No Duty To Warn Third Parties for Take-Home Exposures in Georgia Supreme Court of Georgia, November 30, 2016
On November 30, 2016, the Georgia Supreme Court issued a ruling, that affirmed in part and reversed in part, a Georgia Court of Appeals decision, which was previously reported on in the ACT.
For a brief background, the plaintiff, Marcella Fletcher originally filed suit against CertainTeed after being diagnosed with malignant pleural mesothelioma. Fletcher attributed this diagnosis to years of laundering her father’s asbestos dust covered work clothing to which she alleges CertainTeed manufactured the asbestos-laden water pipes that her father had worked with. In her complaint, Fletcher alleged negligent design and negligent failure to warn.
The trial court granted CertainTeed’s motion for summary judgment and found that the plaintiff failed to establish sufficient evidence with respect to both allegations. The Georgia Court of Appeals reversed on both accounts to which the Georgia Supreme Court granted certiorari review.
On appeal, the Court of Appeals concluded that CertainTeed had failed to demonstrate, as a matter of law, the absence of evidence that its product was defectively designed. Here, the court applied the “risk-utility analysis,” which incorporates the concept of reasonableness, i.e., whether the manufacturer acted reasonably in choosing 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. With the adoption of this analysis, the burden is placed on the defendant, in seeking summary judgment, to show plainly and indisputably an absence of any evidence that a product as designed is defective [Citation Omitted]. CertainTeed did not challenge this conclusion and, accordingly, the Georgia Supreme Court affirmed the Court of Appeals decision in that CertainTeed failed to carry this burden and the reversal of the grant of summary judgment was correct.
The Court of Appeals also found a jury question existed as to whether CertainTeed had a duty to warn. In reaching this conclusion, although the court recognized that Fletcher would not have seen any warning label placed on CertainTeed’s products, it nevertheless concluded that a warning could have permitted her father to take steps to mitigate any danger posed by the asbestos dust on his clothing. Upon review, the Georgia Supreme Court found this conclusion problematic. The Supreme Court explained, 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 and that duty requires warnings of nonobvious foreseeable dangers from the normal use of its products. Generally, this duty to warn may be owed to consumers, reasonably foreseeable users and purchasers of the product. This duty has also been extended, in some cases, to reasonably foreseeable third parties. However, the existence of a duty to warn, the determination of which is a legal question, is not resolved exclusively on the basis of foreseeability, and other factors are considered. The court noted, in fixing the bounds of duty, not only logic and science, but public policy play an important role. In other words, to impose a duty that either cannot feasibly be implemented or, even if implemented, would have no practical effect would be poor public policy. [Citation Omitted].
Taking into consideration this public policy factor, the Georgia Supreme Court was disinclined to conclude that that CertainTeed owed a duty to warn third parties based on the fact that, in this case, such a warning may have been effective. Therefore, the court found it unreasonable to impose a duty on CertainTeed to warn all individuals in Fletcher’s position, whether those individuals be family members or simply members of the public who were exposed to asbestos-laden clothing, as the mechanism and scope of such warnings would be endless. Accordingly, the Georgia Supreme Court that CertainTeed owed no duty to warn Fletcher regarding the dangers of the asbestos dust and, thus, that the Court of Appeals erroneously reversed the trial court’s grant of summary judgment to CertainTeed with respect to Fletcher’s duty to warn claim.