                              SECOND DIVISION
                                MILLER, P. J.,
                           ANDREWS and BROWN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       May 24, 2018




In the Court of Appeals of Georgia
 A18A0292. WOODS et al. v. A.R.E. ACCESSORIES, LLC

      ANDREWS, Judge.

      While working for Fayette County Fire and Emergency Services (Fayette Fire),

Craig Woods suffered a head injury when the rear hatchback door on a pick-up truck

cap installed over the bed of a Fayette Fire truck fell on his head as he stood behind

the truck bed under the raised door. Woods and his wife (who asserted loss of

consortium) brought a product liability action against A.R.E. Accessories, LLC

(ARE), which manufactured the truck cap, and Custom Camper Manufacturing

Company, Inc. (Custom Camper), which sold the truck cap and installed it over the

bed of the pick-up truck. The action asserted strict liability and negligence claims on

the basis that the truck cap was defectively designed, and alleged that there was a

negligent failure to warn of the design defect. The trial court granted summary

judgment in favor of ARE and Custom Camper. Woods and his wife appeal from the
grant of summary judgement to ARE.1 We affirm because there was an absence of

evidence in the record that the truck cap was defectively designed. Rather, undisputed

facts showed that the truck cap door fell from the raised position and harmed Woods

solely because it was damaged by Fayette Fire’s unforeseeable misuse of the product.

      Shortly after buying the pick-up truck, Fayette Fire bought the truck cap

product from Custom Camper, which installed it over the bed of the truck on

November 16, 2012. Thereafter, the truck and the truck cap were used by Fayette Fire

on a daily basis without any problems until the truck cap rear door fell on Wood’s

head about a year later on November 17, 2013. The accident occurred when Woods

raised the rear door to access the truck bed, and about 10 to 15 seconds later the door

fell from the raised position and hit Wood’s head. On November 8, 2013, nine days

before the accident, Fayette Fire took the truck to a non-party company, 144th

Marketing Group, LLC, which installed in the truck bed (under the ARE truck cap)

a product known as the “Extendobed,” a type of truck bed extender product. The

Extendobed was designed as a shelf which rolled in and out of the truck bed (with the

truck cap rear door in the raised position) to provide extended access to items placed


      1
      Woods and his wife dismissed their appeal from the trial court’s grant of
summary judgment in favor of Custom Camper.

                                          2
on the shelf. Immediately after the November 17 accident, Woods asked another

Fayette Fire employee, Samuel Lindsey, to look at the rear door on the truck cap to

determine why the door fell from the raised position. Lindsey examined the rear door

and the recently installed Extendobed and determined: (1) that the door was held up

in the raised position by two gas struts (one on each side of the door) which attached

the door to the truck cap; (2) that the Extendobed installed in the truck bed had

insufficient clearance between the Extendobed rails and the gas struts; and (3) that,

when the Extendobed was rolled out of the truck bed with the rear door on the truck

cap in the raised position, the Extendobed hit and dislodged a joint on one of the gas

struts which caused the strut to detach from the door and caused the door to fall.

Evidence showed that, although the remaining undamaged gas strut provided some

resistence, it could not support the full weight of the door, so the door fell from the

raised position. To confirm that this caused the door to fall, Lindsay reattached the

strut joint to the raised rear door and physically rolled out the Extendobed while

observing the Extendobed strike the strut joint on the driver’s side strut. Lindsey also

observed that this problem was evidenced by visible scratch marks on the driver’s

side strut where the Extendobed had previously hit the strut. As an immediate

attempted fix, Lindsey bent the bracket attaching the strut to the truck cap to create

                                           3
additional clearance between the Extendobed and the strut. Fayette Fire eventually

cut and modified the Extendobed rails to allow clearance between the Extendobed

and the gas struts.

      The record shows that ARE distributed a truck bed extender product for pick-

up truck beds with a slide-out shelf that was lower in height (six to eight inches off

the truck bed) than the gas struts on the rear door of the ARE truck cap, and

considerable lower in height than the “double-decker” height of the Extendobed

product which hit and dislodged the gas strut on the ARE truck cap. Although ARE

was aware of the use of other truck bed extender products on trucks using the ARE

truck cap, ARE was not aware (prior to the accident) of the Extendobed company or

its product and had no knowledge (until the accident) that the Extendobed had been

installed on the Fayette Fire pick-up truck. Prior to the accident, there was a single

instance of strut failure on an ARE product on a different product line where both

struts on a door spontaneously failed without any impact, then immediately started

working again, and ARE testing was unable to duplicate the failure. There was no

evidence that, prior to the present accident, ARE had notice of a strut failure on any

truck cap door (or other product line with a strut-supported door) caused by a strut

being hit and detached by a truck bed extender product or any other object.

