                              SECOND DIVISION
                                MILLER, P.J.,
                           RICKMAN and REESE, 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


                                                                     June 28, 2019




In the Court of Appeals of Georgia
 A19A0108, A19A0109; SUZUKI MOTOR OF AMERICA, INC. et
      al. v. JOHNS et al.; and vice versa.

      RICKMAN, Judge.

      In this product liability action, a jury returned a verdict and awarded damages

in favor of Adrian Johns and against Suzuki Motor Corporation (“SMC”) and Suzuki

Motor of America, Inc. (“SMAI”) (collectively, “Suzuki”) on Johns’s claims for strict

product liability based upon a design defect, breach of a continuing duty to warn, and

negligent recall, stemming from injuries that he suffered when the front brakes on his

Suzuki motorcycle failed. The jury also found in favor of Johns’s wife and awarded

her damages on a claim for loss of consortium. The jury attributed 49 percent fault to

Johns and the remaining 51 percent fault to the collective defendants, and the trial

court apportioned the damage award accordingly.
      In Case Number A19A0108, Suzuki asserts that the trial court erred by failing

to dismiss SMAI from the lawsuit on the basis that it did not assume liability for

Johns’s claims when it acquired the assets of its predecessor corporation in

bankruptcy; failing to enter a directed verdict on each of Johns’s three claims; and

admitting irrelevant and unduly prejudicial evidence of a recall and evidence of other

incidents for improper purposes. In Case Number A19A0109, the Johnses assert on

cross-appeal that the trial court erred by apportioning the damage award on Johns’s

strict liability claim and on his wife’s loss of consortium claim, which also resulted

in the court declining to award pre-judgment interest pursuant to OCGA § 51-12-14

(a). For the following reasons, we affirm in both cases.

      Viewed in the light most favorable to the jury’s verdict,1 the evidence shows

that SMC is a Japanese corporation that designed and manufactured the motorcycle

at issue in this lawsuit. SMAI is an American wholesale distributor and wholly-owned

subsidiary of SMC, and although it did not distribute Johns’s motorcycle, it acquired

the assets of the wholly-owned SMC subsidiary that did through a Chapter 11

bankruptcy proceeding.



      1
          See Neal v. CSX Transp., 213 Ga. App. 707, 709 (2) (445 SE2d 766) (1994).

                                          2
      In 2005, Johns, who had been driving motorcycles for over 20 years, purchased

a 2006 Suzuki GSX-R1000. On August 9, 2013, Johns was preparing for a weekend

motorcycle ride and conducted a pre-ride inspection on his bike. His pre-ride

inspections routinely included checking the tires, lights, fluids, and brakes. On this

particular occasion, Johns noticed that the front brake felt “spongy.” He called his

father-in-law, a certified motorcycle mechanic, who, after inquiring about the brake

fluid, instructed him to “bleed the brakes,” a process that involved draining the air out

of the brake line until a “tight brake” was achieved. Johns did so, and the problem

appeared to be resolved. He nevertheless decided to forgo the longer weekend ride,

instead limiting himself to short test drives. The front brake seemed to function

normally.

      The following Monday morning, August 12, 2013, Johns decided to drive the

motorcycle to work. After doing his usual pre-ride inspection, he exited his

neighborhood and drove approximately 20 miles without noticing any problem with

his front brake. At some point, however, Johns was traveling at approximately 20

miles per hour on a highly-trafficked road when the tractor-trailer in front of him

began to slow down. As Johns attempted to do the same, he experienced a total failure

of his front brake. Boxed in by the cars around him, Johns was forced to rely entirely

                                           3
on his rear brake, causing his motorcycle to skid and swerve, and he ultimately hit the

curb and was thrown from his bike. Johns lost consciousness for a period of time and

suffered serious injuries to his back and hand in the accident. He subsequently

underwent spinal fusion surgery and a separate surgery to repair his hand, and spent

over two months in the hospital and at rehabilitation facilities relearning how to walk

and use his hand again.

      While still in the hospital, Johns relayed to his father-in-law that the front brake

on his motorcycle had failed. Johns’s wife and father-in-law subsequently picked up

the bike from the tow lot and confirmed that the front brake did not work.

      Within a couple of days of returning home from rehabilitation, Johns received

a recall notice from Suzuki warning him of a dangerous safety defect in his

motorcycle’s front brake master cylinder. The recall notice warned that a condition

in the front brake master cylinder of GSX-R motorcycles may “lead to corrosion of

the break piston” and result in a “spongy” brake. It further warned that “[o]perating

your motorcycle without having the recall service performed may increase the risk of

a crash.” Johns testified that, had he received the recall notice before his accident, he

would not have driven his motorcycle without first having had the service performed.



