                                                                                      PUBLISH

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT                         FILED
                                                                     U.S. COURT OF APPEALS
                               ________________________                ELEVENTH CIRCUIT
                                                                             09/29/99
                                                                         THOMAS K. KAHN
                                      No. 98-9165                             CLERK
                              ________________________
                          D. C. Docket No. 1-96-cv-3017-WBH


JAMES WATKINS, BELINDA WATKINS, et al.,
                                                                         Plaintiffs-Appellants,

                                             versus

FORD MOTOR COMPANY,
                                                                          Defendant-Appellee.

                               ________________________

                      Appeals from the United States District Court
                          for the Northern District of Georgia
                            _________________________

                                    (September 29, 1999)

Before COX, Circuit Judge, FAY, Senior Circuit Judge, and NANGLE*, Senior
District Judge.

FAY, Senior Circuit Judge:


       Plaintiff-Appellants James and Belinda Watkins, as administrators of the Estate


       *
         Honorable John F. Nangle, Senior U.S. District Judge for the Eastern District of Missouri,
sitting by designation.
of Brian Watkins, Stacy Purcell, Rachelle L. Oliver and Joseph Washo appeal the

district court’s order granting Ford Motor Company’s motion for summary judgment.

Raised on appeal are two issues: (1) whether the appellants’ evidence was sufficient

to meet the exception in Georgia’s statute of repose on the design defect claim; and,

(2) whether the failure to warn claim was subject to the same statue of repose.

Because a question of fact exists regarding whether Ford’s actions constituted a

“willful, reckless, or wanton disregard for property or life,” we conclude that it was

error to dismiss the appellants’ design defect claim. Similarly, we find that the

appellants’ failure to warn claim was not merely a restatement of their design defect

claim and therefore was not subject to O.C.G.A. § 51-1-11's statute of repose.

Accordingly, we reverse.

                                     I.   FACTS

      This is a products liability action stemming from an automobile accident that

occurred on November 18, 1994. Plaintiff-appellant Joseph Washo (“Washo”) was

operating his pre-owned 1986 Ford Bronco II en route to a restaurant after a high

school football game. Accompanying him were plaintiffs-appellants Stacy Purcell,

Rachelle Oliver and plaintiffs’-appellants’ decedent Brian Watkins.

      While traveling in an eastward direction, the right side tires of Washo’s Bronco

II traveled a short distance off the road. Attempting to bring the vehicle back onto the


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road, Washo steered to the left and lost control. In an effort to regain control of the

Bronco II, he steered the vehicle back to the right. At this time the Bronco II flipped,

rolling over approximately two and one half times.

      As a result of the accident, Brian Watkins sustained a severe head injury and

died. Rachelle Oliver sustained severe head injuries with bleeding on the brain, and

fractured her hip, ankle, and clavicle. Joseph Washo and Stacy Purcell were also

injured in the accident.

      On November 14, 1996, the plaintiffs filed suit against Ford Motor Company

alleging, among other things, handling and stability defects caused the Bronco II to

rollover and that Ford failed to warn of the known rollover hazards. The district judge

granted Ford’s motion for summary judgment, finding the plaintiffs’ negligence

claims were barred by the statute of repose in O.C.G.A. § 51-1-11. The plaintiffs,

arguing that their negligent design claim fell within the exception to the statute and

that their failure to warn claim was not subject to the statute, filed this appeal.

                           II.   STANDARD OF REVIEW

      This Court reviews de novo the district court’s grant of summary judgment,

applying the same legal standard as the trial court. See Jones v. Firestone Tire &

Rubber Co., 977 F.2d 527, 535 (11th Cir. 1992). We are required to resolve all

reasonable inferences and facts in a light most favorable to the nonmoving party. See


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Augusta Iron & Steel Works v. Employers Ins. of Wasau, 835 F.2d 855, 856 (11th Cir.

1988).

                                     III.     DISCUSSION

       Appellants brought this action against Ford Motor Company pursuant to

Georgia’s product liability statute, O.C.G.A. § 51-1-11, contending that Ford’s Bronco

II was defectively designed and that Ford failed to warn of the vehicle’s dangerous

propensities1. Subsection (c) of § 51-1-11 incorporates a statute of repose, barring

claims for negligence if the suit is not brought “within ten years from the date of the

first sale.” O.C.G.A. § 51-1-11(c).

       Not all negligence claims, however, are subject to the statute of repose. First,

the statute does not bar claims filed more than ten years from the first date of sale if

the plaintiff is able to adduce evidence sufficient to support a finding that the

manufacturer acted with a “willful, reckless or wanton disregard for property or life.”

Id. Second, the statute of repose does not bar claims for failure to warn, regardless of

the date of first purchase. See Id.


