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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14003
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-01520-ELR
RONNIE JAROD THURMOND,
Plaintiff - Appellant,
versus
FEDERAL SIGNAL CORPORATION,
VACTOR MANUFACTURING, INC.,
Defendants - Appellees,
ENVIRONMENTAL PRODUCTS OF FLORIDA CORP., et al.,
Defendants.
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Appeal from the United States District Court
for the Northern District of Georgia
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(April 29, 2019)
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Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
In this personal injury case, Ronnie Thurmond appeals the district court’s
decision to partially exclude his expert’s opinion and to grant summary judgment
in favor of Vactor Manufacturing and its parent company, Federal Signal
Corporation (collectively, “Vactor”). Thurmond asserted strict liability and
negligence claims against Vactor under Georgia law after he suffered significant
injuries to his arm and hand while performing maintenance on a sewer cleaner, the
Vactor 2103.1 On appeal, Thurmond argues (1) that the district court erred in
concluding that Thurmond’s own carelessness, rather than Vactor’s purported
negligence or a design defect in the Vactor 2103, was the sole proximate cause of
his injuries, (2) that because the grant of summary judgment is due to be reversed,
his “claim for punitive damages is due to be revived,” and (3) that the district court
abused its discretion in “excluding the alternative design opinions of Thurmond’s
expert,” Dr. Jeffery H. Warren. After careful review, we disagree with
Thurmond’s first two contentions, and as a result, we need not address the third.
1
Thurmond also brought a failure-to-warn claim, but he did not contest Vactor’s motion for
summary judgment as to that claim before the district court.
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I
“We review de novo a district court’s grant of summary judgment, applying
the same legal standards that controlled the district court’s decision.” Pipkins v.
City of Temple Terrace,
267 F.3d 1197, 1199 (11th Cir. 2001) (citations omitted).
Accordingly, we must construe the facts and draw all reasonable inferences in the
light most favorable to Thurmond.
Id. (citations omitted). Summary judgment
was proper here if Vactor has shown that “there is no genuine dispute as to any
material fact” and it “is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
We start with a brief review of the facts. Thurmond’s injuries occurred
while working in the sewer department of the City of Loganville, Georgia.
Thurmond and a co-worker, Jack Montelbano, were using the Vactor 2103 and
noticed that its rodder hose began to leak. Accordingly, their supervisor told them
to replace the damaged hose. Whether Thurmond had replaced a rodder hose
before the date of his injury is a matter of some dispute; he asserts that he had not,
whereas Montelbano claims that Thurmond had done so previously and even
trained Montelbano on the procedure.
Thurmond admits that he did not consult the Vactor 2103 manual before
attempting to change the rodder hose. In his words, he “just figured out how to do
it as he went along.” He did not de-energize the machine or turn off the
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hydraulics, despite the fact that a decal on the drum warned users—in all caps—
“not [to] work on or near an exposed shaft when engine is running” and to “[s]hut
off engine before working on power take off [(“PTO”)] driven equipment.” He
reached into the hose reel drum in order to feed in the new rodder hose, and with
his arm in the machine up to his bicep, he inadvertently contacted the hose control
lever, which caused the hose reel to rotate. As a result, his arm became trapped,
causing what he describes as “severe, permanent, disfiguring, and de-gloving
injuries” to both his arm and hand.
Thurmond brought his claims in Georgia state court, but Environmental
Products of Florida—which is no longer a party to this litigation—removed the
case to federal court on the basis of diversity of citizenship, pursuant to 28 U.S.C.
§ 1441(b).
II
Under Georgia law, proximate cause is an essential element of both
negligence and strict liability causes of action.2 See Talley v. City Tank Corp.,
279
S.E.2d 264, 269 (Ga. Ct. App. 1981). Proximate cause is predicated on
foreseeability, as it includes “all of the natural and probable consequences of the
tortfeasor’s negligence.” Edwards v. Campbell,
792 S.E.2d 142, 147 (Ga. Ct. App.
2
Because Thurmond’s negligence and strict liability claims both rest on the contention that the
Vactor 2103 is defectively designed, our assessment of proximate cause applies to both claims.
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2016) (quoting Granger v. MST Transp., LLC,
764 S.E.2d 872, 874 (Ga. Ct. App.
2014)). Where, however, there is “an independent, intervening, act of someone
other than the defendant, which was not foreseeable by defendant . . . and which
was sufficient of itself to cause the injury,” a plaintiff cannot establish that the
defendant proximately caused her injuries. Walker v. Giles,
624 S.E.2d 191, 200
(Ga. Ct. App. 2005) (citations and quotations omitted); see also
Edwards, 792
S.E.2d at 147 (stating that “negligence, even if proven, can[not] be actionable”
without proximate cause and that “the requirement of proximate cause constitutes a
limit on legal liability”) (internal quotation marks omitted).
