United States Court of Appeals,
Eleventh Circuit.
Nos. 93-9458, 94-8028.
Robert Eugene HENRY, Plaintiff-Appellant,
Tonya Renee Henry, Plaintiff,
v.
GENERAL MOTORS CORPORATION, Defendant-Appellee.
Aug. 16, 1995.
Appeals from the United States District Court for the Southern
District of Georgia. (No. CV492-269), B. Avant Edenfield, Chief
Judge.
Before COX, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Robert Eugene Henry sued General Motors Corporation (GM),
asserting several product liability claims. A jury found in favor
of GM, and Henry appeals. He contends that the district court
erred in granting GM's pretrial motion for summary judgment on his
negligent-failure-to-warn and negligent-failure-to-instruct claims.
Henry also contends that the district court erred in evidentiary
rulings and in instructing the jury at trial. Finding no error, we
affirm.
I. Background
Henry became paraplegic when a General Motors pickup truck
fell off a jack and struck his shoulders. Henry had jacked the
truck up in order to replace the truck's front brake pads. After
removing the wheel, he set it beside the jacked-up truck to sit on
as he put his head and shoulders into the wheel well to reach the
pads. The truck came off the jack, and when it fell the edge of
the wheel well struck his shoulders, causing a compression fracture
of his lower spine.
The accident and injury may have occurred for at least two
reasons. First, Henry used the wrong part of the jack to lift the
truck. GM jacks for this truck have two jacking points: a
concavity on top of the jack, and a hook that extends from that
concavity down the outside of the jack. On a two-wheel drive
vehicle such as the one on which Henry was working, the concavity
is designed to lift the rear axle, and the hook is designed to lift
the front control arm. Henry improperly used the concavity to lift
the front control arm. Second, Henry made himself vulnerable by
putting his head and shoulders in the wheel well.
The jack carried a yellow sticker with four warnings. One
warning advised the user not to get under a jack-lifted vehicle.
The jack sticker did not explain the proper use of the two jacking
points, but it warned the user to follow the jacking instructions.
The jacking instructions provided under the hood and in the owner's
manual did not verbally refer to the jack's concavity and hook.
The illustrations accompanying the instructions did show the jack's
hook being used to lift the control arm in front and the jack's
concavity to lift the rear axle. The illustrations were small,
however, and they did not highlight the jacking points.
Henry is illiterate. Although he noticed the jack sticker and
knew that the sticker's yellow color signified a warning, he did
not ask anyone to read it to him. Neither did he have someone read
the owner's manual or the jacking instructions placed on the
underside of the truck's hood, near the jack storage.
Henry sued GM on several theories. He alleged negligent
design, manufacture, warnings, and instructions. He also asserted
a strict liability claim. GM moved for summary judgment on the
negligent-failure-to-warn and -instruct claims. GM contended that
it had no duty to warn because the danger of the truck's falling on
a person beneath it was open and obvious. In the alternative, GM
contended that even if it had a duty to warn of the danger that the
truck might fall, Henry's failure to read the warning sticker and
owner's manual, not GM's failure to warn adequately, was the
proximate cause of the accident. In response, Henry argued that
the danger of using the wrong jacking point was not open and
obvious. Henry contended further that his illiteracy distinguishes
his case from cases in which the plaintiff neglected to read the
warning.1
The district court granted GM's motion for summary judgment on
his negligent-failure-to-warn and negligent-failure-to-instruct
claims. The case proceeded to trial on Henry's strict liability
claim, and the jury returned a verdict for GM. Henry appeals.
1
The factual basis for Henry's failure-to-warn claim has
been somewhat elusive. In the pretrial order, he articulated it
as follows:
Plaintiff contends GM was negligent in the design
of a defective jack system because it is impossible to
understand how to properly use the jack. More
specifically, Plaintiff contends that reference to the
jack and all instructions provided by GM do not
successfully communicate how and where the jack should
be connected to the truck during use. As a result of
this failure, Mr. Henry unknowingly did not choose GM's
intended method, and as a result, the jack system was
unstable and failed.
(R. 78 at 7).
II. Issue and Standard of Review
Henry primarily asserts that the district court erroneously
granted GM partial summary judgment based on the court's conclusion
that Henry's failure to read any warning precluded recovery for
negligent failure to warn.2 We review the district court's
granting of summary judgment de novo, applying the same standards
as the district court. Georgia Power Co. v. International Bhd. of
Elec. Workers, Local 84,
995 F.2d 1030, 1031 (11th Cir.1993), cert.
denied, --- U.S. ----,
114 S.Ct. 1644,
128 L.Ed.2d 364 (1994).
III. Discussion
Summary judgment is proper when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). "Rule 56(c)
mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex Corp. v. Catrett,
477 U.S.
317, 322,
106 S.Ct. 2548, 2552,
91 L.Ed.2d 265 (1986). Under
Georgia law, to recover for negligence, a plaintiff must show "(1)
a legal duty to conform to a standard of conduct raised by the law
for the protection of others against unreasonable risks of harm;
2
Henry also challenges several of the district court's
evidentiary rulings at trial and contends that the jury
instructions were flawed. We reject these contentions without
further discussion. See 11th Cir.R. 36-1.