                                           4
      Johns filed the instant lawsuit against Suzuki, alleging claims of strict liability

based upon a design defect, negligent failure to warn, and negligent recall; he sought

both compensatory and punitive damages. Johns’s wife also filed a claim for loss of

consortium.

      During the ensuing trial, Johns presented evidence in support of his theory that

a defect in the design of his motorcycle’s master cylinder caused the front brake

failure, that the defect was the same defect as that targeted by Suzuki’s subsequently

issued recall, and that Suzuki had notice of the issue months before it notified the

public and, indeed, prior to Johns’s accident. As evidence of the defect, Johns

presented testimony from an expert witness who testified that the design of the master

cylinder resulted a steel spring being in direct contact with a zinc piston, and that it

had been long understood that a combination of those metals in the presence of water,

such as that commonly present in brake fluid, created a “galvanic couple” resulting

in a corrosion of the piston. The expert testified that the corrosion produces various

byproducts, including gas and zinc formate crystals, which can then interfere with

normal brake operation. The expert also testified that the corrosion issue could be

avoided by placing a rubber insulator between the two metals, as was done in the rear

brake master cylinder of Johns’s motorcycle.

                                           5
      After Johns’s front brake was tested, disassembled, and inspected, the expert

opined that the steel-zinc reaction in the front brake master cylinder did indeed create

a corrosive byproduct that included gas and crystallized zinc formate, and that a zinc

formate crystal disrupted a seal in the master cylinder which created a “leak path”

which misdirected the flow of brake fluid and resulted in the total brake failure that

Johns experienced.

      In addition, Johns used evidence of the recall itself, as well as internal

documents illustrating the circumstances surrounding the recall decision, as evidence

not only of the defective design, but also of Suzuki’s knowledge of the defect. Johns

also presented evidence of two unrelated but similar incidents.

      In its defense, Suzuki denied that any kind of malfunction of the motorcycle’s

front brake contributed to Johns’s accident, instead asserting that the accident and

resulting injuries were caused by Johns’s negligent operation of the bike at the time

of the accident. As an alternative theory, Suzuki contended that even if Johns did

experience brake failure in the manner alleged by his expert witness, the corrosive

condition existed only as a result of Johns’s admitted failure to change the brake fluid

for eight years in contravention of the owners manual’s instruction that the fluid be

replaced every two years. Suzuki also maintained throughout the trial that its master

                                           6
cylinder recall was entirely unrelated to Johns’s claims. Suzuki asserted that the

defective condition targeted by the recall was the master cylinder’s inability to purge

gas produced as a byproduct of the corrosive piston, a condition which was

exacerbated by Johns’s failure to change the brake fluid, which resulted in increased

moisture and, consequently, increased gas production. Suzuki contended that the

defect would result in a “spongy” brake, but never in a total loss of a motorcycle’s

front brake.

      The jury found in favor of Johns on each of his claims and awarded him $10.5

million in compensatory damages, but declined to award punitive damages. When

asked to assign the relative percentages of fault to the parties, the jury assessed 49

percent fault to Johns, 45 percent fault to SMC, and 6 percent fault to SMAI. The jury

also found in favor of Johns’s wife on her claim for loss of consortium and awarded

her an additional $2 million in damages. The trial court apportioned the damage

award pursuant to OCGA § 51-12-33 in accordance with the percentage of fault

attributed to each party. Suzuki filed a motion for judgment notwithstanding the

verdict or, alternatively, for a new trial, which the trial court denied. This appeal

follows.

                                 Case No. A19A0108

                                          7
      1. SMAI asserts that this Court should enter judgment in its favor on all claims

because it was never a proper party to this case. Prior to trial, the trial court granted

summary judgment to SMAI on Johns’s design defect claim after concluding that it

was not a manufacturer for the purposes of that action, which was premised on strict

liability; however, the trial court denied summary judgment to SMAI on the

remaining two claims premised, in part, on successor liability. SMAI argues that it

should have been dismissed from the lawsuit in its entirety because it “had nothing

to do with the development, manufacture, distribution, or sale of Johns’s motorcycle,”

since it did not begin operations until seven years after Johns purchased the

motorcycle in question.