Thurmond argues that the district court erred in concluding—on both his
negligence and strict liability claims—that he failed to establish proximate cause as
a matter of law. The question whether he himself “was the sole proximate cause of
his injuries and [whether] his conduct was unforeseeable,” Thurmond contends,
should have been left to the jury. We disagree.
It is true, as Thurmond points out, that proximate cause is “usually submitted
to the jury as a question of fact.”
Edwards, 792 S.E.2d at 147 (quotations omitted).
But the question “may be decided as a matter of law [when] the evidence shows
clearly and palpably that the jury could reasonably draw but one conclusion, that
the defendant’s acts were not the proximate cause of the injury.”
Id. (quotations
omitted). Here, the district court did not err in concluding, as a matter of law, that
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Thurmond’s own carelessness, not any action on the part of Vactor, was the sole
proximate cause of his injuries. Thurmond does not dispute that the City of
Loganville’s safety committee found that “[t]he vehicle was left running while the
work was being performed” and concluded that Thurmond “was at fault due to
carelessness and failure to follow safety procedures.” Indeed, the City’s Standard
Operating Procedures mandate that employees follow appropriate “lockout-tagout”
procedures, which include, as relevant here, that equipment “must be turned off”
and “isolate[d] . . . from its energy sources” “prior to repairs.” Because of
Thurmond’s “carelessness,” his injury is too attenuated from Vactor’s actions to
give rise to liability. Cf. Omark Indus., Inc. v. Alewine,
319 S.E.2d 24, 25–26 (Ga.
Ct. App. 1984) (holding, in a failure-to-warn case, that plaintiff had failed to
establish proximate cause as a matter of law where the injury “clearly resulted
from negligent installation or maintenance occurring after the product left the
manufacturer rather than from a defect in the product itself”).
Thurmond counters that his failure to de-energize the Vactor 2103 “was
certainly foreseeable to Vactor” by dint of the fact that the company included
warnings—both in its manual and on the Vactor 2103 itself—to power off the
machine during rodder-hose replacement. But “[f]oreseeability means that which
is objectively reasonable to expect, not merely what might occur.” Greenway v.
Peabody Int’l Corp.,
294 S.E.2d 541, 547 (Ga. Ct. App. 1982) (quotations
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omitted). The mere fact that a company outlines basic safety procedures in its
warnings does not provide evidence that Vactor reasonably expected users to
disregard them completely. It is not “objectively reasonable to expect” that an end
user opts to just “figure[] out how to do it as he went along” without consulting the
Vactor 2103 manual or adhering to the City’s rudimentary safety procedures. 3
Also cutting against Thurmond’s argument that his “carelessness” was
foreseeable is the fact that of the approximately 500 units of the Vactor 2103 sold
there has not been another injury like Thurmond’s since Vactor began selling the
product in 1993. See Woods v. A.R.E. Accessories, LLC,
815 S.E.2d 205, 211 (Ga.
Ct. App. 2018) (finding that a particular misuse was not foreseeable, in part,
because “nothing in the record” showed reports of a similar incident). “It would
impose too heavy a responsibility” to hold Vactor to “guard against”—as here—
“what is unusual and unlikely to happen” or “only remotely and slightly probable.”
Atlanta Gas Light Co. v. Gresham,
394 S.E.2d 345, 347 (Ga. 1990) (citations and
quotations omitted). See also Govea v. City of Norcross,
608 S.E.2d 677, 684 (Ga.
Ct. App. 2004) (stating that “[i]t is well established that a wrongdoer is not
responsible for a consequence which is merely possible” and defining “possible
3
Thurmond purports to identify a dispute of material fact over whether the City had trained him
on lockout-tagout procedures and whether it made the Vactor 2103 manual available to its
employees. But the claim that Thurmond was not trained on these procedures, if true,
underscores that the conduct of someone other than Vactor was an intervening cause that broke
the chain of causation.
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consequences” to be “those which happen so infrequently that they are not
expected to happen again”) (citations and quotations omitted).
At bottom, Georgia tort law does not operate to hold a manufacturer to a
“duty . . . to design [its] product as to render it wholly incapable of producing
injury.”
Woods, 815 S.E.2d at 210. The district court did not err in holding that
Thurmond’s “carelessness” was an unforeseeable intervening cause of his injuries,
such that he cannot establish proximate cause as a matter of law.
III
Because we conclude that Thurmond’s own actions proximately caused his
injuries, the district court need not have reached the question whether the Vactor
2103 was defectively designed. See
Talley, 279 S.E.2d at 269 (“Unless the
manufacturer’s defective product can be shown to be the proximate cause of the
injuries, there can be no recovery.”). We therefore need not determine whether the
district court properly excluded Warren’s alternative design opinion. And because
“there can be no recovery,”
id., the district court correctly held that Thurmond’s
“derivative claim for punitive damages also cannot survive.”
AFFIRMED.
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