SILVER et al v. BAD BOY ENTERPRISES LLC et al
Filing
154
ORDER granting in part and denying in part 89 Motion for Partial Summary Judgment; denying 92 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 08/20/2013. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MARK SILVER and LAURA SILVER,
Individually and as Next
Friends and Parents of Leslie
Erin Silver, a minor child,
*
*
*
Plaintiffs,
CASE NO. 4:12-CV-5 (CDL)
*
vs.
*
BAD BOY ENTERPRISES LLC, BB
BUGGIES INC., and TEXTRON INC., *
Defendants.
*
O R D E R
Leslie Erin (“Elle”) Silver, a thirteen-year-old girl, was
seriously injured while driving a 2008 Bad Boy Buggy Classic
vehicle (“Vehicle”) designed and manufactured by Defendant Bad
Boy Enterprises LLC (“BBE”).
Prior to the accident, BBE sold
its business to Defendant BB Buggies Inc. (“BB Buggies”) through
an asset sale with the assumption of certain liabilities.
As
part of those transactions, BB Buggies and its parent company,
and
Defendant
Buggies,
Textron
“Textron
Inc.
(“Textron”
Defendants”),
and,
assumed
together
with
responsibility
BB
for
certain recalls related to BBE vehicles, including the Vehicle
operated by Elle when she was injured.
Elle’s parents, Plaintiffs Mark Silver (“Mr. Silver”) and
Laura
Silver
(“Mrs.
Silver”)
(collectively,
“Plaintiffs”),
brought
this
product
liability
action
under
Georgia
law,
asserting that the Vehicle was defectively designed because it
would accelerate without any input from the driver (“unintended
acceleration claim”), it had a propensity to roll over, and it
was not crashworthy.
was
defective
Plaintiffs
Plaintiffs also allege that the Vehicle
because
further
it
did
contend
not
that
have
adequate
Defendants
warnings.
breached
their
continuing duty to warn of the risks of unintended acceleration
and rollover, as well as their duty to warn that minors should
not operate the Vehicle.
recall
claims,
recall
the
alleging
Vehicle
but
Finally, Plaintiffs assert negligent
that
did
Defendants
not
undertook
exercise
a
duty
to
reasonable
care
in
conducting the recall programs.
BBE filed a Motion for Partial Summary Judgment (ECF No.
89), seeking summary judgment as to all of Plaintiffs’ claims
except
Plaintiffs’
crashworthiness
design
defect
claim.
The
Textron Defendants moved for summary judgment on the only claim
against
them,
the
negligent
recall
claim
(ECF
No.
92).
Plaintiffs have abandoned their manufacturing defect claim and
their design defect claim based on the Vehicle’s propensity to
roll over.
granted
as
Therefore, BBE’s motion for summary judgment is
to
those
claims.
The
Court
finds
that
genuine
factual disputes exist regarding Plaintiffs’ remaining claims
against BBE, and BBE’s motion is denied as to those claims.
2
The
Court
finds
Plaintiffs’
that
genuine
negligent
factual
recall
disputes
claims
exist
against
regarding
the
Textron
Defendants, and therefore, the Textron Defendants’ motion for
summary judgment is also denied.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
In determining whether a
genuine
Fed. R.
dispute
of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
FACTUAL BACKGROUND
Viewed
in
the
light
most
favorable
to
Plaintiffs,
the
record reveals the following.
I.
Bad Boy Classic Model
At the time of her accident, the Plaintiffs’ minor daughter
was
operating
a
2008
Bad
Boy
designed and manufactured by BBE.
3
Buggy
Classic
model
vehicle
This Vehicle is an electric
4-wheel drive vehicle built on a golf cart chassis.
The Bad Boy
Classic model was designed so that it could be used in an offroad environment, and it was marketed predominately to hunters
and outdoorsmen.
After BBE manufactured the Vehicle but before
the crash that gave rise to this action, BB Buggies agreed to
purchase selected assets and liabilities from BBE.
agreement
purchase
was
consummated
agreement,
BB
on
October
Buggies
took
22,
2010.
over
the
The purchase
After
the
manufacturing
operations for Bad Boy Buggy vehicles, and BBE dissolved.1
II.
The Vehicle and the Crash
The Vehicle involved in the accident giving rise to this
action was manufactured on September 25, 2008 by BBE and sold
directly to Jimmy Hardin (“Hardin”), a friend of Plaintiffs, on
October 7, 2008.