                                          4
      Woods provided the expert opinion of a professional engineer, who stated that

the rear door on the ARE truck cap was defectively designed based on his conclusion:

(1) that the installation of the Extendobed on the Fayette Fire truck was reasonably

foreseeable; and (2) that the rear door on the ARE truck cap lacked various safety

features that would have prevented the door from falling from the raised position

when the Extendobed hit and damaged one of the gas struts supporting the door.

According to the expert, ARE should have anticipated damage to the gas strut caused

by possible impact with the Extendobed (or by possible impact from some other

object) and should have (a) designed the struts on the rear door with a lock or latch

mechanism that would have held the door in the raised position if a strut detached as

result of damage, or (b) should have designed the rear door with two struts of

sufficient strength that one undamaged strut would have held the door in the raised

position if impact from the Extendobed (or other object) caused the other strut to fail.

The expert conceded that he had never before analyzed or given any expert opinion

regarding a failed door strut, and he admitted that he had never seen his suggested

safety features incorporated on a truck cap rear door by any manufacturer. Moreover,

the expert testified that his research showed that the Extendobed product at issue was

custom-made for Fayette Fire based on specifications for a prior custom-made

                                           5
Extendobed made for Gwinnett County. Although the expert testified that it was a

misuse of the ARE truck cap for Fayette Fire to install and use the Extendobed

product that impacted and damaged the gas strut on the truck cap rear door, he opined

that the misuse was foreseeable.

      Woods and his wife alleged that the ARE truck cap was defectively designed

under theories of strict liability, negligence, and failure to warn. See Jones v.

NordicTrack, Inc., 274 Ga. 115, 115 (550 SE2d 101) (2001); OCGA § 51-1-11 (b)

(1). A manufacturer has a duty to exercise reasonable care in the manufacture and

design of its products “so as to make products that are reasonably safe for intended

or foreseeable uses.” Chrysler Corp. v. Batten, 264 Ga. 723, 724 (450 SE2d 208)

(1994). And a manufacturer which (before or after the sale of its product) knows or

reasonably should know of a danger arising from use of the product “has a duty to

give warning of such danger.” Id. at 724-725. “That duty requires warnings of

nonobvious foreseeable dangers from the normal use of its products.” Certainteed

Corp. v. Fletcher, 300 Ga. 327, 330 (794 SE2d 641) (2016).

      In considering a claim that a product was defectively designed, the risk-utility

analysis adopted in Banks v. ICI Americas, Inc., 264 Ga. 732 (450 SE2d 671) (1994)



                                          6
“balance[s] the risks inherent in the product’s design against the utility of the product

so designed.” Jones, 274 Ga. at 115.

      That [analysis] incorporates the concept of “reasonableness” and applies
      negligence principles to the determination of whether a product is
      defective for strict liability purposes. Thus, the distinction between
      negligence and strict liability is not significant for purposes of the risk-
      utility analysis.

Ogletree v. Navistar Int’l. Transp. Corp, 269 Ga. 443, 445 (500 SE2d 570) (1998)

(citations and punctuation omitted). “The ‘heart’ of a design defect case [under the

risk-utility analysis] is the reasonableness of selecting from among alternative product

designs and adopting the safest feasible one.” Jones, 274 Ga. at 118; Banks, 264 Ga.

at 736. Thus, the risk-utility analysis “includes the consideration of whether the

defendant failed to adopt a reasonable alternative design which would have reduced

the foreseeable risks of harm presented by the product. [Banks, 264 Ga. at 736]; see

the Restatement (Third) of Torts: Products Liability, § 2.” Jones, 274 Ga. at 118.

