Weaver v. PACCAR, Inc.
Filing
59
ORDER denying 40 Plaintiff's Motion to Strike Defendants' reply brief. ORDER granting 19 Defendant's Motion for Summary Judgment. The Clerk of Court is directed to enter the appropriate judgment. Signed by Chief Judge Lisa G. Wood on 9/30/2014. (csr)
n the Eniteb Otatto 38t.0trta Court
for the boutbern flitritt of georgia
Bruntiiitk flibiion
JASON RAY WEAVER,
Plaintiff,
CV 213-007
VS.
PACCAR INC.,
Defendant.
ORDER
Plaintiff Jason Weaver, a diesel mechanic, was left
disabled after a commercial truck he was inspecting ran over his
leg. He has filed a complaint in this Court against the truck's
manufacturer, Defendant PACCAR Inc., under a products liability
theory, alleging that Defendant's failure to install a "neutral
safety switch" on the truck was the proximate cause of the
accident. Dkt. no. 1. Before the Court is Defendant's Motion for
Summary Judgment, Dkt. no. 19, along with Plaintiff's Motion to
Exclude Defendant's Reply Brief in Support of its Motion for
Summary Judgment, Dkt. no. 40.1 Plaintiff's motion to strike is
DENIED. Because the Court finds that Defendant's design of the
1
Plaintiff's motion to exclude is effectively a motion to strike, and the
Court will refer to it as such.
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I
truck did not proximately cause Plaintiff's injuries,
Defendant's motion for summary judgment is GRANTED.
FACTUAL BACKGROUND
Weaver, a diesel mechanic at Wall Timber Company in Jesup,
Georgia, was permanently injured when a 2004 manual transmission
Kenworth T800 truck-tractor rolled over his leg. Truck driver
Chris Manning brought the truck to Wall Timber's mechanic shop
with an apparent air leak. Dkt. No. 19-3,
p. 5. Weaver gave his
account of the accident at his deposition:
I was going underneath a truck to find an air
leak. . . . I found the air leak at the left front
rear drive brake chamber. [Manning] had brakes
released. The truck was not running, nobody in the
seat. He had brakes released on the truck. . . . [Shop
foreman Lynn Burnem] got on a creeper and got under
the truck with me. . . . [Burnem] said, well, he's
going to have to fire it up to build the air back up
so I can make sure that's where it is. Apparently the
driver heard Lynn telling me that he's going to have
to fire it back up and he walked and [cranked] the
truck without me or [Burnem]. . . knowing and forgot
that he had left the brakes released and the truck in
gear. He [cranked] the truck from the ground, never
climbed in the truck, and the truck took off. And when
it took off, it [ran] over me. It ran over my left leg
and run up on my right leg, and my right leg stopped
it like a wheel chock and it was sitting on my left
leg. . . . Because they couldn't find any jacks in the
shop . . . they backed over me, blowing my knee out
the back of my leg.
Weaver Dep. 21:19-23:10.
Manning testified that although he initially set the
parking break, Weaver instructed him to release the brake, put
the truck into gear, and turn the truck off because it's "the
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only way to tell what the problem is." Manning Dep. 8:10-14.
Manning, standing on the side of the truck, reached up and
pressed the start button after he "heard everybody say 'Fire it
back up; we lost air pressure.'" Id. at 8:11-23. Manning said
this response was a "natural reaction" and that he was "not
thinking," even though he remembered the truck was in gear when
he pressed the start button, which resulted in the truck moving
forward. Id. at 8:21-25. Plaintiff claims he "would never have
advised the driver to crank the truck while it was in gear."
Weaver Aff. ¶ 11.
The accident destroyed most of the muscle, tissue, and
lymphatic system in Plaintiff's leg, requiring three operations.
Id. at 24:7-11, 25:13. As a result of the accident, Plaintiff's
leg will require daily medical attention, or else an infection
in the leg could ultimately lead to his death. Id. at 48:6-11.