After Hardin purchased the vehicle, Mr. Silver
traveled to BBE’s facility in Mississippi to pick up the Vehicle
along with three other vehicles that Mr. Hardin had purchased.
Mr.
Silver
accessories.
took
delivery
of
the
four
vehicles
and
the
Although the vehicles came with documentation on
“how to hook up the charger,” Mr. Silver did not receive any
owner’s manuals.
M. Silver Dep. 48:9-49:16, ECF No. 90-6.
1
Textron is the parent corporation of BB Buggies.
The Court
previously concluded that there is a genuine fact dispute as to
whether Textron and/or BB Buggies undertook a duty to conduct a recall
program related to 2008 Bad Boy Buggy Classic Model vehicles. Silver
v. Bad Boy Enters. LLC, 907 F. Supp. 2d 1351, 1357 (M.D. Ga. 2012.)
4
Hardin stored the Vehicle at the property of Mrs. Silver’s
aunt
and
Vehicle.
or
uncle.
Mr.
Silver
taught
how
to
drive
the
She was first allowed to drive it when she was eleven
twelve.
On
September
17,
2011,
permission to operate the Vehicle.
at the time.
watch
Elle
Elle
Mrs.
Silver
gave
Elle
Elle was thirteen years old
Mrs. Silver stayed inside the house and did not
drive
the
Vehicle
with
Elle’s
friend,
Peacock (“Brittany”), and Elle’s little sister Dixie.
Dep. 73:18-74:10, ECF No. 90-5.
Brittany
L. Silver
Elle and Brittany each drove
the Vehicle around a looping gravel driveway in front of the
house (the “Loop”) several times.
While Brittany was driving
the Vehicle, she noticed that the Vehicle would, at times, “go
fast as if I had like pressed harder [on the accelerator]” even
though she was keeping “stable pressure” on the accelerator.
Peacock Dep. 34:11-25, ECF No. 90-8.
the
vehicle,
she
noticed
that
the
And when Elle was driving
Vehicle
was
“accelerating
faster than what [her] foot was pushing on the pedal” as she
approached a curve in the Loop, and she felt the Vehicle “kind
of surge forward.”
90-7.
E. Silver Dep. 78:5-17, 86:12-22, ECF No.
Brittany, who was a passenger at that time, also felt the
Vehicle surge as they approached the curve.
13.
Peacock Dep. 45:2-
Elle took her foot off the gas and applied the brake, and
the Vehicle slowed down “a little.”
E. Silver Dep. 78:25-79:12.
Then the Vehicle started tilting, and Elle stuck her left leg
5
out of the Vehicle.
The Vehicle tipped over and came to rest on
the driver’s side.
When the Vehicle landed on the ground, the
Vehicle was traveling between ten and thirteen miles per hour.
Compare Breen Dep. 116:10-17, ECF 90-9 (stating that the Vehicle
hit the ground “at a speed of twelve, thirteen mile an hour
range”) with Wilson Dep. 138:15-139:5, ECF 90-10 (stating that
the Vehicle landed at a speed of ten miles per hour).
As a
result of the crash, Elle’s left foot and part of her left leg
were severed.
III. Unintended Acceleration
Plaintiffs
contend
that
the
Vehicle
had
an
intermittent
open circuit in its electrical system that caused unintended
acceleration.
a
serious
undisputed
It is undisputed that unintended acceleration is
problem
that
acceleration.
that
an
can
open
lead
to
circuit
injuries.
can
lead
It
to
is
also
unintended
Defendants deny that there was an intermittent
open circuit in the Vehicle because Plaintiffs’ expert did not
find any physical evidence of one.
Specifically, Plaintiffs’
expert did not find any evidence of a cut wire or loose, frayed,
or exposed wiring in the parts of the Vehicle’s wiring that
could be examined.
Plaintiffs’ expert also did not find any
other physical evidence of an intermittent open circuit that led
to
unintended
Plaintiffs’
acceleration
expert
testified:
in
the
“These
6
Vehicle.
types
of
Nonetheless,
things
do
not
always leave behind physical evidence.
possibilities
that
shouldn’t
be
I have found a number of
there
that
surging that Elle and Brittany described.
21, ECF No. 95-1 at 540.
would”
cause
the
Donahue Dep. 162:9-
Plaintiffs’ expert opined that if the
testimony of Elle and Brittany regarding the surge is believed,
then the surge of the Vehicle was caused by an intermittent open
circuit, which would not necessarily leave physical evidence.
