                                                                   PUBLISH


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                               FILED
                            _______________
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                              No. 98-9169                     DEC 26, 2000
                            _______________               THOMAS K. KAHN
                                                               CLERK
                  D. C. Docket No. 97-03266-1-CV-MHS


LAURA JEANNE JONES, WILLIAM LEONARD JONES,

                                         Plaintiffs-Appellants,


     versus


NORDICTRACK, INC., NORDICTRACK FITNESS AT HOME,

                                         Defendants-Appellees.

                   ______________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                  ______________________________
                            (December 26, 2000)



Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:

      In this product liability action, Plaintiffs-Appellants Laura and William

Jones appeal the district court’s grant of a motion for judgment on the pleadings in

favor of NordicTrack, Inc. and Nordic Track Fitness at Home (“NordicTrack”).

The district court granted the motion because Laura Jones was not using the

NordicTrack when she was injured, and therefore, the court held, NordicTrack

could not be liable for her injuries. We CERTIFY THE QUESTION to the

Supreme Court of Georgia.

                                I. BACKGROUND

      The Joneses brought a product liability suit against NordicTrack after Laura

Jones tripped and fell against the NordicTrack “Achiever” in their recreation room.

The blunt chrome leg penetrated into the rear of Laura Jones’s right thigh and

buttock, severing two veins in her thigh and damaging an artery and a nerve in her

leg. The Joneses sued on grounds of strict liability, negligence, failure to warn,

and loss of consortium.

      NordicTrack filed a motion for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c), arguing that use of a product is a predicate

to liability under Georgia law. Therefore, they argued, NordicTrack is not liable

for Laura Jones’s injuries because she was not using the NordicTrack when she


                                          2
was injured. The Joneses responded that NordicTrack was liable because the risk

of an exposed steel leg outweighs the benefits of that particular design. The

district court granted the motion for judgment on the pleadings because the product

was not in use at the time of the accident. The Joneses appealed.

                                 II. DISCUSSION

      Judgment on the pleadings is appropriate when no issues of material fact are

raised in the pleadings and the movant is entitled to judgment as a matter of law.

Ortega v. Christian, 85 F.3d 1521, 1524 (11th Cir. 1996). We review a judgment

on the pleadings de novo. Id at 1524-25. In so reviewing, we accept the facts in the

light most favorable to the nonmoving party. Id.

A. Georgia Law Unclear

      The parties disagree on whether a product must be in use for the

manufacturer to be liable for injury caused by that product. We certify this

question pursuant to Rule 46 of the Supreme Court of Georgia because “there are .

. . questions or propositions of the laws of this State which are determinative of

said cause and there are no clear controlling precedents in the appellate court

decisions of this State.” Id. The question of whether the NordicTrack had to be in

use for NordicTrack to be liable for Laura Jones's injuries is determinative of the

outcome of this case, as evidenced by the district court's judgment on the pleadings


                                          3
on that basis. The district court concluded that Georgia law requires a product to

be in use at the time of injury in order for a manufacturer to be held liable for a

design defect. However, although each of the cases and statutes cited in the district

court’s opinion can be read in the manner described by the district court, we

disagree that the specific question of use has been addressed by the courts or the

legislature.

      The district court cites Official Code of Georgia § 51-1-11(b)(1) for the

conclusion that a product has to be in use for a manufacturer to be liable for injury.

The district court correctly cites that a manufacturer is liable when the product is,

“not merchantable and reasonably suited to the use intended.” O.C.G.A. § 51-1-

11(b)(1). However, the same section grants the right to bring action under this

section to “any natural person who may use, consume, or reasonably be affected by

the property.” Id. Therefore, it is not clear that the Georgia Code requires a person

to be using a product in order for the manufacturer to be liable for injury caused by

that product.

      The district court also cites Friend v. General Motors Corp., 165 S.E.2d 734

(Ga. 1968) in support of its conclusion. Friend defines “use” to mean that a

product has to be safe for both, “the purposes for which it is intended, and for other

uses which are foreseeably probable.” Id. at 736. However, Friend does not


                                           4
answer the specific question of whether a product must be in use for the

manufacturer to be held liable for an injury proximately caused by the product.1

       Finally, the district court relies on Hatch v. Ford Motor Co., 329 P.2d 605

(Ca. 1958). In Hatch, the California appellate court held that the manufacturer had

no duty “to render a vehicle safe to collide with rather than simply a duty to so

manufacture it as to make it safe for the use for which it is intended.” Id. at 607.