Plaintiff also suffers from extreme nerve pain. Id. at 33:20-23.
Plaintiff claims that he would not have suffered his
injuries if Defendant had installed a "neutral safety switch" on
the Kenworth T800 that ran over his leg. Dkt. no. 1, ¶ 14. A
neutral safety switch is a feature that prevents the truck from
starting when the transmission is not in neutral. Morrill Dep.
40:20-24. Similar to a neutral safety switch, a "clutch safety
switch" requires the clutch to be depressed before the truck can
be cranked. Id. at 40:9-16. According to Plaintiff's expert,
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Jeffery Morrill, "no matter the design or the device, the
function of the systems is to prevent unintended movement of the
vehicle when starting the engine to protect the safety of the
operator, persons nearby and property." Morrill Aff. ¶ 10.
Richard Sedgley, who was employed for 31 years by Kenworth
Truck Company, a division of PACCAR, and who worked in a variety
of positions such as structural analysis engineer and manager of
safety and compliance, testified that the neutral safety switch
was "offered [1 as an option" to the "highly sophisticated"
customer base. However, "98 percent of the people that we sell
trucks to aren't interested in it." Sedgley Dep. pg. 14:10-25.
He also explained that the switch was not classified by PACCAR
as a safety option. Id. at 17:18-20. Sedgley testified that
PACCAR relies on drivers of the trucks it manufactures to
"operate the vehicle in how they've been trained." Id. at 21:1113. "[T]hese individuals are trained to put [the truck] in
neutral, start the truck. And when they leave the truck, they
apply the parking brakes, they leave it in neutral. It's all
part of their training." Id. at 21:2-6.
Schyler Peck, a retired PACCAR employee, offered several
reasons why a truck driver may prefer a truck without a neutral
safety switch. Peck suggests that not having a neutral safety
switch enables the driver to move the truck by small increments
while the engine is running. Peck Dep. 17:5-25. This
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maneuverability can be useful when the driver needs to nudge the
truck in small increments to align the trailer with loading or
unloading areas, such as a dump truck bed. Id. If a neutral
safety switch were on the truck, the driver would have to use
the clutch to make these movements, which could move the truck
further than intended. Without the switch, the driver my use the
starter. Id. Furthermore, Peck testified that the switch adds a
potential failure mechanism, and that many drivers do not think
that any added benefit of a neutral safety switch outweighs the
possibility that the switch will fail and leave the driver
stranded, unable to start the truck. Id. at 14:4-12.
Summary judgment is required where "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."
FED. R. CIV.
P. 56(A). A fact is "material" if it "might affect the outcome of
the suit under the governing law." FindWhat Investor Grp. v.
FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
dispute over such a fact is "genuine" if the "evidence is such
that a reasonable jury could return a verdict for the nonmoving
party." Id. In making this determination, the court is to view
all of the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party's favor.
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Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d
501, 507 (11th Cir. 2000)
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To
satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case.
Id. at 325. If the moving party discharges this burden, the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist. Anderson, 477 U.S. at 257.
DISCUSSION
I. Motion to Strike
Plaintiff has filed a Motion to Exclude Defendant's Reply
Brief in Support of its Motion for Summary Judgment. See Dkt.
no. 40. Plaintiff argues that Defendant filed the reply brief,
Dkt. no. 37, outside of the requisite time limits of Southern
District of Georgia Local Rule 7.6.
The Court declines this invitation to tally the days
between the parties' filings according to the various provisions
of our Local Rules and the Federal Rules of Civil Procedure, and
instead reiterates this District's pronouncement that "failure
to satisfy the notice and timing provisions of Local Rule 7.6
cannot be used by an opposing party as a sword to have a brief
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stricken." Brown v Chertoff, No. 4:06-CV-002, 2008 WL 5190638,
at *1 (S.D. Ga. Dec. 10, 2008). Plaintiff's motion to strike is
DENIED.
