Continental Research Corporation v. Reeves Et Al., 204 Ga. App. 120, 419 S.E.2d 48 (1992)
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Judgment affirmed. Andrews, J., concurs. Beasley, J., concurs specially.
Summary
Judgment affirmed. Andrews, J., concurs. Beasley, J., concurs specially.
Text
Appellant Continental Research Corporation (CRC) appeals from a judgment entered in favor of appellees in a products liability case involving inter alia allegations of improper labeling and a claim for loss of consortium, and from an order denying appellant's motion for new trial.
Appellee Ed Reeves, who specializes in heating, ventilation, air conditioning and refrigeration repair, was injured when he accidentally sprayed Con-Coil air conditioner cleaner inside a glove and got the product on his hands. Con-Coil contains a hydrofluoric acid and this fact was known to Mr. Reeves. Following the accident, Mr. Reeves read the warning label on the product, and promptly washed his hands and gloves with water; he also washed his hands thereafter repeatedly with soap and water. Mr. Reeves continued to work throughout the day and after a period of time, his hands became red and irritated. He went home and informed his wife of the incident. Mr. Reeves' condition worsened during the evening and his hands became increasingly painful notwithstanding various home remedies. Mrs. Reeves' concerns mounted. She read the label on the Con-Coil bottle and, remaining unsatisfied, called Poison Control. Mrs. Reeves was advised to take her husband for emergency medical treatment without delay. The local medical facility was unfamiliar with the nature of Mr. Reeves' injury and he was referred to a larger facility. Ultimately, he was injected with a medication used to counteract the hydrofluoric acid. Mr. Reeves sustained permanent damage to his hands.
The Con-Coil label did not specifically advise a person to seek medical treatment immediately if his skin came in contact with the product. Neither did the label warn the user that Con-Coil contains a fluoride ion which can cause the substance to penetrate the skin rapidly, and can result in severe injury below the outer skin surface without causing any visible burning, corrosion or damage to the surface of the skin. The need for these warnings was contested. The label did include, inter alia, a graphic. The lower diagonal of the graphic contained the word "CORROSIVE," and the top diagonal contained two pictorial representations, including a depiction of a hand being eaten away when coming into contact with a substance poured from a vial. The written label stated the product contained certain "HAZARDOUS MATERIAL," including hydrofluoric acid. It also warned that skin contact can cause severe burns, and to "wash thoroughly with water for both eyes and skin contact. Get medical aid if necessary." Additionally, the label stated, "it is not harmful to equipment (aluminum or cooper) when used as directed." Appellees in essence maintain that the label misled Ed Reeves and lulled him into failing to seek immediate medical attention, which would have prevented the permanent injury he sustained. Appellees introduced expert testimony that hydrofluoric acid could penetrate the skin and cause damage below the surface without being apparent to the person injured. The expert also testified that once contact occurred with hydrofluoric acid it was important to obtain immediate medical attention as the damage can be stopped only by the injection of calcium gluconate or other neutralizing substance; and, that while soap and water will neutralize the acid on the skin surface area to some extent, it cannot neutralize acid that has deeply penetrated and that does require specific emergency treatment. Although these contentions were strongly contested, the jury resolved contested issues of fact and rendered a verdict in favor of appellee/plaintiffs. Held:
1. Appellant, a foreign corporation, asserts it was not subject to personal jurisdiction of the court under the Long-Arm Statute of this state and for want of sufficient "minimum contact" to satisfy due process requirements. In resolving this jurisdictional issue, this court may consider all relevant evidence wherever located in the trial record.
