Georgia product liability statutes and defective truck components

Privity and manufacturer liability under O.C.G.A. 51-1-11(a) and (b)

Section 51-1-11(a) states: "Except as otherwise provided in this Code section, no privity is necessary to support a tort action". Where a tort results from the violation of a duty which is itself the consequence of a contract, Section 51-1-11(a) confines the right of action to the parties and those in privity to that contract. That confinement gives way in cases where the party would have a right of action for the injury done independently of the contract, and it also gives way as provided in Code Section 11-2-318. When a truck crash tort results from the violation of such a contract duty, the same confinement and the same exceptions in Section 51-1-11(a) govern the right of action.^[1]

Section 51-1-11(b)(1) makes the manufacturer of personal property sold as new property, directly or through a dealer or another person, 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". Liability under that paragraph turns on conditions in its text: 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. For a truck crash claim alleging a defective component, those conditions of sale and proximate cause are the ones the paragraph states. For a truck accident claim under subsection (b)(1), that paragraph operates irrespective of privity, while subsection (a) names Code Section 11-2-318 among its own privity exceptions.^[1]

In a truck accident claim under subsection (b), as in other claims under that subsection, Section 51-1-11(b)(3) provides: "A manufacturer may not exclude or limit the operation of this subsection." The words "operation of this subsection" in paragraph (3) refer to subsection (b), the subsection in which paragraph (3) appears. A truck driver who claims under Section 51-1-11(b)(1) is held to the same description of the protected natural person and the same conditions of sale and proximate cause that the paragraph sets for other claimants, and paragraph (3) prevents a manufacturer from excluding or limiting the operation of that subsection.^[1]

Ten-year period from first sale under O.C.G.A. 51-1-11(b)(2) and (c)

Section 51-1-11(b)(2) provides: "No action shall be commenced pursuant to this subsection with respect to an injury after ten years from the date of the first sale for use or consumption" of the personal property causing or otherwise bringing about the injury. In a truck crash claim under subsection (b), the ten-year period begins on the date of the first sale for use or consumption of the personal property that caused or otherwise brought about the injury.^[1]

Subject to the exceptions in the same subsection, Section 51-1-11(c) also bars the commencement of "an action claiming negligence of a manufacturer as the basis of liability" after the same ten-year period from first sale for use or consumption. That bar excepts an action seeking to recover from a manufacturer for injuries or damages arising out of the negligence of that manufacturer in manufacturing products which cause a disease or birth defect. It also excepts an action arising out of conduct which manifests a "willful, reckless, or wanton disregard for life or property." For a truck accident claim alleging negligence of a manufacturer, Section 51-1-11(c) places those exceptions beside the ten-year period from first sale.^[1]

Section 51-1-11(c) ends with this sentence: "Nothing contained in this subsection shall relieve a manufacturer from the duty to warn of a danger arising from use of a product once that danger becomes known" to the manufacturer. In a truck accident claim subject to the ten-year limitation measured from first sale, the words of subsection (c) leave the duty to warn in place. In a truck crash claim, the timing of that duty under subsection (c) is tied to when a danger arising from use of the product becomes known to the manufacturer.^[1]

Industry-wide liability theories under O.C.G.A. 51-1-11(d) and (e)

Section 51-1-11(d) provides that, irrespective of privity, a manufacturer "shall not be held liable for the manufacture of a product alleged to be defective based on theories of market share or enterprise, or other theories of industry-wide liability." Section 51-1-11(e) provides, also irrespective of privity, that a manufacturer of a product alleged to be defective "shall not be held liable for a public nuisance" based on those same theories. A truck crash claim alleging a defective product meets the bar in subsection (d) where it rests on those theories for the manufacture of the product, and it meets the bar in subsection (e) where it seeks to hold the manufacturer liable for a public nuisance on those theories, in each case for causes of action arising on or after May 4, 2009.^[1]

The notes on the official page for O.C.G.A. 51-1-11 include an editor's note stating that Ga. L. 2009, p. 625, Section 2 (SB 213), was not codified by the General Assembly. According to that note, the act provides that subsections (d) and (e) reach causes of action arising on or after May 4, 2009, including a truck accident cause of action that arises on or after that date.^[1]

Injury limitation periods in O.C.G.A. 9-3-33

O.C.G.A. 9-3-33 sits in Article 2 (Specific Periods of Limitation) of Chapter 3 (Limitations of Actions) in Title 9 (Civil Practice) of the Official Code of Georgia Annotated. Section 9-3-33 provides: "Except as otherwise provided in this article, actions for injuries to the person shall be brought within two years after the right of action accrues". Except as otherwise provided in that article, Section 9-3-33 sets one year after the right of action accrues for injuries to the reputation. Except as otherwise provided in that article, actions for injuries to the person involving loss of consortium, including such actions after a truck accident, carry four years after the right of action accrues under Section 9-3-33. A truck crash claim that is an action for injuries to the person under Section 9-3-33 is measured by that two-year period after accrual, subject to the same article qualifier, and the ten-year period from first sale in Section 51-1-11(b)(2) is a separate provision.^[5][1]