II. Strict Products Liability
Plaintiff alleges that Defendant is strictly liable under a
products liability theory for designing the Kenworth T800
without a neutral safety switch.
In Georgia,
The manufacturer of any personal property sold as new
property directly or through a dealer or any other
person shall be liable in tort, irrespective of
privity, to any natural person who may use, consume,
or reasonably be affected by the property and who
suffers injury to his person or property because the
property when sold by the manufacturer was not
merchantable and reasonably suited to the use
intended, and its condition when sold is the proximate
cause of the injury sustained.
Georgia Code Ann. § 51-1-11(b) (1) (2009). Thus, to establish a
claim of products liability in Georgia, the plaintiff must show
that (1) he was injured by a product manufactured by the
defendant, (2) the product was not "merchantable and reasonably
suited to the use intended" when the manufacturer sold it, and
(3) this unmerchantable and unreasonable condition of the
product was the proximate cause of the plaintiff's injuries.
Defendant does not contest that Plaintiff suffered injuries
because of the Kenworth T800 truck it manufactured. It does
argue, though, that the truck was not defective and that, even
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if it was, any defect was not the proximate cause of Plaintiff's
injuries. If the Plaintiff fails to establish a material
question of fact as to either of these two issues, summary
judgment is appropriate.
a. Proximate Cause
Tinder Georgia law, "[n] matter how negligent a party may
be, if their act stands in no causal relation to the injury it
is not actionable." Jonas v. Isuzu Motors Ltd., 210 F. Supp. 2d
1373, 1377 (M.D. Ga. 2002) aff'd, 58 F. Appx. 837 (11th Cir.
2003) (quoting Finney v. Machiz, 463 S.E.2d 60, 61 ( Ga. Ct.
App. 1995)) . "Strict liability is imposed for injuries which are
the proximate result of product defects, not for the manufacture
of defective products. Unless the manufacturer's defective
product can be shown to be the proximate cause of the injuries,
there can be no recovery. Id. (quoting Talley v. City Tank
Corp., 279 S.E.2d 264, 269 (Ga. Ct. App. 1981)).
At the summary judgment stage, the question of proximate
cause in a products liability case presents a formidable hurdle
to defendants. In Georgia, "it is axiomatic that questions
regarding proximate cause are undeniably a jury question and may
only be determined by courts in plain and undisputed cases."
Sanders v. Lull Intern., Inc., 411 F.3d 1266, 1271 (11th Cir.
2005) (quoting Ontario Sewing Mach. v. Smith, 572 S.E.2d 533,
536 (Ga. 2002))
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Nevertheless,
[ut is well settled that there can be no proximate
cause where there has intervened between the act of
the defendant. and the injury to the plaintiff, an
independent, intervening, act of someone other than
the defendant, which was not foreseeable by the
defendant, was not triggered by the defendant's acts,
and which was sufficient of itself to cause the
injury.
Walker v. Giles, 624 S.E.2d 191, 200 (Ga. Ct. App. 2005). In
Georgia, "foreseeability means that which is objectively
reasonable to expect, not merely what might occur." Jonas, 210
F. Supp. 2d at 1377. Furthermore, "the unforeseeable negligence
of another person is an intervening cause that negates the
liability of a manufacturer for an allegedly defective product."
Id. at 1379. Thus, "[i]f the original negligent actor reasonably
could have anticipated or foreseen the intervening act and its
consequences, then the intervening act of negligence will not
relieve the original actor from liability for the consequences
resulting from the intervening act." Lindsey v. Navistar Intern.
Transp. Corp., 150 F.3d 1307, 1317 (11th Cir. 1998) (quoting
Eubanks v. Busn. Equip. Ctr. of Atlanta, Inc., 288 S.E.2d 273,
274 (Ga. Ct. App. 1982)).
