Opinion
A11A1180
DECIDED: NOVEMBER 29, 2011
In this products liability case, Appellants Steve Bailey and Laura Bailey appeal the trial court's order granting summary judgment under Indiana law to Cottrell, Inc. in the Baileys' suit to recover for injuries Steve Bailey sustained when he fell from the top level of a car-hauler/tractor-trailer rig. Because we find that the trial court erred in failing to apply Georgia law to the Baileys' claims, we reverse.
At all pertinent times, the Baileys were residents of Missouri. Cottrell, Inc. is a Georgia corporation engaged in the design, development and manufacture of car hauling equipment. Steve Bailey worked as a driver for a car-hauling company, Jack Cooper Transport ("JCT"), out of Wentzville, Missouri. The accident at issue occurred in Indiana on October 28, 2005, while Steve Bailey was loading pickup trucks onto his assigned car-hauler, a 1998 Cottrell rig owned by JCT. After Bailey loaded an extended-cab pickup truck with a camper top onto an area called the "headramp," which is located on top of the tractor, he stepped out of the pickup to dismount from the headramp's upper level. Bailey, who was wearing work gloves, stuck his right fingers into the top of the doorjamb above the rear door of the pickup, while closing the pickup's driver door with his left hand. As Bailey closed the door, the air from inside the pickup blew against his right hand, dislodging his fingers. Losing his grip, he fell backwards onto the parking lot surface below. Bailey asserts that he sustained traumatic injuries in the fall that have left him disabled.
The Baileys allege that the car-hauler he was using was designed, manufactured and sold by Cottrell with inadequate space for maneuvering and with no fall prevention devices, such as safety chains or grab bars on the rig's upper level, despite the fact that Cottrell knew that drivers like Bailey would be required to load and unload automobiles from that area. Cottrell counters that Steve Bailey had knowledge of these supposed defects in the rig, as well as the knowledge of the specific risks of falling, and that he understood, appreciated and assumed these risks. The trial court, applying Indiana law, found that Steve Bailey voluntarily assumed the risk of working on the upper level of the car hauler and granted Cottrell's motion for summary judgment.
"On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." (Citations omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 ( 713 SE2d 860) (2011).
1. The Baileys first argue that the trial court erred in applying Indiana law to their claims. Although the injury occurred in Indiana and the Baileys acknowledge that Georgia generally applies lex loci delecti (the law of the place where the tort was committed), they assert that the trial court should have applied the public policy exception to the general rule. The Baileys contend that Indiana law violates Georgia public policy in two respects: (1) Indiana law does not allow a strict liability claim for a product design defect with a risk-utility test, while Georgia does; and (2) Indiana law, as applied by the trial court, eliminated the voluntariness element for an assumption of risk defense, which they contend contravenes Georgia public policy.
In Georgia, "[u]nder lex loci delicti, tort cases are governed by the substantive law of the state where the tort or wrong occurred — in this case, [Indiana]." (Footnote omitted.) Bagnell v. Ford Motor Co., 297 Ga. App. 835, 836 (1) ( 678 SE2d 489) (2009). See also Dowis v. Mud Slingers, 279 Ga. 808, 816 ( 621 SE2d 413) (2005) (reaffirming lex loci delecti as the law in Georgia). But as the Baileys correctly note, Georgia recognizes a public policy exception to the rule of lex loci delecti. "Even if an application [of the rule of lex loci delicti] renders the law of another state applicable, the forum, within constitutional limits, is not required to give the law of another state extra-territorial effect. That is only done as a matter of courtesy or comity, which will not be enforced if the law of the other state contravenes the public policy of the forum. See OCGA § 1-3-9; Commercial Credit Plan v. Parker, 152 Ga. App. 409 ( 263 SE2d 220) (1979)." Federal Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765-766 ( 417 SE2d 671) (1992).
(a) Georgia law recognizes a product liability claim based upon strict liability against "those actively involved in the design, specifications, or formulation of a defective final product or of a defective component part which failed during use of a product and caused injury." (Citation omitted.) Davenport v. Cummins Alabama, 284 Ga. App. 666, 671 (1) ( 644 SE2d 503) (2007). See OCGA § 51-1-11. Indiana law, however, does not recognize a strict liability claim for design defects:
The Indiana Product Liability Act generally imposes strict liability for physical harm caused by a product in an unreasonably dangerous defective condition. Ind. Code § 34-20-2-1. For actions based on an alleged product design defect, however, the Act departs from strict liability and specifies a different standard of proof: "[T]he party making the claim must establish that the manufacturer or seller failed to exercise reasonable care under the circumstances in designing the product." Ind. Code § 34-20-2-2.
TRW Vehicle Safety Systems v. Moore, 936 NE2d 201, 209 (1) (Ind. Sup. 2010) (declining to expand the statutory standard of care for product liability claims alleging a design defect). Thus, Indiana only recognizes a negligent design defect claim. Id. at 214 (5). The issue before us, therefore, is whether this distinction in Indiana law violates Georgia public policy. We conclude that it does.
