Suzuki Motor of America, Inc. v. Adrian Johns

SECOND DIVISION
MILLER, P.J.,
RICKMAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 28, 2019
In the Court of Appeals of Georgia
A19A0108, A19A0109; SUZUKI MOTOR OF AMERICA, INC. et
al. v. JOHNS et al.; and vice versa.
RICKMAN, Judge.
In this product liability action, a jury returned a verdict and awarded damages
in favor of Adrian Johns and against Suzuki Motor Corporation (“SMC”) and Suzuki
Motor of America, Inc. (“SMAI”) (collectively, “Suzuki”) on Johns’s claims for strict
product liability based upon a design defect, breach of a continuing duty to warn, and
negligent recall, stemming from injuries that he suffered when the front brakes on his
Suzuki motorcycle failed. The jury also found in favor of Johns’s wife and awarded
her damages on a claim for loss of consortium. The jury attributed 49 percent fault to
Johns and the remaining 51 percent fault to the collective defendants, and the trial
court apportioned the damage award accordingly.
In Case Number A19A0108, Suzuki asserts that the trial court erred by failing
to dismiss SMAI from the lawsuit on the basis that it did not assume liability for
Johns’s claims when it acquired the assets of its predecessor corporation in
bankruptcy; failing to enter a directed verdict on each of Johns’s three claims; and
admitting irrelevant and unduly prejudicial evidence of a recall and evidence of other
incidents for improper purposes. In Case Number A19A0109, the Johnses assert on
cross-appeal that the trial court erred by apportioning the damage award on Johns’s
strict liability claim and on his wife’s loss of consortium claim, which also resulted
in the court declining to award pre-judgment interest pursuant to OCGA § 51-12-14
(a). For the following reasons, we affirm in both cases.
Viewed in the light most favorable to the jury’s verdict,1 the evidence shows
that SMC is a Japanese corporation that designed and manufactured the motorcycle
at issue in this lawsuit. SMAI is an American wholesale distributor and wholly-owned
subsidiary of SMC, and although it did not distribute Johns’s motorcycle, it acquired
the assets of the wholly-owned SMC subsidiary that did through a Chapter 11
bankruptcy proceeding.
1
See Neal v. CSX Transp., 213 Ga. App. 707, 709 (2) (445 SE2d 766) (1994).
2
In 2005, Johns, who had been driving motorcycles for over 20 years, purchased
a 2006 Suzuki GSX-R1000. On August 9, 2013, Johns was preparing for a weekend
motorcycle ride and conducted a pre-ride inspection on his bike. His pre-ride
inspections routinely included checking the tires, lights, fluids, and brakes. On this
particular occasion, Johns noticed that the front brake felt “spongy.” He called his
father-in-law, a certified motorcycle mechanic, who, after inquiring about the brake
fluid, instructed him to “bleed the brakes,” a process that involved draining the air out
of the brake line until a “tight brake” was achieved. Johns did so, and the problem
appeared to be resolved. He nevertheless decided to forgo the longer weekend ride,
instead limiting himself to short test drives. The front brake seemed to function
normally.
The following Monday morning, August 12, 2013, Johns decided to drive the
motorcycle to work. After doing his usual pre-ride inspection, he exited his
neighborhood and drove approximately 20 miles without noticing any problem with
his front brake. At some point, however, Johns was traveling at approximately 20
miles per hour on a highly-trafficked road when the tractor-trailer in front of him
began to slow down. As Johns attempted to do the same, he experienced a total failure
of his front brake. Boxed in by the cars around him, Johns was forced to rely entirely
3
on his rear brake, causing his motorcycle to skid and swerve, and he ultimately hit the
curb and was thrown from his bike. Johns lost consciousness for a period of time and
suffered serious injuries to his back and hand in the accident. He subsequently
underwent spinal fusion surgery and a separate surgery to repair his hand, and spent
over two months in the hospital and at rehabilitation facilities relearning how to walk
and use his hand again.
While still in the hospital, Johns relayed to his father-in-law that the front brake
on his motorcycle had failed. Johns’s wife and father-in-law subsequently picked up
the bike from the tow lot and confirmed that the front brake did not work.