In this case, the Court may only determine the issue of
proximate cause if the issue is "plain and undisputed." See
Sanders, 411 F.3d at 1271. While Plaintiff does not explicitly
argue that the issue of proximate cause is disputed, it could be
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argued that it is in this case because Plaintiff argues that the
proximate cause of his injuries was Defendant's failure to
install a neutral safety switch on the Kenworth P800, while
Defendant argues that the proximate cause was the negligence of
multiple people—particularly Manning, the driver—in the shop
where the accident occurred. However, the Court wishes to make
clear that this is not the type of dispute the court in Sanders
contemplated when it relegated "disputed" questions of proximate
cause to the jury.
In Sanders, a construction worker sued a forklift
manufacturer after one of the manufacturer's forklifts toppled
over, injuring the construction worker. Id. at 1268. The
construction worker presented the affidavit of an expert who
posited three possible explanations as to why the forklift
tipped over. Id. at 1269. One of these explanations was that a
third party had bypassed the safety mechanism that would have
prevented the forklift from tipping; the other two explanations
involved mechanical errors within the forklift itself. Id. While
the expert testified that the third-party intervention was the
more likely explanation, the court in Sanders held that the
issue of proximate cause would ultimately be one for the jury,
because there was no physical or eyewitness evidence supporting
the "third party" theory and a reasonable juror could have
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determined that the cause of the accident was a mechanical
problem with the forklift itself. Id. at 1271.
Here, the Court is not faced with three plausible and
discrete causes of Plaintiff's injuries. Both parties agree to
the relevant facts of the accident: Defendant manufactured a
truck without a neutral safety switch, which driver Manning
brought to Plaintiff for service and absent-mindedly cranked,
knowing it was in gear and would thus lurch forward, while
Plaintiff lie beneath it. The dispute between the parties is not
the factual dispute as to what caused Defendant's product to
injure Plaintiff, as was the case in Sanders. Rather, the
dispute is the legal conclusion that flows from the agreed-upon
facts. Therefore, the issue of proximate cause in this case is
appropriately a question for the Court to decide.
Proceeding to the legal question of proximate cause, the
Court first notes that the record shows there was indisputably
an intervening act between Defendant's allegedly negligent
decision to manufacture a truck without a neutral safety switch
and Plaintiff's injuries. Primarily, Manning—either on his own
volition or at the request of the mechanics—cranked the truck,
knowing that the truck was in gear and could lurch forward. 2
2
In addition to Manning's negligent acts, Defendant argues that Plaintiff and
his shop foreman, Lynn Burnem, were also negligent in failing to follow
industrywide safety protocols before crawling under the truck. Because
Plaintiff calls into question whether these protocols were in fact followed
at Wall Timber as a matter of practice, the Court focuses on Manning's acts
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Whether directed to do so or not, no one contests that Manning's
actions were negligent. Even by his own admission, he cranked
the truck while he "wasn't thinking." Thus, Manning's actions
were a sufficiently intervening negligent act for purposes of
this proximate cause analysis.
Furthermore, Manning's negligence was not foreseeable to
Defendant at the time it manufactured the truck. Plaintiff
argues that Manning's acts were foreseeable to Defendant, and
likens the facts in this case to those in Jones v. Ainazi
Products, Inc. to support his argument. 231 F. Supp. 2d 1228
(N.D. Ga. 2002) . In Amazing Products, the plaintiff transferred
liquid drain cleaner from the handleless bottle it was packaged
in to an emptied, handled Clorox bottle. Id. at 1233. The
transfer catalyzed a chemical reaction which caused the drain
cleaner—composed of 97% sulfuric acid—to eat through the bottom
of the Clorox bottle and gush onto the plaintiff's leg, giving
him severe chemical burns. Id. at 1234. The court, in holding
that it should have been reasonably foreseeable to the defendant
who manufactured and packaged the chemical that a user would
transfer the product from its handleless container to one with a
handle, noted that the defendant had testified that it assumed
most of its product's users would be untrained in the use of
in its analysis, as his actions are undisputed and alone sufficient to break
the causal chain between Defendant's design of the Kenworth T800 and
Plaintiff's injuries.