“[L]iability for defective design attaches only when the plaintiff proves that the seller

failed to adopt a reasonable, safer design that would have reduced the foreseeable

risks of harm presented by the product.” Banks, 264 Ga. at 736 n.4 (citation and

punctuation omitted; emphasis in original). Although Banks set forth a non-

exhaustive list of factors for consideration by the trier of fact under the risk-utility

                                           7
analysis, “Banks does not mean that adjudication as a matter of law is no longer

appropriate in any case in which a design defect is alleged.” Ogletree v. Navistar

Int’l. Transp. Corp., 271 Ga. 644, 646 (522 SE2d 467) (1999). Rather, to obtain

judgment as a matter of law, the defendant must carry the burden “to show plainly and

indisputably an absence of any evidence that a product as designed is defective.” Id.

at 646 (emphasis in original); Certainteed Corp., 300 Ga. at 329.

      “[U]nder Georgia law a manufacturer is not an insurer that its product is, from

a design viewpoint, incapable of producing injury.” Banks, 264 Ga. at 737. Rather,

the “reasonableness” test at the heart of risk-utility analysis imposes liability for a

design defect only where the manufacturer has failed to adopt a reasonable alternative

design that would have reduced foreseeable risks of harm posed by the product.

Jones, 274 Ga. at 118; Banks, 264 Ga. at 736; Restatement (Third) of Torts: Products

Liability, §2 (b), cmt. d. The manufacturer’s duty is to exercise reasonable care to

design products “that are reasonably safe for intended or foreseeable uses.” Chrysler

Corp., 264 Ga. at 724. Similarly, a product defect claim based on failure to warn of

danger posed by the product requires warnings of foreseeable dangers from the

normal use of the product. Certainteed Corp., 300 Ga. at 330. As part of the risks of

harm that manufacturers must foresee in choosing a product design, there is no

                                          8
requirement that a product be made safe for a use that is unintended and

unforeseeable. As the Restatement, supra, explains, liability may be imposed on the

basis of design defect (or defect based on failure to warn of a danger arising from use

of a product)

      only when the product is put to uses that it is reasonable to expect a
      seller or distributer to foresee. Product sellers and distributors are not
      required to foresee and take precautions against every conceivable mode
      of use and abuse to which their products might be put. Increasing the
      costs of designing and marketing products in order to avoid the
      consequences of unreasonable modes of use is not required.

Restatement (Third) of Torts: Products Liability, § 2, cmt. m.; see also Restatement,

supra, at § 2, cmt. p. Because “virtually any article, of whatever type or design, is

capable of producing injury when put to particular uses or misuses, a manufacturer

has no duty so to design his product as to render it wholly incapable of producing

injury.” Greenway v. Peabody Int’l. Corp., 163 Ga. App. 698, 700 (294 SE2d 541)

(1982) (citations and punctuation omitted); Hunt v. Harley-Davidson Motor Co., 147

Ga. App. 44, 46 (248 SE2d 15) (1978). Accordingly, a product manufacturer has no

duty to design or warn against harm caused by an unforeseeable misuse of its product,

and a product that causes harm as a result of unforeseeable misuse is not defective.

Restatement, supra, at § 2, cmts. m. and p.; Vol. 2, Dobbs, Hayden, and Bublick, The


                                          9
Law of Torts § 471, p. 983 (2d ed. 2011) (“[T]he product is not defective at all if the

plaintiff’s unforeseeable misuse is the sole cause of the harm.”). On the other hand,

reasonably foreseeable product use or misuse is a factor in considering whether a

manufacturer may be liable for a defective product which was a proximate cause of

harm resulting from the failure to adopt a reasonable alternative design (or from a

failure to warn) to reduce the foreseeable risks of harm posed by the product. Id. at

§2, cmt. p; Jones, 274 Ga. at 117-118; Banks, 264 Ga. at 736-737.

      Applying these principles, we conclude that ARE was entitled to summary

judgment.

      To prevail on a motion for summary judgment, the moving party must
      demonstrate that there is no genuine issue of material fact and that the
      undisputed facts, viewed in the light most favorable to the nonmoving
      party, warrant judgment as a matter of law. The moving party may carry
      this burden either by (1) presenting evidence negating an essential
      element of the nonmoving party’s claim, i.e., affirmatively disproving
      the element with evidence which makes it impossible for the
      [nonmoving party] to prove the element at trial; or (2) demonstrating an
      absence of evidence to support an essential element of the nonmoving
      party’s claim. If the moving party discharges this burden, the nonmoving
      party cannot rest on its pleadings, but rather must point to specific
      evidence giving rise to a triable issue. On appeal, we review de novo the
      trial court’s ruling on a motion for summary judgment, construing all
      facts and reasonable inferences therefrom in the light most favorable to
      the nonmovant.