       1
          Georgia Code § 51-1-11(c) reads, in pertinent part, “[t]he limitation of paragraph (2) of
subsection (b) of this Code section regarding bringing an action within ten years from the date of
the first sale for use or consumption of personal property shall also apply to he commencement of
an action claiming negligence of a manufacturer as the basis of liability, except an action seeking
to recover from a manufacturer for injuries or damages ... arising out of conduct which manifests
a willful, reckless, or wanton disregard for life or property. Nothing in this subsection shall relieve
a manufacturer from the duty to warn of a danger arising from use of a product once that danger
becomes known to the manufacturer.”

                                                  4
         Here, there is no dispute that Washo’s 1986 Bronco II was first purchased more

than ten years prior to the filing of the instant action. Accordingly, the appellants

based their negligent design claim on the exception to the statute of repose and claim

sufficient evidence was present to support a finding of willful, reckless or wanton

disregard. They also assign as error the district court’s dismissal of their failure to

warn claim, submitting that the district court erred by holding their failure to warn

claim was simply a restatement of their negligent design claim and therefore subject

to the statute of repose. For these reasons, they contend, this Court must reverse the

order of the district court.

                     A.    THE NEGLIGENT DESIGN CLAIM

         As discussed above, negligent design claims filed more than ten years from the

date of original purchase are barred unless the defendant acted with a willful, reckless

or wanton disregard for property or life. See O.C.G.A. § 51-1-11; Chrysler Corp. v.

Batten, 450 S.E.2d 208, 212(Ga. 1994). In the instant case, there is no question that

Washo’s 1986 Bronco II was first purchased more than ten years before the filing of

suit and that, therefore, the appellants must meet an exception of the statute or be

barred. The appellants contend that because a question of fact exists regarding the

degree of Ford’s culpability, summary judgement on their negligent design claim was

error.


                                            5
      Georgia courts have defined the key words used in the statute. “Willful conduct

is based on an actual intention to do harm or inflict injury; wanton conduct is that

which is so reckless or so charged with indifference to the consequences ... [as to be

the] equivalent in spirit to actual intent.” Batten 450 S.E.2d at 212 (quoting Hendon

v. Dekalb County, 417 S.E.2d 705 (Ga. Ct. App. 1992)).

      In this case, the appellants presented an array of evidence addressing Ford’s

knowledge of stability problems with the Bronco II and its decision to forgo

recommended safety alterations in the design because it would either delay production

or profits would be sacrificed. For example, the appellants presented evidence that

Ford was aware of a “60 minutes” television program that revealed severe rollover and

stability problems with the Jeep CJ - a vehicle the Bronco II was closely patterned

after. Reacting to these stability problems, Ford engineers submitted five proposals

intended to increase the stability of the Bronco II. Management selected the least

expensive proposal, rendering the Bronco II less stable than the Jeep CJ. The

appellants’ design expert clearly stated that had Ford chosen proposal #5, at an

additional cost of only $83.00 per vehicle, the Bronco II would have been a stable

vehicle. See Affidavit of Melvin K. Richardson R-4-39 at ¶ 32. By selecting the least

expensive measure, proposal #2, Ford made profit a priority over the safety of the

consumers. Such evidence has supported findings of a reckless disregard for property


                                          6
or life. See Mack Trucks, Inc. v. Conkle, 436 S.E.2d 635, 640 (Ga. 1993)(evidence

that defendant’s engineers “repeatedly informed ... other divisions ... that the frame

rail was inadequate and should be replaced” was sufficient to support a finding of

conscious indifference to consequences); General Motors Corp. v. Moseley, 447

S.E.2d 302, 311-312 (Ga. Ct. App. 1994)(notwithstanding defendant’s compliance

with federal regulation, award of punitive damages was appropriate because defendant

did not implement safety modifications for economic reasons)(reversed on other

grounds); Ford Motor Co. v. Stubblefield, 319 S.E.2d 470 (Ga. Ct. App. 1984)(the

defendant’s “conscious decision to defer implementation of safety devices in order to

protect its profits” was sufficient to support punitive damages).2

       Ford contends, notwithstanding this evidence, that Richards v. Michelin Tire

Corp., 21 F.3d 1048 (11th Cir. 1994), bars a finding of willful, reckless, or wanton

disregard for property or life when the National Highway Traffic Safety

Administration (“NHTSA”) conducts a safety investigation into a product and



       2
        We recognize that the case cited here address Georgia’s punitive damages statute, O.C.G.A.
§ 51-12-5.1(b). Punitive damages will only be awarded if, as shown by clear and convincing
evidence, the defendant’s actions constitute “willful misconduct, malice, fraud, wantonness,
oppression, or that entire want of care which would raise the presumption of conscious indifference
to consequences.” O.C.G.A. § 51-12-5.1(b). The statute in issue here requires a showing, by the
lower preponderance of the evidence standard, that the defendant’s conduct amounts to a “willful,
reckless, or wanton disregard for life or property.” O.C.G.A. § 51-1-11. Because of the similarity
between the two standards, we find these cases instructive when addressing the standard in O.C.G.A.
§ 51-1-11.