At the time of his injury in Georgia, Ed Reeves lived and worked in Georgia; he and his wife subsequently moved to Texas to be close to her relatives. At the time of suit they were Texas residents. CRC is in the business of manufacturing chemical solvents which it sells to air conditioning wholesalers through manufacturers' representatives. CRC has no registered agent for service of process in Georgia, and has no office, no employees and no property in Georgia. The Con-Coil in question was purchased by Ed Reeves from a Baker Brothers store in Georgia. CRC apparently shipped the Con-Coil originally to its wholesale customer, Baker Brothers of Jacksonville, Florida. CRC officials were aware that Baker Brothers had six or more outlet stores in Georgia, and CRC was aware that Con-Coil would be sold in Georgia. In the normal course of business, CRC sells its products through manufacturer's representatives who are given a territory. One of those representatives had a territory that included the states of Georgia and Florida. Although CRC does not sell its product directly to individual users in Georgia, a CRC manufacturers' representative sells and promotes Con-Coil sales to customers in this state, and CRC receives the income from the sale of its products in Georgia. Products are shipped to wholesale customers by CRC and this includes shipments of products to customers in Georgia; however, title to the products transfers to customers at CRC's shipping dock in Dallas, Texas. Rather than billing the manufacturers' representative for products shipped, CRC invoices the customer and the customer pays CRC directly; CRC then pays the representative his commission. CRC does advertise in certain so-called national publications, but does not advertise in any publications that are exclusively for the Atlanta or Georgia area. CRC wants its product sold nationwide, including sales in Georgia, and it is not merely coincidental that its products are sold in this state. CRC manufacturers' representatives take steps to see that the product is sold in Georgia, and CRC instructs the representatives to take steps to so sell the product. CRC wants the manufacturers' representatives to sell as much of the product as they can in Georgia. CRC has gross sales of about $1,500,000; however, CRC sells less than three percent of the gross sales of its products in Georgia so its president does not consider shipments to be made regularly to the state. It may be reasonably inferred that as CRC sells less than three percent of its gross sales of products in Georgia, it perforce sells more than two percent of such gross sales in this state. Therefore, it may reasonably be concluded that CRC sold annually between $30,000-$45,000 worth of products in Georgia and, in our view, this would constitute "substantial revenue" from CRC goods used or consumed within this state, within the meaning of OCGA
The manufacturers' representative contract CRC entered with Mr. Dunbar in January of 1985 was to sell and promote CRC's products to wholesale distributors exclusively in a seven-state area, including both Florida and Georgia. CRC considers these manufacturers' representatives to be independent contractors who may represent other product lines as well and asserts it cannot tell them what to do or require them to give technical data sheets about Con-Coil to their wholesale customers. The representatives are paid a commission on all orders received within their territory whether submitted to CRC by the representative or submitted directly from an area distributor. The contract specified that representatives were independent contractors. It also provided the manner in which commissions would be determined, and granted the company the absolute right to set product prices and the terms governing the sales of CRC products.
Appellant asserts that it was not doing business in Georgia within the meaning of the Long-Arm Statute, OCGA
Regarding the question of due process, appellant, relying on the plurality opinion of Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U. S. 102 (107 SC 1026, 94 LE2d 92), and certain of its lower court progeny, asserts that the "minimum contacts" necessary to satisfy due process requirements have not been met. However, "[j]ust as other courts have done, we conclude the 'splintered view of minimum contacts in Asahi provides no clear guidance on this issue,' (Irving v. Owens-Corning Fiberglas Corp., 864 F2d 383, 386 (5th Cir. 1989)) and we choose to apply the stream of commerce analysis set forth by the United States Supreme Court in World-Wide Volkswagen, [444 U. S. 286 (100 SC 559, 62 LE2d 490)] to the facts at hand." Showa Denko, supra at 250. According to World-Wide Volkswagen, supra at 297, whether the introduction of a product into the stream of commerce establishes minimum contacts with a state in which the product is ultimately sold depends on the foreseeability that the product would be sold there; however, the foreseeability that is critical to due process analysis is not the mere likelihood that the product will find its way to the forum state, rather it is that " 'the defendant's conduct and connection with the forum [s]tate are such that he should reasonably anticipate being haled into court there.' " Showa Denko, supra at 248 (2). But, in World-Wide Volkswagen, supra at 297-298, the United States Supreme Court recognized that "[t]he forum [s]tate does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum [s]tate." In this case plaintiff Ed Reeves purchased and used appellant's product in Georgia as a result of appellant's deliberate and purposeful nationwide distribution attempts, including its express targeting of Georgia as an area for the establishment of distributorships and sale of its product by its independent contractor manufacturers' representatives. When, as here, a manufacturer from another state sells its product, particularly one with a hazardous potential, to a wholesaler customer from Florida knowing that its product will ultimately be sold in that customer's wholesale outlets in Georgia, "it should reasonably expect to be haled into court in Georgia for an injury caused in this [s]tate by that product." Showa Denko, supra, 248. Compare Timberland Equip., supra at 590 (1).