                                          10
Parks v. Multimedia Technologies, Inc., 239 Ga. App. 282, 286 (520 SE2d 517)

(1999) (citations and punctuation omitted); Lau’s Corp. v. Haskins, 261 Ga. 491 (405

SE2d 474) (1991); OCGA § 9-11-56.

      Viewing the facts in the light most favorable to Woods and his wife, we

conclude that ARE showed plainly and indisputably an absence of any evidence in

the record to support a finding that the ARE truck cap was defective for purposes of

the design defect claim or the failure to warn claim.

      Undisputed facts show that the truck cap door fell from the raised position and

hit Woods because of Fayette Fire’s misuse of the truck cap product. The truck cap

and the rear door on the cap performed as manufactured and designed by ARE for a

year after Fayette Fire installed the cap over the bed of its pick-up truck. Then nine

days after Fayette Fire installed the Extendobed in the bed of the truck under the truck

cap, the rear door on the truck cap fell and hit Woods. The door fell because a gas

strut supporting the door detached after being damaged by Fayette Fire’s use of the

Extendobed. The Extendobed was installed in the truck bed according to Fayette

Fire’s custom-made specifications, and was designed to roll out of the truck bed when

the truck cap door was in the raised position. As installed, the Extendobed was so

high and wide that, when it was rolled out of the truck bed, it hit, damaged, and

                                          11
detached the gas strut supporting the raised truck cap door. Evidence showed that

Fayette Fire’s misuse of the Extendobed and the ARE truck cap under these

conditions caused visible damage to the gas strut, and eventually caused the strut to

detach, which caused the truck cap door to fall from the raised position and hit

Woods.

      We find no evidence in the record supporting a claim that the misuse of the

Extendobed and the ARE truck cap was foreseeable to ARE.2 ARE distributed a truck

bed extender product, but that product operated at a much lower height (six to eight

inches off the truck bed) than the Extendobed, and there was no evidence that the

ARE bed extender product ever impacted or damaged the gas struts on the door of an

ARE truck cap. Although it was reasonably foreseeable to ARE that other truck bed

extender products would be installed and used in the beds of pick-up trucks over

which the ARE truck cap product was installed, there is nothing in the record

      2
        In considering the record on the foreseeability issue, we give no consideration
to the expert opinion from the professional engineer produced by Woods that the
product misuse was foreseeable. Expert opinion is admissible on issues where the
conclusion of the expert is one which the average trier of fact would not ordinarily
be able to draw for themselves – in other words the conclusion is beyond the ken of
the average layman. Raines v. Maughan, 312 Ga. App. 303, 307 (718 SE2d 135)
(2011). Whether or not the misuse was foreseeable to ARE was not “shrouded in the
mystery of professional skill and knowledge,” so no expert opinion was admissible
on this issue. Id.

                                          12
showing that, prior to the present accident, any truck bed extender product (or an

object placed on the product) had impacted with or damaged struts on the door of an

ARE truck cap product or similar product. Prior to the accident, ARE was aware of

a temporary strut failure on one of its doors on a different product line that did not

involve any impact to the struts. And prior to the accident, ARE had no knowledge

of the Extendobed company, and was not aware that Fayette Fire had installed the

custom-made Extendobed product in the truck bed under the ARE truck cap. Nothing

in the record supports a finding that ARE had reason to foresee that Fayette Fire

would install a custom-made Extendobed under the ARE truck cap, and then misuse

the Extendobed and the ARE truck cap in the manner that caused the truck cap door

to fail and harm Woods.

      On these facts, the record shows as a matter of law that the ARE truck cap

product was not defective for purposes of the design defect or failure to warn claims

because the sole cause of the harm suffered by Woods was the unforeseeable misuse

of the product. Although the trial court granted summary judgment in favor of ARE




                                         13
on other grounds, we affirm under the right for any reason rule.3 City of Gainesville

v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002).

      Judgment affirmed. Miller, P. J., and Brown, J. concur.




      3
       We affirm the grant of summary judgment on the loss of consortium claim
brought by Woods’s wife because it was derivative of the product defect claims
brought by Woods. Supchak v. Pruitt, 232 Ga. App. 680, 684 (503 SE2d 581) (1998).

                                         14