Id. at 137:19-142:7, ECF No. 95-1 at 533-35.
Plaintiffs’ expert
further opined that it would be possible to eliminate the design
flaws in the Vehicle by using an electronic throttle control
found in most automobiles.
548.
The
accelerator
Id. at 195:3-196:7, ECF No. 95-1 at
pedal
on
later
model
Bad
Boy
Buggy
vehicles, which was also used as part of a 2010 recall, is
similar to what is used in automobiles.2
IV.
Vehicle Warnings
BBE developed a document entitled “Important Information.”
At
some
point,
Hardin
contends
is
the
“Important
the
Owner’s
Information”
document,
which
Vehicle.
Hardin Dep. 63:11-14, 64:21-25, 67:17-25, ECF No. 90-
4.
BBE
received
Manual
for
the
Mr. Silver asserts that he did not receive the document when
2
Plaintiffs’ expert also opined that the location of the accelerator
pedal on the Vehicle exposed it to potential immersion in water, which
could cause unintended acceleration.
Plaintiffs’ expert further
opined that it would be a safer alternative design to relocate the
pedal to prevent exposure to water and dirt.
Defendants point out
that Plaintiffs’ expert did not find any physical evidence that water
played a factor in the crash of the Vehicle.
Donahue Dep. 102:17103:24.
7
he picked up the Vehicle, and Hardin does not recall how he
received the document.
Id. at 54:20-55:7.
It is undisputed
that Hardin did not give the “Important Information” document to
Mr. Silver.
It is also undisputed that Hardin, Mr. Silver, and
Elle did not read the “Important Information” document.
In large, bold, underlined print, the Limited Warranty page
of
the
“Important
Information”
document
states,
“The
Buggy
should never be operated by persons 18 years of age or under.”
Def. BBE’s Statement of Facts Ex. L, Important Information at
Silver-Hardin-011,
ECF
No.
90-12
at
3.
The
warranty
authorization portion of the “Important Information” document
asks the owner to “acknowledge that the Buggy should never be
operated by a person 18 years or younger.”
Id. at Silver-
Hardin-24, ECF No. 90-12 at 16.
The
Vehicle
dashboard.
the
had
a
warning
label
in
the
center
of
its
Mr. Silver read the warning label when he picked up
Vehicle.
The
label
states
that
operated only by authorized drivers.”
the
Vehicle
should
“be
Def. BBE’s Statement of
Facts Ex. T, Vehicle Label at Silver-PL-1269, ECF No. 90-20 at
4.
The label further states: “Keep entire body inside vehicle
and hold on when vehicle is in motion.”
Id.
The label does not
explicitly state that the Vehicle should not be operated by a
minor.
stated
Mr. Silver testified that if the Vehicle’s label had
that
a
person
under
the
8
age
of
eighteen
should
not
operate the Vehicle, then he would not have let Elle drive the
Vehicle.
M. Silver Dep. 78:8-20.
Neither
warning
the
label
“Important
on
the
Information”
Vehicle
warned
of
document
a
risk
nor
of
the
sudden
unintended acceleration or rollover.
V.
Recalls of Bad Boy Buggy Vehicles
A.
2008 Recall
In early 2008, BBE conducted a recall to address unintended
acceleration issues in Bad Boy Buggy vehicles (“2008 Recall”).
BBE implemented two remedies during the 2008 Recall which were
incorporated
into
all
vehicles
manufactured
after
June
2008.
These design changes were included in the Vehicle involved in
this action.
B.
2009 Recall
In 2009, BBE continued to receive reports of unintended
acceleration
in
Bad
Boy
Buggy
Classic
model
vehicles.
BBE
concluded that the problem was voltage spikes that caused pedal
circuitry burnout.
BBE also decided that the installation of a
part called the Zerner Diode would reduce the potential for
unintended
acceleration
circuitry burnout.
due
to
voltage
spikes
and
pedal
Therefore, in 2009, BBE proposed a recall of
2008 Bad Boy Buggies Classic vehicles to install the Zerner
Diodes (“2009 Recall”).
Product
Safety
BBE sought permission from the Consumer
Commission
(“CPSC”)
9
to
initiate
“fast-track”
treatment of the 2009 Recall.
The CPSC granted permission for
fast-track treatment, and the 2009 Recall began in October 2009.