      We need not even consider the substance of SMAI’s argument because it

simply is not possible at this point for this Court to unwind the jury’s verdict as to any

single defendant. In the charge given to the jury, the term “manufacturer” was not

defined, and the charge referred to SMC and SMAI collectively as “manufacturers”

and “defendants” throughout. Likewise, the verdict form, by express consent of the

parties, did not distinguish between the “Defendants” when asking the jury to

determine the liability associated with any claim.



                                            8
      Indeed, during the trial court’s conference on the drafting of the verdict form,

the trial court expressed concern about the challenges it faced because of the different

parties and different claims. The following colloquy transpired:

      THE COURT: [M]y fear is that we get . . . a verdict that’s not a straight
      defense verdict, trying to figure out what the jury is telling me to put in
      a judgment . . . if I can’t figure out what they mean, we’ve got a
      problem. So that is why I’ve taken so long in doing the verdict form.


      . . . [DEFENSE]: We’re happy to have the Court to just do one
      defendant.


      ...


      [THE COURT]: . . . [Y]ou want me to combine the defendants here at
      the end of trial?


      [DEFENSE]: Yes, your Honor, we do.


      ...


      [PLAINTIFF]: I think its inviting error, Judge.


      [DEFENSE]: Well, not if we consented to it.


      [THE COURT]: Well, not if everybody consents to it.


                                           9
      [DEFENSE]: It seems like we’re the ones that could claim error.


      [THE COURT]: . . . I have no idea what the implications of it would be.


      ...


      [PLAINTIFF]: That’s fine with us.


      ...


      [DEFENSE]: We are perfectly fine on that.




      Under these circumstances, to the extent any liability was improperly assessed

to SMAI, it was invited error. See generally Jackson v. Neese, 276 Ga. App. 724, 727

(4) (624 SE2d 139) (2005).

      2. Suzuki contends that the trial court erred in denying its motion for directed

verdict on each of Johns’s claims.2 A directed verdict is warranted only “[when] there

is no conflict in the evidence as to any material issue, and the evidence introduced,

with all reasonable deductions therefrom, shall demand a particular verdict.” (Citation

and punctuation omitted.) Key Safety Systems, Inc. v. Bruner, 334 Ga. App. 717, 717


      2
          Suzuki also filed a motion notwithstanding the verdict on the same claims.

                                          10
(780 SE2d 389) (2015). When reviewing a trial court’s ruling on a motion for directed

verdict, we construe the evidence most favorably to the party opposing the motion

and will affirm the trial court’s ruling if there is any evidence to support it. Id. at 717-

718. We will address each claim in turn.

       (a) SMC argues that it was entitled to a directed verdict on the design defect

claim because it contends that Johns “materially altered” the motorcycle prior to his

accident.3 Although couched in terms of a material alteration, the crux of SMC’s

position is that Johns’s admitted failure to replace the brake fluid acted as an

intervening cause that broke the causal connection between its defective design and

Johns’s injuries.

       Under Georgia law, a manufacturer of property is liable to a consumer of that

property “who suffers injury to his person or property because the property when sold

by the manufacturer was not merchantable and reasonably suited to the use intended,

and its condition when sold is the proximate cause of the injury sustained.” OCGA

§ 51-1-11 (b) (1). In order for liability to attach to a manufacturer, “the injury must

be the proximate result of a defect in the product which existed at the time sold.”


       3
       The trial court granted summary judgment in favor of SMAI after all parties
conceded that it was not subject to strict liability.

                                            11
(Citation and punctuation omitted.) Hall v. Scott USA, Ltd., 198 Ga. App. 197, 200

(2) (400 SE2d 700) (1990); see Talley v. City Tank Corp., 158 Ga. App. 130, 134 (3)

(279 SE2d 264) (1981). Of course, “[u]nless the manufacturer’s defective product can

be shown to be the proximate cause of the injuries, there can be no recovery.” Talley,

158 Ga. App. at 135 (3).

       Even if a manufacturer’s design is proven to be defective and was so at the time

of sale, however, the manufacturer’s liability may be negated by an intervening cause,

such as the unforeseeable negligence of another person. See Hall, 198 Ga. App. at

200.

       The general rule is that if, subsequently to an original wrongful act, a
       new cause has intervened, of itself sufficient to stand as the cause of the
       misfortune, the former must be considered as too remote[;] [but,] if the
       character of the intervening act claimed to break the connection between
       the original wrongful act and the subsequent injury was such that its
       probable or natural consequences could reasonably have been
       anticipated, apprehended, or foreseen by the original wrong-doer, the
       causal connection is not broken, and the original wrong-doer is
       responsible for all of the consequences resulting from the intervening
       act.


