an action for negligence against the manufacturer of a product whose explosion during the fire causes the fireman’s injury. White v. Edmond, 971 F.2d 681 (11th Cir. 1992). Access and egress system on a ‘‘skidsteer loader’’ used to knock down and transport molten glass waste did not constitute a design defect, since the machine included a system which provided for emergency exit in all but the most extraordinary circumstances. Foskey v. Clark Equip. Co., 715 F. Supp. 1088 (M.D. Ga. 1989), aff ’d, 914 F.2d 269 (11th Cir. 1990). O.C.G.A. § 51-1-28 bars a claim for defective blood O.C.G.A. § 51-1-11. Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147 (N.D. Ga. 1981). Joint tort-feasors. — Theoretical basis of strict liability is in tort, and when a manufacturer is guilty in strict liability 51-1-11 and another party is found to be negligent, they are deemed joint tort-feasors. Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 272 S.E.2d 251 (1980). Recovery in strict liability in tort cannot be had solely for property damage to the allegedly defective property itself. Long Mfg., N.C., Inc. v. Grady Tractor Co., 140 Ga. App. 320, 231 S.E.2d 105 (1976); Henderson v. GMC, 152 Ga. App. 63, 262 S.E.2d 238 (1979). Cause of action in negligence for property damage to defective personal property itself is cognizable. Long Mfg., N.C., Inc. v. Grady Tractor Co., 140 Ga. App. 320, 231 S.E.2d 105 (1976). Corporations lack standing to bring action. — Georgia courts and the federal district courts have continually disallowed actions in strict liability brought by corporations because under O.C.G.A. § 51-1-11 a corporation has no standing to bring such an action. Baltimore Football Club, Inc. v. Lockheed Corp., 525 F. Supp. 1206 (N.D. Ga. 1981). Consortium action in connection with products liability. — Wife may maintain an action for loss of consortium in connection with a products liability action for injury to the husband. Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147 (N.D. Ga. 1981). Wrongful death action based on product liability. — Spouse has the right to recover for the wrongful death of their spouse, in a product liability action. Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147 (N.D. Ga. 1981). Determining timing of product liability for defective truck lift cylinder. — In order to determine whether product liability claims involving an allegedly defective truck lift cylinder were timely under O.C.G.A. § 51-1-11(b)(2), it was necessary to certify a question to the Georgia Supreme Court as to whether the statute began to run when the lift cylinder was assembled or tested, when the truck was assembled, or when the truck was delivered to the truck’s initial purchaser. Campbell v. Altec Indus., 605 F.3d 839 (11th Cir. 2010). 5. Design Defect Cases Risk-utility analysis. — In product liability design defect cases, a risk-utility 97 Products Liability (Cont’d) 5. Design Defect Cases (Cont’d) analysis—a balancing test whereby the risks inherent in a product design are weighed against the utility or benefit derived from the product—is the appropriate test for reaching the legal conclusion that a product’s design specifications were partly or totally defective. Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). 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. Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). General factors considered in a risk-utility analysis include: the usefulness of the product; the gravity and severity of the danger posed by the design; the likelihood of that danger; the avoidability of the danger, i.e., the user’s knowledge of the product, publicity surrounding the danger, or the efficacy of warnings, as well as common knowledge and the expectation of danger; the user’s ability to avoid danger; the state of the art at the time the product is manufactured; the ability to eliminate danger without impairing the usefulness of the product or making it too expensive; and the feasibility of spreading the loss in the setting of the product’s price or by purchasing insurance. Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). Manufacturer’s proof of compliance with industry-wide practices, state of the art, or federal regulations does not eliminate conclusively the manufacturer’s liability for the manufacturer’s design of allegedly defective products. Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). Alternative safe design factors include: the feasibility of an alternative design; the availability of an effective substitute for the product which meets the same need but is safer; the financial costs 51-1-11 of the improved design; and the adverse effects from the alternative. Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). In regard to the benefits aspect of the balancing test, factors that could be considered include the appearance and aesthetic attractiveness of the product; its utility for multiple uses; the convenience and extent of its use, especially in light of the period of time it could be used without harm resulting from the product; and the collateral safety of a feature other than the one that harmed the plaintiff. Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). Parents’ wrongful death claim under O.C.G.A. § 19-7-1 pertaining to an unclipped rear seat failed on summary judgment because the unclipped seat did not contribute to their child’s fatal skull fracture, and there was thus no evidence showing proximate causation under O.C.G.A. § 51-1-11(b)(1) between the unclipped seat and the child’s death; the parents also did not assert a survival action in order to permit recovery for pain and suffering in that such damages were not permitted under O.C.G.A. §§ 19-7-1 and 51-4-1. Davenport v. Ford Motor Co., No. 1:05-cv-3047-WSD, 2007 U.S. Dist. LEXIS 91245 (N.D. Ga. Dec. 11, 2007). Impossible to determine presence of design defect. — In an action arising from a head on collision at high speed, the design of the fuel and seat systems of one of the vehicles could not be found to be defective in light of the extreme impact, speed, and resulting forces. Timmons v. Ford Motor Co., 982 F. Supp. 1475 (S.D. Ga. 1997), aff ’d, 161 F.3d 22 (11th Cir. 1998). Impossible to determine product liability case. — In this products liability case, summary judgment to the defendants was appropriate since: (1) the opinions of the plaintiff ’s experts as to the cause of the plaintiff ’s injuries and the death of the plaintiff ’s daughter were based on speculation, the opinions would not provide an adequate basis to survive summary judgment even if the opinions were admitted into evidence; and (2) other than the expert testimony proffered by the plaintiff, there was no evidence in the 98 record that the container on the front porch of the mobile home actually exploded or likely exploded on the day of the accident or, if the container did, that the explosion of the container caused the plaintiff ’s injuries or the death of the plaintiff ’s daughter. Walker v. Blitz United States, Inc., 663 F. Supp. 2d 1344 (N.D. Ga. 2009). Dealer’s liability for a failure to warn. — While O.C.G.A. § 51-1-11(b) limited strict liability in tort for product design defects to manufacturers, a dealer could be liable for a failure to warn of a car’s stability issue or that the car did not have a stability system that the dealer knew had been developed by the car manufacturer to remedy a design defect. Thayer v. GMC, No. 1:05-cv-1889-WSD, 2005 U.S. Dist. LEXIS 36193 (N.D. Ga. Dec. 14, 2005). Motorcycle helmet. — In the absence of expert testimony that a design defect cause a motorcycle operator’s helmet to fog up and that anti-fogging features used in snowmobile helmets could safely be used in street helmets, the operator had no evidence to show that the fogging, which was a common problem in all helmets, was due to a design defect that the helmet manufacturer could have remedied with a feasible alternative design, and, thus, the operator’s O.C.G.A. § 51-1-11 design defect claim failed; the operator’s injury was not a sufficient basis, in and of itself, for concluding that the helmet was defective. Mize v. HJC Corp., No. 1:03-CV-2397-JEC, 2006 U.S. Dist. LEXIS 65180 (N.D. Ga. Sept. 13, 2006). Summary judgment was properly granted in an O.C.G.A. § 51-1-11(b) products liability case as, while identification of a specific defect was not required, it was not sufficiently shown that a boat’s gimbal housing deviated from a properly made housing; the existence of a manufacturing defect was not the only plausible explanation for how the housing broke. Graff v. Baja Marine Corp., 310 Fed. Appx. 298 (11th Cir. 2009) (Unpublished). Hip prosthesis. — Because the district court excluded an expert’s testimony due to unreliability under Daubert and Fed. R. Evid. 702, the court properly granted summary judgment to the manufacturer 51-1-11 of an allegedly defective hip prosthesis on all claims, including the plaintiffs’ strict liability claim. Sumner v. Biomet, Inc., No. 11-10280, 2011 U.S. App. LEXIS 14584 (11th Cir. July 15, 2011) (Unpublished). Manufacturing defect in medical device. — Because the plaintiff, a surgical patient, did not show that a medical device, a surgical wrap, that was implanted in the plaintiff ’s stomach did not perform as intended, which required the plaintiff to show how the device was intended to function, the plaintiff did not produce evidence, expert or otherwise, from which a reasonable jury could have concluded that the device contained a manufacturing defect to meet the standard set forth in O.C.G.A. § 51-1-11(b)(1) and, thus, summary judgment was appropriately granted to the defendant, the manufacturer of the product. Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312 (11th Cir. 2011). Design defect in drug case. — Plaintiff alleged a prima facie case for design defect against a brand name drug manufacturer because the plaintiff pled that the drug in question at the time the drug was sold was unreasonably dangerous due to the drug’s inherent risks, and the decedent suffered from SJS/TEN as a result of the drug, which eventually resulted in the decedent’s death. Frazier v. MYLAN Inc., 911 F. Supp. 2d 1285 (N.D. Ga. Dec. 18, 2012). 6. Strict Liability Negligence not element of strict liability under subsection (b). — Strict liability imposed under subsection (b) is not based on negligence. While negligence on the part of the manufacturer may happen to be involved as a matter of fact in a given situation, it is not necessarily so, and the statute imposes liability irrespective of negligence. Ford Motor Co. v. Carter, 239 Ga. 657, 238 S.E.2d 361 (1977); Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 272 S.E.2d 251 (1980); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980). Lack of merchantability or suitability. — If a court should construe an action as being a tort action under subsection (b) 99 Products Liability (Cont’d) 6. Strict Liability (Cont’d) because of the failure of the product to be merchantable, or not suitable to the use intended, the action, though in tort, would be based not on negligence, but on the ground that the proximate causes of the plaintiff ’s injuries were the lack of merchantability or the lack of suitability to the use intended of the product purchased, which are identical to the factors of an action on an implied warranty. Evershine Prods., Inc. v. Schmitt, 130 Ga. App. 34, 202 S.E.2d 228 (1973). Subsection (b) of O.C.G.A. § 51-1-11 does not apply to negligence claims as well as strict liability claims. Hatcher v. Allied Prods. Corp., 256 Ga. 100, 344 S.E.2d 418 (1986) of O.C.G.A. § 51-1-11. Privity of contract not required for action under subsection (b). — Action is in tort and privity of contract is not necessary nor can the manufacturer avail itself of the usual contract or warranty defenses. Center Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975); Wansor v. George Hantscho Co., 243 Ga. 91, 252 S.E.2d 623 (1979); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980). Manufacturer responsibility for infection following penile implant. — In an action against the manufacturer of a penile implant which had to be surgically removed after an infection developed, the court erred in granting summary judgment to the manufacturer on the plaintiff ’s claim of strict liability since there was some evidence that the device did not operate as intended and caused the infection which required removal of the implant since the plaintiff ’s physician’s post-operative report noted that there was a disconnection of tubing between the reservoir and cylinder, causing the reservoir fluid to leak into the scrotal compartment, thereby causing infection. Williams v. American Med. Sys., 248 Ga. App. 682, 548 S.E.2d 371 (2001). ‘‘Enhanced injury’’ caused by seat belt or air bag failure. — Injured party was not required to show the extent of the ‘‘enhanced injury’’ caused by the failure of a seat belt or air bag as the party claimed 51-1-11 only that the manufacture of the seat belt and air bag were defective; the injured party did not claim that the design of the seat belt and air bag were defective. Owens v. GMC, 272 Ga. App. 842, 613 S.E.2d 651 (2005). Strict liability is imposed for injuries which are proximate result of product defects, not for the manufacture of defective products; unless the manufacturer’s defective product can be shown to be the proximate cause of the injuries, there can be no recovery. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). Basis of judgment in strict liability. — Manufacturer has the absolute right to have the manufacturer’s strict liability for injuries adjudged on the basis of the design of the manufacturer’s own marketed product and not that of someone else. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). Failure to identify specific defect was not fatal to claim. — Because the plaintiff patient’s expert testified that medical device’s wires were cut when it was removed in a third surgery, the resulting failure to identify a specific defect was not fatal to O.C.G.A. § 51-1-11(b)(1) strict liability claim, and the defendant manufacturer’s motion for summary judgment was denied. Trickett v. Advanced Neuromodulation Sys., 542 F. Supp. 2d 1338 (S.D. Ga. 2008). Identity of manufacturer. — Construction worker’s O.C.G.A. § 51-1-11(b)(1) strict liability claim against a boom manufacturer failed because there was no evidence that the manufacturer produced the boom that struck the worker, which the worker had been unable to identify, nor was there any evidence that the boom had a defect or that any such defect was the proximate cause of the worker’s injuries. McBride v. JLG Indus., No. 7:03-cv-118(HL), 2005 U.S. Dist. LEXIS 21713 (M.D. Ga. Sept. 20, 2005). Construction worker’s O.C.G.A. § 51-1-11(b)(1) strict liability claim against a boom manufacturer failed because