Weeks v. Remington Arms Co. (733 F.2d 1485, 1984)

JAMES C. HILL, Circuit Judge:

The appeal in this diversity case presents three questions: (1) was appellant’s strict liability claim barred by the ten-year limitation period of Georgia’s Products Liability Act, Code Ga.Ann. § 51-1-11 (1982); (2) did the district court correctly direct a verdict in favor of appellee on appellant’s negligence claims; and (3) was appellee required to produce files concerning other alleged failures of its product. We agree with the district court that the Georgia statute time-bars appellant’s strict liability claim. However, we hold that the district court erred in granting appellee a directed verdict on the negligence counts and that, in any subsequent trial of this matter, appellant is entitled to appellee’s files concerning other alleged failures of its product.

I. BACKGROUND

Appellant Weeks was injured when his Remington shotgun discharged with its safety in the “on” position. He sued Remington and sought recovery under theories of strict liability and negligence. After conducting a pretrial hearing, the district court granted Remington’s motion for summary judgment on the strict liability claim.

Weeks’ negligence claims were tried before a jury, but the district court declared a mistrial when Weeks sought to introduce evidence that other Remington shotguns had misfired under similar circumstances. At the conclusion of all evidence in the second trial, the district court directed a verdict against Weeks on his negligence counts. The written order granting Remington a directed verdict stated no grounds for the ruling.

II. THE STRICT LIABILITY CLAIM

The Remington shotgun that injured Weeks was manufactured in August of 1968 and sold to a retail store in May of 1969. Weeks purchased the gun in August or September of 1969. Weeks was injured when the gun misfired in October of 1979. From these undisputed facts, the district court concluded that Weeks’ strict liability claim was barred by the ten-year limitation period imposed by Code Ga.Ann. § 51-1-11(b)(2) (1982). We agree.

In April of 1968, the state legislature approved the Georgia Products Liability Act. 1968 Ga.Laws 1166. Under the Act, any manufacturer of a product sold as new property could be held liable for injuries proximately caused by the product if, when sold, the product was “not merchantable and reasonably suited to the use intended ____” Code Ga.Ann. § 51 — 1— 11(b)(1). The primary thrust of the Act is to impose strict liability on manufacturers whose “defective” products cause injury. See Center Chemical Co. v. Parzini, 234 Ga. 868, 869-70, 218 S.E.2d 580, 581-82 (1975).

As originally enacted, Georgia’s products liability statute placed no time limit on an injured consumer’s strict liability claim against the product manufacturer. Compare Ga.Code Ann. § 105-106 (1968) with Code Ga.Ann. § 51-1-11 (1982). Thus, under the old law the maker of a product that causes injury forty or fifty years after its manufacture could be held strictly liable for that injury. Perhaps to alleviate the harshness of such a result, the Georgia Legislature amended the statute in 1978 to impose a ten-year limitation period on claims based on the Act. The amendment, which went into effect on July 1, 1978, see Code Ga.Ann. § 1-3-4 (1982), provides:

No actions 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.

Code Ga.Ann. § 51-l-ll(b)(2) (1982).

Since Weeks commenced his products liability action more than ten years after he bought the gun, section 51 — 1—11 (b)(2) bars his strict liability claim against Remington. In effect, Remington’s exposure to strict liability claims based on Georgia’s products liability statute expired ten years after Weeks bought the gun from the retail store that purchased the gun from Remington. After that time, section 51 — 1—11(b)(2) granted Remington “repose” from strict liability claims arising from this particular product.

Weeks disputes our application of section 51-1-11(b)(2) to the facts of this ease. He argues that the ten-year limitation period cannot be applied to products sold before the Georgia Legislature added subsection (b)(2) to the Products Liability Act. To do so, Weeks contends, would violate the well-established principle of Georgia law that statutes are not to be given “a retrospective operation, unless their language imperatively requires such construction.” Bussey v. Bishop, 169 Ga. 251, 253, 150 S.E. 78, 79 (1929) (citation omitted); see also Code Ga.Ann. § 1-3-5 (1982).

Although we have discovered no Georgia decision applying subsection (b)(2) to a claim arising from a product that was sold as new property before subsection (b)(2) became effective, we are confident that the Georgia courts, if confronted with the question, would hold the provision applicable. The Georgia courts long ago rejected any notion that statutes could never be applied retrospectively. As the Georgia Supreme Court emphasized:

[T]his court has definitively settled the law to be that our constitution forbids the passage of only those retroactive, or rather retrospective, laws which injuriously affect the vested rights of citizens. The general rule throughout the United States is that a State legislature may constitutionally repeal, alter, or modify state laws enacted under the police power for the protection of the public, without violating any express or implied constitutional prohibition against retroactive statutes. And the more especially is this true where no vested rights are disturbed.

Bullard v. Holman, 184 Ga. 788, 792, 193 S.E. 586, 588 (1937); see also Smith v. Abercrombie, 235 Ga. 741, 749, 221 S.E.2d 802, 809 (1975) (Georgia’s “prohibition against retroactive laws applies to vested rights.”) (citation omitted); Armistead v. Cherokee County School District, 144 Ga.App. 178, 179, 241 S.E.2d 19, 21 (1977), cert. denied (“The constitutional prohibition against retroactive laws applies only to those laws which affect or impair vested rights.”) (citations omitted).