As part of the corrective action plan, BBE agreed to disseminate
notice of the recall by, among other things, sending letters to
dealers and some consumers.
Hardin did not receive notice of the 2009 Recall.
But even
if he had received notice, it is doubtful that the recall would
have
fixed
the
design
defect
alleged
by
Plaintiffs
in
this
action because it does not appear that the Vehicle experienced
pedal
circuitry
burnout
that
would
have
been
prevented
by
installation of the Zerner Diodes.
C.
2010 Recall
In 2010, BBE determined that it should revise the remedy
provided during the 2009 Recall by replacing the accelerator
pedal assembly, changing the location of the accelerator pedal,
and installing a new wiring harness (“2010 Recall”).
administered the 2010 Recall.
BB Buggies
Part of the corrective action
plan included sending a letter regarding the 2010 Recall to all
known owners of Bad Boy Buggy Classic vehicles.
The corrective
action plan also included press releases and letters to Bad Boy
Buggy vehicle dealers.
Hardin did not receive a copy of the
2010 Recall Notice.
During
the
acquisition
process,
BBE
gave
BB
documents regarding the Bad Boy Buggy product line.
10
Buggies
Although
BBE had a system to track vehicle identification numbers of Bad
Boy Buggy vehicles, BBE’s files did not include any warranty
registration information for the Vehicle or another immediately
obvious way to connect the Vehicle to Hardin.
produced
by
accounting
BBE
to
entries
BB
in
Buggies
a
did
QuickBooks
The documents
include
a
software
database
program.
of
The
database did not provide a complete list of vehicle owners, but
BB Buggies did attempt to search the database for documents that
included vehicle identification numbers.
The search did not
reveal any owner information for the Vehicle.
After
Plaintiffs
commenced
this
action,
the
Textron
Defendants became aware that the QuickBooks database contained
an invoice for the sale of goods from BBE to Phenix Foods, which
was Hardin’s business.
6.
Though
identification
the
Miller Aff. Ex. D, Invoice, ECF No. 92-
invoice
numbers,
it
does
does
not
list
contain
several
any
vehicle
products:
three
Item Code BR1 – Bad Boy Realtree at a price of $5,000 each, one
Item Code BR1 – Bad Boy Realtree at a price of $0, four Item
Code 40085 – Dual Pro Automatic Charger, and four Item Code
50425 – Windshield.3
3
One of the color options for Bad Boy Buggy vehicles was a Realtree
camouflage pattern.
11
DISCUSSION
I.
Claims Against BBE
Plaintiffs asserted claims against BBE for manufacturing
defect, failure to warn, and negligent recall.
Plaintiffs also
asserted
the
design
defect
claims
based
on
Vehicle’s
crashworthiness, unintended acceleration, and propensity to roll
over.
claim
Plaintiffs
and
their
have
abandoned
design
defect
propensity to roll over.
their
claim
manufacturing
based
summary
judgment
on
the
Vehicle’s
Therefore, the Court grants BBE’s
summary judgment motion as to those claims.
for
on
defect
the
BBE did not move
crashworthiness
claim.
The
remaining issues for the Court to decide are whether genuine
fact disputes exist on Plaintiffs’ claims for (1) design defect
based on unintended acceleration, (2) failure to warn, and (3)
negligent recall.
A.
Design Defect – Unintended Acceleration
BBE contends that Plaintiffs have no evidence to support
their claim that the Vehicle has a design defect that led to a
risk
of
unintended
acceleration.
Both
Elle
and
Brittany
testified that while they were driving the Vehicle, it surged
forward as if they were putting more pressure on the accelerator
than they actually were.
They also testified that they felt a
surge as they entered the curve just before the crash.
this
testimony,
a
reasonable
juror
12
could
conclude
Based on
that
the
Vehicle suddenly and unexpectedly accelerated just before the
crash.
Plaintiffs’
expert
testified
that
if
the
girls’
testimony is believed and the Vehicle did surge despite stable
pressure on the accelerator, then an intermittent open circuit
that existed due to a design flaw in the Vehicle’s electrical
system caused the surge.
Plaintiffs’ expert further testified
that an intermittent open circuit would not necessarily leave
physical evidence.
Therefore, although Defendants insist that
physical evidence is required to establish an intermittent open
circuit, the Court concludes that there is a fact question on
this issue.
BBE further asserts that Plaintiffs cannot establish that
“a non-existent defect” was a cause of the crash because BBE’s
expert
opined
that
Elle’s
actions,
including
“negotiating
sharp turn” and “erratic driver inputs,” caused the crash.