Within a couple of days of returning home from rehabilitation, Johns received
a recall notice from Suzuki warning him of a dangerous safety defect in his
motorcycle’s front brake master cylinder. The recall notice warned that a condition
in the front brake master cylinder of GSX-R motorcycles may “lead to corrosion of
the break piston” and result in a “spongy” brake. It further warned that “[o]perating
your motorcycle without having the recall service performed may increase the risk of
a crash.” Johns testified that, had he received the recall notice before his accident, he
would not have driven his motorcycle without first having had the service performed.
4
Johns filed the instant lawsuit against Suzuki, alleging claims of strict liability
based upon a design defect, negligent failure to warn, and negligent recall; he sought
both compensatory and punitive damages. Johns’s wife also filed a claim for loss of
consortium.
During the ensuing trial, Johns presented evidence in support of his theory that
a defect in the design of his motorcycle’s master cylinder caused the front brake
failure, that the defect was the same defect as that targeted by Suzuki’s subsequently
issued recall, and that Suzuki had notice of the issue months before it notified the
public and, indeed, prior to Johns’s accident. As evidence of the defect, Johns
presented testimony from an expert witness who testified that the design of the master
cylinder resulted a steel spring being in direct contact with a zinc piston, and that it
had been long understood that a combination of those metals in the presence of water,
such as that commonly present in brake fluid, created a “galvanic couple” resulting
in a corrosion of the piston. The expert testified that the corrosion produces various
byproducts, including gas and zinc formate crystals, which can then interfere with
normal brake operation. The expert also testified that the corrosion issue could be
avoided by placing a rubber insulator between the two metals, as was done in the rear
brake master cylinder of Johns’s motorcycle.
5
After Johns’s front brake was tested, disassembled, and inspected, the expert
opined that the steel-zinc reaction in the front brake master cylinder did indeed create
a corrosive byproduct that included gas and crystallized zinc formate, and that a zinc
formate crystal disrupted a seal in the master cylinder which created a “leak path”
which misdirected the flow of brake fluid and resulted in the total brake failure that
Johns experienced.
In addition, Johns used evidence of the recall itself, as well as internal
documents illustrating the circumstances surrounding the recall decision, as evidence
not only of the defective design, but also of Suzuki’s knowledge of the defect. Johns
also presented evidence of two unrelated but similar incidents.
In its defense, Suzuki denied that any kind of malfunction of the motorcycle’s
front brake contributed to Johns’s accident, instead asserting that the accident and
resulting injuries were caused by Johns’s negligent operation of the bike at the time
of the accident. As an alternative theory, Suzuki contended that even if Johns did
experience brake failure in the manner alleged by his expert witness, the corrosive
condition existed only as a result of Johns’s admitted failure to change the brake fluid
for eight years in contravention of the owners manual’s instruction that the fluid be
replaced every two years. Suzuki also maintained throughout the trial that its master
6
cylinder recall was entirely unrelated to Johns’s claims. Suzuki asserted that the
defective condition targeted by the recall was the master cylinder’s inability to purge
gas produced as a byproduct of the corrosive piston, a condition which was
exacerbated by Johns’s failure to change the brake fluid, which resulted in increased
moisture and, consequently, increased gas production. Suzuki contended that the
defect would result in a “spongy” brake, but never in a total loss of a motorcycle’s
front brake.
The jury found in favor of Johns on each of his claims and awarded him $10.5
million in compensatory damages, but declined to award punitive damages. When
asked to assign the relative percentages of fault to the parties, the jury assessed 49
percent fault to Johns, 45 percent fault to SMC, and 6 percent fault to SMAI. The jury
also found in favor of Johns’s wife on her claim for loss of consortium and awarded
her an additional $2 million in damages. The trial court apportioned the damage
award pursuant to OCGA § 51-12-33 in accordance with the percentage of fault
attributed to each party. Suzuki filed a motion for judgment notwithstanding the
verdict or, alternatively, for a new trial, which the trial court denied. This appeal
follows.
Case No. A19A0108
7
1. SMAI asserts that this Court should enter judgment in its favor on all claims
because it was never a proper party to this case. Prior to trial, the trial court granted
summary judgment to SMAI on Johns’s design defect claim after concluding that it
was not a manufacturer for the purposes of that action, which was premised on strict
liability; however, the trial court denied summary judgment to SMAI on the
remaining two claims premised, in part, on successor liability. SMAI argues that it
should have been dismissed from the lawsuit in its entirety because it “had nothing
to do with the development, manufacture, distribution, or sale of Johns’s motorcycle,”
since it did not begin operations until seven years after Johns purchased the
motorcycle in question.