there was no evidence that the manufacturer produced the boom that struck the worker, which the worker had 100 been unable to identify, nor was there any evidence that the boom had a defect or that any such defect was the proximate cause of the worker’s injuries. Mosley v. JLG Indus., 2005 U.S. Dist. LEXIS 21782 (M.D. Ga. Sept. 20, 2005). In a personal injury and products liability action when the seller of an engine had no active participation in the design of an alleged defective wood chipper, and the seller’s only input into the design was limited to saying in essence that the particular engine would perform adequately in such a chipper, the trial court properly granted summary judgment to the seller since the seller did not qualify in any manner as a manufacturer of the alleged defective chipper. Davenport v. Cummins Alabama, Inc., 284 Ga. App. 666, 644 S.E.2d 503 (2007). Strict liability did not attach as defendants did not manufacture chemicals. — Plaintiffs sued the defendants, a chemical plant and a laboratory, alleging the plaintiffs were injured due to chemical fires at the laboratory’s facility. As the complaint did not allege that the defendants manufactured the chemicals that caused the harm, the complaint did not state a claim for strict liability under O.C.G.A. § 51-1-11(b)(1), and the defendants were properly granted summary judgment on that claim. Smith v. Chemtura Corp., 297 Ga. App. 287, 676 S.E.2d 756 (2009). No inadequate warning on mouthwash. — When a consumer alleged that mouthwash caused temporary tooth discoloration and taste impairment, the inadequate warning component of the consumer’s strict liability claim failed because the consumer had the opportunity to read the label, but failed to do so. Silverstein v. P&G Mfg. Co., 700 F. Supp. 2d 1312 (S.D. Ga. Oct. 30, 2009). 7. Pleading and Practice Pleading defect in machinery. — In tort actions based on the malfunctioning of machinery, it is sufficient if the petition alleges that the machine was in such a condition that the machine produced certain definite described results (the injury), which the machine would not have produced had the machine not been defective 51-1-11 and had the machine functioned properly. Vickers v. Georgia Power Co., 79 Ga. App. 456, 54 S.E.2d 152 (1949). Virginia law inapplicable to Georgia action. — When the plaintiff, injured while driving in Virginia, brought an action in Georgia against the car manufacturer under a strict liability theory, Virginia products liability law did not apply since it did not recognize recovery on the basis of strict liability and was contrary to the public policy of Georgia. Alexander v. GMC, 267 Ga. 339, 478 S.E.2d 123 (1996). Failure to communicate warning label change preempted. — Trial court properly dismissed the plaintiff ’s claims based on failure to communicate warning label change information to the healthcare community as those claims were preempted by federal law. PLIVA, Inc. v. Dement, 335 Ga. App. 398, 780 S.E.2d 735 (2015), cert. denied, 2016 Ga. LEXIS 234 (Ga. 2016). Self-destruction as prima-facie evidence of defect. — When a defect cannot be directly observed, that fact does not prevent a plaintiff from establishing a prima-facie case against a manufacturer if the product has a defect which causes its own destruction. Firestone Tire & Rubber Co. v. King, 145 Ga. App. 840, 244 S.E.2d 905 (1978). Existence of manufacturing defect in products liability case may be inferred from circumstantial evidence. Firestone Tire & Rubber Co. v. King, 145 Ga. App. 840, 244 S.E.2d 905 (1978). Statute of repose. — ‘‘First sale for use or consumption’’ of a spinal plate did not occur when the manufacturer sold the plate to the hospital but took place when the plate was removed from the hospital’s inventory and sold to the patient for its actual intended purpose of placement in the patient’s back. Pafford v. Biomet, 264 Ga. 540, 448 S.E.2d 347 (1994). Liability is not imposed upon a manufacturer by the provisions of paragraph (b)(2) of O.C.G.A. § 51-1-11, but by the provisions of paragraph (b)(1) of § 51-1-11; paragraph (b)(2) merely sets an ultimate limit on which injuries shall be actionable. Thus, if a spinal plate was not defective when the plate was sold to the hospital and subsequently became defective only 101 Products Liability (Cont’d) 7. Pleading and Practice (Cont’d) as the result of remaining in the hospital’s inventory for more than ten years, the patient would have no viable claim against the manufacturer. Pafford v. Biomet, 264 Ga. 540, 448 S.E.2d 347 (1994). While the original complaint against the car distributor was filed after the expiration of the 10-year statute of repose, which presented an absolute defense to the plaintiffs’ claims of strict liability and negligent manufacture and design, the statute of repose did not provide an absolute bar to the plaintiffs’ claims for negligent failure to warn against the car manufacturer as O.C.G.A. § 