BBE’s Mot. for Partial Summ. J. 10-11, ECF No. 91.
a
Def.
As discussed
above, there is a genuine fact dispute as to whether the Vehicle
had a defect that caused unintended acceleration.
There is also
evidence that the Vehicle surged just before Elle entered the
curve.
A
reasonable
juror
could
therefore
conclude
design defect caused a surge that led to the crash.
13
that
a
For all of
these
reasons,
BBE
is
not
entitled
to
summary
judgment
on
Plaintiffs’ unintended acceleration design defect claim.4
B.
Failure to Warn
Plaintiffs
allege
two
separate
failure
to
warn
claims.
First, they contend that the Vehicle’s warning label should have
warned that minor children should not be permitted to operate
the Vehicle.
Second, they contend that Defendants failed to
warn about the risks of unintended acceleration and rollover,
which they had a continuing duty to warn about given information
they received about these hazards.5
BBE argues that Plaintiffs’
failure to warn claim regarding children operating the Vehicle
fails as a matter of law because neither Mr. Silver nor Elle
read the “Important Information” document.
In general, “where a
plaintiff does not read an allegedly inadequate warning, the
adequacy of the warning’s contents cannot be a proximate cause
of the plaintiff's injuries.”
Camden Oil Co., LLC v. Jackson,
270 Ga. App. 837, 840, 609 S.E.2d 356, 358 (2004).
Plaintiffs’
claims, however, are not based solely on an allegedly inadequate
4
After filing its motion for summary judgment, BBE filed a Daubert
motion to exclude the testimony of Plaintiffs’ design defect expert.
That motion is not yet ripe, and BBE did not rely on it in support of
its summary judgment motion. The Court will rule on that motion prior
to trial, and if it is granted will reconsider today’s ruling.
5
BBE did not address Plaintiff’s failure to warn of unintended
acceleration and rollover claims in its summary judgment brief or its
reply brief. The Court declines to create arguments for the parties.
Because BBE did not move for summary judgment on Plaintiffs’ failure
to warn claims based on unintended acceleration and rollover, BBE is
not entitled to summary judgment on those claims.
14
warning in the “Important Information” document.
Rather, they
are based in part on BBE’s failure to place clear warnings on
the Vehicle’s warning label.
A manufacturer breaches its duty
to warn by “failing to adequately communicate the warning to the
ultimate user.”
Id., 609 S.E.2d
at 359 (internal quotation
marks omitted).
“It is a jury question whether or not the
manufacturer was negligent in failing to place a warning in such
position, color and size print or to use symbols which would
call the user’s attention to the warning or cause the user to be
more likely to read the label and warning than not.”
Id. at
841, 609 S.E.2d at 359 (internal quotation marks omitted).
Although it is undisputed that BBE warned in its “Important
Information”
document
that
children
should
not
operate
the
Vehicle, there is a factual dispute regarding whether Mr. Silver
had
an
opportunity
to
review
the
“Important
Information”
document.
Moreover, Plaintiffs contend that the warning should
have
placed
been
on
the
Vehicle
itself,
not
just
in
the
“Important Information” document.
While BBE points out that the
Vehicle’s
the
label
does
state
that
Vehicle
should
only
be
operated by “authorized drivers,” the label does not state that
children should not be authorized to drive the Vehicle.
For
these reasons, the Court finds that a factual dispute exists on
the
question
whether
the
age-related
communicated to Plaintiffs.
15
warning
was
adequately
There is also a factual dispute on causation.
Mr. Silver
testified that if the Vehicle’s warning label had stated that
the Vehicle should not be operated by persons under the age of
eighteen, then he would not have let Elle drive the Vehicle.
If
the jury believes Mr. Silver, then it could conclude that BBE’s
failure to place the warning directly on the Vehicle caused
Elle’s injuries.
Accordingly, BBE is not entitled to summary
judgment on Plaintiffs’ failure to warn claim.
C.
Negligent Recall6
Plaintiffs’ negligent recall claims against BBE relate to
the 2009 Recall.
BBE appears to contend that the 2009 Recall
was reasonable as a matter of law because the corrective action
plan was approved by the CPSC and there is no evidence that BBE
deviated from that plan, even though Hardin did not receive a
recall notice.