We need not even consider the substance of SMAI’s argument because it
simply is not possible at this point for this Court to unwind the jury’s verdict as to any
single defendant. In the charge given to the jury, the term “manufacturer” was not
defined, and the charge referred to SMC and SMAI collectively as “manufacturers”
and “defendants” throughout. Likewise, the verdict form, by express consent of the
parties, did not distinguish between the “Defendants” when asking the jury to
determine the liability associated with any claim.
8
Indeed, during the trial court’s conference on the drafting of the verdict form,
the trial court expressed concern about the challenges it faced because of the different
parties and different claims. The following colloquy transpired:
THE COURT: [M]y fear is that we get . . . a verdict that’s not a straight
defense verdict, trying to figure out what the jury is telling me to put in
a judgment . . . if I can’t figure out what they mean, we’ve got a
problem. So that is why I’ve taken so long in doing the verdict form.
. . . [DEFENSE]: We’re happy to have the Court to just do one
defendant.
...
[THE COURT]: . . . [Y]ou want me to combine the defendants here at
the end of trial?
[DEFENSE]: Yes, your Honor, we do.
...
[PLAINTIFF]: I think its inviting error, Judge.
[DEFENSE]: Well, not if we consented to it.
[THE COURT]: Well, not if everybody consents to it.
9
[DEFENSE]: It seems like we’re the ones that could claim error.
[THE COURT]: . . . I have no idea what the implications of it would be.
...
[PLAINTIFF]: That’s fine with us.
...
[DEFENSE]: We are perfectly fine on that.
Under these circumstances, to the extent any liability was improperly assessed
to SMAI, it was invited error. See generally Jackson v. Neese, 276 Ga. App. 724, 727
(4) (624 SE2d 139) (2005).
2. Suzuki contends that the trial court erred in denying its motion for directed
verdict on each of Johns’s claims.2 A directed verdict is warranted only “[when] there
is no conflict in the evidence as to any material issue, and the evidence introduced,
with all reasonable deductions therefrom, shall demand a particular verdict.” (Citation
and punctuation omitted.) Key Safety Systems, Inc. v. Bruner, 334 Ga. App. 717, 717
2
Suzuki also filed a motion notwithstanding the verdict on the same claims.
10
(780 SE2d 389) (2015). When reviewing a trial court’s ruling on a motion for directed
verdict, we construe the evidence most favorably to the party opposing the motion
and will affirm the trial court’s ruling if there is any evidence to support it. Id. at 717-
718. We will address each claim in turn.
(a) SMC argues that it was entitled to a directed verdict on the design defect
claim because it contends that Johns “materially altered” the motorcycle prior to his
accident.3 Although couched in terms of a material alteration, the crux of SMC’s
position is that Johns’s admitted failure to replace the brake fluid acted as an
intervening cause that broke the causal connection between its defective design and
Johns’s injuries.
Under Georgia law, a manufacturer of property is liable to a consumer of that
property “who suffers injury to his person or property because the property when sold
by the manufacturer was not merchantable and reasonably suited to the use intended,
and its condition when sold is the proximate cause of the injury sustained.” OCGA
§ 51-1-11 (b) (1). In order for liability to attach to a manufacturer, “the injury must
be the proximate result of a defect in the product which existed at the time sold.”
3
The trial court granted summary judgment in favor of SMAI after all parties
conceded that it was not subject to strict liability.
11
(Citation and punctuation omitted.) Hall v. Scott USA, Ltd., 198 Ga. App. 197, 200
(2) (400 SE2d 700) (1990); see Talley v. City Tank Corp., 158 Ga. App. 130, 134 (3)
(279 SE2d 264) (1981). Of course, “[u]nless the manufacturer’s defective product can
be shown to be the proximate cause of the injuries, there can be no recovery.” Talley,
158 Ga. App. at 135 (3).
Even if a manufacturer’s design is proven to be defective and was so at the time
of sale, however, the manufacturer’s liability may be negated by an intervening cause,
such as the unforeseeable negligence of another person. See Hall, 198 Ga. App. at
200.
The general rule is that if, subsequently to an original wrongful act, a
new cause has intervened, of itself sufficient to stand as the cause of the
misfortune, the former must be considered as too remote[;] [but,] if the
character of the intervening act claimed to break the connection between
the original wrongful act and the subsequent injury was such that its
probable or natural consequences could reasonably have been
anticipated, apprehended, or foreseen by the original wrong-doer, the
causal connection is not broken, and the original wrong-doer is
responsible for all of the consequences resulting from the intervening
act.