51-1-11(c) removed the negligent failure to warn claims from the ambit of the statute of repose. Parks v. Hyundai Motor Am., Inc., 258 Ga. App. 876, 575 S.E.2d 673 (2002). Because the statute of repose in O.C.G.A. § 51-1-11(b)(2) had expired when the parents filed their products liability complaint against an automobile manufacturer, and because the parents failed to make the required foundational showing of substantial similarity, the trial court correctly granted summary judgment in favor of the manufacturer because the exception in § 51-1-11(c) did not apply. Parks v. Hyundai Motor Am., Inc., 294 Ga. App. 112, 668 S.E.2d 554 (2008). Trial court properly applied the Georgia statute of repose pursuant to O.C.G.A. § 51-1-11 rather than the longer statute in Texas in a product liability action as the statute of repose involved remedial rather than substantive rights and under the Georgia choice of law rules, Georgia’s procedural and remedial provisions governed the matter; the matter involved a vehicle accident that occurred in Texas, although the action was brought in Georgia. Bagnell v. Ford Motor Co., 297 Ga. App. 835, 678 S.E.2d 489 (2009). Because a power company was the intended consumer of an assembled bucket truck and the truck’s component parts, an employee’s suit had to be filed against any manufacturer under O.C.G.A. § 51-1-11(b) within ten years of the date of the sale of the finished product to the 51-1-11 power company; the statute of repose found in O.C.G.A. § 51-1-11(b)(2) begins to run when a finished product is sold as new to the intended consumer who is to receive the product. Campbell v. Altec Indus., 288 Ga. 535, 707 S.E.2d 48 (2011). Statute of repose bars any lawsuit brought more than 10 years after the sale to the first consumer. Davis v. Brunswick Corp., 854 F. Supp. 1574 (N.D. Ga. 1993). Phrase ‘‘use or consumption’’ in paragraph (b)(2) of O.C.G.A. § 51-1-11 means that the statute of repose begins to run when the product first enters the stream of commerce. Davis v. Brunswick Corp., 854 F. Supp. 1574 (N.D. Ga. 1993). Error to dismiss claim — In a products liability action stemming from an automobile accident, because a question of fact existed regarding whether the manufacturer’s actions constituted a ‘‘willful, reckless, or wanton disregard for property or life,’’ it was error to dismiss the plaintiffs’ design defect claim. Watkins v. Ford Motor Co., 190 F.3d 1213 (11th Cir. 1999). Statute of repose did not apply. — In a products liability action stemming from an automobile accident, the plaintiffs’ failure to warn claim was not merely a restatement of the plaintiff ’s design defect claim and therefore was not subject to the statute of repose. Watkins v. Ford Motor Co., 190 F.3d 1213 (11th Cir. 1999). Date action filed, not date of injury, determines applicability of statute of limitations. — Subsection (b)(2) of O.C.G.A. § 51-1-11 is a complete bar to strict liability actions filed more than 10 years after the ‘‘date of the first sale for use or consumption of ’’ the product regardless of whether the underlying injury occurred within the ten-year period. Hatcher v. Allied Prods. Corp., 256 Ga. 100, 344 S.E.2d 418 (1986). Since an injury occurred less than ten years after the first sale of the product, but suit was not filed more than ten years after the first sale of the product, O.C.G.A. § 51-1-11 barred a strict liability claims based on an alleged defect in the product causing the injury. Hatcher v. Allied Prods. Corp., 796 F.2d 1427 (11th Cir. 1986). Applicability of limitation period. — In a case involving a strict liability 102 claim, since paragraph (b)(2) of O.C.G.A. § 51-1-11 was enacted both before the injury and before the complaint was filed, but after the first sale occurred, the ten-year limitation will be given appropriate application. LFE Corp. v. Edenfield, 187 Ga. App. 785, 371 S.E.2d 435, cert. denied, 187 Ga. App. 908, 371 S.E.2d 435 (1988). Subsection (c) of O.C.G.A. § 51-1-11 cannot be applied retroactively when both the injury and the filing of the original complaint preceded the effective date of its enactment. LFE Corp. v. Edenfield, 187 Ga. App. 785, 371 S.E.2d 435, cert. denied, 187 Ga. App. 908, 371 S.E.2d 435 (1988). Homeowners’ suit alleging that three corporations, which provided home security and monitoring services, were strictly liable under O.C.G.A. § 51-1-11 for damages to the homeowners’ residence that were caused by fire that was not detected by the homeowners’ security system was time-barred under a one-year limitations period in the parties’ contract; that period was enforceable because it was not unreasonable and had been agreed to by the homeowners when the homeowners entered the contract. Jacobs v. ADT Sec. Servs., No. 4:05-CV-139 (CDL), 2006 U.S. Dist. LEXIS 69103 (M.D. Ga. Sept. 26, 2006). Paragraph (b)(2) operates retroactively. — Paragraph (b)(2) of O.C.G.A. § 51-1-11 will operate retroactively to bar a claim of a plaintiff injured