S K Hand Tool Corp. v. Lowman

479 S.E.2d 103, 223 Ga. App. 712, 96 Fulton County D. Rep. 4241, 1996 Ga. App. LEXIS 1286

• Court: Court of Appeals of Georgia
• Decided: December 3, 1996
• Docket: A96A0756
• Status: Published

Opinions

Smith, Judge.

Pursuant to our grant of an interlocutory appeal to S K Hand Tool Corporation, we consider whether a professional malpractice affidavit under OCGA § 9-11-9.1 is required for a claim of strict liability under OCGA § 51-1-11.

Viewing the evidence on S K’s motion to dismiss or for summary judgment in favor of Lowman under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence was that Lowman worked for a landscaper as a mechanic in charge of servicing equipment. While attempting to reattach a sharpened lawnmower blade to a mower, he was using a ratchet designed and manufactured by S K. As he was pressing on the ratchet to tighten a nut, it slipped, causing him to cut his hand on the blade.

In his complaint, Lowman alleged that “[t]he ratchet was defective within the meaning of OCGA § 51-1-11. It was not reasonably suited for the purpose for which it was manufactured. . . . The ratchet was defective in that it did not remain secure when pressure was applied to tighten the nut. Either the teeth or gears slipped, or broke off when pressure was applied to the handle of the ratchet.” He also alleged that S K “expressly or impliedly warranted the ratchet as being fit for the ordinary and particular purpose for which it was to be used”; that the ratchet “was not merchantable for the purpose for which it was sold”; and that S K “failed to exercise even ordinary care and diligence in what they knew, or should have known, to be a defective product.”

S K answered the complaint and subsequently filed a motion to dismiss or for summary judgment based on failure to file an expert affidavit under OCGÁ § 9-11-9.1 (e). The trial court reviewed the depositions, including that of James Hills, a professional engineer retained by Lowman, and denied summary judgment. The trial court concluded that “because it is unclear to Mr. Hills, an engineer stipulated as an expert by [S K], whether improper engineering or improper installation of the shift pin or improper manufacturing caused thé ratchet to malfunction, it cannot be said as a matter of law that this is a case of negligent design which would require the filing of an affidavit in accordance with OCGA § 9-11-9.1.” We affirm.

S K maintains that the primary issue in this case is the design of the ratchet, relying in large part on Lowman’s discovery request for a copy of the ratchet’s design and interrogatories concerning the ratchet’s design. Also in this regard, S K references the deposition testimony of Lowman’s expert engineer that the ratchet malfunctioned due to improper design of an internal pin. S K specifically notes the engineer’s testimony that, “[a]ll I got to say is S K Hand Tool engineered it wrong.” Based on the authority of Kneip v. Southern Engineering Co., 260 Ga. 409 (395 SE2d 809) (1990); Jackson v. Dept. of Transp., 201 Ga. App. 863 (412 SE2d 847) (1991); and Adams v. Coweta County, 208 Ga. App. 334 (430 SE2d 599) (1993), S K argues that because the affidavit requirement applies to a complaint alleging damages as a result of engineering services, and because engineering services were involved in the design and manufacture of the ratchet, Lowman was required to file an expert affidavit in support of his strict liability claim.

In Kneip, our Supreme Court held that the expert affidavit requirement of OCGA § 9-11-9.1 (a) applies to the engineering profession. There, plaintiff sued defendant, who was under contract to perform engineering services that included inspection of utility poles, alleging that defendant negligently inspected a pole, causing it to deteriorate and fall. Id. at 410 (3). Based on these allegations and discovery revealing that plaintiff intended to call expert witnesses to testify at trial, the Supreme Court held that plaintiff was required to attach to its complaint an expert affidavit pursuant to OCGA § 9-11-9.1 (a). Citing Kneip, this Court in Jackson and Adams, supra, concluded that designing roads, bridges, and guardrails requires engineering services and that such services are professional ones “ ‘within the purview of OCGA § 9-11-9.1.’ ” Adams at 335-336; Jackson at 865.

S K argues that just as the design of a road requires engineering services, the design of a ratchet or any other hand tool necessarily requires engineering services, and an expert affidavit is thus required. But Lowman’s complaint did not actually allege defective design of the ratchet. Even assuming that Lowman’s discovery revealed that the central issue here concerns the design of the ratchet, we are not persuaded by S K’s argument that Kneip, Jackson, and Adams mandate the filing of an expert affidavit here. Those cases are factually distinguishable; the claims did not sound in strict liability against the manufacturer of a product, as does the claim at issue here.

More importantly, the conclusion urged by S K is inconsistent with fundamental differences between claims alleging professional negligence and those alleging strict liability. A professional negligence claim depends upon “the existence or absence of allegations that the defendant-professional has rendered negligent professional services.” Jordan, Jones & Goulding, Inc. v. Wilson, 197 Ga. App. 354, 355 (1) (398 SE2d 385) (1990). The plaintiff must prove that a professional breached the duty “to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed [by other professionals] under similar conditions and like surrounding circumstances. [Cits.]” (Emphasis omitted.) Allen v. Lefkoff &c. P. C., 265 Ga. 374, 375 (2) (a) (453 SE2d 719) (1995). OCGA § 9-11-9.1 imposes on such claims a threshold pleading requirement that the plaintiff “show at the outset” that his or her suit is not frivolous. “This serves to prevent putting a professional to great expense and adversely affecting his or her professional reputation unjustifiably. ... It simply contemplates that parties allegedly damaged by malpractice show up front, by expert’s affidavit, that they have some evidence of malpractice, which by its nature can be established only by professional or expert testimony.” (Citations and punctuation omitted.) Johnson v. Brueckner, 216 Ga. App. 52, 53 (453 SE2d 76) (1995).