While Hatch clearly supports the district court’s ruling, it has not been cited by

Georgia courts for the proposition at issue in this case.2 Also, the ruling has since

been called into doubt in California. See, e.g., Knippen v. Ford Motor Co., 546

F.2d 993, 1001 (D.C.Cir. 1976) (“Both Hatch and Kahn were decided before their

respective jurisdictions adopted the Larsen rule.”); Cronin v. J.B.E. Olson Corp.,

501 P.2d 1153, 1157 (Ca. 1972) (“Although a collision may not be the ‘normal’ or

intended use of a motor vehicle, vehicle manufacturers must take accidents into

consideration as reasonably foreseeable occurrences involving their products.”)

(citing Larsen v. General Motors Corp., 391 F.2d 495, 501-03 (8th Cir. 1968)).

       1
          The Joneses also argue that one of the foreseeable uses of the NordicTrack is to have it
left out in a home exercise room, as it is too bulky to put away after each use. Whether this is an
acceptable “use” under Georgia law is secondary to whether use is required for liability.
Therefore, this argument is postponed until the Supreme Court of Georgia acts on this
certification.
       2
        The only time a Georgia court has cited Hatch is in Long Manufacturing N. C., Inc. v.
Grady Tractor Co., 231 S.E.2d 105, 107 (Ga. 1976). However, Hatch was cited for a different
proposition and the court expressed disagreement with the reasoning in Hatch.

                                                 5
Therefore, we turn to the Supreme Court of Georgia to decide whether to adopt the

logic of Hatch or frame a different standard.

       The Joneses argue that the risk-utility analysis adopted in Banks v. ICI

Americas, 450 S.E.2d 671 (Ga. 1994) (vacated on other grounds) controls this

case. In Banks, the Supreme Court of Georgia overruled past cases and decided

that Georgia would apply a risk-utility analysis when deciding whether a design

defect case would be heard by a jury, as is the custom in the majority of the states

and treatises they surveyed. Id. at 673. However, there is no discussion in Banks

on whether the product has to be in use for the risk-utility analysis to apply and,

because the case was remanded, the court did not consider the question of whether

the rat poison was “in use” when the child drank it.3 Id. at 675.

       By deciding to certify this question to the Supreme Court of Georgia, we are

not questioning the district court’s interpretation of Georgia law. Rather, we are

asking the Georgia court to clarify an aspect of the product liability law that is

subject to several interpretations. Because the statutory language is ambiguous and


       3
         Both parties also cite to Ogletree v. Navistar Intl. Transp. Corp., 500 S.E.2d 570, 269
Ga. 443 (Ga. 1998) (“Ogletree V”) and Ogletree v. Navistar Intl. Transp. Corp., 522 S.E.2d 467,
271 Ga. 644 (Ga. 1999) (“Ogletree VII”) to support their arguments. In the Ogletree cases, the
Supreme Court of Georgia further explained the risk-utility analysis appropriate in design defect
cases, but did not address the question of whether the product had to be in use for this analysis to
apply. The fact that the product was in use at the time of injury in Ogletree is not sufficient for
us to interpret the Supreme Court to be requiring use of the product, since this question was not
addressed in the opinions.

                                                 6
the only case to directly address this question comes from a California court, we

are asking the Supreme Court of Georgia to rule on this question.

B. Certification

      Georgia law requires that we define the specific question to be certified to

the Supreme Court. See Ga. R. S. Ct. 47 (“The Court certifying to this Court a

question of law shall formulate the question and cause the question to be certified

and transmitted to this Court.”). Accordingly, we issue the following certification:



CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA

PURSUANT TO RULE 46 OF THE SUPREME COURT RULES OF GEORGIA.



TO THE SUPREME COURT OF GEORGIA AND ITS HONORABLE

JUSTICES:



It appears to the United States Court of Appeals for the Eleventh Circuit that this

case involves a question of Georgia state law that is determinative of the cause, but

unanswered by controlling precedent of the Supreme Court of Georgia or any




                                          7
Georgia Court of Appeals. We therefore certify this question for resolution by the

highest court of Georgia:



MUST A PRODUCT BE IN USE AT THE TIME OF INJURY FOR A

DEFENDANT TO BE HELD LIABLE FOR DEFECTIVE DESIGN UNDER

THEORIES OF STRICT LIABILITY, NEGLIGENCE, OR FAILURE TO

WARN?4



                                     III. CONCLUSION

       Because the question of whether a product has to be in use at the time of

injury for a manufacturer to be liable for that injury is unsettled in Georgia law, we

are asking the Supreme Court of Georgia to answer that question before this appeal

is addressed on the merits. Accordingly, the QUESTION IS CERTIFIED.




       4
         The phrasing of this certified question is not intended to limit the Supreme Court of
Georgia’s consideration of the various issues posed by this case. The entire record and the briefs
of the parties shall be transmitted to the Supreme Court of Georgia to assist in its determination,
should it accept our certification.

                                                8