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chemicals. Id. at 1241-42. The court, in denying summary
judgment, concluded that the defendant could not assume that the
average, untrained consumer would realize the dangers of
transferring the chemicals, and therefore had negligently
designed the bottle in such a way as to encourage a transfer.
Id. at 1242.
Defendant counters that the facts in this case are more
similar to those in Moore v. ECI Management, 542 S.E.2d 115 (Ga.
Ct. App. 2000), and Jonas v. Isuzu Motors, Ltd., 210 F. Supp. 2d
1273 (M.D. Ga. 2002), where courts granted the defendantmanufacturers' summary judgment motions in part based on lack of
proximate cause. In Moore, a trained washer/dryer installer died
from electrocution after he indisputably miswired the power-cord
to a unit he was installing. Moore, 542 S.E.2d at 118. The
plaintiffs argued that the defendant-manufacturer had
negligently designed the washer/dryer unit by failing to preattach the power cord to the unit, thus adding an unnecessarily
risky step to the installation process. Id. at 119. The Georgia
Court of Appeals affirmed the trial court's grant of summary
judgment, in part because "the direct cause of the
accident . . . was the miswiring of the power cord" by the
deceased installer, who was an experienced, trained professional
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and "should have been well aware of the danger of
electrocution." Id. at 120.
The court in Jonas, applying Georgia law, granted summary
judgment to the defendant who manufactured a vehicle that rolled
several times during a car accident, killing three of the four
passengers. 210 F. Supp. 2d at 1375-76. In granting summary
judgment, the court held that even if an alleged design defect
left the vehicle prone to roll, "driver error and negligence"
were the proximate cause of the accident. Id. at 1378. Evidence
in the record, particularly the driver's dying declaration that
he had fallen asleep at the wheel, established that the driver's
negligence caused the accident. Id. Because the Court found that
the driver's negligence was not foreseeable to the manufacturer,
the court granted the manufacturer's motion for summary
judgment. Id. at 1380.
Here, Manning's negligence was the proximate cause of
Plaintiff's injuries, and that negligence was not foreseeable to
Defendant. Unlike the circumstances in Amazing Products, where
the court held that the manufacturer could not assume the
The court in Moore affirmed summary judgment in favor of two separate
defendants: the owner of the apartment complex where the washer/dryer unit
was installed and the manufacturer of the washer/dryer unit. Plaintiff sued
the apartment owner on a premises liability theory, and the manufacturer on a
products liability theory. While the court explicitly affirmed summary
judgment for lack of proximate cause on the premises liability theory, the
court incorporated this reasoning by reference when it affirmed summary
judgment for the manufacturer as well. Moore, 542 S.E.2d at 120 (noting,
after concluding that there was no design defect under the risk/utility
analysis, that the court must, "again . . . point out that the direct cause
of the accident in this case was the miswiring of the power cord.")
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average consumer would have any experience or training in how to
safely handle chemicals, Defendant expected that the operator of
a T800 would have been trained in operating large trucks.
Particularly, it would be entirely reasonable for Defendant to
assume that whoever would operate the T800 would have a valid
Commercial Driver's License and would operate the vehicle in
accordance with the attendant rules and procedures of that
license. See, e.g., Sedgley Dep. 20:8-19, 21:7-13. A large truck
may be an inherently dangerous vehicle, just as the drain
cleaner in Amazing Products was an inherently dangerous product.
But laws and regulations require that only those persons trained
on how to manage those dangers actually operate a truck such as
the T800. Just as it was not reasonably foreseeable to the
defendant in Moore that a trained professional would miswire its
washer/dryer unit, it was not reasonably foreseeable to
Defendant that the end-user of its product would neglect to
follow the industry's standard protocol when he cranked the
truck while it was in gear and the parking brake was disengaged.