Incidentally, the terms of CRC's contract with the manufacturers' representatives for the southern areas, including Georgia and Florida, pertinently provides that: "The company [CRC] reserves the right to direct or conduct, at its own expense, the defense of any suit brought against the Representative by a third person for alleged damage to person or property as a result of use of the Company's products." At a minimum, this provision is indicative of CRC's determination that, under the proper circumstances, it would not consider it too onerous to submit to the jurisdiction of the court suing its manufacturers' representative in order to protect its own economic interest and the integrity of the product.
Under the attendant circumstances, we conclude that CRC should have reasonably anticipated being haled into court in Georgia. Moreover, in view of CRC's systematic and purposeful use of manufacturers' representatives and wholesale distributors to promote and expand its product sales nationwide, including within the boundaries of this sovereign state, we further find that this case would meet the standards for "minimum contacts" established by the plurality in Asahi in addition to those of World-Wide Volkswagen. Compare Showa Denko, supra at 249. Accordingly, we find that, under either theory of "minimum contact," the trial court had the requisite personal jurisdiction over appellant in this case.
2. Appellant asserts the trial court erred in excluding defendant's exhibit no. 10, "Symbols for Industrial Safety [NIOSH]." The symbol discussed in the offered exhibit was somewhat similar to but not identical to the corrosive symbol employed in the case at bar. The admission of evidence generally rests in the sound discretion of the trial court. Gene Thompson Lumber Co. v. Davis Parmer Lumber Co.,
Further, appellant asserted in support of its enumeration of error that this exhibit "demonstrated that the National Institute for Occupational Safety and Health had studied and determined that the particular pictogram . . . on defendant's product was the most effective communicator of the hazard." (Emphasis supplied.) However, one of appellee's expert witnesses testified affirmatively at trial, by way of deposition, that the diamond symbol that says "corrosive" with those two pictures (of a hand and a rod being eaten by a substance poured from vials) has been passed on by just about everybody as being the best message-giver of a corrosive material. As the pertinent testimony of appellee's expert conveyed substantially the same information to the jury as contained in the relevant portions of defendant's exhibit no. 10, we are satisfied that had any error occurred in failing to admit the exhibit, such error would be harmless within the meaning of OCGA
3. Appellant asserts the trial court erred in refusing to charge the "open and obvious danger" defense as requested in defendant's requests to charge nos. 8 and 9. Appellant excepted to the refusal to give these charges on the basis that the "open and obvious" defense is separate from contributory negligence and different than assumption of the risk, as it is not based upon whether Mr. Reeves knew, but whether "a generic person such as Mr. Reeves should have seen this open and obvious danger." Pretermitting the accuracy of appellant's argument is the issue whether his charge requests were adequately adjusted to the evidence and did not create a fair risk of confusing or misleading the jury. Examination of the defendant's requests to charge nos. 8 and 9 reveals that the requested charges are not adequately adjusted to the evidence. Although the language used by appellate courts in a decision may embody sound law, it is not always proper to employ such language in a charge to the jury. Department of Transp. v. Hillside Motors,
