Alaska

Georgia

 

 

 

Statutes of Limitations (GEORGIA)

Personal Injury - 2 yrs.* [Ga. Code Ann. § 9-3-33] 

Wrongful Death - 2 yrs.[Ga. Code Ann. § 9-3-33]; from time of death, no discovery rule [Miles v. Ashland Chemical Co., 410 S.E.2d 290 (Ga. 1991)]

Real Property Damage - 4 yrs. [Ga. Code Ann. § 9-3-30]; Caution: Damage to property arising out of construction is generally considered to occur, and the statute of limitations begins to run, at the time of “substantial completion” of the project [Colormatch Exteriors, Inc. v. Hickey, 569 S.E.2d 495 (Ga. 2002)]

Personal Property Damage - 4 yrs. [Ga. Code Ann. §§ 9-3-31, 9-3-32]

Written Contracts - 6 yrs. [Ga. Code Ann. § 9-3-24]

Oral Contracts - 4 yrs. [Ga. Code Ann. § 9-3-25]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [Ga. Code Ann. § 11-2-725]

 

*Cause of action usually accrued when, in the exercise of reasonable diligence, Plaintiff discovered or should have discovered that she had been injured and that her injury may have been caused by Defendants’ conduct [Harrison v. Digital Equipment Corp., 465 S.E.2d 494 (Ga. App. 1995)].

 

 

 

 

 

 

Statute of Repose (Products) (GEORGIA)

10 yrs. [Ga. Code Ann. § 51-1-11].

 

Admissibility of Expert Testimony (GEORGIA)

Daubert test has been adopted (except for criminal cases) [Vaughn v. State, 282 Ga. 99 (Ga. 2007)].

 

Causes of Action (GEORGIA)

 

Statutory definition: Manufacturer of any personal property sold as new property directly or through any other person is liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained [O.C.G.A. § 51-1-11].

 

Strict Liability - Plaintiff must prove that: (1) Defendant is the manufacturer of the product; (2) the product when sold by the manufacturer was not merchantable and reasonably suited to the use intended (that is, defective); and (3) its condition when sold was the proximate cause of the injury sustained [Chi. Hardware & Fixture Co. v. Letterman, 236 Ga. App. 21 (Ga. App. 1999)].

 

Negligence – An action in products liability may proceed on theory of negligence [Ogletree v. Navistar Int'l Transp. Corp., 390 S.E.2d 61 (Ga. App. 1989)].

 

Breach of Warranty – Georgia has adopted the standard UCC express warranty [O.C.G.A. § 11-2-313]; implied warranty of merchantability [O.C.G.A. § 11-2-314]; implied warranty of fitness for particular purpose [O.C.G.A. § 11-2-315].  A seller’s warranty (express or implied) extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume, or be affected by the goods and who is injured in person by breach of the warranty [O.C.G.A. § 11-2-318].

 

Definition of “Defect” (GEORGIA)

The strict liability doctrine is applicable, in an action against the manufacturer, where it appears that there is a defect in manufacture consisting of use of material that may not be safely used for the purposes intended.  Another criterion is that a product is defective if it is not reasonably fit for the ordinary purposes for which such products are sold and used.  There is no condition that the defective product must be “unreasonably dangerous” which limitation is included in the classic definition of strict liability [Center Chem. Co. v. Parzini, 218 S.E.2d 580 (Ga. 1975)]. 

 

 

Liability of Sellers (GEORGIA)

 

In strict liability cases, a product seller is not a manufacturer and is not liable as such [O.C.G.A. § 51-1-11.1].

 

 

 

Defenses (GEORGIA)

     

Comparative Negligence – Georgia follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 50% at fault) [Ga. Code Ann. §§ 51-11-7; 51-12-33].  Does not apply to strict liability (if liability is imposed upon a manufacturer under the doctrine of strict liability, principles of contributory and comparative negligence are inapplicable) [Patterson v. Long, 741 S.E.2d 242 (Ga. App. 2013)].

 

Assumption of Risk ("AOR") – Complete defense.  Applicable in product-liability cases.  There are 2 forms of AOR: (1) assumption of risk of the product defect; and (2) AOR of the physical injuries incurred. In most product-liability cases, Manufacturer’s defense is that Plaintiff assumed the risk that the defect in the product would produce the injury sustained by using it with actual knowledge of the defect [Deere & Co. v. Brooks, 299 S.E.2d 704 (Ga. 1983)].  To show AOR, Defendant must present evidence that Plaintiff had actual knowledge of the danger, understood and appreciated the risk, and voluntarily exposed himself to that risk [Bowen v. Cochran, 556 S.E.2d 530 (Ga. App. 2001)].