several months after the limitation period went into effect. Weeks v. Remington Arms Co., 733 F.2d 1485 (11th Cir. 1984). Time limitation not traditional statute of limitations. — In the 1978 amendment to subsection (b) of O.C.G.A. § 51-1-11, the General Assembly expressly placed time restrictions on the bringing of a cause of action under the subsection, but it was not a traditional statute of limitations, which typically declares that no suit shall be maintained on such causes of action unless brought within a specified period after the right accrued. Daniel v. American Optical Corp., 251 Ga. 166, 304 S.E.2d 383 (1983). Application of general statute of limitations. — Since subsection (b) of O.C.G.A. § 51-1-11 must be strictly con- 51-1-11 strued, the 1978 amendment thereof was not intended to preclude the application of a general statute of limitations, such as O.C.G.A. § 9-3-33, which would otherwise apply, or to suggest that no general statute of limitations applied to strict products liability actions under subsection (b) prior to the 1978 amendment. Daniel v. American Optical Corp., 251 Ga. 166, 304 S.E.2d 383 (1983). Two-year statute of limitations provided by O.C.G.A. § 9-3-33 applies to products liability actions. Smith, Miller & Patch v. Lorentzson, 254 Ga. 111, 327 S.E.2d 221 (1985). Subsection (c) not applied retroactively. — Subsection (c) of O.C.G.A. § 51-1-11 cannot be applied to bar products liability actions based on negligence when the cause of action accrued before the subsection’s effective date, July 1, 1987. Browning v. Maytag Corp., 261 Ga. 20, 401 S.E.2d 725 (1991). Doctrine of res ipsa loquitur does not apply when there is any intervention of an intermediary cause which produces or could produce the sustained injury. Molden v. Atlanta Coca-Cola Bottling Co., 175 Ga. App. 298, 333 S.E.2d 175 (1985). Plaintiff failed to state claim for strict liability. — Plaintiff ’s allegations against drug manufacturers failed to state a claim for strict liability under O.C.G.A. § 51-1-11(b) because the plaintiff failed to allege any specific design or manufacturing defect in the products and the court could not draw the reasonable inference that a design or manufacturing defect caused the decedent’s injuries. Moore v. Mylan Inc., No. 1:11-CV-03037-MHS, 2012 U.S. Dist. LEXIS 6897 (N.D. Ga. Jan. 5, 2012). Summary judgment denied. — Operator of airport passenger conveyance was properly denied summary judgment after the operator failed to submit any evidence rebutting the passenger’s assertion that the conveyance’s lack of seats and its deceleration rate for emergency stops constituted defects in design. Westinghouse Elec. Corp. v. Williams, 173 Ga. App. 118, 325 S.E.2d 460 (1984), aff ’d, 183 Ga. App. 845, 360 S.E.2d 411 (1987). Summary judgment granted. — Defendants were entitled to summary judg- 103 51-1-11 Products Liability (Cont’d) 7. Pleading and Practice (Cont’d) ment on the plaintiffs’ product liability claims, since plaintiffs failed to show that the rollover accident was caused by a defect in the vehicle’s design, and failed to rebut the defendants showing that the accident was caused by the vehicle being driven off the roadway after the driver fell asleep. Jonas v. Isuzu Motors Ltd., 210 F. Supp. 2d 1373 (M.D. Ga. 2002). Trial court did not err in granting summary judgment to a manufacturer in a driver’s products liability action because the manufacturer presented evidence disproving the existence of a defect through the opinion of the manufacturer’s expert witness, and the driver failed to point to any competent evidence giving rise to a genuine issue of material fact. Udoinyion v. Michelin N. Am., Inc., 313 Ga. App. 248, 721 S.E.2d 190 (2011). Loss of product. — Since the plaintiffs’ claim against the manufacturer of turnbuckles was based on the unfitness of thousands of turnbuckles for the purpose intended, as opposed to some idiosyncratic defect affecting only a lost turnbuckle, loss of the product did not impair either the plaintiffs’ ability to show the defect claimed or the defendant’s ability to present a defense to the claim. Chicago Hdwe. & Fixture Co. v. Letterman, 236 Ga. App. 21, 510 S.E.2d 875 (1999). No exception under subsection (c). — Language of subsection (c) of O.C.G.A. § 51-1-11 provides an exception to the statute of repose for negligence actions claiming failure to warn and disease causation, but does not create an exception for these theories under strict liability claims. Allison v. McGhan Medical Corp., 184 F.3d 1300 (11th Cir. 1999). Purely economic losses, such as the loss of the use of the property or the cost of repairing the property, are not compensable under O.C.G.A. § 51-1-11 when no personal injury or physical damage has occurred except to the allegedly defective product itself. Busbee v. Chrysler Corp., 240 Ga. App. 664, 524 S.E.2d 539 (1999). Dentist as expert witness. — In a consumer’s suit alleging strict products liability, the