(Citation and punctuation omitted.) Tensar Earth Technologies, Inc. v. City of

Atlanta, 267 Ga. App. 45, 49 (2) (598 SE2d 815) (2004). Thus, for any intervening

                                           12
act to become the sole proximate cause of a plaintiff’s injuries, the act “must not have

been foreseeable by defendant, must not have been triggered by defendant’s act, and

must have been sufficient by itself to cause the injury.” (Citation and punctuation

omitted.) Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533)

(2002).

      SMC’s argument fails on the foreseeability aspect of this analysis alone. It is

undisputed that the defect in the brake cylinder – namely, the direct contact of the

steel spring and the zinc piston – was present in Johns’s motorcycle when it was sold.

Further, there was evidence presented as to the industry’s long-standing knowledge,

and Suzuki’s knowledge in particular, that the chemical reaction caused by that

particular combination of metals in the presence of water, which is commonly found

in brake fluid, produced corrosion debris. Although SMC also presented evidence that

changing the brake fluid regularly may have reduced the possibility of the

development of corrosion, it also admitted that the majority of its customers do not

follow a regular maintenance schedule, including changing the brake fluid, and that

the customers’ failure to do so is a well known and established fact. Further, there

was documentary evidence supporting a finding that Suzuki was unable to

conclusively determine that the corrosion would not occur even if customer

                                          13
maintenance was properly preformed. And finally, there was evidence that Johns’s

back brake – which had the same master cylinder design but included a rubber

insulator – and also had the same lack of maintenance history, was not corroded.

      Under these circumstances, the question of whether Johns’s failure to replace

the brake fluid was an intervening cause that broke the causal connection between

SMC’s defective design of the brake cylinder and Johns’s injuries was squarely one

for the jury. Tensar Earth Technologies, 267 Ga. App. at 50 (2) (“Questions regarding

proximate cause are undeniably [for] jury [resolution] and may only be determined

by the courts in plain and undisputed cases.”) (citation and punctuation omitted).

Further, there was sufficient evidence in the record to support the jury’s rejection of

SMC’s position. Chrysler Group, LLC v. Walden, 339 Ga. App. 733, 735 (1) (792

SE2d 754) (2016) (recognizing that we will not substitute our judgment for that of the

jury and will affirm if there is any evidence to support the verdict). It follows that the

trial court did not err in denying SMC’s motion for directed verdict on this claim.

      (b) Suzuki asserts that the trial court erred in denying its directed verdict on

Johns’s claim for negligent failure to warn. Suzuki argues that (i) it had no notice of

the defect that caused Johns’s accident; (ii) there was no expert testimony that its



                                           14
warnings were insufficient; and (iii) Johns ignored the warnings provided in the

owner’s manual.

      Under Georgia law, a manufacturer has a duty to warn of “nonobvious

foreseeable dangers from the normal use of its products.” (Citation and punctuation

omitted.) Certainteed Corp. v. Fletcher, 300 Ga. 327, 330 (2) (794 SE2d 641) (2016).

“[T]he duty to warn arises whenever the manufacturer knows or reasonably should

know of the danger arising from the use of its product[s].” (Citation and punctuation

omitted.) Id.; Chrysler Corp. v. Batten, 264 Ga. 723, 724 (1) (450 SE2d 208) (1994).

Thus, the duty to adequately warn the public of defects in a product is continuous,

even after that product has left the control of the manufacturer to be sold or

distributed to the consumer.4 See Hunter v. Werner Co., 258 Ga. App. 379, 383 (2)

(574 SE2d 426) (2002) (“A negligent failure to warn claim may arise from a

manufacturer’s post-sale knowledge acquired months, years, or even decades after the

date of the first sale of the product.”) (citation and punctuation omitted); see also

OCGA § 51-1-11 (c); Batten, 264 Ga. at 724 (1).

      4
        In its reply brief, Suzuki briefly references in passing the “general rule” that
the continuing duty to warn does not extend to “non-manufacturers like SMAI.” As
discussed in Division 1, the verdict form, by express consent of the parties, did not
distinguish between the “Defendants” when asking the jury to determine the liability
associated with any claim. Consequently, we will not do so now.

                                          15
      Thus, “[w]hether a duty to warn exists . . . depends upon foreseeability of the

use in question, the type of danger involved, and the foreseeability of the user’s

knowledge of the danger.” (Citation and punctuation omitted.) Hunter, 258 Ga. App.

at 384 (2). It may be breached by “(1) failing to adequately communicate the warning

to the ultimate user or (2) failing to provide an adequate warning of the product’s

potential risks.” Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75 (1) (460 SE2d

532) (1995). Significantly, such issues should generally be resolved by the jury. See

Hunter, 258 Ga. App. at 385 (2).