Strict liability, on the other hand, places “a burden on the manufacturer who markets a new product to take responsibility for injury to membérs 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) (1987). See also Alexander v. General Motors Corp., 219 Ga. App. 660, 662 (466 SE2d 607) (1995), rev’d on other grounds, 267 Ga. 339 (478 SE2d 123) (1996). A claim of strict liability is not proved by reference to “a reasonable degree of skill and care” as measured against a certain community; the nature of a strict liability claim is not that services were negligently provided. The basis of such a claim is that a product when sold was defective; it “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); Center Chemical Co. v. Parzini, 234 Ga. 868, 869 (2) (218 SE2d 580) (1975). In a case alleging strict liability, the questions for jury resolution therefore are whether a product was defective, and if so, whether the defect was the proximate cause of a plaintiff’s injury. See Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 350 (5) (270 SE2d 883) (1980).

In this case, Lowman’s strict liability claim contains no allegation that professional services were negligently provided. Instead, the claim is a classic one of strict liability against the manufacturer of a product -— that Lowman suffered injury proximately resulting from the manufacture of a defective product. S K nevertheless seeks to engraft an expert affidavit pleading requirement on Lowman’s strict liability claim, relying on Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994).

The Supreme Court in Banks formulated a standard for the trier of fact to use in determining defectiveness in design defect cases under a strict liability cause of action. The court identified three types of product defects — manufacturing, design, and marketing/ packaging defects, id. at 733 — and defined a test for use in determining whether a product is defectively designed. It adopted a “risk-utility” test, setting out a non-exhaustive list of factors for a jury to consider in a balancing analysis of whether a product is defective.¹ The Court stated that this is “consistent with Georgia law, which has long applied negligence principles in making the determination whether a product was defectively designed.” Id. at 735. Similarly, the Court “recognize[d] that the determination of whether a product was defective (involving the reasonableness of a manufacturer’s design decisions), which is a basic inquiry for strict liability purposes, generally will overlap the determination of whether the manufac^ turer’s conduct was reasonable, which is a basic inquiry for negligence purposes.” Id. at 735, n. 3. Banks does seem to blur the distinction Georgia cases have historically made between negligence arid strict liability claims. See, e.g., Firestone Tire v. Pinyan, supra, at 350 (“[W]hether or not the factors proximately resulting in the injuries were or were not acts of negligence is of no bearing or consequence in a strict liability case.” (Emphasis supplied.)).

The Supreme Court, however, in fashioning its risk-utility analysis cannot have intended the result urged by S K. Blurred distinctions and overlapping principles notwithstanding, the Supreme Court in Banks recognized — and upheld — a distinction between strict liability and negligence theories: “[W]e cannot agree that the use of negligence principles to determine whether the design of a product was ‘defective’ necessarily obliterates under every conceivable factual scenario the distinction Georgia law has long recognized between negligence and strict liability theories of liability.” Banks, supra at 735, n. 3. Since Banks, this Court has continued to honor that distinction. See, e.g., Alexander, supra at 662 (public policy in Georgia of shifting burden caused by defective product to manufacturer “by focusing not on whether the manufacturer negligently failed to use due care but on whether the marketed product was defective. [Cits.]”). Furthermore, Banks does not state that the standard to be applied in a risk-utility analysis somehow relates to whether a “reasonable degree of skill and care” was employed in a product’s design, nor does it recite that the risk-utility analysis concerns the breach of a minimum standard of care such that expert testimony is required. Instead, Banks simply requires the balancing of several factors which relate to the risks and benefits of products, and no one factor alone is a prerequisite for bringing a claim.

Simply put, a claim for professional malpractice depends upon negligence principles — standards of reasonableness as related to professional services. A claim for strict product liability — whether the problem is manufacture or design — depends, however, upon whether a product was defective. While negligence principles may now be utilized in the determination of whether a product was defectively designed, a viable distinction nonetheless remains between claims alleging strict liability and those alleging provision of negligent professional services. Because the purposes of and inquiries inherent in claims alleging professional negligence and those alleging strict liability differ substantially, the extra pleading requirement imposed on professional malpractice claims is not equally applicable to claims of strict liability.

Judgment affirmed.

Beasley, C. J, McMurray, P. J, Birdsong, P. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ., concur. Andrews, J., dissents.

1 The Supreme Court announced that a central factor to be considered in a risk-utility analysis is the availability of an alternative safer design. Banks at 733. It is important to note, however, that despite the court’s recitation that the reasonableness of choosing the safest design from alternative designs is the “heart” of design defect cases, id. at 736, the court did not hold that a jury must consider this factor. The Supreme Court instead held that the jury “may consider evidence establishing that at the time the product was manufactured, an alternative design would have made the product safer than the original design and was a marketable reality and technologically feasible.” Id.