consumer’s failure to identify a treating dentist as an expert witness under Fed. R. Civ. P. 26(a)(2) was harmless because the defendants had adequate notice that the dentist could be called as a witness and, in fact, already took the dentist’s deposition. Silverstein v. P&G Mfg. Co., 700 F. Supp. 2d 1312 (S.D. Ga. Oct. 30, 2009). Amended complaint properly denied. — Individual’s motion for leave to file an amended complaint was denied since the individual’s additional allegations failed to demonstrate that a pharmaceutical manufacturer’s affiliate was the manufacturer of the drug that allegedly caused the individual’s injuries or that the drug included a design or manufacturing defect, and as a result the individual’s O.C.G.A. § 51-1-11(b) claim would have been subject to dismissal. Henderson v. Sun Pharms. Indus., No. 4:11-CV-0060-HLM, 2011 U.S. Dist. LEXIS 104999 (N.D. Ga. Aug. 22, 2011). Lex loci delicti did not apply. — Public policy exception to lex loci delicti applied and Georgia law should have been applied in a design defect products liability case because Georgia recognized strict liability in such cases, pursuant to O.C.G.A. § 51-1-11, whereas Indiana law required a showing that the manufacturer failed to exercise reasonable care under the circumstances. Bailey v. Cottrell, Inc., 313 Ga. App. 371, 721 S.E.2d 571 (2011). 8. Defenses Discovery of defect by product user. — If the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, the user or consumer is barred from recovery. Center Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975); Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 248 S.E.2d 15 (1978). In most product liability cases, the manufacturer’s defense will be that the plaintiff assumed the risk that the defect in the product would produce the injury sustained by using the product with actual knowledge of the defect. Deere & Co. v. Brooks, 250 Ga. 517, 299 S.E.2d 704 (1983). 104 Injured party’s admission that the installation of an x-ray machine was itself the consequence of the contract rendered the nonperformance of a contract obligation, within the ambit of O.C.G.A. § 51-1-11(a), and, consequently, the injured party’s negligence claims were barred. Kidd v. Dentsply Int’l, Inc., 278 Ga. App. 346, 629 S.E.2d 58 (2006). If injury results from abnormal handling, the seller is not liable. Center Chem. Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580 (1975). Manufacturer may demonstrate in defense that the product was in fact merchantable and fit for the purpose intended, or that if there was a deficiency in such regard there was no causal connection between the breach and the damages sued for, or that some other factor was the sole proximate cause of the damage. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980). Application of bare metal defense. — Summary judgment was warranted in favor of manufacturer of valves on grounds of insufficient evidence of product identification and causation pertaining to the valves because, in applying the bare metal defense, the record did not sufficiently show that the decedent’s asbestos exposure stemmed from a product manufactured by the defendant. Thurmon v. A.W. Chesterton, Inc., No. 1:11-CV-01407-CAP, 2014 U.S. Dist. LEXIS 164136 (N.D. Ga. Nov. 21, 2014). Defense of assumption of risk, although not the defense of contributory negligence, is applicable in a product liability case. Deere & Co. v. Brooks, 250 Ga. 517, 299 S.E.2d 704 (1983). Assumption of the risk is applicable to product liability cases if the user or consumer discovers the product’s defect and is aware of the danger emanating from that defect, but nevertheless proceeds unreasonably to make use of the product. Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 321 S.E.2d 353 (1984), aff ’d, 254 Ga. 201, 326 S.E.2d 436 (1985), overruled on other grounds, Banks v. ICI Ams., Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). Obvious danger is complete defense. — Open and obvious danger rule is 51-1-11 a complete defense to claims based upon negligence, strict liability, and failure to warn. The plaintiff, not the defendant, bears the burden of proof for demonstrating that the peril causing the injury is latent, or not patent. Morris v. Clark Equip. Co., 904 F. Supp. 1379 (M.D. Ga. 1995), aff ’d, 129 F.3d 615 (11th Cir. 1997). Open and obvious danger did not preclude action. — Summary judgment was precluded in an action by a consumer alleging that the manufacturer’s lemon-scented bleach was unmerchantable and unsuitable for its intended use, since the Material Safety Data Sheet prepared for the lemon-scent additive warned that the scent was incompatible with strong oxidizing agents and since, while the manufacturer’s label identified the bleach as a ‘‘strong oxidizer,’’ under a risk utility analysis an open and obvious danger did not preclude an action, because this is but one factor to be considered in determining whether a product is defective. Zeigler