Adhering to the distinctions drawn by the cases cited above, the Georgia courts have determined that its rule against applying statutes retrospectively does not control where the cause of action has not accrued or vested at the time the statute became operative. U-Haul Co. v. Abreu & Robeson, Inc., 156 Ga.App. 72, 73, 274 S.E.2d 26, 27 (1980), aff'd on other grounds, 247 Ga. 565, 277 S.E.2d 497 (1981). Conversely, the rule prohibiting the retrospective operation of statutes forbids the application of a statutory limitation period to a cause of action that accrued before the statute went into effect. Jaro, Inc. v. Shields, 123 Ga.App. 391, 181 S.E.2d 110 (1971); see U-Haul Co. v. Abreu & Robeson, Inc., 156 Ga.App. at 73, 274 S.E.2d at 27.

In this case, Weeks had no strict liability claim against Remington at the time the statutory limitation period was added to Georgia's Products Liability Act. Subsection (b)(2) went into effect on July 1, 1978. Weeks was injured several months later, in October of 1978. Applying the statutory limitation period does not affect any “accrued or vested right” that Weeks might have in bringing an action against Remington. Therefore, the district court correctly determined that Weeks’ strict liability claim is time-barred by Code Ga.Ann. §§ 51 — 1—11(b)(2).

III. THE NEGLIGENCE CLAIMS

Weeks testified that he was dove hunting with a friend on the day of the accident. After firing at a bird, Weeks decided to adjust his shotgun’s poly choke, a device that modifies its firing pattern. He returned to the blind, put the gun’s safety in the “on” position, and began to tighten the polychoke. In order to make such an adjustment, Weeks placed the gun on the grass near his position in the blind and reached for the barrel of the gun. As he grasped the end of the barrel, the gun discharged, seriously injuring Weeks’ left hand.

Skip Baker, Weeks’ hunting companion on the day of the accident, verified Weeks’ account of the accident, including Weeks’ statement that he put the safety on before making adjustments to the polychoke. Baker also testified that, after taking Weeks to the hospital, he unloaded Weeks’ shotgun and noticed that the safety was on. Larry Weeks, appellant’s brother, testified that he went to the hospital immediately after appellant had been admitted and that he, too, noticed that the safety was on.

In order to establish that the shotgun could fire with the safety on, Weeks called a gun expert who testified that the Remington’s safety mechanism was inadequate because it was designed to lock the trigger, not the sear or the hammer. As the gun was designed to operate, pulling back on the trigger pushed the sear forward, thus releasing the hammer and causing the gun to fire. However, Weeks’ expert testified that if debris got into the gun, the debris could force the sear away from the^ hammer and allow the hammer to fall without anyone s having moved the trigger. Debris might also block the trigger from returning to its normal position, after being pulled, thus preventing the safety from locking the partially pulled trigger and allowing the gun, if jolted to fire. Because Remington s safety only prevented the trigger from being pulled, it did not keep & r.. ’ „ r the gun from firing if other torces — e.g., ... . . ° . ,, ,, TT . debris or impact — moved the sear. Using . r -n • , , f a cutaway model of the Remington shot- ,, ,, , ,, , , , . gun, the expert demonstrated how debris . I , ., . .. , ... „ might cause the gun to discharge with the f. saiety on.

Weeks attempted to establish that Remington had reason to know of the inadequaey of the safety mechanism in two ways, First, he sought to discover from Remington its records relating to other alleged misfirings of the Remington shotgun. Second, Weeks introduced several patents obtained by Remington for the safety mechanism installed on other models of its shotgun. The patents recounted the dangers inherent in a safety that did not lock both the trigger and the hammer and described a mechanism that was designed to block the sear.

As proof that the problem could be corrected, Weeks’ expert illustrated other safety mechanisms that were designed to overcome the inadequacy of the Remington safety. One such mechanism, used by various models of the Winchester shotgun, locked the hammer as well as the trigger; and, although Remington disputed this testimony, the expert opined that debris would not cause the Winchester model to misfire under similar conditions,

Taking all the evidence in the light most favorable to Weeks and drawing all reasonabje inferences from that evidence in his favor) see Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.l969) (en banc), we conclude ^ he made out a cage of negli. design guffícient for submission to the . Based Qn ^ evid a jury might hayg reagonabl found tbat Remington had & d to degi a safet mecbanism wbich , f ,, ~ ,, would protect others from unreasonable . . „, D . , , , , ., risks of harm, that Remington breached its . , , ’ ... ... „ , duty by employing this particular safety, . , . , , f and that the negligently designed safety . , , & f TT, , , • • 0 proximately caused Weeks injury. See Bradley Center, Inc. v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693, 695 (1982)- The evidence was sufficient to permit reasonabje jur0rs to find Remington negligent in designing a safety which, even if engaged, wQuld not preyent the gun from firing.

. Remington argues that Weeks failed to establish a defect in the design of the safe- ^ mechanism. The inadequacy of Weeks proof, Remington contends, lies in the fact that no debris was found in the gun s, firing mechanism; therefore, Weeks expert posed a theory to explain the misfiring, but the evidence did not support the offered explanation. Apparently, the district court Jre