Alexander v. General Motors Corp.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I find no compelling reason for Virginia law to displace Georgia’s policy of holding manufacturers strictly liable in tort for injuries proximately caused by defective products placed on the market in this State. In this vein, I believe the majority dodges the controlling issue, i.e., weighing Georgia’s interest in applying OCGA § 51-1-11 (b) against application of the lex loci delictus, and instead applies what I view to be a flawed premise and conclusion that Phillip Alexander, Jr. is no worse off via application of Virginia law because “there is no radical dissimilarity by which application of Virginia law would seriously contravene the public policy of Georgia.” Indeed, the majority’s logic inaccurately suggests that the trial court gave Alexander leave to amend his complaint for recovery based on a theory of implied warranty. In fact, the trial court excluded Alexander’s breach of warranty claims, along with his strict liability claim under OCGA § 51-1-11 (b), and specifically directed Alexander to “file an amended complaint asserting only negligence claims against GM under Virginia law.”

On October 9, 1989, Phillip Alexander purchased a Chevrolet Camaro automobile for his son, Phillip Alexander, Jr. (“Alexander”), from an authorized General Motors Corporation (“GM”) dealer in Chamblee, Georgia. Alexander took immediate possession of his new car and drove it to Fort Gordon, Georgia, where he was then serving in the United States Army. In March 1990, Alexander took the car to his new duty station at Fort Belvoir, Virginia, and a year later, he lost control of the Camaro while traveling with a friend on Route 1 in Fairfax County, Virginia.¹ The car skidded across the highway, pivoted and then rear-ended against a tree. The impact did not seriously injure Alexander’s passenger, but it was enough to collapse the car’s driver’s seat, force Alexander under his safety belt and eject him through the car’s rear window. The resulting blow caused severe damage to Alexander’s spinal cord.

Suffering from quadriplegia, Alexander returned to Georgia where the Camaro was purchased, moved in with his parents and initiated an action against GM, alleging that a defective seat mechanism in the car was the proximate cause of his injuries. GM denied liability and the parties filed opposing motions for summary judgment, seeking a determination of whether Georgia law or Virginia law governs the substantive rights of the parties. The trial court granted partial summary judgment in favor of GM, finding “that Virginia law applies to the claims against GM, that Virginia law does not recognize strict liability actions in product liability cases, and therefore [dismissing] all of [Alexander’s] strict liability claims [. The trial court then gave Alexander time to] file an amended complaint asserting only negligence claims against GM under Virginia law.”

Alexander now contends the trial court erred in precluding recovery based on strict liability, arguing that OCGA § 51-1-11 (b) (1) imposes strict liability via an implied warranty of merchantability and reasons that, “under Georgia’s traditional approach in conflict of laws, the trial court should [have looked] to the place of warranty and not the place of the injury [to determine the substantive rights of the parties].” In opposition, GM points out that OCGA § 51-1-11 (b) (1) specifies liability in tort rather than implied warranty, contending the trial court correctly applied Georgia’s choice of law rule under which tort actions are adjudicated according to the law of the place of injury. See Risdon Enterprises v. Colemill Enterprises, 172 Ga. App. 902, 903 (1) (324 SE2d 738).

I believe that Alexander’s confusion over whether OCGA § 51-1-11 (b) (1) sounds in tort or implied warranty stems from confusing statutory language. While subsection (b) (1) provides that a manufacturer “shall be liable in tort” for injuries caused by defective personal property sold as new property in Georgia, it also appears to impose an implied warranty standard by providing for possible liability if the property “when sold by the manufacturer was not merchantable and reasonably suited to the use intended. . . .” OCGA § 51-1-11 (b) (1). See Maleski, Ga. Products Liability (2d ed.), pp. 36-37, § 2-2. Any confusion prompted by this statutory language can be put to rest, however, since the Georgia Supreme Court has said “that the theoretical basis of the claim [under OCGA § 51-1-11 (b) (1)] is in tort. Center Chemical Co. v. Parzini, 234 Ga. 868 (218 SE2d 580) (1975) [, disapproved on other grounds in Banks v. ICI Americas, 264 Ga. 732, 733 (1), 734 (450 SE2d 671)].” Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 560 (272 SE2d 251). To this extent, I agree with the majority that Georgia’s manufacturers’ strict liability statute sounds in tort for purposes of resolving the choice of law issue now before this Court.