(Citation and punctuation omitted.) Tensar Earth Technologies, Inc. v. City of
Atlanta, 267 Ga. App. 45, 49 (2) (598 SE2d 815) (2004). Thus, for any intervening
12
act to become the sole proximate cause of a plaintiff’s injuries, the act “must not have
been foreseeable by defendant, must not have been triggered by defendant’s act, and
must have been sufficient by itself to cause the injury.” (Citation and punctuation
omitted.) Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533)
(2002).
SMC’s argument fails on the foreseeability aspect of this analysis alone. It is
undisputed that the defect in the brake cylinder – namely, the direct contact of the
steel spring and the zinc piston – was present in Johns’s motorcycle when it was sold.
Further, there was evidence presented as to the industry’s long-standing knowledge,
and Suzuki’s knowledge in particular, that the chemical reaction caused by that
particular combination of metals in the presence of water, which is commonly found
in brake fluid, produced corrosion debris. Although SMC also presented evidence that
changing the brake fluid regularly may have reduced the possibility of the
development of corrosion, it also admitted that the majority of its customers do not
follow a regular maintenance schedule, including changing the brake fluid, and that
the customers’ failure to do so is a well known and established fact. Further, there
was documentary evidence supporting a finding that Suzuki was unable to
conclusively determine that the corrosion would not occur even if customer
13
maintenance was properly preformed. And finally, there was evidence that Johns’s
back brake – which had the same master cylinder design but included a rubber
insulator – and also had the same lack of maintenance history, was not corroded.
Under these circumstances, the question of whether Johns’s failure to replace
the brake fluid was an intervening cause that broke the causal connection between
SMC’s defective design of the brake cylinder and Johns’s injuries was squarely one
for the jury. Tensar Earth Technologies, 267 Ga. App. at 50 (2) (“Questions regarding
proximate cause are undeniably [for] jury [resolution] and may only be determined
by the courts in plain and undisputed cases.”) (citation and punctuation omitted).
Further, there was sufficient evidence in the record to support the jury’s rejection of
SMC’s position. Chrysler Group, LLC v. Walden, 339 Ga. App. 733, 735 (1) (792
SE2d 754) (2016) (recognizing that we will not substitute our judgment for that of the
jury and will affirm if there is any evidence to support the verdict). It follows that the
trial court did not err in denying SMC’s motion for directed verdict on this claim.
(b) Suzuki asserts that the trial court erred in denying its directed verdict on
Johns’s claim for negligent failure to warn. Suzuki argues that (i) it had no notice of
the defect that caused Johns’s accident; (ii) there was no expert testimony that its
14
warnings were insufficient; and (iii) Johns ignored the warnings provided in the
owner’s manual.
Under Georgia law, a manufacturer has a duty to warn of “nonobvious
foreseeable dangers from the normal use of its products.” (Citation and punctuation
omitted.) Certainteed Corp. v. Fletcher, 300 Ga. 327, 330 (2) (794 SE2d 641) (2016).
“[T]he duty to warn arises whenever the manufacturer knows or reasonably should
know of the danger arising from the use of its product[s].” (Citation and punctuation
omitted.) Id.; Chrysler Corp. v. Batten, 264 Ga. 723, 724 (1) (450 SE2d 208) (1994).
Thus, the duty to adequately warn the public of defects in a product is continuous,
even after that product has left the control of the manufacturer to be sold or
distributed to the consumer.4 See Hunter v. Werner Co., 258 Ga. App. 379, 383 (2)
(574 SE2d 426) (2002) (“A negligent failure to warn claim may arise from a
manufacturer’s post-sale knowledge acquired months, years, or even decades after the
date of the first sale of the product.”) (citation and punctuation omitted); see also
OCGA § 51-1-11 (c); Batten, 264 Ga. at 724 (1).
4
In its reply brief, Suzuki briefly references in passing the “general rule” that
the continuing duty to warn does not extend to “non-manufacturers like SMAI.” As
discussed in Division 1, the verdict form, by express consent of the parties, did not
distinguish between the “Defendants” when asking the jury to determine the liability
associated with any claim. Consequently, we will not do so now.