(2) a breach of this standard; (3) a legally attributable causal
connection between the conduct and the resulting injury; and (4)
some loss or damage flowing to the plaintiff's legally protected
interest as a result of the alleged breach of the legal duty."
Bradley Ctr., Inc. v. Wessner,
250 Ga. 199,
296 S.E.2d 693, 695
(1982). The manufacturer can breach its duty to warn in two ways:
(1) by failing "to take adequate measures to communicate the
warning to the ultimate user," or (2) by failing "to provide a
warning that, if communicated, was adequate to apprise the user of
the product's potential risks." Rhodes v. Interstate Battery Sys.,
722 F.2d 1517, 1519 (11th Cir.1984).
GM has shown itself entitled to summary judgment. First,
Henry's deposition testimony negates the element of breach in a
claim based on Rhodes 's first prong. Unlike the plaintiff in
Rhodes, who never even saw the warning, Henry testified that he not
only saw the yellow sticker on the jack, but knew that the sticker
signified a warning. Thus, no fact dispute exists as to whether
the warning was "communicated[d] to the ultimate user." See
id.
Second, Henry's uncontroverted failure to examine the warning
once he had noticed it negates the causation element of a claim
based on Rhodes 's second prong. See
id. Under Georgia law, a
product user's failure to read an allegedly negligent warning, not
the warning itself, is considered the proximate cause of an injury
resulting from product misuse. See, e.g., Powell v. Harsco Corp.,
209 Ga.App. 348,
433 S.E.2d 608, 610 ("The alleged inadequacy of
the installation instructions [for a fiberglass catwalk] cannot be
the proximate cause of the collapse of the catwalk and [decedent's]
death when the installer did not read the installation directions
that [the defendant's] subsidiary actually provided."), cert.
denied, 209 Ga.App. 348,
433 S.E.2d 608 (1993); Cobb Heating & Air
Conditioning Co. v. Hertron Chem. Co.,
139 Ga.App. 803,
229 S.E.2d
681, 682 (1976) ("This court has held that any insufficiency of the
warning on the label of a product may not be the proximate cause of
the [accident] when the user fails to read the label."); Parzini
v. Center Chem. Co., 129 Ga.App. 868,
201 S.E.2d 808, 809 (1973)
("[T]he evidence shows that [the plaintiff] did not read the
warning[,] and therefore any inadequacy with regard to such warning
would not be the proximate cause of his injuries.").
Henry urges us to reject this Georgia rule as a matter of
public policy in cases such as his in which the plaintiff is
illiterate. He points to widespread illiteracy in our society and
the imperative of protecting the illiterate from product hazards.
Although we are not unsympathetic to Henry's concerns, we must
apply Georgia law. See Erie R.R. v. Tompkins, 304 U.S. 64, 78,
58
S.Ct. 817, 822,
82 L.Ed. 1188 (1938). Nothing in the rationale of
the cited cases suggests that Georgia would consider the product
user's illiteracy relevant once the manufacturer has communicated
the existence of a warning. The reasoning behind the rule is based
on causation, not contributory negligence or any fault on the part
of the product user. Why the user failed to read the warning thus
does not matter. Whatever the user's reason, if the user is aware
of a warning but ignores its language, the manufacturer's
negligence in drafting the warning ceases as a matter of law to be
a cause of the injury.
Because Henry thus failed to carry his summary judgment burden
as to either of Rhodes 's two kinds of failure to warn, summary
judgment was appropriate.
IV. Conclusion
Finding no error, we AFFIRM the judgment of the district
court.
AFFIRMED.
BARKETT, Circuit Judge, concurring in part, and dissenting in
part:
I dissent because I believe this court's precedent requires
reversal of summary judgment on one of Henry's negligent failure to
warn claims. Although the majority correctly identifies the two
tests for measuring a manufacturer's duty to warn set forth in
Rhodes v. Interstate Battery Sys.,
722 F.2d 1517 (11th Cir.1984),
the majority misapplies one of the tests to Henry's claims. In
Rhodes we stated that a manufacturer can breach its duty to warn
(1) by failing "to take adequate measures to communicate the
warning to the ultimate user," or (2) by failing "to provide a
warning that, if communicated, was adequate to apprise the user of
the product's potential risks." Id. at 1519. While, as to the
second test, I agree that Henry's failure to read the warning
precluded a jury determination as to the adequacy of the content of
the warning, our precedent dictates that, as to the first test,
Henry's failure to read is not dispositive of his alternate claim
that the manufacturer breached its duty to warn by failing "to take
adequate measures to communicate the warning to the ultimate user."
