                                                      [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________
                                                             FILED
                                                    U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                           No. 04-11515
                                                         June 13, 2005
                     ________________________
                                                       THOMAS K. KAHN
                                                           CLERK
               D. C. Docket No. 01-01025-CV-WBH-1

JAVIER VILLEGAS,

                                                         Plaintiff-Appellant,

                                versus

DEERE & COMPANY,
A Delaware Corporation,
JOHN DEERE CONSTRUCTION
EQUIPMENT COMPANY, A
foreign corporation,

                                                     Defendants-Third Party-
                                                      Third Party Plaintiffs,

                                versus

HARLO PRODUCTS CORPORATION,

                                                      Third Party Defendant.

                     ________________________

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

                            (June 13, 2005)
Before EDMONDSON, Chief Judge, and MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      Javier Villegas appeals the summary judgment granted in favor of Deere &

Company and John Deere Construction Equipment Company (Deere) on Villegas’s

claims of negligent design, negligent testing, and failure to warn, under Georgia

products liability law. Because there is evidence that Deere was actively involved

in the design of the 482C forklift that caused Villegas’s injury, we reverse the

summary judgment regarding negligent design. We affirm the summary judgment

regarding negligent testing and failure to warn, because Georgia does not recognize

a cause of action for negligent testing and there is insufficient evidence of a failure

to warn.

                                 I. BACKGROUND

      On December 14, 1999, Villegas was injured when the right fork slid off of

a John Deere 482C forklift and struck him. Villegas suffered serious injuries as a

result of the accident, including a severed spinal cord that left him paralyzed. On

April 19, 2001, Villegas sued Deere and alleged that the 482C forklift was

designed and manufactured defectively. In his complaint, Villegas asserted claims

of strict liability, negligence, and breach of warranty. Deere denied any liability

and sought indemnity from Harlo Products, Inc., which constructed the forklift.



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      The district court ordered the parties to mediate. Although Villegas had not

amended his complaint to include claims against Harlo, after mediation, he settled

with Harlo for half of the estimated damages for his lost earnings and medical

expenses. As part of the settlement, Villegas moved to dismiss his claim for strict

liability against Deere. Deere then moved for summary judgment on the remaining

claim of negligence. The district court granted summary judgment for Deere on

the negligence claim and dismissed the indemnity claim without prejudice.

Villegas appealed.

                           II. STANDARD OF REVIEW

      We review a grant of summary judgment de novo. Three Palms Pointe, Inc.

v. State Farm Fire and Cas. Co., 362 F.3d 1317, 1318 (2004). Summary judgment

is appropriate where “there is no genuine issue as to any material fact and . . . the

moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

                                  III. DISCUSSION

      The question in this appeal is whether Deere can be held liable in negligence

to Villegas for the failure of the 482C forklift, which the parties agree was

constructed by Harlo. To resolve this question, we must determine whether the

involvement of Deere in the design of the forklift was sufficient to subject it to

liability for negligent design under Georgia law.



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      The district court erroneously concluded that Deere could not be liable in

negligence because it had not breached a duty to Villegas. Under Georgia law, a

company actively involved in the design of a product undertakes a duty to protect

users of the product from unreasonable risks of harm and is, therefore, potentially

liable for negligent design. See Buchan v. Lawrence Metal Prods. Inc., _ S.E.2d _,

2004 WL 2453343, *4 (Ga. Ct. App. Nov. 1, 2004); Dean v. Toyota Indus. Equip.

Mfg. Inc., 540 S.E.2d 233, 237 (Ga. Ct. App. 2000); Ga. Code Ann. § 51-1-2

(2004); Charles R. Adams, Georgia Tort Law § 3-1 (2004). So long as Deere was

involved in the design of the forklift that injured Villegas, then Deere is potentially

liable for negligent design.

      Villegas presented evidence that Deere was extensively involved in the

design of the 482C forklift. Specifically, John Van Spronsen, a Harlo engineer,

testified that Harlo employees worked directly with Deere’s engineers to design

and produce the final products, and that whenever Deere wanted to change a model

number, Deere would tell Harlo which components Deere wanted to use, and the

product was redesigned according to Deere’s specifications. Van Spronsen also

testified that during the years Harlo manufactured the 482C forklift, he met in

person with Deere engineers approximately six to eight times annually to discuss,

among other things, the cost of the forklift that caused Villegas’s injuries. Van



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Spronsen further testified that Deere approached Harlo with design drawings for a

frame that Deere wanted to use for the forklift. Daniel Griswold, a Deere

employee, described the relationship between Deere and Harlo as “cooperative.”

Villegas also presented testimony that a Deere employee had to give the final

approval of the design plans. Viewing the facts in the light most favorable to

Villegas, a fact finder could determine that Deere had substantial input into the

design and manufacture of the forklift and, therefore, assumed a legal duty to

protect others against unreasonable risks of harm. The evidence that Deere was

actively involved in the design of the 482C forklift precluded summary judgment.

      Villegas also asserts that Deere is liable in negligence for failure to test the

fork retention system and failure to warn about the use of grease on the mast plate.

We find no error in the grant of summary judgment on these claims. First, Georgia

does not recognize a cause of action for negligent testing. Second, Villegas’s

failure to warn claim fails because he did not present evidence that there was

grease on the mast plate at the time of the accident, and Villegas has not created a

genuine issue of fact whether the failure of the fork retention system was

proximately caused by grease on the mast plate.

                                IV. CONCLUSION

      Because under Georgia law Deere could be liable to Villegas under a



                                           5
negligent design theory, we REVERSE the summary judgment on the negligent

design claim and REMAND to the district court for trial. We AFFIRM the

summary judgment as to the negligent testing and failure to warn claims, because

Georgia does not recognize a cause of action for negligent testing and the evidence

is insufficient to support a failure to warn claim.

      REVERSED in part, AFFIRMED in part, and REMANDED.




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