15
Thus, “[w]hether a duty to warn exists . . . depends upon foreseeability of the
use in question, the type of danger involved, and the foreseeability of the user’s
knowledge of the danger.” (Citation and punctuation omitted.) Hunter, 258 Ga. App.
at 384 (2). It may be breached by “(1) failing to adequately communicate the warning
to the ultimate user or (2) failing to provide an adequate warning of the product’s
potential risks.” Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75 (1) (460 SE2d
532) (1995). Significantly, such issues should generally be resolved by the jury. See
Hunter, 258 Ga. App. at 385 (2).
(i) Contrary to Suzuki’s contention, the record does contain evidence creating
a jury issue as to whether Suzuki had knowledge of a defective condition in the
motorcycle’s brake cylinder that would give rise to a duty to warn. There was
evidence that as early as 2009, Suzuki began receiving complaints from customers
related to an experienced decrease of pressure in the front brake. By November 2012,
there had been 60 documented complaints about the front brake, ranging from a
decrease in pressure to a total loss of pressure. And by December 2012, Suzuki
recognized that the brake issue was “very dangerous.” Suzuki also acknowledged
internally that customers experiencing issues with their front brake may not recognize
16
the problem as a structural defect, but rather mistakenly believe it to be a maintenance
issue.
In disclaiming its knowledge, Suzuki takes the extremely narrow view that it
was unaware “that theoretical particles could generate” in the master cylinder that
could disrupt the seal and create brake failure. While that may be true, there was
nevertheless evidence to support a finding that Suzuki at least should have known
that a defective design in the master cylinder resulted in corrosion of the brake piston
and produced corrosive byproducts that might interfere with the functioning of the
front brake, and that some customers had complained of a loss of brake pressure.
Under these circumstances, the trial court did not err in declining to grant Suzuki
judgment as a matter of law on the question of its knowledge. See generally Ford
Motor Co. v. Stubblefield, 171 Ga. App. 331, 336 (2) (319 SE2d 470) (1984).
(ii) Suzuki argues that Johns failed to present expert testimony that the
warnings provided in its owner’s manual were inadequate or defective. The manual
included a “maintenance chart” which listed “brake fluid” and indicated it should be
“[r]eplace[d] every two years.” On a separate page, the manual included a
“WARNING” box that stated, “Improper maintenance or failure to perform
17
recommended maintenance increases the chance of an accident or motorcycle
damage.”
“[E]xpert opinion testimony on issues to be decided by the jury, even the
ultimate issue, is admissible only where the conclusion of the expert is beyond the
ken of the average layman.” (Citation and punctuation omitted.) Whitlock v. Moore,
312 Ga. App. 777, 780 (1) (720 SE2d 194) (2011). There is nothing to suggest that
a determination of the adequacy of the warnings in Suzuki’s instruction manual
presented an issue beyond the ken of an average juror. See Key Safety Systems, 334
Ga. App. at 720 (1) (“Questions of adequacy of a warning and proximate cause
resulting from a complete lack of warning or an inadequate warning are peculiarly
questions for the jury.”) (citation and punctuation omitted). Thus, no expert testimony
on this issue was required, or would have even been proper. See id.
(iii) Suzuki contends that Johns’s admitted failure to adhere to the maintenance
schedule in the owner’s manual of his motorcycle with respect to the replacement of
the brake fluid barred his claim. Suzuki ignores, however, that evidence was
presented suggesting that even had Johns been diligent in changing his brake fluid
according to the maintenance schedule, corrosion may not have been prevented due
to the design of the cylinder. The record also contains evidence that John’s rear brake
18
cylinder, which included the same design with the exception of the rubber insulator,
had also never been changed, and yet was not corroded. This evidence was sufficient
to create a jury issue. See generally Giordano v. Ford Motor Co., 165 Ga. App. 644,
645 (2) (299 SE2d 897) (1983).
(c) Suzuki also asserts that it was entitled to directed verdict on Johns’s
negligent recall claim. We need not address this enumeration of error, however,
because it has been rendered moot by our affirmance of the jury’s verdict on the
previous two claims.
3. Finally, Suzuki contends that it is entitled to a new trial because the trial
court erred by admitting, over its objection, evidence of (i) Suzuki’s voluntary recall
of its front brake master cylinder, and (ii) two similar incidents. We will address each
in turn.
(i) Suzuki argues that evidence of its voluntary recall in October 2013 should
have been excluded as irrelevant and overly prejudicial.
