Grady Michael Higginbotham, Plaintiff-Appellee-Cross v. Ford Motor Company, Defendant-Appellant-Cross John Henry Lee and Veronica P. Lee

*775JOHN R. BROWN, Chief Judge,

concurring in part and dissenting in part:

Although I concur in the rest of the majority’s opinion, I must dissent from its ruling that Georgia’s wrongful death statute does not encompass strict liability claims.

The best that can be said for the holding is that it is “one of those situations where the decision is bound to be right because it is so wrong . . . .” Gulf Oil Corp. v. Panama Canal Corp., 5 Cir., 1969, 407 F.2d 24, 26.

No Georgia appellate court has spoken to the specific issue at hand.1 In such a ease, a “Federal Court may look to all resources including ‘the decisions of other states, federal decisions or the general weight of authority,’ the goal being ‘that the federal court reach the result that would probably be reached were the question to be litigated in a state court.’ ” Cottonwood Mall v. Utah Power Co., 5 Cir., 1971, 440 F.2d 36, 40. The majority, relying on three factors — the “consistency with which the Georgia Supreme Court has adhered to a strict construction of the wrongful death statute, the notable difference between the wording of the Georgia statute and most other statutes, and the conservative approach that characterized Georgia’s maiden voyage into strict liability” — rules that “we too must hold that the wrongful death statute cannot encompass a strict liability claim.” See supra, at 772.

I cannot say for certain that the majority’s prediction of Georgia law is incorrect. Such certainty will come only when the Georgia courts speak on this subject. I can safely assert, however, that the majority unreasonably limited itself in its search for the law which a Georgia court would apply. Surely the fact that many American jurisdictions today allow strict liability recovery under wrongful death statutes2 should play some part in our Erie determination when there is no Georgia law directly on point. Yet the majority’s reasoning fails to take this factor into account. In making our Erie determination, we may also look to trends in the law, and there is no escape from the conclusion that the trend toward imposing strict liability for injuries and death resulting from defectively manufactured products has assumed the proportions of an avalanche.3 Georgia’s recent transformation to a strict liability state4 only serves to underscore this fact. Again, the majority does not rely on this factor.

Also, there is a fact which the majority recognizes,5 but which plays no part in its conclusion that Georgia courts would allow no strict liability recovery for wrongful death. This is that the rule announced by the Court today — that a person who is only injured by a defectively-made product may recover damages under a theory of strict liability, while a person who is killed by the same defect may not — creates a distinction which is palpably unjust, if not completely irrational.6 We, as a Federal Court engaged in the tricky task of attempting to predict State Court behavior, should pause long and hard before concluding that a State Court would act irrationally and unjustly, in a manner completely at odds with *776the vast current of authority in other American jurisdictions.

Finally, the majority disregards the obvious purpose of the legislature in its enactment of §§ 105-106. The Court disparages it because it is not in the ALI mold, but is reminiscent of the UCC merchantability test. Actually the so-called merchantability standard may be more liberal than the other. In the ALI test one has to prove unreasonable danger — sometimes a formidable task. On the merchantability standard one need only prove the thing failed under its usual expected use. Far from originating in the UCC or its common law ancestors, this is the classic case of unseaworthiness — a standard probably the most liberal in all fields of the law.

Of course we part not on which of the two concepts is more or less liberal or strict. What we differ on is the failure to construe the ancient death statute in terms of the recent marked change in Georgia’s idea on what can constitute a “tort” — which is ■ another descriptive for the magic word “negligence.”

The new section not only imposes a standard of performance on the manufacturer, it then characterizes the consequences of nonperformance as a liability “in tort, irrespective of privity” to persons injured.

The majority disregards the specific legislative characterization that the breach constitutes a tort — something far different from UCC-law merchant claims on warranty. I think the legislature was trying to say that such claims would take the course of the usual damage suit sounding in tort, that is, based on negligence. The code creates a new species of negligence — failure to manufacture an article reasonably suited for its expected use.

I decline to predict that the Supreme Court of Georgia will read a new section as applicable only to nonfatal consequences thereby bringing about a result both shocking and unjust. I predict they will construe the death statute and precedential materials to have been modified by the new code section. Unfortunately, even if I have this assumed prescience, it will not do Grady Michael Higginbotham any good. He and the estate will be just another victim of Erie — unable to recall a past mistake in determination of local law.7

. But see Etheridge v. Georgia Power Co., No. C-12911, Superior Court of Fulton County, Georgia, June 16, 1976, holding that Georgia law permits recovery for wrongful death under the theory of strict liability in tort.

. See, R. Hursh and H. Bailey, American Law of Products Liability 2d § 4:19 (1974); Prosser, Torts 903 (4th ed. 1971); 22 Am.Jur.2d Death § 19.

. See Prosser, Torts 657-58 (4th ed. 1971).

. See Eilis v. Rich’s, Inc., 1975, 233 Ga. 573, 212 S.E.2d 373.

. See supra, at 774.

. Judge Friendly’s pithy comment surely fits here: “The compulsion felt by my brothers to reach what seems a palpably unjust result reminds me of Chief Justice Erie’s observation as to the occasional predilection of the best of judges for ‘a strong decision,’ to wit, one ‘opposed to common-sense and to common convenience.’ ” Spanos v. Skouras Theatres Corp., 2 Cir., 1966, 364 F.2d 161, 167.

. It is unfortunate that Georgia, unlike Florida, Louisiana and Alabama, does not have a procedure for certifying questions to the Supreme Court of Georgia.

See Cincinnati Ins. Co. v. City of Talladega, 5 Cir., 1976, 529 F.2d 718; ITT Rayonier, Inc v. Wadsworth, 5 Cir., 1976, 528 F.2d 1033; Southeastern Financial Corp. v. Smith, 5 Cir., 1976, 526 F.2d 1233; Tyler v. Insurance Co. of North America, Inc., 5 Cir., 1975, 520 F.2d 341; Barnes v. Atlantic & Pacific Life Ins. Co., 5 Cir., 1975, 514 F.2d 704, on certification, 1975, 295 Ala. 149, 325 So.2d 143, on receipt of answers to certification, 5 Cir., 1976, 530 F.2d 98; H. S. Equities, Inc. v. Hartford Accident & Indemnity Co., 5 Cir., 1975, 512 F.2d 1277; Nardone v. Reynolds, 5 Cir., 1975, 508 F.2d 660, on certification, Fla., 1976, 333 So.2d 25; and cases cited in Nardone v. Reynolds, supra, at 663 n. 6; in Coastal Petroleum v. Secretary of Army, 5 Cir., 1973, 489 F.2d 777, 779 n. 5, on rehearing, 1974, 491 F.2d 973; and in Allen v. Estate of Carman, 5 Cir., 1971, 446 F.2d 1276, 1277 n. 1.