Alexander v. General Motors Corp.

Andrews, Judge.

The trial court granted partial summary judgment in favor of General Motors dismissing the portion of Alexander’s products liability action based on a theory of strict liability, and Alexander appeals. The action arose out of an automobile accident in which Alexander claims his injuries were caused by a defectively designed or manufactured driver’s seat in his General Motors car. Alexander, who was a Georgia resident, purchased the car in Georgia but was driving the car in Virginia, while stationed there with the United States Army, when the accident occurred. In granting partial summary judgment to General Motors, the trial court accepted General Motors’ contentions that: (1) the strict liability cause of action was a tort claim; (2) since the accident and injuries at issue occurred in Virginia, the Georgia rule of lex loci delicti required the application of Virginia substantive law to the strict liability tort claim and (3) since Virginia law did not recognize recovery on the basis of strict liability, Alexander’s strict liability tort claim must be dismissed.

The trial court correctly concluded that Alexander’s strict liability claim pursuant to OCGA § 51-1-11 (b) (1) sounded in tort (Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 560 (272 SE2d 251) (1980)), and that the Georgia rule of lex loci delicti governs the decision as to whether Virginia or Georgia substantive law applies to the strict liability claim. Lloyd v. Prudential Securities, 211 Ga. App. 247, 248 (438 SE2d 703) (1993). Under the rule of lex loci delicti, tort cases are governed by the substantive law of the place where the tort or wrong occurred (id. at 248), and in torts of a transitory nature the place of the wrong is the place where the last event occurred necessary to make an actor liable for the alleged tort. See Wardell v. Richmond Screw Anchor Co., 133 Ga. App. 378, 380 (210 SE2d 854) (1974); Risdon Enterprises v. Colemill Enterprises, 172 Ga. App. 902, 903-904 (324 SE2d 738) (1984). Here, the last event necessary to *661make General Motors liable on the products liability claim was the failure of the allegedly defective driver’s seat resulting in Alexander’s ejection from the car during the accident which occurred in Virginia. Accordingly, under the Georgia rule of lex loci delicti, Virginia substantive law applies.

However, Georgia recognizes a public policy exception to the rule of lex loci delicti. “Even if an application [of the rule of lex loci delicti] renders the law of another state applicable, the forum, within constitutional limits, is not required to give the law of another state extra-territorial effect. That is only done as a matter of courtesy or comity, which will not be enforced if the law of the other state contravenes the public policy of the forum. See OCGA § 1-3-9; Commercial Credit Plan v. Parker, 152 Ga. App. 409 (263 SE2d 220) (1979).” Federal Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765-766 (417 SE2d 671) (1992); see also Karimi v. Crowley, 172 Ga. App. 761, 762 (324 SE2d 583) (1984); Roadway Express v. Warren, 163 Ga. App. 759, 761 (295 SE2d 743) (1982). Accordingly, the issue is whether the public policy exception applies in this case.

Under the public policy exception to the rule of lex loci delicti, Georgia will not apply the substantive law of the place where the tort was committed if application of the foreign law “contravenes our established public policy, or the recognized standards of civilization and good morals; and this exception on account of the contravention of public policy of the State is sometimes invoked where the foreign statute is designed to redress an injury, but prescribes a form of redress which is radically dissimilar to anything existing in our own system of jurisprudence.” Southern R. Co. v. Decker, 5 Ga. App. 21, 25 (62 SE 678) (1908). The substantive law of the place where the tort was committed and where the action arose will be applied by Georgia courts even where Georgia law recognizes a cause of action not available in the foreign jurisdiction, “provided the enforcement of the lex delicti would not seriously contravene the established policy of the forum.” Id. at 29. The burden is on the party seeking to establish the public policy exception. Id.

Here, even though Virginia products liability law differs from Georgia law, there is no radical dissimilarity by which application of Virginia law would seriously contravene the public policy of Georgia. As set forth in the complaint and in his appellate brief, Alexander claims that either a manufacturing or a design defect in the driver’s seat of the car caused his injuries and that the manufacturer, General Motors, is liable on a theory of strict liability for breach of an implied warranty of merchantability. See Wood v. Hub Motor Co., 110 Ga. App. 101, 105 (137 SE2d 674) (1964). Alexander also sought recovery on a negligence theory.

As adopted in Georgia pursuant to OCGA § 51-1-11 (b), “the doc*662trine of strict liability puts a burden on the manufacturer who markets a new product to take responsibility for injury to members of the consuming public for whose use and/or consumption the product is made.” Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 745 (353 SE2d 340) (1987). Although Virginia has not adopted a strict liability theory in products liability cases (see Sensenbrenner v. Rust, Orling & Neale, Architects, 374 SE2d 55, 57, n. 4 (Va. 1988)), “[u]nder Virginia law, recoveries for personal injuries caused by defective products can be made as breach of an implied warranty of merchantability or under a tort theory of negligent design. . . . The warranty cause of action has two elements: (1) the goods were ‘unreasonably dangerous’ either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) the unreasonably dangerous condition existed when the goods left the manufacturer’s control. [Cits.] A product is ‘unreasonably dangerous’ if defective (1) in assembly or manufacture, (2) if imprudently designed, or (3) if not accompanied by adequate warnings about its hazardous properties. [Cits.]” Abbot v. American Cyanamid Co., 844 F2d 1108, 1114 (4th Cir. 1988) (applying Virginia law).

Despite the absence of a separate strict liability cause of action, “the warranty liability under Virginia law for personal injuries caused by defective products is the functional equivalent of strict liability under the Restatement[, Second, Torts, § 402A] formulation.” American Law of Products Liability 3d, § 16:22. “[I]t is well established that warranty liability under Virginia law for personal injuries caused by defective products is the functional equivalent of strict tort [liability] under the Restatement formulation. [Cits.]” Bly v. Otis Elevator Co., 713 F2d 1040, 1045, n. 6 (4th Cir. 1983); see also Abbot, supra at 1114 (Virginia warranty cause of action for personal injuries caused by defective products is similar to strict liability in tort under the Restatement version). Although Georgia’s statutory version of strict liability differs from the Restatement § 402A version to which Virginia’s warranty liability has been compared, both share a common public policy designed to shift the burden of loss caused by defective products from the victim to the manufacturer, and both do so by focusing not on whether the manufacturer negligently failed to use due care but on whether the marketed product was defective. See Maleski, Ga. Products Liability (2d ed.), §§ 2-2, 2-3; Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994) (focusing on a risk utility analysis to determine whether a product was defectively designed).

Virginia products liability law is not radically dissimilar to Georgia law but rather pursues a similar public policy by somewhat different methods. Since Virginia law does not contravene Georgia public policy, the public policy exception is not applicable, and Virginia substantive law applies in this case under the rule of lex loci delicti. Ac*663cordingly, the trial court correctly granted partial summary judgment in favor of General Motors to the extent Alexander sought to recover under Georgia’s version of strict liability.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Johnson and Smith, JJ., concur. McMurray, P. J., Pope, P. J., Blackburn and Ruffin, JJ., dissent.