                                                7
declines to adopt a standard recommended by the plaintiff. We disagree with Ford’s

interpretation of Richards.

       In Richards, the plaintiff’s-decedent was killed when attempting to mount a

tire3. His death was caused by an explosion when he “mismatched” a 16-inch tire with

a 16.5-inch rim. At trial, the plaintiff proceeded under theories of wanton design and

wanton failure to warn. The jury found for the plaintiff, finding the failure to warn

of mismatches constituted a wanton disregard for life.

       The defendant appealed the verdict, claiming the evidence did not support a

finding of wantonness. Although the manufacturer knew of mismatches, the evidence

at trial showed that out of thirteen to fifteen million 16-inch tires, the manufacturer

had knowledge of only four mismatches. This Court agreed with the manufacturer,

and held that this evidence was simply too remote to constitute a wanton failure to

warn. Contrary to Ford’s argument, the court did not rule that the NHTSA’s failure

to adopt the warnings recommended by the plaintiff precluded a finding of wanton

conduct. Indeed, the court specifically noted that “[h]ad the [manufacturer] been

aware of a greater number of mismatch accidents, . . . [a different conclusion] may

well have [been] reached.” Richards, 21 F.3d at 1058. Thus, the holding in Richards



       3
       Mounting a tire to a rim requires that the person match the tire to the rim. It extremely
important to match correctly, otherwise the tire is liable to explode.

                                               8
did not bar a claim for wanton conduct because the Agency declined to adopt a

minimum standard. Rather, the evidence was simply insufficient to prove that the

manufacturer’s conduct was wanton.

      We also find Ford’s second argument - that the totality of the evidence bars a

finding of willful, reckless or wanton disregard for property or life - unpersuasive. In

making this argument, Ford relies exclusively on the findings of the NHTSA. It is

their contention that these findings so strongly refute the appellants’ case that any

finding of reckless or wanton disregard for life or property is untenable.

      Specifically, Ford directs our attention to the NHTSA’s rejection of a minimum

stability standard. The NHTSA declined to adopt such a standard because “[t]he

Agency does not believe that taking the single step of prescribing a minimum stability

factor is the appropriate solution to the multifaceted problem of vehicle rollover.” 52

Fed. Reg. 49033, 49035 (1987). Notwithstanding that decision, the Agency made

clear that it “does not intend to imply that the stability factor has an insignificant role

in rollover involvement,” and further stated that “the stability factor has been shown

to have a positive statistical relationship to the likelihood of a vehicle rolling over in

an accident .... Those vehicles with higher stability factors tend to have lower rollover

in a crash.” Id. at 49036; 53 Fed. Reg. 34866, 34867(1988).

      Moreover, a deeper reading of the Agency’s reports reveals that its decision was


                                            9
based on a variety of factors, including the fear that the industry would sacrifice other

safety features in order to meet the minimum standard, and concluded that cost-benefit

considerations did not justify such a standard. See 52 Fed. Reg. 49033, 49037. The

decision not to promulgate such a minimum stability standard was not based on a

finding that the stability ratio of a vehicle does not play a roll in the vehicles

propensity to rollover. Therefore, the NHTSA’s findings do not, as Ford contends,

so strongly disprove the evidence offered by the appellants so that no reasonable juror

could find that Ford acted with the requisite degree of conduct under O.C.G.A. § 51-1-

11(c). We find that the district court relied too heavily on the findings of the NHTSA

to hold that Ford’s actions could not meet the exception carved out in O.C.G.A. § 51-

1-11(c). Accordingly, we reverse and remand that portion of the district court’s order.

                             B.    FAILURE TO WARN

      The appellants’ next assignment of error is the district court’s order granting

Ford’s motion for summary judgment on the failure to warn claim. Having found the

negligent design claim barred by the statute of repose, the district court was persuaded

that the failure to warn claim was simply a restatement of that claim and that it could

not survive the time limitations. The statute, however, states in clear terms that

“[n]othing in this subsection shall relieve a manufacturer from the duty to warn of a

danger arising from the use of a product once that danger becomes known to the


                                           10
manufacturer.” O.C.G.A. § 51-1-11(c). This duty to warn is a continuing one and

may arise “months, years, or even decades after the date of the first sale of the

product.” Batten, 450 S.E.2d at 211.

      And so, although Ford’s argument may appear sound at first glance, the basis

of the district court’s ruling is contrary to the clear language of the statute and

contrary to the interpretation of that language by the courts of Georgia. As stated by

the Georgia Supreme Court, it is possible to have a situation where the plaintiff is

barred from bringing a design defect claim and yet is allowed to proceed with a failure

to warn claim based upon the dangers arising from the same alleged design defect.