In product liability cases, evidence of a recall is admissible so long as the
subject of the litigation involves the same or substantially similar product as the
product being recalled, and there is independent evidence that the product which is
the subject of the litigation suffers from the same alleged defect as that giving rise to
19
the product recall. See Harley-Davidson Motor Co., Inc. v. Daniel, 244 Ga. 284, 286
(2) (260 SE2d 20) (1979); Rose v. Figgie Intern., 229 Ga. App. 848, 854-55 (2) (495
SE2d 77) (1997) (physical precedent only).
It is undisputed that the front master cylinder on Johns’s bike was subject to
the recall, so this issue turns on whether the defect in Johns’s motorcycle was the
same defect that gave rise to the recall. See Harley-Davidson Motor Co., 244 Ga. at
286 (2). In contending that it does not, Suzuki again takes a very narrow view of the
purpose of the recall, insisting that it was meant to address a buildup of hydrogen gas
– not zinc formate, and resulted in “spongy” brakes – not a total brake failure. First,
we note that Johns experienced the “spongy” brake problem – the same problem
described in the recall – prior to his brake’s total failure. But nevertheless, both
defects involved corrosion byproduct created as a result of a defectively designed
master cylinder that then interfered with the functioning of the front brake.
Consequently, the trial court did not abuse its broad discretion in admitting the recall
evidence. See generally Chrysler Group, 339 Ga. App. at 747 (7). Likewise, the trial
court had broad discretion in determining whether the evidence was overly prejudicial
pursuant to OCGA § 24-4-403, and did not err in allowing it. See generally State v.
Orr, __ Ga. __ (4) (b) (Case No. S18G0994) (“[E]xclusion of evidence under Rule
20
403 is an extraordinary remedy that should be used only sparingly to prohibit matter
of scant or cumulative probative force, dragged in by the heels for the sake of its
prejudicial effect.”) (citation and punctuation omitted); Harley-Davidson Motor Co.,
244 Ga. 284, 286 (260 SE2d 20) (1979).
(ii) Suzuki contends that the trial court erred by allowing evidence of two
unrelated motorcycle accidents involving front brake failure as evidence of Suzuki’s
knowledge of the defect, asserting that the evidence should have been excluded as
irrelevant.
“In product liability actions, evidence of other incidents involving the product
is admissible, and relevant to the issues of notice of a defect, provided there is a
showing of substantial similarity.” (Citations and punctuation omitted.) Ford Motor
Co. v. Reese, 300 Ga. App. 82, 89 (3) (684 SE2d 279) (2009); see Cooper Tire &
Rubber Co. v. Crosby, 273 Ga. 454, 455 (1) (543 SE2d 21) (2001). “In order to show
substantial similarity, the plaintiff must come forward with evidence (1) that the
products involved in the other incidents and the present incident shared a common
design and manufacturing process; (2) that the products suffered from a common
defect; and (3) that any common defects shared the same causation.” (Citation and
punctuation omitted.) Reese, 300 Ga. App. at 89-90 (3); see Crosby, 273 Ga. att 456
21
(1). We will defer to the trial court’s exercise of its discretion with respect to the
admission of similar evidence and will not reverse absent clear abuse. See Reese, 300
Ga. App. at 89 (3); see Crosby, 273 Ga. att 456 (1).
Here, the trial court admitted evidence from two Suzuki GSX-R motorcycle
owners who also experienced a complete front brake failure while riding their
motorcycles. There is no dispute that the master cylinder on their motorcycles shared
a common design. The first witness described the failure “like flicking a light
switch”; he was able to “pull the brake lever all the way back” and experienced no
resistence. After listing to the witness’s proffered testimony, the trial court noted that
it was “exactly like what [Johns] experienced.” The witness replaced the bike’s
master brake front cylinder after the accident and had no further problems with the
brake.
The second witness also described a total brake failure, stating that “there was
nothing happening” when he squeezed the front brake, and that he “pulled all the way
back . .. with no compression behind it.” When he took the bike in to get repaired
after the accident, the front brake master cylinder was replaced.
