Certainteed Corp. v. Fletcher

300 Ga. 327

794 S.E.2d 641

CERTAINTEED CORP.

v.FLETCHER.

S15G1903

Supreme Court of Georgia.

Decided: November 30, 2016

Erin Elaine Shofner, David C. Marshall, Hawkins, Parnell, Thackston & Young, LLP, 4000 SunTrust Plaza, 303 Peachtree Street, N. E., Atlanta, Georgia 30308-3243, Michael K. Wolensky, Schiff Hardin LLP, 1201 W. Peachtree Street, Suite 2300, Atlanta, Georgia 30309, for Appellant.

Leonard Searcy, II, Shook, Hardy & Bacon, L.L.P., 2555 Grand Boulevard, Kansas City, Missouri 64108-2613, Mark Behrens, Cary Silverman, Shook, Hardy & Bacon, L.L.P., 1155 F Street NW, Washington, Washington, DC 20004, William V. Custer, IV, Edwin Montgomery Cook, Byran Cave LLP, One Atlantic Center, Fourteenth Floor, 1201 West Peachtree Street, N.W., Atlanta, Georgia 30309, for Amicus Appellant.

Robert Cape Buck, Juliana Yeon Sleeper, Buck Law Firm, 1050 Crown Pointe Parkway, Suite 940, Atlanta, Georgia 30338, for Appellee.

HUNSTEIN, Justice.

Appellee Marcella Fletcher was diagnosed with malignant pleural mesothelioma, which she attributed to years of laundering her father's asbestos-dust-covered work clothing, and she sued Appellant CertainTeed Corporation, who manufactured the asbestos-laden water pipes with which her father had worked. In her complaint, she alleged, inter alia, negligent design and negligent failure to warn. Before the completion of discovery, the trial court granted CertainTeed's motion for summary judgment, and Fletcher appealed.

A majority of the Court of Appeals reversed the grant of summary judgment, concluding that CertainTeed had failed to demonstrate, as a matter of law, the absence of evidence that its product was defectively designed.¹ The Court of Appeals also found that a jury question existed as to whether CertainTeed had a duty to warn Fletcher of the risks associated with inhaling asbestos dust. See Fletcher v. Water Applications Distribution Group, Inc., 333 Ga.App. 693, 773 S.E.2d 859 (2015). We granted certiorari to review the decision of the Court of Appeals. While we conclude that CertainTeed owed no duty to warn Fletcher of the possible hazards of asbestos-dust from its products, the Court of Appeals correctly reversed the trial court's judgment with respect to Fletcher's defective design claim. Consequently, we affirm the judgment of the Court of Appeals in part and reverse in part.

1. Below, the Court of Appeals held that Fletcher's design-defect claim was governed by the risk-utility test adopted by this Court in Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994), and not this Court's recent decision in CSX Transp. v. Williams, 278 Ga. 888, 608 S.E.2d 208 (2005), wherein we held that an employer's duty to provide a safe workplace does not extend to third party, non-employees who come into contact with asbestos-tainted work clothing. Fletcher, 333 Ga. at 699, 773 S.E.2d 859. The Court of Appeals was correct.

This Court in CSX Transp. v. Williams addressed the duty owed by an employer to a third-party, non-employee with respect to asbestos-tainted work clothing in the unique context of the employer-employee relationship. This case, however, presents an entirely different question. Fletcher claims, inter alia, that CertainTeed, as a manufacturer, negligently designed its asbestos-laden products. In such a case, "the risk-utility analysis applies to determine whether the manufacturer is liable." Ogletree v. Navistar Intern. Trans. Corp., 271 Ga. 644, 645 (1), 522 S.E.2d 467 (1999).

This 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.

(Emphasis added.) Banks, 264 Ga. at 734, 450 S.E.2d 671. "[I]n determining whether a product was defectively designed, the trier of fact may consider evidence establishing that at the time the product was manufactured, an alternative design would have made the product safer than the original design and was a marketable reality and technologically feasible." Id. at 736, 450 S.E.2d 671. Other factors that this Court has recognized may be relevant to discerning a design defect include the following:

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.