Furthermore, Manning's negligence in this case was of a
greater degree than that of the chemical-burned plaintiff in
Amazing Products, and Defendant here was unable to foresee that
negligence. Unlike the plaintiff in Amazing Products, who was
negligent only insofar as he did not appreciate the dangers of
transferring unknown chemicals to another container, Manning
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knew and appreciated the risk of cranking the T800 while it was
in gear with the parking brake disengaged. Manning's negligence
was not born out of ignorance, but absent-mindedness. He admits
that he simply "wasn't thinking" when he cranked the truck.
Manning's actions, then, are more similar to those of the
deceased driver in Jonas, who appreciated the risks of driving
while drowsy, but could only rue his failure to stay awake after
he had already caused an accident by falling asleep at the
wheel. Defendant-manufacturers may be expected to foresee
negligence born of ignorance, but they are not expected to
foresee negligence from distraction, inattentiveness, or absentmindedness. They are not charged with building commercial trucks
for those who do not think, any more than cars are to be made
for sleeping drivers. Defendant in this case could not foresee
Manning's negligence, which proximately caused Plaintiff's
injuries. Therefore, summary judgment in this case is GRANTED.
b. Design Defect
Georgia courts interpret the phrase "not merchantable and
reasonably suited for the use intended" to mean "defective."
Hunt v. Harley-Davidson Motor Co., Inc., 248 S.E.2d 15, 15 (Ga.
Ct. App. 1978). Product defects can come in the form of
manufacturing defects, design defects, and marketing/packaging
defects. Banks v. ICI Americas, Inc., 450 S.E.2d 671, 672 (Ga.
1994) . To determine whether a device is defective, Banks
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introduced a risk/utility analysis "whereby the risks inherent
in a product design are weighed against the utility or benefit
derived from the product." Id. at 673. The Georgia Supreme Court
then identified several factors that courts may consider in
weighing the risk of a product's design against its utility. Id.
at 675 n.6. 4
Because courts are not in a position to weigh the various
Banks factors against one another, judgment as a matter of law
"will rarely be granted in design defect cases when any of these
elements is disputed." Ogletree v. Navistar Intern. Transp.
Corp., 522 S.E.2d 467, 470 (Ga. 1999). "Indeed, the adoption of
the risk-utility analysis in this state has actually increased
the burden of a defendant, in seeking judgment as a matter of
law, to show plainly and indisputably an absence of any evidence
that a product design is defective." Id.
Plaintiff, through the affidavit of his expert Jeffery P.
Morrill, has presented evidence that, he argues, tilts the
balance of the risk/utility analysis in his favor. Defendant
"These factors include: the usefulness of the product; the gravity and
severity of the danger posed by the design; the likelihood of that danger;
the avoidability of the danger, i.e., the user's knowledge of the product,
publicity surrounding the danger, or the efficacy of warnings, as well as
common knowledge and the expectation of danger; the user's ability to avoid
danger; the state of the art at the time the product is manufactured; the
ability to eliminate danger without impairing the usefulness of the product
or making it too expensive; . . . the feasibility of spreading the loss in
the setting of the product's price or by purchasing insurance[;] the
feasibility of an alternative design; the availability of an effective
substitute for the product which meets the same need but is safer; the
financial cost of the improved design; and the adverse effects from the
alternative." Banks v. ICI Americas, Inc., 450 S.E.2d 671, 675 n.6 (Ga.
1994).
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challenges not only Morrill's evidentiary conclusions, but the
admissibility of those conclusions as well. Because the Court
ultimately finds that Defendant's design—whether it was
defective or not—did not proximately cause Plaintiff's injuries,
the Court need not sift through the parties' competing arguments
regarding the safety and utility of designing a truck without a
neutral safety switch.
CONCLUSION
Because Defendant could not reasonably foresee the
negligence of a third party that proximately caused Plaintiff's
injuries, Defendant's motion for summary judgment is GRANTED.
For reasons stated in Part I above, Plaintiff's motion to strike
Defendant's reply brief is DENIED. The Clerk of Court is
directed to enter the appropriate judgment.
SO ORDERED, this 30TH day of September, 2014.
eq
~
LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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