Banks v. ICI Americas, Inc. , 266 Ga. 607 ( 1996 )

Fletcher, Presiding Justice,

dissenting.

In Banks v. ICI Americas,⁴ (“Banks J”) the majority remanded the case to the Court of Appeals for a resolution of the remaining enumerations of error. ICI argued in one enumeration of error that the evidence did not support an award of punitive damages. The Court of Appeals reviewed the record and agreed. Given the absence of any discussion in this Court’s opinion in Banks I of retroactivity, the Court of Appeals did not err in addressing and resolving a pertinent issue.

The majority’s treatment of the Chevron Oil⁵ factors blurs separate issues. Whether the risk-utility analysis adopted in Banks I is to apply to the parties in this case,⁶ or retroactively to parties not yet before the court, is not in issue in this appeal. The sole question here is one of the availability of remedies. Looking at this narrow issue, the equities clearly weigh in favor of limiting plaintiffs on retrial to compensatory damages.

The purpose of punitive damages awards is to punish and deter egregious conduct. Imposing punitive sanctions based on a rule of law created after the conduct at issue does not further the purpose of deterring tortious behavior.⁷ This is certainly true when under the prior law ICI’s conduct was not tortious and ICI was not liable for any damages, including punitive damages.⁸

Banks contends it is fair to impose punitive damages because California and other states had adopted the risk-utility analysis at the time of the manufacture of the rat poison. It is more consistent with the public policy of this state, however, to judge ICI’s conduct for the purposes of punitive damages by the standards of conduct that governed in Georgia prior to Banks I. Furthermore, ICI certainly relied on pre-Banks I law when it expended resources in defending and winning this case under that law.

Decided April 29, 1996. Doffermyre, Shields, Canfield & Knowles, Robert E. Shields, R. Hutton Brown III, Richard A. Childs, for appellants. Hagler, Hyles & Adams, M. Stephen Hyles, Rogers & Hardin, Brett A. Rogers, Phillip S. McKinney, for appellee.

Retroactive imposition of punitive damages under these circumstances fails to satisfy basic notions of equity and fairness,⁹ and, therefore, I respectfully dissent.

4 264 Ga. 732 (450 SE2d 671) (1994).

5 Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (92 SC 349, 30 LE2d 296) (1971).

6 In its motion for reconsideration following Banks I, ICI did not challenge the retroactive application of the risk-utility analysis to this case.

7 Cf. Stone Man, Inc. v. Green, 263 Ga. 470, 472 (435 SE2d 205) (1993) (punitive damages award generally improper where defendant has met regulatory standards).

8 See id. at 739 (Carley, J., concurring in part and dissenting in part).

9 See TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443 (113 SC 2711, 2724, 125 LE2d 366) (1993) (notice component of Due Process Clause is satisfied if prior law fairly indicated that a punitive damages award might be imposed).