See Batten, 450 S.E.2d at 213 (although plaintiff was barred from bringing a negligent

design claim, her claim “based on negligent failure to warn of the danger arising from

the defectively-designed seat belt” was allowed to proceed to trial). Thus, even were

we to conclude that there was no genuine issue of material fact as to the “willful,

reckless, or wanton” conduct of Ford on the defective design claim, the appellants’

failure to warn claim would not be barred automatically.

      As to the record evidence, the appellants introduced evidence tending to show

that Ford, prior to distribution of the Bronco II, had knowledge of stability problems

and that the vehicle had a tendency to rollover at low speeds. The evidence

concerning the vehicles dangerous propensities after distribution of the 1986 Bronco


                                          11
II is greater still. In 1988, Ford’s statisticians reported to management that the Bronco

II had a rollover fatality rate 3 ½ times that of a standard utility vehicle. Tests done

in that same year showed the Bronco II tipping at speeds at which other similar

vehicles remained stable. In 1991 the NHTSA published the results of five different

static stability tests on 57 production vehicles and the Bronco II rated worst overall.

Ford failed to issue any post-sale warnings regarding these stability problems.

      Ford also argues, in the alternative, that summary judgment was warranted

because even had a more complete warning been given it could not have prevented the

accident. This argument is based on the deposition testimony of the appellants’

warning expert, Dr. Edward Karnes. In his deposition, Dr. Karnes stated that once

a user made the decision to drive the Bronco II, no warning could guard against the

dangers of rollover. Ford submits that if no warning is sufficient to prevent the risk

of rollover, there can be no causation.

      We find this reasoning unpersuasive, as it misinterprets what is required to

advance a failure to warn claim. Under Georgia law, a manufacturer breaches its duty

to warn if it fails to “adequately communicate the warning to the ultimate user or (2)

fail[s] to provide an adequate warning of the product’s potential risks” Thorton v. E.I.

Du Pont De Nemours & Co., Inc., 22 F.3d 284, 289 (11th Cir. 1994). The first failure

to warn claim centers on issues such as location and presentation. The focus of the


                                           12
latter claim is on the content of the warning, inquiring whether the warning is

sufficient to apprize the user of the dangers associated with the use of the product.

      Although a warning may have the net effect of preventing an accident, that is

not what is required by the law. The law merely requires the warning to inform the

consumer of the nature and existence of the hazard, allowing him to make an informed

decision whether to take on the risks warned of. See Wilson Foods Corp. v. Turner,

460 S.E.2d 532, 534 (Ga. Ct. App. 1995); RESTATEMENT (Third) OF TORTS

(Products Liability) § 10 (1997) (“Whether or not many persons would, when warned,

nonetheless decide to use or consume the product, warnings are required to protect the

interest of those reasonable foreseeable users or consumers who would, based on their

own reasonable assessments of the risks and benefits, decline product use or

consumption.”).

      In this case, Dr. Karnes’ statement does not negate the contention that the

warning on the Bronco II did not properly apprize the consumer of the risk associated

with operating the vehicle (in fact it is his opinion that the warning was insufficient).

It simply expresses his belief that nothing may be done to protect the consumer from

risk of rollover once the consumer decides to take on the risk warned of. The question

that must be answered by the fact finder is whether the warning given was sufficient

or was inadequate because it did not “provide a complete disclosure of the existence


                                           13
and extent of the risk involved.” Thorton 22 F.3d at 289 (internal quotations and

citations omitted).

      Ford also argues that because Dr. Karnes found that the warning used on the

Bronco II was sufficient when used on other sports utility vehicles, the problem

cannot be with the warnings content. We find this contention unpersuasive as well.

What may be an adequate warning for one product is not necessarily adequate for the

next. It was, of course, precisely because of the Bronco II’s greater propensity to

rollover that a reasonable fact finder could conclude that Ford was required to provide

a more detailed warning for this vehicle.

      Because adequate evidence exists to advance appellants’ failure to warn claim

and because the failure to warn claim is not simply a restatement of the design defect

claim, the district court’s grant of summary judgment was error. Accordingly, we

reverse.

                                   CONCLUSION

      We REVERSE the district court’s order barring the appellants’ claims. The

Georgia statute of repose provides for two exceptions: (1)the existence of willful,

reckless, or wanton disregard for property or life; and (2)a failure to warn claim. We

find there is sufficient evidence in the record to give rise to genuine issues of material

facts on both exceptions. Consequently, we vacate the summary judgment entered in


                                            14
favor of the appellee and remand the matter for trial.

VACATED, REVERSED and REMANDED.




                                         15