Although “Georgia generally adheres to the traditional choice of law system, under which tort actions are adjudicated according to the law of the place where the wrong occurred [,] Sargent Industries v. Delta Air Lines, 251 Ga. 91 (303 SE2d 108) (1983); Wardell v. Richmond Screw Anchor Co., 133 Ga. App. 378 (210 SE2d 854) (1974)[,] ‘ “(t)he laws of other states have no force in Georgia except on principles of comity and so long as their enforcement ‘is not contrary to the policy of this State.’ (Cit.)” (Cits.)’ Roadway Express v. Warren, 163 Ga. App. 759, 761 (295 SE2d 743) (1982). ‘ “Prima facie every state is entitled to enforce in its own courts its own statutes, lawfully enacted. One who challenges that right, because of the force given to a conflicting statute (or law) of another state by the full faith and credit clause (or for any other reason) assumes the burden of showing, upon some rational basis, that of the conflicting interests involved those of the foreign state are superior to those of the forum. It follows that not every statute (or law) of another state will override a conflicting statute of the forum . . that the statute of a state may sometimes override the conflicting statute (or law) of another, both at home and abroad. . . .” ’ Security Ins. Group v. Plank, 133 Ga. App. 815, 817 (212 SE2d 471) (1975). Thus, even though [Alexander’s] injury [in the case sub judice] was incurred in [Virginia], the courts of this State will apply [Virginia] law as the lex loci only to the extent that such application would not offend the public policy of Georgia.” Karimi v. Crowley, 172 Ga. App. 761, 762 (324 SE2d 583). See American Law of Products Liability 3rd, § 46:18.

The Georgia General Assembly, through the enactment of OCGA § 51-1-11 (b) (1), has demonstrated Georgia’s policy of protecting Georgia consumers against the burden of bearing the costs of injuries caused by defective products sold by manufacturers in this State. It has done this by adopting a “doctrine of strict liability [that] puts a burden on the manufacturer who markets a new product to take responsibility for injury to members of the consuming public for whose use and/or consumption the product is made.” Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 745 (353 SE2d 340).² But does this policy overcome our traditional rule of lex loci delictus? The majority dodges this pivotal question by holding that Alexander is no worse off via application of the lex loci delectus because “there is no radical dissimilarity by which application of Virginia law would seriously contravene the public policy of Georgia.” I believe this logic is flawed in two fundamental respects.

First, contrary to the majority’s main premise, the trial court did not give Alexander the option to pursue claims based on theories of implied warranty. In fact, Alexander was not allowed to pursue any implied warranty claims, even though he asserted such breach of warranty claims (under Georgia law) in separate counts of his complaint. As quoted from the trial court’s order, Alexander was directed to “file an amended complaint asserting only negligence claims against GM under Virginia law.” Second, the majority exceeds the bounds of this Court’s authority by expounding Alexander’s rights under Virginia law, particularly his right to recover based on a theory of breach of implied warranty of merchantability. “Where the rights of parties depend upon [the law of another State], and no statute of that state is pleaded or proved, [as is the circumstance in the case sub judice,] this court will presume that the common law is to be applied there. White v. White, 41 Ga. App. 394 (1) (153 SE 203).” Risdon Enterprises v. Colemill Enterprises, 172 Ga. App. 902, 904 (2), supra. See OCGA § 24-7-24 (a). See also American Law of Products Liability 3rd, § 46:37.

