Polston v. Boomershine Pontiac-GMC Truck, Inc.

423 S.E.2d 659, 262 Ga. 616, 93 Fulton County D. Rep. 14, 1992 Ga. LEXIS 982

• Court: Supreme Court of Georgia
• Decided: December 3, 1992
• Docket: S92Q0580
• Status: Published

Opinions

Benham, Justice.

This case comes to us as a certified question from the United States Court of Appeals for the Eleventh Circuit. The facts are fully set out in the Eleventh Circuit’s opinion, and those pertinent to our consideration are as follows: After receiving numerous severe injuries in a collision between her car and another, Polston sued the driver of the other car, several automobile dealers, and General Motors Corporation (GMC), which manufactured her car. The manufacturer’s asserted liability was based on alleged design defects which Polston contended enhanced the injuries she received in the collision. At trial, the U. S. District Court for the Northern District of Georgia ruled that Polston had the burden of showing both the existence and the extent of enhanced injuries, and granted GMC a directed verdict, finding that Polston had failed to present sufficient evidence of either existence or extent so as to present a jury question. The Eleventh Circuit disagreed in part with the District Court’s holding, finding that Polston had produced sufficient evidence of the existence of enhanced injury, agreed with the District Court that Polston had not proved the extent of the enhanced injuries, and disagreed with the District Court’s assignment of the burden of proof regarding damages. Noting that there is a split of authority on this issue and that Georgia case law does not address it, the Eleventh Circuit certified to this court the following question:

Under Georgia law, in a crashworthiness or enhanced injury case, does the plaintiff bear the burden of specifically apportioning damages between the striking driver and the manufacturer or does the burden of apportionment fall on the defendants? In other words, what is the burden of proof on each party in a crashworthiness or enhanced injury case under Georgia law?

The split of authority to which the Eleventh Circuit referred consists of two lines of cases, one headed by Mitchell v. Volkswagenwerk, A.G., 669 F2d 1199 (8th Cir. 1982), and Huddell v. Levin, 537 F2d 726 (3rd Cir. 1976). Under Mitchell, a shifting-of-burden approach is taken wherein the plaintiff has the burden of proving that the defective design of the car was a substantial factor in causing the enhanced injury. Once that burden is borne by the plaintiff, the burden of proof then shifts to the tortfeasors to apportion the damages between them if they wish to do so. Under Huddell, the plaintiff retains the burden of proving not only the existence of enhanced injury, but the extent of the injury caused by the manufacturer’s negligence. For the reasons which follow, we find the approach taken in Mitchell to be more consistent with Georgia tort law and to comport more closely with the public policies of this state.

We note first in that regard that Mitchell cites Georgia authority for the principle that wrongdoers who each play a substantial role in creating an indivisible harm are treated as joint and several tortfeasors. Id. at 1207, fn. 9. In Mitchell v. Gilson, 233 Ga. 453 (211 SE2d 744) (1975), this court affirmed the Court of Appeals’ holding that where the acts of two or more tortfeasors join to create a single indivisible injury, i.e., the injury cannot be rationally apportioned between the tortfeasors, the tortfeasors will be treated as joint tortfeasors. Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974). It appears, therefore, that Georgia law had already moved in the direction later taken to its logical conclusion in Mitchell v. Volkswagenwerk, A.G., supra. To take the next step and adopt the rule stated in Mitchell v. Volkswagenwerk, A.G. is only to continue the course set in Gilson, supra.

Another factor leading us to adopt the rule stated in Mitchell v. Volkswagenwerk, A.G. is its consistency with the Restatement Second of Torts, § 433A of which was quoted in Gilson to establish the joint liability of tortfeasors who produce indivisible injuries. Even more pertinent to the present case is § 433B (2), which directly addresses the subject of the Eleventh Circuit’s question:

Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

In addition to the fact that the position taken in Mitchell is consistent with the development of Georgia tort law and with the principles of traditional tort law embodied in the Restatement Second of Torts, we note that a considerable number of other jurisdictions throughout the Southeast and throughout the country have, when called upon to decide this question, adopted positions consistent with Mitchell rather than Huddell.1

Also to be considered is the question of public policy. Adoption of the Huddell position takes away the incentive of automobile manufacturers to design their products in a responsible fashion. As the Supreme Court of Oklahoma noted, “application of the Huddell standard might impair the promotion of ‘safer products’ design ... by weakening the deterrent value of products action.” Lee v. Volkswagen of America, 688 P2d 1283, 1288 (S.C. Okla. 1984).