In Alexander v. General Motors Corp., 267 Ga. 339 ( 478 SE2d 123) (1996), "Alexander was injured while driving in Virginia when the driver's seat of his General Motors ["GM"] vehicle, purchased new in Georgia, failed in a collision and caused him to be ejected from the vehicle." The trial court, applying Virginia's substantive law under lex loci delecti, dismissed Alexander's strict liability claims because the State of Virginia did not recognize strict liability. This Court affirmed the trial court's application of Virginia law. Alexander v. General Motors Corp., 219 Ga. App. 660 ( 466 SE2d 607) (1995). But the Supreme Court reversed, holding that Virginia law contravened the public policy underlying OCGA § 51-1-11, which "was intended to protect those who are injured by defective products placed in the stream of commerce in this state" and that Alexander was entitled to have Georgia law applied to his claims against GM. Alexander v. General Motors Corp., 267 Ga. at 340.
Although Indiana recognizes strict liability for manufacturing claims, its failure to recognize a strict liability claim for design defects presents a substantive legal difference. To paraphrase the Supreme Court in Alexander, a claim of negligence in an Indiana defective design product liability case differs from a strict liability claim in Georgia in that the latter eliminates any question of "reasonable care under the circumstances in designing the product," as well as certain defenses. Id. "This comparison demonstrates that [Indiana] law and Georgia law are radically dissimilar in terms of the burden placed on persons seeking recompense for injuries caused by defective[ly designed] products." Id. Accordingly, Indiana law relating to defective design claims contravenes the public policy of this State as expressed in OCGA § 51-1-11, and the Baileys are entitled to have Georgia law, including Georgia law regarding any defenses to such a claim, e.g. assumption of risk, applied to their claims against Cottrell.
(b) Cottrell argues, however, that the Baileys failed to preserve this public policy argument for appeal, because they did not brief it in connection with the parties' motions for summary judgment. Cottrell is correct that "absent special circumstances, an appellate court need not consider arguments raised for the first time on appeal" in connection with a motion for summary judgment. (Footnotes omitted.) Pfeiffer v. Ga. Dept. of Transportation, 275 Ga. 827, 829 (2) ( 573 SE2d 389) (2002). Nevertheless, we find that the Baileys properly preserved the issue for appellate review in their oral argument at the hearing on Cottrell's motion for summary judgment.
The Supreme Court noted that "[s]pecial circumstances could include `a jurisdictional challenge, a claim of sovereign immunity, a serious issue of public policy, a change in the law, or [an] error that works manifest injustice.' See 19 Moore's Federal Practice, sec 205.05[2] at 205-58 (Matthew Bender 3d ed.)." Pfeiffer v. Ga. Dept. of Transportation, 275 Ga. 827, 829 (2), n. 10 ( 573 SE2d 389) (2002 )
Following a conference with the trial court, the Baileys filed an expedited motion for summary judgment seeking a determination that Georgia law, not Indiana law, applied to their claims. They asserted two bases for this motion: 1) the untimeliness of Cottrell's notice of intent to rely on Indiana law and 2) their assertion that Indiana substantive law would apply Georgia law to the claims in this case. The motion further stated
Should this motion be granted it would obviate the need for the Court and parties to delve into the details of Indiana tort law that Defendants seek to apply. Consequently, Plaintiffs do not waive any arguments that Indiana law does not apply on a basis that involves comparing the particular points of Indiana and Georgia tort and damages law; for example, the argument that Indiana law violate[s] the public policy of Georgia.
Thus, the Baileys did not raise any public policy arguments in connection with their own summary judgment motion, but indicated their intention to raise them in opposition to any arguments based upon Indiana law. The trial court subsequently ruled that Cottrell's notice of intent was timely and that Indiana law applied, but did not explicitly deny the Baileys' expedited motion for summary judgment.
Also pending at the time of the Baileys' motion was Cottrell's motion for summary judgment based upon Indiana law. In opposing this motion, the Baileys argued that Cottrell's asserted defenses based upon an "open and obvious" defect and assumption of risk, as Cottrell interpreted Indiana law, would contravene Georgia public policy. The Baileys did not, however, brief any argument that Indiana's failure to recognize a strict liability defective design claim contravened Georgia's public policy. Nevertheless, at the summary judgment hearing, the Baileys' counsel raised what he described as a "monkey wrench" argument that Indiana's negligence only approach to defective design claims "runs afoul of Georgia public policy," citing the Georgia Supreme Court's opinion in Alexander v. General Motors Corp, supra. This argument was sufficient to preserve the issue for our review. See Pfeiffer v. Ga. Dept. of Transportation, 275 Ga. at 829 (2) n. 11 (contemplating that arguments raised for the first time at a summary judgment hearing would be subject to appellate review by indicating that in such a circumstance, a party should consider filing a transcript or a stipulation under OCGA § 5-6-41 (i) as part of the appellate record); Liberty v. Storage Trust Properties, 267 Ga. App. 905, 911 (2) ( 600 SE2d 841) (2004) (considering argument on appeal first raised at hearing on motion for summary judgment).
Therefore, because the trial court erred in applying Indiana law, which contravenes Georgia public policy, we reverse the trial court's order granting Cottrell's motion for summary judgment.
2. Given our holding in Division 1 above, we need not consider the Baileys' remaining arguments.
Judgment reversed. Barnes, P. J., concurs. Blackwell, J., concurs in Divisions 1 (b) and 2 and in the judgment.