Id.
Rhodes recognizes that a manufacturer breaches its duty to
warn if it fails to convey the warning adequately, notwithstanding
how clear it is. The warning may be a paragon of clarity, but if
it is illegible, or located in an irrelevant place, or not properly
associated with the product, or otherwise not adequately
communicated to the user, the manufacturer may be liable. And, as
Rhodes specifically explains, the plaintiff's failure to read the
warning does not bar the submission of this question to the jury.
Thus, I must disagree with the majority's reasoning that because
Henry "not only saw the yellow sticker on the jack, but knew that
the sticker signified a warning," as a matter of law "the warning
was "communicate[d] to the ultimate user.' " The majority's
decision violates the dictates of Rhodes by permitting the district
court to usurp the jury's role of deciding whether General Motors
("G.M.") took adequate measures to communicate the warning under
the circumstances presented here.
Like Henry, the plaintiff in Rhodes did not read the warning
on the product in question. Rhodes had been out drinking one
night, and returned to his car to find its battery dead. It was
dark, and in order to check the fluid levels, he struck a match and
removed the plug covers from the battery cells. He did not read
the warnings embossed on the battery which indicated, among other
things, that batteries produce explosive gases and that sparks,
flame and cigarettes should be kept away. The battery exploded,
covering Rhodes' face and eyes with sulfuric acid. Rhodes admitted
that he had not read the warning label on that battery or on the
batteries of any of the other cars he had owned over the years. He
sought recovery in negligence for failure to provide an adequate
warning of the dangers associated with the product. The
manufacturer argued, as does G.M. here, that Rhodes was precluded
from recovery as a matter of law because he had "failed to read the
warning label, which fully and adequately described the inherent
dangers of the battery." Id. at 1518. This court reversed summary
judgment granted to defendants, concluding that, despite Rhodes'
failure to read the battery's warning, his claims presented genuine
issues of material fact as to the adequacy of defendants' means of
conveying the warning to a consumer in his position.
The relevant Georgia case law, as found in Parzini v. Center
Chemical Co., 129 Ga.App. 868,
201 S.E.2d 808 (1973), Cobb Heating
& Air Conditioning Co. v. Hertron Chemical Co.,
139 Ga.App. 803,
229 S.E.2d 681 (1976), and McLeskey v. Olin Mathieson Chemical
Corp.,
127 Ga.App. 178,
193 S.E.2d 16 (1972), is not to the
contrary. As this court explained in Rhodes, these Georgia cases
"hold only that an injured party cannot claim inadequacy of the
contents of a warning if he never bothered to read the warning.
They do not bar a claim, such as Rhodes', that an injury was caused
by the manufacturer's failure to take appropriate measures to
communicate the potential risks to the ultimate user." Rhodes, 722
F.2d at 1520 (emphasis added). The Rhodes court concluded that
"[a] factual issue exists as to the adequacy of the defendants'
adopted means of conveying the warning. It is for the jury to
decide whether or not their chosen method was negligent." Id.
In the instant case, the majority rests its analysis on the
finding that the manufacturer communicated the existence of a
warning. But it does not follow from the fact that G.M.
communicated the existence of a warning to Henry, that G.M. took
adequate measures to communicate to Henry the specific warning as
to the G.M. jack, which is what the first Rhodes test requires.
Henry, like Rhodes, failed to read the product warning, and
asserted that the warning was inadequately communicated to the
user. At issue in both cases was the plaintiff's claim that
defendants had negligently failed to provide a warning reasonably
likely to apprise him of the product's dangerous qualities.1 Both
plaintiffs failed to read the respective warnings, and each in
effect claimed that the warning at issue "was not likely to warn a
consumer in his position of the potential dangers" and that the
defendants were negligent in "not attempting to convey the risks in
a more effective manner." Id. at 1520 (emphasis added). The fact
that Henry, unlike Rhodes, noticed a "warning" does not change the
result.2 Henry may have been aware of a warning of some kind, as
one may be aware of small print on a label, but a warning as to
what, when and where? It is an unwarranted leap of reasoning to
1
In his deposition, Walter Zych, an expert witness for G.M.,
testified that it was foreseeable that illiterates would use G.M.
jacks:
Q: So would you agree with me, then, that there would
be users of G.M. jacking systems that don't know
how to read or have a sixth grade or lower reading
capability?
A: That may be, yes.