BBE also contends that Plaintiffs’ negligent
recall claim fails because there is no evidence that the Vehicle
6
BBE claims that Plaintiffs did not assert a “negligent recall” claim
and that Plaintiffs only asserted a “failure to recall” claim.
A
“failure to recall” claim is not cognizable under Georgia law.
Silver, 907 F. Supp. 2d at 1356 (“Georgia law generally imposes no
duty upon a manufacturer to recall a product after the product has
left the control of the manufacturer.”) (citing Ford Motor Co. v.
Reese, 300 Ga. App. 82, 85, 684 S.E.2d 279, 283–84 (2009)).
A
negligent recall claim is, however, actionable under Georgia law. Id.
at 1356-57 (“‘[I]f a manufacturer chooses to recall a product
voluntarily, Georgia law imposes a duty upon the manufacturer to
exercise ordinary care in conducting the recall campaign.’”) (quoting
Reese 300 Ga. App. at 85 n.2, 684 S.E.2d at 283 n.2).
In their
Complaint, Plaintiffs alleged that “Defendants could have recalled the
subject Bad Boy Buggy like it did other Bad Boy Buggies” but that
Defendants failed to do so.
Compl. ¶¶ 31-32.
Based on these
allegations, the Court is satisfied that Plaintiffs alleged negligent
recall in the Complaint.
16
had any pedal circuitry burnout issues that would have been
remedied by the fix applied during the 2009 Recall—installation
of the Zerner Diodes.
“[I]f
a
manufacturer
chooses
to
recall
a
product
voluntarily, Georgia law imposes a duty upon the manufacturer to
exercise
ordinary
care
in
conducting
the
recall
Reese, 300 Ga. App. at 85 n.2, 684 S.E.2d 283 n.2.
campaign.”
Hardin did
not receive a notice regarding the 2009 Recall, and BBE does not
offer
any
Recall.
excuse
for
failing
to
notify
Hardin
of
the
2009
Rather, BBE’s argument focuses on causation: even if
Hardin had received the recall notice and taken the Vehicle to
be fixed, the fix applied during the 2009 Recall would not have
prevented
the
crash
here
because
the
Vehicle’s
alleged
unintended acceleration problem was not caused by the absence of
Zerner Diodes.
Therefore, according to BBE, even if Hardin had
received notice regarding the 2009 Recall, it would not have
made a difference.
Plaintiffs contend, however, that if Hardin
had gotten notice of the recall, he would have told Mr. Silver
about it and Mr. Silver would not have let Elle operate the
Vehicle.
adequately
Moreover,
design
the
Plaintiffs
2009
Recall
assert
to
that
address
BBE
the
did
not
unintended
acceleration issues present in the Vehicle because BBE crafted a
solution that only addressed one potential cause of unintended
acceleration but did not address other potential causes of which
17
BBE
knew
maintain
or
that
should
the
have
2009
known.
Recall
Specifically,
could
have
and
Plaintiffs
should
have
included the fixes implemented in 2010: relocation of the pedal
and an overhaul of the throttle system.
Based on the present
record, the Court concludes that a genuine fact dispute exists
on whether BBE’s failure to send Hardin the 2009 recall notice
caused Plaintiffs’ injuries.7
7
It is undisputed that Georgia recognizes a negligent recall claim
based on the manner in which notice is provided. See Blossman Gas Co.
v. Williams, 189 Ga. App. 195, 199, 375 S.E.2d 117, 120-21 (1988)
(finding jury question on negligent recall claim where there was
evidence that dealer offered to distribute recall information but
never mailed recall notices to its customers). The Court knows of no
reason why the Georgia courts would conclude that a manufacturer who
voluntarily initiates a recall to correct a dangerous hazard involving
its product would not have a duty to exercise ordinary care in
devising a remedy for the hazard.
See Ontario Sewing Mach. Co. v.
Smith, 275 Ga. 683, 687, 572 S.E.2d 533, 536 (2002) (finding a jury
question on the reasonableness of a recall remedy because of its time
constraint and the cost imposed on the purchaser).
Plaintiffs’ negligent recall claim is based on BBE’s failure to
provide Hardin with notice of the recall.
Plaintiffs are not
asserting a separate claim based on the lack of reasonableness of the
remedy. Nonetheless, the reasonableness of the remedy is relevant to
causation because BBE argues that its recall remedy would not have
fixed the problem. The Court finds that causation can be established
if Plaintiffs prove that notice of the recall would have resulted in a
correction of the hazardous condition by a non-negligent manufacturer.