Written notice and presentation of claims against state and local governments

O.C.G.A. 50-21-26 sits in Article 2 (State Tort Claims) of Chapter 21 of Title 50 (State Government) of the Official Code of Georgia Annotated. Section 50-21-26(a) provides: "No person, firm, or corporation having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice" as that subsection sets out. Under Section 50-21-26(a)(1), notice of a tort claim against the state under the article, including a truck crash claim of that kind, is given in writing "within 12 months of the date the loss was discovered or should have been discovered", except that for tort claims and causes of action which accrued between January 1, 1991, and July 1, 1992, written notice was due within 12 months after July 1, 1992. For a truck accident claim that is a tort claim against the state under that article, those notice conditions come before suit.^[4]

Section 50-21-26(a)(2) requires the written notice to be mailed by certified mail or statutory overnight delivery, return receipt requested, to the Risk Management Division of the Department of Administrative Services. In the alternative, the notice may be delivered personally to that division with a receipt obtained. In addition, a copy is delivered personally to, or mailed by first-class mail to, the state government entity whose acts or omissions are asserted as the basis of the claim. Each state government entity, including an entity whose acts or omissions are asserted as the basis of a truck crash claim, may designate an office or officer within it to whom a notice of claim is to be delivered or mailed. Notice of a truck crash tort claim against the state under that article is subject to the same delivery terms in Section 50-21-26(a)(2).^[4]

Under Section 50-21-26(a)(3), no action against the state under the article, including a truck accident action of that kind, is commenced, and the courts have no jurisdiction of it, unless and until a written notice of claim has been timely presented to the state as subsection (a) provides. Section 50-21-26(a)(4) calls for a complaint filed under the article, such as a truck crash complaint against the state, to carry, as exhibits, a copy of the notice of claim presented to the Department of Administrative Services together with the certified mail or statutory overnight delivery receipt or receipt for other delivery. If the failure to attach those exhibits is not cured within 30 days after the state raises the issue by motion, the complaint is dismissed without prejudice. Under Section 50-21-26(a)(5), the notice states, to the extent of the claimant's knowledge and belief and as may be practicable under the circumstances, the name of the state government entity whose acts or omissions are asserted as the basis of the claim, the time of the transaction or occurrence out of which the loss arose, the place of the transaction or occurrence, the nature of the loss suffered, the amount of the loss claimed, and the acts or omissions which caused the loss.^[4]

Under Section 50-21-26(b), no action may be commenced under the article following presentation of a notice of claim until either the Department of Administrative Services has denied the claim or more than 90 days have elapsed after presentation without action by that department, whichever occurs first. A truck accident suit against the state under the article therefore waits for the earlier of those events. Section 50-21-26(c) authorizes the department to examine and copy records of a state government entity to facilitate the investigation of a claim, such as a truck accident claim against the state under the article, and each entity makes those records available notwithstanding a law that designates them confidential or prohibits their disclosure. The department is bound by such a law and makes no further disclosure of the records except as that law permits. It may enforce this authority by subpoena, enforceable on its application by the Superior Court of Fulton County, Georgia, in the same manner as subpoenas issued under the "Georgia Administrative Procedure Act". Under Section 50-21-26(d), a document or information gathered or prepared by the department in connection with the investigation undertaken as a result of the notice of claim is privileged and confidential and is not subject to discovery by a claimant, including a truck crash claimant, in a proceeding under the article, except as otherwise provided by law.^[4]

O.C.G.A. 36-11-1 sits in Chapter 11 (Claims Against Counties) of Title 36 of the Official Code of Georgia Annotated. Section 36-11-1 provides: "All claims against counties must be presented within 12 months after they accrue or become payable or the same are barred". Under the proviso in Section 36-11-1, minors or other persons laboring under disabilities, including a truck accident claimant under a disability, are allowed 12 months after the removal of the disability to present their claims. A truck crash claim against a county falls within that presentation rule when it is among the "claims against counties" the section names.^[2]

O.C.G.A. 36-33-5 sits in Chapter 33 (Liability of Municipal Corporations for Acts or Omissions) of Title 36. Under Section 36-33-5(a), a claimant having a claim for money damages against a municipal corporation on account of injuries to person or property, such as a truck crash claim of that kind, brings no action against the municipal corporation for those injuries without first giving notice as the section provides. Section 36-33-5(b) calls for the claim to be presented in writing to the governing authority of the municipal corporation for adjustment "Within six months of the happening of the event upon which a claim against a municipal corporation is predicated". In a truck accident claim of that kind, the written claim states the time and place of the injury, as nearly as practicable. The written claim also states, as nearly as practicable, the extent of the injury, together with the negligence which caused the injury. The courts entertain no action against the municipal corporation until the cause of action has first been presented to the governing authority for adjustment.^[3]

Under Section 36-33-5(c), the governing authority considers and acts upon a truck crash claim or other claim presented under the section within 30 days from presentation, and its action, unless it results in settlement of the claim, is in no sense a bar to an action in the courts. Section 36-33-5(d) suspends the running of the statute of limitations, including for a truck accident claim presented under the section, during the time the demand for payment is pending before those authorities without action on their part. Section 36-33-5(e) provides that the description of the extent of the injury includes the specific amount of monetary damages sought from the municipal corporation. Under Section 36-33-5(e), "The amount of monetary damages set forth in such claim shall constitute an offer of compromise." If the municipal corporation does not settle the claim and the claimant litigates it, that amount "shall not be binding on the claimant." Section 36-33-5(f) provides for service of the claim, including a truck accident claim of that kind, upon the mayor or the chairperson of the city council or city commission, as the case may be, by delivering it to that official personally or by certified mail or statutory overnight delivery.^[3]

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)