2
There is no further basis to distinguish the facts in
Rhodes and Henry. Rhodes did not see the warning because it was
dark. Had he had a flashlight, for example, or had the battery
warning glowed in the dark the outcome might have been different.
Similarly, Henry did not attend to the warning because he could
not read it. Had he been able to read or had the manufacturer
provided an appropriate pictogram, the outcome might have been
different.
assume, as a matter of law, that illiterates, though they cannot
read, are thoroughly acquainted with the conventions that govern
the use and understanding of printed warning labels in a highly
literate society. Even if the G.M. sticker did make an
"existential" communication of some kind with Henry, it would still
be a question for the jury whether G.M. took measures to
communicate the jack warning that were adequate for the purposes of
an illiterate like Henry under all the pertinent evidence presented
on this issue. Summary judgment is improper in this case for the
identical reason that we found it improper in Rhodes.
Nor is Rhodes an isolated case. Indeed, in two other cases,
neither of which is addressed by the majority, this circuit has
confirmed the impropriety of summary judgment in circumstances
where the evidence has shown that plaintiff in some sense had the
opportunity to read the warning but did not, or did read and
understand the warning but failed to heed it. In Stapleton v.
Kawasaki Heavy Indus., Ltd.,
608 F.2d 571 (5th Cir.1979), for
example, a homeowner sued a motorcycle manufacturer and distributor
for damages resulting from a fire in her home caused when a
motorcycle tipped over and leaked gasoline which was subsequently
ignited by a pilot light.3 The leak resulted from the motorcycle's
fuel switch having been left in the "on" position. Although there
was a warning about possible gasoline leakage in this situation in
the owner's manual, the jury returned special verdicts finding that
3
In Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th
Cir.1981), we held that decisions of the former Fifth Circuit
reached before October 1, 1981, are binding on the Eleventh
Circuit.
defendants were negligent and had breached their duty to warn. On
appeal, defendants, citing Cobb, Parzini, and McLeskey, argued that
the plaintiff was barred from making her claim because, as a matter
of law, failure to read a label is contributory negligence. This
court held that "[w]hether adequate efforts were made to
communicate a warning to the ultimate user and whether the warning
if communicated was adequate are uniformly held questions for the
jury." Stapleton, 608 F.2d at 573 (citing West v. Broderick &
Bascom Rope Co.,
197 N.W.2d 202 (Iowa 1972); Hubbard-Hall Chemical
Co. v. Silverman,
340 F.2d 402 (1st Cir.1965)). We explained that
the jury must determine whether putting the warning on page 13 in
an ordinary typeface was an adequate effort, and whether the
warning so located was sufficient to warn the user of the danger.
After noting that the cited cases all involved warnings that were
attached to products, and observing that the plaintiff's son, who
had tipped the motorcycle over, had testified that he "looked
through the manual" though he "really didn't read it," we reasoned
that "the jury could conclude that the danger posed by the gas
leakage was sufficiently great that the warning should have been
presented in a way immediately obvious to even a casual reader."
Id.
Similarly, in Watson v. Uniden,
775 F.2d 1514 (11th Cir.1985),
we reversed a grant of summary judgment to defendants on Watson's
negligence claims in a product liability suit. Having properly
installed a Uniden telephone and used it to call out for awhile
without incident, Watson found it ringing and proceeded to answer
it for the first time. As she placed the receiver to her ear, the
phone rang again and permanently impaired her hearing. Unlike an
ordinary phone, the Uniden had a speaker in the handset which
produced the ring as well as the caller's voice. The handset had
a sticker on its inside face which read "CAUTION—LOUD RING Move
switch to talk position before holding receiver to ear." The
Watsons read the instruction book when they received the phone and
Mr. Watson explained the procedure to Mrs. Watson when he installed
it. However, Mrs. Watson did not move the switch to the talk
position and the phone rang directly in her ear. She knew she was
supposed to move it but simply forgot to do so. Relying on Rhodes,
this court disagreed with the district court that the warning on
the handset was adequate as a matter of law and found that "the
adequacy of the warning is an issue a jury must decide." Id. at
1516. We explained that "the general rule in Georgia is that
questions of negligence and proximate cause, except in plain,
palpable and indisputable cases, are solely for the jury, and the
courts will decline to decide such questions unless reasonable
minds cannot differ as to the conclusions to be reached." Id.
Finally, we concluded that "Mrs. Watson asserted a claim based upon
Uniden's negligent failure to provide a warning reasonably likely
to apprise her of the phone's dangerous qualities, and she should
be allowed to attempt to persuade a jury so to find. A factual
issue exists as to the adequacy of Uniden's means of conveying the
warning." Id.
Because this court's decisions in Rhodes, Stapleton and Watson
require reversal of summary judgment in this case, I respectfully
DISSENT.
