Banks v. ICI Americas, Inc.

Fletcher, Justice,

concurring in part and dissenting in part.

I concur in Division 3 and I concur that a risk-utility analysis is appropriate in a design defect case. I cannot fully agree, however, with the majority’s formulation of the standard to be applied.

I write to emphasize that an essential element of a plaintiff’s cause of action is proof that the “seller . . . failed to adopt a reasonable, safer design that would have reduced the foreseeable risks of harm presented by the product.” See Preliminary Draft No. 1 (April 20, 1993) Restatement (Third) of Torts: Products Liability, § 101, comment g (cited at footnote 4 of the majority opinion). Requiring the plaintiff to prove that, at the time of manufacture of the product, an alternative safer design existed is consistent with the majority of jurisdictions that have adopted this analysis. See O’Reilly & Cody, The Products Liability Resource Manual, § 6.06 at 67 (General Practice Section of the American Bar Association 1993) (“the great majority of case precedents require that the plaintiff prove the existence of an alternative design”). Furthermore, by suggesting that a safer feasible alternative is a mere factor to be considered, rather than an essential element, the majority endorses a standard that is inconsistent with the reality that although “[m]any products can not be made completely safe for use and some can not be made safe at all. . . such products may be useful and desirable.” Center Chemical Co. v. Parzini, 234 Ga. 868, 870 ( 218 SE2d 580 ) (1975).

I also write to emphasize that a manufacturer may be held liable only when the product’s “condition when sold is the proximate cause of the injury sustained.” OCGA § 51-1-11 (b) (1). In order to demonstrate proximate cause, proof that the alternative design provides a “materially significant increase in safety” that would have prevented or reduced the plaintiff’s injury is required, rather than evidence that the alternative design merely “could have” prevented the injury, as the majority suggests. See Restatement, supra, comment g.

I dissent to Division 2, because I agree with Justice Carley that remand for a new trial is not appropriate. The record below and the briefs before this Court demonstrate that the plaintiffs’ theory of liability at trial was that the rat poison was defective because a safer alternative was feasible. ICI defended on the basis that at the time of manufacture no safer alternative was feasible. Thus, the parties have already presented their best case under the standard that the Court now adopts. To require the parties to redo what they have already *739 done is simply a waste of resources. Either this Court or the Court of Appeals should review the evidence to determine whether, in light of the new rule, the evidence is sufficient to uphold the jury’s verdict. If the evidence is sufficient to uphold the jury’s verdict, the Court of Appeals should then consider ICI’s remaining enumerations of error, which it did not address previously.

Decided December 5 1994 —

Reconsideration denied December 20, 1994.

Robert E. Shields, Richard A. Childs, for appellants.

Susan D. Burnell, Phillip S. McKinney, M. Stephen Hyles, for appellee.

Elizabeth B. Bunce, Charles A. Mathis, Walter H. Beckham III, amici curiae.

I am authorized to state that Chief Justice Hunt joins in this opinion.