By Andrew Feske
Historically, the defense of contributory negligence was unavailable to defendants in products liability cases involving strict liability claims, however, recent case law has re-analyzed this issue in the context of Georgia’s apportionment statute. Georgia law traditionally adhered to the common law principle that a products liability defendant was prohibited from arguing a plaintiff’s comparative fault as a defense in a strict liability claim. Georgia’s Supreme Court confirmed this principle in Deere & Co. v. Brooks, 250 Ga. 517, 299 S.E.2d 704 (1983), generally relying on the rule laid out in the Restatement of Torts as noted by various national treatises. In Brooks, a divided court analyzed some of the nuanced differences between a contributory negligence defense and an assumption of the risk defense in products liability claims, holding that the while the former was impermissible, the latter was an appropriate defense to bar a plaintiff from recovery. Id. at 518-19. While the opinion failed to provide an in-depth analysis as to exactly why a contributory negligence defense is invalid in a strict liability products liability claim, it stood as the law of the land for nearly forty years.
Of course this decision predates the Tort Reform Act of 2005, which brought a number of changes to tort practice in this state. One of the most significant changes to the law was the advent of modified comparative negligence and apportionment. Under Georgia’s apportionment statute, “[w]here an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.” O.C.G.A. § 51-12-33(a). Further, if a plaintiff is 50% or more responsible for the injury claimed, then he is barred from recovery. O.C.G.A. § 51-12-33(g). Although there was no limitation on the scope of “actions” subject to this new law in the language of the statute itself, there remained some uncertainty as to whether or not the apportionment statute would apply to a strict liability claim in a products liability case given the common law precedent.
Last summer, the Court of Appeals addressed this issue in the case of Suzuki Motor of America, Inc. v. Johns, 351 Ga. App. 186, 830 S.E.2d 549 (2019). In that case, the plaintiff, Adrian Johns, was injured while riding his motorcycle and sued the manufacturer, Suzuki, alleging, inter alia, strict product liability claims for design defect. Specifically, Johns alleged that Suzuki’s motorcycle suffered from defective brakes which failed to properly function and caused the crash that led to his injuries. Indeed, Suzuki became aware of this defect and issued a recall notice for the product around the time Johns returned home following extensive rehabilitation therapy due to his injuries.
At trial, Johns was able to demonstrate that the brakes of his motorcycle had corroded, resulting in their failure. However, Suzuki denied that the defect caused the subject crash and instead argued that the brakes failed because Johns, an experienced motorcycle rider and mechanic, neglected to change the brake fluid in his vehicle over a period of eight years in direct contravention of the instructions in the owner’s manual. The jury found in favor of Johns, but the trial judge permitted the jury to apportion fault between Johns and the defendants. The jury found that Johns was 49% at fault and the trial judge reduced the damages award in accordance with O.C.G.A. § 51-12-33, effectively cutting Johns’s recovery in half. Johns appealed this ruling, arguing that the trial court erred in using the apportionment statute in a strict products liability claim.
The appellate court disagreed, finding that Georgia’s apportionment law governs actions for “injuries to person” and does not make a distinction between the various types of claims that are subject to the statute. The statute further instructs the trial court to reduce a plaintiff’s damages in proportion to his degree of “fault,” without any mention of “negligence.” Further, relying on the Supreme Court of Georgia’s decision in Couch v. Red Roof Inns, 291 Ga. 359, 362 (1), 729 S.E.2d 378 (2012), the Suzuki court held that O.C.G.A. § 51-12-33 replaced the common law of apportionment. Accordingly, given the precedent in Couch and the plain language of the applicable statute, the appellate court held that apportionment is appropriate in a strict products liability claim to reduce a plaintiff’s award based on his measure of fault.
Although this decision is currently being reviewed by the Supreme Court of Georgia, the ability for defendant manufacturers to apportion fault to a careless or negligent plaintiff in strict liability claims should have significant impact in products liability litigation. Ultimately the results of each case will be fact dependent, but one has to look no further than the facts of the Suzuki case to see how radically this principle can alter the outcome of a case. The only ostensible fault attributed to Johns was his failure to change his brake a fluid—a maintenance sin likely shared by a fair number of motorists. Nevertheless, the jury found that he was 49% at fault as a result of this omission and his award was reduced accordingly. Although it is impossible to tell how close of a decision it was for the jury, Johns appears to have been 1% away from being denied any recovery at all. Needless to say, attorneys practicing in the field of products liability will be anxiously awaiting the forthcoming decision from the Supreme Court on this important matter.