Additionally, a fair risk exists that the request for charges, as crafted and presented to the trial court, could confuse or mislead the jury into concluding that the trial court had found the danger in fact was open and obvious, and thus that they were required to apply the so-called "open and obvious" rules to the exclusion of the pertinent affirmative defenses charged. The requests for instruction also were confusing as they did not attempt to distinguish this rule adequately from that of the applicable affirmative defenses of which the jury was charged. Thus, Weatherby, supra at 171, admonishes that: "Care should be taken to distinguish between the 'open and obvious rule' and the affirmative defenses [when charged] of contributory and comparative negligence and assumption of the risk. . . . While the 'open and obvious rule' imposes on a plaintiff the burden of proving that the peril-causing injury is latent, or not patent, the affirmative defenses of contributory and comparative negligence and assumption of the risk require a defendant to prove that a plaintiff's conduct was unreasonable under the circumstances or that plaintiff knowingly encountered a known danger with appreciation thereof. Thus, jury questions are often presented as to whether the affirmative defenses have been established." (Emphasis supplied.) Without a tailored instruction which adequately distinguished the "open and obvious" rule from the applicable affirmative defenses, defendant's request to charge nos. 8 and 9 ran a fair risk of both confusing and misleading the jury. The trial court does not err when it refuses to give a request for charge which, as crafted, creates a fair risk of confusing or misleading the jury when examined in light of the other charges given. See Jones v. State,
4. Appellant asserts the trial court erred in refusing to charge defendant's request no. 15, "pertaining to the nature of the risk needed to be appreciated under assumption of risk," after the court had advised counsel the requested charge would be given and defense counsel had argued the case to the jury based upon that information, and the court, thereafter, refused to give the charge.
(a) The charge conference has not been transcribed and attached to the trial record for our examination. Following the charges to the jury, appellant's counsel took exception to the failure to give charge request no. 15. Appellant asserted that the charge contained a key issue in the case that plaintiff need not know the precise nature of the hazard presented; it is sufficient that he be aware of the hazards in general. Appellant further asserted, "I was under the impression -- that could have been in error -- that the court was going to charge this." The trial judge in essence stated on the record that he had gone through the charge requests carefully, had selected the charges he was going to give, and if the court had indicated to counsel the charge would be given it was sorry, as he did not mean to mislead counsel. Appellant thereafter did not contest this explanation on the record. Accordingly, the record before us does not affirmatively establish, as argued by appellant, that the trial court in fact had informed appellant before argument that charge request no. 15 would be given. Without a transcript of the charge conference before us, we cannot resolve this matter. Accordingly, we must presume that the trial court did not erroneously inform appellant that this particular charge would be given verbatim. See generally Nodvin v. West,
(b) Defense charge request no. 15 is based on Whirlpool Corp. v. Hurlbut,
A party's failure to exercise ordinary care to discover the danger is not properly a matter of assumption of the risk, but of the defense of contributory negligence. Beringause v. Fogleman Truck Lines,
5. Appellant asserts, consistent with the exception taken at trial, that the trial judge erred in giving plaintiffs' request to charge no. 22, as it was not a statement of Georgia law, and by instructing the jury to "assume" defendant had certain knowledge and information, it relieved plaintiffs of their burden of proof. The specific grounds advanced at trial for objection or exception to a charge control the extent of appellate review of the charge. Clemons v. Atlanta &c. Institute,
BEASLEY, Judge, concurring specially.
I concur in all except the statement in Division 4 (b) for which Beringause v. Fogleman Truck Lines,
Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Jonathan M. Engram, for appellant.
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This document cites
- Supreme Court of Georgia - DEERE & COMPANY v. BROOKS et al., 250 Ga. 517, 299 S.E.2.d 704 (1983)
- Supreme Court of Georgia - C. P. COMPANY v. WOOD-MOSAIC CORPORATION et al., 230 Ga. 58, 195 S.E.2.d 399 (1972)
- Georgia Court Of Appeals - Beringause v. Fogleman Truck Lines, Inc. Et Al., 200 Ga. App. 822, 409 S.E.2d 524 (1991)
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