 

Product Alteration/Modification – Modification of a product that changes its intended use must, if done in an unsafe manner, amount to an intervening act to relieve the original manufacturer of liability [Union Carbide Corp. v. Holton, 222 S.E.2d 105 (Ga. App. 1975)].  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., 279 S.E.2d 264 (Ga. App. 1981)].

 

Product Misuse – If injury results from abnormal handling, Manufacturer is not liable [Barnes v. Harley-Davidson Motor Co., 357 S.E.2d 127 (Ga. App. 1987)].  However, when abnormal use is claimed, the determination of whether Manufacturer is insulated from liability depends initially upon the foreseeability that the product would be put to that use [Talley v. City Tank Corp., 279 S.E.2d 264 (Ga. App. 1981)].

 

Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (GEORGIA)

 

Purely economic losses are not compensable under statute imposing strict liability upon a manufacturer for defective products when the only damage was to the product itself [Busbee v. Chrysler Corp., 524 S.E.2d 539 (Ga. App. 1999)].

 

There is an “accident exception,” which allows Plaintiff to recover in tort when there is a sudden and calamitous event that not only causes damage to the product but poses an unreasonable risk of injury to persons and other property [Vulcan Materials Co., Inc. v. Driltech, Inc., 306 S.E.2d 253 (Ga. 1983)].

 

Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (GEORGIA)

Existence of a manufacturing defect may be inferred from circumstantial evidence [Firestone Tire & Rubber Co. v. Hall, 263 S.E.2d 449 (Ga. App. 1979)].

 

 

 

 

Design Defects (GEORGIA)

 

The term “defect” in design defect cases is an expression of the legal conclusion to be reached, rather than a test for reaching that conclusion.  A balancing test is utilized whereby the risks inherent in a product design are weighed against the utility or benefit derived from the product.  This risk-utility analysis incorporates the concept of “reasonableness” (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 Ams., 450 S.E.2d 671 (Ga. 1994)]. 

 

Non-exhaustive list of general factors that can be considered under the risk-utility analysis in defective design cases: (1) the usefulness of the product; (2) the gravity and severity of the danger posed by the design; (3) the likelihood of that danger; (4) the avoidability of the danger; (4) the user’s ability to avoid danger; (5) the state of the art at the time the product is manufactured; (6) the ability to eliminate danger without impairing the usefulness of the product or making it too expensive; and (7) the feasibility of spreading the loss in the setting of the product's price or by purchasing insurance [Banks v. Ici Ams., 450 S.E.2d 671 (Ga. 1994)].

 

Manufacturer’s proof of compliance with industry-wide practices, state of the art, or federal regulations does not eliminate conclusively its liability for its design of allegedly defective products [Banks v. Ici Ams., 450 S.E.2d 671 (Ga. 1994)].

 

One factor consistently recognized as integral to the assessment of the utility of a design is the availability of alternative designs, in that the existence and feasibility of a safer and equally efficacious design diminishes the justification for using a challenged design.  Liability for defective design attaches only when Plaintiff proves that the seller failed to adopt a reasonable, safer design that would have reduced the foreseeable risks of harm presented by the product [Banks v. Ici Ams., 450 S.E.2d 671 (Ga. 1994)]. 

 

 

 

Failure to Warn (GEORGIA)

 

A duty to warn can arise even if a product is not defective [Battersby v. Boyer, 526 S.E.2d 159 (Ga. App. 1999)].  Manufacturer of a product which, to its actual or constructive knowledge, involves danger to users, has a duty to give warning of such danger [Chrysler Corp. v. Batten, 450 S.E.2d 208 (Ga. 1994)].  There is no duty to warn of a danger which is obvious or generally known, or of which the person who claims to be entitled to the warning has actual knowledge. [Hunt v. Harley-Davidson Motor Co., 248 S.E.2d 15 (Ga. App. 1978)]

 

Any insufficiency of the warning on the label of a product may not be the proximate cause of the incident when the user fails to read the label [Cobb Heating & Air Conditioning Co. v. Hertron Chemical Co., 229 S.E.2d 681 (Ga. App. 1976)].

 

Where a warning has been made by a manufacturer, the sufficiency of that warning is for the jury to decide [Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779 (Ga. App. 1987)].

Where warning is given, a seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor it is unreasonably dangerous [Porter v. Eli Lilly & Co., 2008 U.S. Dist. LEXIS 14273, (N.D. Ga. 2008)].

 

Independent Cause of Action for Evidence Spoliation (GEORGIA)

 

No independent tort for spoliation against a first party or a third party [Owens v. American Refuse Systems, Inc., 536 S.E.2d 782 (Ga. App. 2000); Gardner v. Blackston, 185 Ga.App. 754 (Ga. App. 1988)].