To hold otherwise would mean that a manufacturer who negligently fails
to notify consumers of a recall can escape liability if its recall
remedy negligently failed to fix the problem.
This would also mean
that someone who was notified of the recall and brought the product in
for the “recall fix” may have a claim if the fix was negligently made,
but the person who was never notified of the recall would have no
claim even though the person continued to be exposed to the known
hazardous condition because of the manufacturer’s negligent conduct.
Such an argument and the accompanying absurd results are inconsistent
with Georgia’s recognition of a cause of action against a manufacturer
who initiates a recall but fails to implement it in a non-negligent
manner.
BBE further asserts that any negligence with regard to sending
the recall notices did not cause Plaintiffs’ injuries because those
18
II.
Claim Against Textron Defendants
Plaintiffs contend that the Textron Defendants undertook a
duty to conduct a recall program related to the 2008 Bad Boy
Buggy
Classic
Textron
vehicles.
Defendants
Plaintiffs
failed
to
conducting the recall program.
further
exercise
assert
and
the
Textron
the
care
in
ordinary
The Court previously found that
genuine fact disputes existed on these issues.
Supp. 2d at 1357.
that
Silver, 907 F.
The parties conducted additional discovery,
Defendants
now
contend
that
they
were
not
negligent with regard to the recall program and that Plaintiffs
cannot point to evidence to create a genuine fact dispute on
this claim.
Apparently, the files BBE gave to BB Buggies in connection
with
the
acquisition
did
not
contain
any
reference
to
the
Vehicle by vehicle identification number, so BB Buggies did not
recalls did not relate to the precise components that were addressed
in the recalls.
The cases cited by BBE in support of this argument
stand for the unremarkable proposition that a negligent recall claim
requires proof that a defect in the recall program caused the
plaintiff’s injury.
In other words, a plaintiff must prove that the
product that injured him suffered from the defect addressed by the
negligent recall. See Harley-Davidson Motor Co., Inc. v. Daniel, 244
Ga. 284, 286, 260 S.E.2d 20, 22-23 (1979) (finding that recall to
address rear brake piston seal was relevant to plaintiff’s claim
regarding faulty piston seal); see also Bailey v. Monaco Coach Corp.,
350 F.Supp.2d 1036, 1045 (N.D. Ga. 2004) (concluding that recall to
address overheating defect in brakes was not relevant where
plaintiff’s claim was simply that the brakes squealed and there was no
proof that plaintiffs’ brakes had an overheating problem). Here, the
recall notices were intended to address the defect of unintended
acceleration. Plaintiffs pointed to evidence that their injuries were
caused by unintended acceleration of the Vehicle.
Therefore, the
unintended acceleration recall notices are relevant in this action.
19
find the Vehicle in its search for documents that was based
solely on vehicle identification numbers.
Based on the absence
of this documentation in the BBE files, the Textron Defendants
appear to contend that their document search was reasonable as a
matter
of
law
otherwise.
and
There
that
is,
no
reasonable
however,
juror
evidence
could
that
conclude
the
Textron
Defendants received financial documents, including an invoice
for three Item Code BR1 – Bad Boy Realtrees sold to Phenix Foods
for a total of $15,000.
While a juror could conclude that it
was reasonable for Textron to overlook this document that was
allegedly buried in its files, a juror could also conclude that
the codes and product description on the invoice suggest that
the invoice reflects a sale of Bad Boy Buggy vehicles and that a
recall
notice
invoice.
of
law
should
have
been
sent
to
the
address
on
the
Therefore, the Court finds that judgment as a matter
is
not
warranted
at
this
time
based
on
the
current
record.
CONCLUSION
As
discussed
Summary
Judgment
Partial
Summary
above,
(ECF
the
No.
Judgment
Textron
92)
(ECF
is
No.
Defendants’
denied.
89)
is
BBE’s
granted
Motion
for
Motion
for
as
the
to
following claims: manufacturing defect claim and design defect
claim
based
Plaintiffs’
on
design
the
Vehicle’s
defect
claim
20
propensity
against
BBE
to
roll
based
over.
on
the
Vehicle’s
design
crashworthiness
defect
claim
remains
based
pending,
on
as
unintended
do
Plaintiffs’
acceleration,
Plaintiffs’ failure to warn claim, and Plaintiffs’ failure to
recall claim.
IT IS SO ORDERED, this 20th day of August, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
21
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