In summary, in deciding who should bear the burden of proving which facts in an enhanced injury or crashworthiness case, we find the approach in Mitchell v. Volkswagenwerk, A.G., supra, to be the better approach in terms of honoring this state’s own precedent, in terms of respect for traditional principles of tort law, in terms of sound legal reasoning, and in terms of public policy. Accordingly, we answer the question certified to us by the Eleventh Circuit as follows: In an enhanced injury or crashworthiness case, Georgia law places on the plaintiff the burden of proving that a design defect was a substantial factor in producing damages over and above those which were probably caused as a result of the original impact or collision. To the extent that the injuries suffered by the plaintiff are indivisible, the defendants are treated as joint tortfeasors. Once the plaintiff’s burden has been borne, the burden of proof shifts to the defendant which wishes to limit its liability to demonstrate a rational basis for apportioning the liability for the injuries.

Question answered.

All the Justices concur, except Bell, P. J., Hunt and Fletcher, JJ., who dissent.

1 Cases consistent with the Mitchell rule:

Czarnecki v. Volkswagen of America, 837 P2d 1143 (Ariz. App. 1992); Blankenship v. General Motors Corp., 406 SE2d 781 (W.Va. 1991); Doupnik v. General Motors Corp., 225 Cal.App.3d 849 (275 Cal. Rptr. 715) (3d Dist. 1991); McDowell v. Kawasaki Motors Corp., 799 SW2d 854 (Mo. App. 1990) (see also Richardson v. Volkswagenwerk, A.G., 552 FSupp. 73 (W.D. Mo. 1982)); Tafoya v. Sears Roebuck & Co., 884 F2d 1330 (10th Cir. 1989) (Colorado); Valk Manufacturing v. Rangaswamy, 74 Md. App. 304 (537 A2d 622) (1988); General Motors Corp. v. Edwards, 482 S2d 1176 (Ala. S.Ct. 1985); Shipp v. General Motors Corp., 750 F2d 418 (5th Cir. 1985) (Texas); McLeod v. American Motors Corp., 723 F2d 830 (11th Cir. 1984) (Florida); Fouche v. Chrysler Motors Corp., 107 Idaho 701 (692 P2d 345) (1984); Lee v. Volkswagen of America, 688 P2d 1283 (Okla. S.Ct. 1984); Sumnicht v. Toyota Motor Sales, U.S.A., 121 Wis.2d 338 (360 NW2d 2) (1985); Mitchell v. Volkswagenwerk, A.G., 669 F2d 1199 (8th Cir. 1982) (Minnesota); Buehler v. Whalen, 70 Ill.2d 51 (374 NE2d 460) (1977); Chrysler Corp. v. Todorovich, 580 P2d 1123 (Wyo. S.Ct. 1978) (see also Harvey v. General Motors Corp., 873 F2d 1343 (10th Cir. 1989) (Wyoming)); May v. Portland Jeep, 265 Or. 307 (509 P2d 24) (1973); Engberg v. Ford Motor Co., 205 NW2d 104 (S.D. S.Ct. 1973).

Cases consistent with the Huddell rule:

Armstrong v. Lorino, 580 S2d 528 (La. Ct. App. 1991); Crispin v. Volkswagenwerk, A.G., 248 N.J. Super. 540 (591 A2d 966) (N.J. Super. Ct. App. Div. 1991) (see also Huddell v. Levin, 537 F2d 726 (3d Cir. 1976)); Garcia v. Rivera, 160 A.D.2d 274 (553 NYS2d 378) (App. Div. 1st Dept. 1990) (see also Caiazzo v. Volkswagenwerk, A.G., 647 F2d 241 (2d Cir. 1981)); Craigie v. General Motors Corp., 740 FSupp. 353 (E.D. Pa. 1990); Duran v. General Motors Corp., 101 N.M. 742 (688 P2d 779) (N.M. App. 1983); Wernimont v. Intl. Harvester Corp., 309 NW2d 137 (Iowa Ct. App. 1981); Seese v. Volkswagenwerk, A.G., 648 F2d 833 (3d Cir. 1981); Stonehocker v. General Motors Corp., 587 F2d 151 (4th Cir. 1978); Dreisonstok v. Volkswagenwerk, A.G., 489 F2d 1066 (4th Cir. 1974).