Id. at 736, n. 6, 450 S.E.2d 671. As this Court in Jones v. NordicTrack, Inc. explained,

[t]he ‘heart’ of a design defect case is the reasonableness of selecting from among alternative product designs and adopting the safest feasible one. Banks v. ICI Americas, supra at 736 (1), 450 S.E.2d 671. Consequently, the appropriate analysis does not depend on the use of the product, as that may be narrowly or broadly defined, but rather includes the consideration of whether the defendant failed to adopt a reasonable alternative design which would have reduced the foreseeable risks of harm presented by the product .

274 Ga. 115, 118, 550 S.E.2d 101 (2001). Accord Chrysler Corp. v. Batten, 264 Ga. 723, 724 (1), 450 S.E.2d 208 (1994) ("[A] manufacturer has a duty to exercise reasonable care in manufacturing its products so as to make products that are reasonably safe for intended or foreseeable uses."). With "[t]he adoption of the risk-utility analysis in this state ... the burden [is on] a defendant, in seeking a judgment as a matter of law, to show plainly and indisputably an absence of any evidence that a product as designed is defective." Ogletree, 271 Ga. at 646, 522 S.E.2d 467.

As the Court of Appeals correctly recognized, it is the risk-utility analysis announced in Banks—and not CSX Transp. v. Williams—that is controlling here. Further, in light of the unchallenged conclusion reached by the Court of Appeals—that "CertainTeed failed to carry its burden of showing plainly and indisputedly an absence of any evidence that its product as designed was defective under the risk-utility analysis," Fletcher, 333 Ga.App. at 699, 773 S.E.2d 859 —the reversal of the grant of summary judgment was correct.

2. We must next determine whether the Court of Appeals correctly concluded that CertainTeed owed a duty to Fletcher to warn her regarding the dangers of asbestos dust that allegedly covered her father's work clothing. In this instance, we disagree with the Court of Appeals' conclusion.²

"In failure to warn cases, the duty to warn arises whenever the manufacturer knows or reasonably should know of the danger arising from the use of its product." Chrysler Corp. v Batten., 264 Ga. at 724, 450 S.E.2d 208. That duty requires warnings of "nonobvious foreseeable dangers from the normal use of its products." (Citations omitted.) Thornton v. E.I. Du Pont De Nemours & Co., 22 F.3d 284, 289 (III) (b) (11th Cir. 1994) (applying Georgia law). The duty to warn may be owed to consumers, see DeLoach v. Rovema Corp., 241 Ga.App. 802, 804, 527 S.E.2d 882 (2000) ; reasonably foreseeable users, see Chrysler Corp., 264 Ga. at 724, 450 S.E.2d 208 ; and, purchasers of the product, see Vickery v. Waste Management of Georgia, 249 Ga.App. 659 (2), 549 S.E.2d 482 (2001). This duty has been extended, in some cases, to reasonably foreseeable third parties. See R & R Insulation Services, Inc. v. Royal Indem. Co., 307 Ga.App. 419 (3), 705 S.E.2d 223 (2010). The existence of a duty to warn, the determination of which is a legal question, see Rasnick v. Krishna Hospitality, Inc., 289 Ga. 565, 713 S.E.2d 835 (2011), is not resolved exclusively on the basis of foreseeability. CSX Transp. v. Williams, 278 Ga. at 890, 608 S.E.2d 208 (citing City of Douglasville v. Queen, 270 Ga. 770, 514 S.E.2d 195 (1999) ). See also Badische Corp. v. Caylor, 257 Ga. 131, 356 S.E.2d 198 (1987). " ‘In fixing the bounds of duty, not only logic and science, but public policy play an important role.’ " (Citations omitted.) CSX Transp. v. Williams, 278 Ga. at 890, 608 S.E.2d 208. "To impose a duty that either cannot feasibly be implemented or, even if implemented, would have no practical effect would be poor public policy indeed." Georgia Pacific, LLC v. Farrar, 432 Md. 523, 69 A.3d...