concurring specially.
I do not agree with the holding of the majority that the court below should have applied Georgia law in this case, but I do agree that the judgment below ought to be reversed, and for that reason, I specially concur. As to whether Georgia or Indiana law applies, I am unconvinced that the law of the two states is so “radically dissimilar,” see Alexander v. Gen. Motors Corp., 267 Ga. 339, 340 (478 SE2d 123) (1996), that public policy compels the application of Georgia law in this case. Under Indiana law, a defective design claim requires an *377assessment of whether the manufacturer “exercise[d] reasonable care under the circumstances in designing the product.” TRW Vehicle Safety Systems, Inc. v. Moore, 936 NE2d 201, 209 (1) (Ind. 2010). Under Georgia law, on the other hand, a defective design claim involves an assessment of whether the manufacturer “acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk.” Banks v. ICI Americas, Inc., 264 Ga. 732, 734 (1) (450 SE2d 671) (1994). These standards do not seem “radically dissimilar” to me.3 Our Supreme Court has cautioned, of course, that the adoption of a reasonableness standard for defective design claims does not “necessarily obliterate[ ] under every conceivable factual scenario the distinction Georgia law has long recognized between negligence and strict liability theories of liability,” id. at 735 (1), n. 3 (emphasis supplied), but neither the Baileys nor the majority persuades me that this case is one in which the differences, if any, between the Georgia reasonableness standard and the Indiana reasonableness standard are meaningful ones. At bottom, the conflict-of-laws analysis of the majority seems to rest mostly upon the fact that the Georgia courts sometimes speak of “strict liability” for defective design claims, notwithstanding that the Georgia standard for such claims is one of objective reasonableness. Accordingly, I am unconvinced that public policy requires the application of Georgia law in this case.
Nevertheless, I think the court below erred when it awarded summary judgment to Cottrell based on the Indiana doctrine of incurred risk. On appeal, the Baileys argue that, even if Indiana law applies, incurred risk requires a voluntary act, and when an employee is required to perform a specific act as a part of his employment, it is for a jury to decide whether his performance of the act is voluntary. Cottrell responds that an amendment of the Indiana Product Liability Act did away with the voluntariness requirement and that, in any event, any question of voluntariness in this case is not one for the jury. I find the arguments of the Baileys on these points persuasive.
At one time, the Indiana Product Liability Act provided that it is a defense to a product liability claim that “the user or consumer . . . knew of the defect and was aware of the danger and nevertheless *378proceeded unreasonably to make use of the product and was injured by it,” see Cole v. Lantis Corp., 714 NE2d 194, 200 (II) (A), n. 4 (Ind. App. 1999), and under this version of the Act, the Indiana courts consistently held that this incurred-risk defense requires that the use of the product be voluntary. See, e.g., Moore v. Sitzmark Corp., 555 NE2d 1305, 1308 (I) (B) (Ind. App. 1990); DeVoe Chevrolet-Cadillac v. Cartwright, 526 NE2d 1237, 1239 (Ind. App. 1988). Later, the Act was amended, and the word “unreasonably” was removed. See Ind. Code § 34-20-6-3. Cottrell argues that this amendment effectively did away with the voluntariness element of incurred risk, but I am not persuaded. Reasonableness and voluntariness are quite different things, the former being an objective standard, and the latter being a subjective one. Moreover, at least two Indiana appellate judges have said that voluntariness remains a requirement of incurred risk, even under the amended Act. See Vaughn v. Daniels Co., Ill NE2d 1110, 1130-1131 (IV) (B) (Ind. App. 2002), vacated and reversed on other grounds, 841 NE2d 1133 (Ind. 2006).4 No one cites any other authority on this question, and I must conclude, therefore, that voluntariness remains a requirement of incurred risk under Indiana law.
Under Indiana law, when an employee is required to perform a specific act as a part of his employment, his performance of that act may be rendered involuntary by the circumstances of his employment. See Cole, 714 NE2d at 200 (II) (A); see also Schooley v. Ingersoll Rand, Inc., 631 NE2d 932, 940 (IV) (Ind. App. 1994). In this case, there is evidence that Steve Bailey was required in the course of his employment to go upon the upper level of the car hauler that he drove, that if he failed to do so, he would have lost his job, and that he needed the job to support his family. In cases like this, the Indiana courts have said that whether the employee voluntarily incurred the risk is for the jury to decide. See, e.g., Cole, 714 NE2d at 200 (II) (A); Schooley, 631 NE2d at 940 (IV); Richardson v. Marrell’s, Inc., 539 NE2d 485, 487 (Ind. App. 1989); Meadowlark Farms, Inc. v. Warken, 376 NE2d 122, 133-134 (Ind. App. 1978).5 For these reasons, I think it was error to award summary judgment to Cottrell based on the doctrine of incurred risk under Indiana law, and I agree with the *379majority that we must reverse the judgment below.
Decided November 29, 2011 Reconsideration denied December 16, 2011. Garland, Samuel & Loeb, David E. Tuszynski, for appellants. Hulsey, Oliver & Mahar, Abbott S. Hayes, Jr., Smith, Gambrell & Russell, Melanie S. Stone, for appellee.The Georgia standard is more specific, in the sense that the Supreme Court of Georgia has identified specific factors that must be considered in assessing “the reasonableness of a manufacturer’s decision-making process.” Banks, 264 Ga. at 735 (1), n. 6, 736. The Supreme Court has cautioned, however, that its identification of specific relevant factors is not a comprehensive or exhaustive one. See id.
Cottrell says that we should not look to the decision of the Indiana Court of Appeals in Vaughn because it was vacated by the Indiana Supreme Court. No one disputes that Vaughn is not a binding precedent in Indiana. But the Indiana Supreme Court decided the case on another ground, and it did not even discuss voluntariness. Especially in the absence of other authority, I think we still can consider what two Indiana appellate judges have said about the subject, even if their Supreme Court later reversed them on other grounds.
To the extent that Ferguson v. Modern Farm Systems, Inc., 555 NE2d 1379 (Ind. App. 1990), is inconsistent with the cases cited above, it appears to be an outlier, and I would follow the greater weight of authority.