More on track in weighing Georgia’s interest in applying the law of the forum as opposed to the lex loci delictus, GM infers that Georgia’s policy of allocating greater risk to manufacturers in products liability cases is outweighed by Virginia’s “interest in the outcome of this litigation . . .” because, “regardless of the state of his legal residence, [Alexander] was living in and traveling on the streets and highways of Virginia [at the time of the collision].” Although I do not agree with this argument, it is on point and worthy of response.

First, there appears to be little (if any) connection between Virginia’s interest in regulating activities on its highways and Alexander’s claims against GM. Alexander is not suing a Virginia resident and he is not claiming that Virginia’s highways are unsafe or were otherwise a proximate cause of his injuries. He is suing GM, a manufacturer in the State of Georgia, for placing a defective product on the market in his home State, allegations which bear solely upon the interests of those residing or doing business in Georgia. Under such circumstances, I see no reason why a citizen of this state (Alexander) should be deprived of the benefit of Georgia’s policy of placing the “burden on the manufacturer who markets a new product to take responsibility for injury to members of the consuming public for whose use and/or consumption the product is made.” Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 745, supra. Certainly, “[t]here can be no more basic a public policy decision than one which allocates risk and social cost.” Trahan v. E. R. Squibb & Sons, Inc., 567 FSupp. 505, 510 (1983). Second, I find no compelling reason to diminish the impact of Georgia’s strict liability rule simply because Alexander drove his car out of the State while on temporary military assignment. It is unlikely that Alexander had ultimate control over his military assignment. The Camaro’s seat could have just as easily failed while he was stationed at Fort Gordon, Georgia. Indeed, as was the case in Baroldy v. Ortho Pharmaceutical Corp., 760 P2d 574, 578-579 (1984), such circumstances of chance should not govern the rights and duties of the parties in products liability cases. Otherwise, the protection afforded Georgia consumers under OCGA § 51-1-11 (b) (1) would flicker off upon travel (no matter how temporal) outside the geographical boundaries of Georgia only to flare up upon reentry into the State.

Decided December 4, 1995 Reconsideration denied December 20, 1995 Kenneth F. Dunham, Dovre C. Jensen, Jr., Margaret N. Patón, L. Lynn Hogue, for appellant. Lord, Bissell & Brook, Terry R. Howell, Corliss L. Worford, for appellee.

“While [I] have much respect for the decisions emanating from our great sister State of [Virginia], such decisions can not change or modify the statutory law of this State.” Henson v. Airways Svc., 220 Ga. 44, 49 (2), 52 (136 SE2d 747). The law of Georgia is that manufacturers will be strictly liable in tort for injuries proximately caused by defective products placed on the market in this State. This policy is sound and, under principles of comity, I believe must be enforced as an exception to the general choice of law rule under which tort actions are adjudicated according to the law of the place where the wrong occurred.

I am authorized to state that Presiding Judge Pope, Judge Blackburn and Judge Ruffin join in this dissent.

1 Although Alexander was stationed at Port Belvoir, he “maintained [his] legal residence [in] Decatur, Georgia . . . and filed Georgia state income tax returns.”

2 Practically speaking, allowing Alexander to proceed in strict liability would relieve him of the burden of proving negligence. Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 560, supra. Some have said, however, that the advantages of strict liability over negligence are only a matter of semantics with regard to a plaintiffs burden of proof in design defect cases. Banks v. ICI Americas, 264 Ga. 732, 733 (1), 735, n. 3, supra. While this observation remains well taken, the advantages of proceeding in strict liability in such cases is more discernible now that the Supreme Court has adopted a risk-utility analysis for measuring the reasonableness of a manufacturer’s actions in designing and selling a particular product. Id. For example, as an offending product approaches the state of the art and the risk of injury from its use becomes more remote, unlikely are the chances of recovery based in negligence. But under a risk-utility analysis, if the same product is of small utility compared to the magnitude of risk it creates, the more likely it is for the manufacturer to be held strictly liable for injuries proximately caused by the product. See Maleski, Ga. Products Liability (2d ed.), pp. 112, 115, § 6-2.