The trial court relied on the similarities in between the witnesses’ accounts and
Johns’s accident to conclude that the motorcycles shared a common defect and that
22
those defects shared a common causation. The trial court did not abuse its discretion
by admitting evidence of the similar incidents, particularly in light of Suzuki’s
repeated denials that the design defect at issue in the recall could result in a total loss
of front brake pressure. See Chrysler Group, LLC v. Walden, 339 Ga. App. 733, 739-
740 (2) (792 SE2d 754) (2016); Reese, 300 Ga. App. at 89 (3); Skil Corp. v. Lugsdin,
168 Ga.App. 754, 754-755 (1) (309 SE2d 921) (1983).
Case No. A19A0109
Johns argues on cross-appeal that the trial court erred by reducing the jury’s
award in accordance with the jury’s assessment of fault pursuant to OCGA § 51-12-
33 (a), which he contends has no applicability to an award based on a strict liability
claim. He argues that this error was compounded by reducing his wife’s award for
loss of consortium.
Johns’s argument is premised upon the common law principle that a plaintiff’s
comparative negligence is not a defense to a product liability claim based upon strict
liability. See generally Deere & Co. v. Brooks, 250 Ga. 517, 518 (1) (299 SE2d 704)
(1983). The question at issue is how that common law principle is impacted by
Georgia’s apportionment statute, OCGA § 51-12-33 (a), which provides as follows:
23
Where an action is brought against one or more persons for injury to
person or property and the plaintiff is to some degree responsible for the
injury or damages claimed, the trier of fact, in its determination of the
total amount of damages to be awarded, if any, shall determine the
percentage of fault of the plaintiff and the judge shall reduce the amount
of damages otherwise awarded to the plaintiff in proportion to his or her
percentage of fault.
We begin by noting that by its plain terms, the statute governs actions “for
injury to person,” without in any way distinguishing between the theories upon which
those claims are premised. See Deal v. Coleman, 294 Ga. 170, 172-73 (1) (a) (751
SE2d 337) (2013) (“When we consider the meaning of a statute, we must presume
that the General Assembly meant what it said and said what it meant.”) (citation and
punctuation omitted.). The statute then directs a trial court reduce the amount of
damages awarded to the plaintiff by the jury in proportion to his or her percentage of
“fault,” but notably does not refer to the plaintiff’s “negligence.” OCGA § 51-12-33
(a); see Couch v. Red Roof Inns, 291 Ga. 359, 362 (1) (729 SE2d 378) (2012)
(holding that “fault” as used in the statute “is not meant to be synonymous with
negligence, but instead includes other types of wrongdoing”).
Further, although it is not immediately clear from the text of the statute its
impact on the common law principles as they relate to claims premised on strict
24
liability, our analysis of that issue is largely guided by the Supreme Court’s opinion
in Couch, 291 Ga. 359. The Couch Court examined whether OCGA § 51-12-33 (a)
allowed a jury to consider the “fault” of a criminal assailant and include the assailant
when apportioning its damage award to the plaintiff. Id. at 359 (1). The Court held
that it did, despite its recognition of the long-standing common law rule against
apportionment to intentional tortfeasors. Id. at 366 (1).
In so doing, the Couch Court stated, in no uncertain terms, that OCGA § 51-12-
33 was intended by the General Assembly “to displace the common law of
apportionment.” Id. at 364 (1); see also Zaldivar v. Prickett, 297 Ga. 589, 594 (1)
(774 SE2d 688) (2015). The Court further noted that the legislature had excluded
certain torts from the statutory provision immediately proceeding OCGA § 51-12-33,
and held that if had it intended to exclude any acts from the apportionment statute, it
would have done so. Couch, 291 Ga. at 362-363 (1) (“[W]hat a legislature normally
does, if it wants to make sure that readers understand that a word with a broad
ordinary meaning does not include something within that meaning, is to expressly
define that thing out of the category.”).
Reading the plain language of the statute in conjunction with the Supreme
Court’s holding in Couch, we conclude that the trial court did not err in apportioning
25
Johns’s damage award on his claim for strict product liability. Further, because Gwen
Johns’s loss of consortium claim was derivative of and arises out of the tort
committed against Johns, her award must also be reduced. See Zaldivar, 297 Ga. at
589, n.1; Barnett v. Farmer, 308 Ga. App. 358, 362 (2) (707 SE2d 570) (2011)
(physical precedent only).5
Judgment affirmed in Case No. A19A0108; Judgment affirmed in Case No.
A19A0109. Miller, P. J., and Reese, J., concur.
5
This holding renders moot Johns’s assertion that the trial court erred in failing
to award prejudgment interest pursuant to OCGA § 51-12-14 (a), because the jury’s
verdict does not exceed Johns’s pretrial demand.
26