v. Clowhite Co., 234 Ga. App. 627, 507 S.E.2d 182 (1998). Action not untimely. — Plaintiff ’s 1986 strict liability action for injuries sustained in 1970 when the plaintiff ’s nightgown caught fire was not untimely, since the gown had been purchased sometime after July, 1968, and the plaintiff did not reach majority age until 1986. Morgan v. Sears, Roebuck & Co., 700 F. Supp. 1574 (N.D. Ga. 1988). Expert testimony not required. — Whether someone suffers greater injuries in a car wreck when a seat belt does not work to restrain the individual and an air bag does not inflate between the individual and the steering wheel, windshield, and mirror are not issues requiring the expert testimony of a trauma physician or engineer, but are matters not of science but of skill and experience. Owens v. GMC, 272 Ga. App. 842, 613 S.E.2d 651 (2005). Whether a seat belt engaged properly or an air bag deployed are not matters of science and issues requiring the expert testimony of an engineer or a metallurgist, but are matters of skill and experience. Owens v. GMC, 272 Ga. App. 842, 613 S.E.2d 651 (2005). 105 Products Liability (Cont’d) 9. Jury Questions Whether product is defective is jury question. — Question under the strict liability theory is whether the product was defective in that there was a failure to adequately warn of the product’s dangerous propensities. If so, the jury should look to the evidence to see whether the plaintiff knew these facts and nevertheless assumed the risk of the product’s use in the manner in which the product was used, so as to bar the plaintiff from recovery. Parzini v. Center Chem. Co., 136 Ga. App. 396, 221 S.E.2d 475 (1975); Stokes v. Peyton’s, Inc., 526 F.2d 372 (5th Cir. 1976). In a strict liability case brought by a driver against a tire manufacturer, the questions for jury resolution were whether there was a defect in the tire and, if so, whether the driver’s injuries were the proximate result of that defect or of the driver’s own acts in causing the crash; the question was whether the driver’s acts were the sole proximate cause of the driver’s injuries, not whether the driver’s acts which proximately caused the driver’s injuries were acts of negligence. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980). In some cases it may be a jury question as to whether the product’s original design has been merely slightly or somewhat modified; in such cases, the jury must determine whether the original manufacturer’s design was defective and, if so, whether the proximate cause of the injuries sustained was the original defective design or the subsequent modification. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). Injured party presented a triable issue as to a claim that the truck’s safety systems were defective and that a manufacturer was strictly liable as a repair technician testified in detail about how the air bags were supposed to deploy, how it worked, and how the sensor failed when 51-1-11 the weld attaching it to the frame broke; the technician also testified that the seat belt would not catch, and even demonstrated that fact at a deposition. Owens v. GMC, 272 Ga. App. 842, 613 S.E.2d 651 (2005). Defect held not found. — Evidence that a patron of a self-service gasoline station slipped on a clearly distinguishable oil stain on the driveway and fell was insufficient to show a defect in the manufacture of the concrete used on the driveway. Griffin v. Crown Cent. Petroleum Co., 171 Ga. App. 534, 320 S.E.2d 383 (1984). Whether injuries compounded. — Injured party presented a triable issue as to whether the party suffered greater injuries in an accident because the seat belt and air bag did not work properly as: (1) a repair technician testified that the rear-view mirror had been knocked off the windshield and had hair stuck to it and that the steering wheel was ‘‘folded over’’; (2) the injured party’s spouse testified that the injured party broke glasses, had a black eye, a knot on the head, and a bruised sternum; (3) the injured party testified that the party hit the mirror, the windshield, and the steering wheel because the seat belt did not catch and the air bag did not deploy; and (4) the treating physician testified that the injured party suffered a nasal fracture that caused pain after the wreck, blocked the tear duct and caused swelling and infection until the break was corrected surgically. Owens v. GMC, 272 Ga. App. 842, 613 S.E.2d 651 (2005). Jury instruction on failure to recall error. — Legislature showed in O.C.G.A. § 51-1-11 that the legislature knew how to impose a continuing duty to warn on product manufacturers. There was no corresponding continuing duty to recall an allegedly defective vehicle seatback, and a jury instruction allowing a jury to find negligence based on a failure to recall was reversible error. Ford Motor Co. v. Reese, 300 Ga. App. 82, 684 S.E.2d 279 (2009), cert. denied, No. S10C0186, 2010 Ga. LEXIS 161 (Ga. 2010). 106 51-1-11