      (i) Contrary to Suzuki’s contention, the record does contain evidence creating

a jury issue as to whether Suzuki had knowledge of a defective condition in the

motorcycle’s brake cylinder that would give rise to a duty to warn. There was

evidence that as early as 2009, Suzuki began receiving complaints from customers

related to an experienced decrease of pressure in the front brake. By November 2012,

there had been 60 documented complaints about the front brake, ranging from a

decrease in pressure to a total loss of pressure. And by December 2012, Suzuki

recognized that the brake issue was “very dangerous.” Suzuki also acknowledged

internally that customers experiencing issues with their front brake may not recognize



                                         16
the problem as a structural defect, but rather mistakenly believe it to be a maintenance

issue.

         In disclaiming its knowledge, Suzuki takes the extremely narrow view that it

was unaware “that theoretical particles could generate” in the master cylinder that

could disrupt the seal and create brake failure. While that may be true, there was

nevertheless evidence to support a finding that Suzuki at least should have known

that a defective design in the master cylinder resulted in corrosion of the brake piston

and produced corrosive byproducts that might interfere with the functioning of the

front brake, and that some customers had complained of a loss of brake pressure.

Under these circumstances, the trial court did not err in declining to grant Suzuki

judgment as a matter of law on the question of its knowledge. See generally Ford

Motor Co. v. Stubblefield, 171 Ga. App. 331, 336 (2) (319 SE2d 470) (1984).

         (ii) Suzuki argues that Johns failed to present expert testimony that the

warnings provided in its owner’s manual were inadequate or defective. The manual

included a “maintenance chart” which listed “brake fluid” and indicated it should be

“[r]eplace[d] every two years.” On a separate page, the manual included a

“WARNING” box that stated, “Improper maintenance or failure to perform



                                          17
recommended maintenance increases the chance of an accident or motorcycle

damage.”

      “[E]xpert opinion testimony on issues to be decided by the jury, even the

ultimate issue, is admissible only where the conclusion of the expert is beyond the

ken of the average layman.” (Citation and punctuation omitted.) Whitlock v. Moore,

312 Ga. App. 777, 780 (1) (720 SE2d 194) (2011). There is nothing to suggest that

a determination of the adequacy of the warnings in Suzuki’s instruction manual

presented an issue beyond the ken of an average juror. See Key Safety Systems, 334

Ga. App. at 720 (1) (“Questions of adequacy of a warning and proximate cause

resulting from a complete lack of warning or an inadequate warning are peculiarly

questions for the jury.”) (citation and punctuation omitted). Thus, no expert testimony

on this issue was required, or would have even been proper. See id.

      (iii) Suzuki contends that Johns’s admitted failure to adhere to the maintenance

schedule in the owner’s manual of his motorcycle with respect to the replacement of

the brake fluid barred his claim. Suzuki ignores, however, that evidence was

presented suggesting that even had Johns been diligent in changing his brake fluid

according to the maintenance schedule, corrosion may not have been prevented due

to the design of the cylinder. The record also contains evidence that John’s rear brake

                                          18
cylinder, which included the same design with the exception of the rubber insulator,

had also never been changed, and yet was not corroded. This evidence was sufficient

to create a jury issue. See generally Giordano v. Ford Motor Co., 165 Ga. App. 644,

645 (2) (299 SE2d 897) (1983).

       (c) Suzuki also asserts that it was entitled to directed verdict on Johns’s

negligent recall claim. We need not address this enumeration of error, however,

because it has been rendered moot by our affirmance of the jury’s verdict on the

previous two claims.

       3. Finally, Suzuki contends that it is entitled to a new trial because the trial

court erred by admitting, over its objection, evidence of (i) Suzuki’s voluntary recall

of its front brake master cylinder, and (ii) two similar incidents. We will address each

in turn.

       (i) Suzuki argues that evidence of its voluntary recall in October 2013 should

have been excluded as irrelevant and overly prejudicial.

       In product liability cases, evidence of a recall is admissible so long as the

subject of the litigation involves the same or substantially similar product as the

product being recalled, and there is independent evidence that the product which is

the subject of the litigation suffers from the same alleged defect as that giving rise to

                                           19
the product recall. See Harley-Davidson Motor Co., Inc. v. Daniel, 244 Ga. 284, 286

(2) (260 SE2d 20) (1979); Rose v. Figgie Intern., 229 Ga. App. 848, 854-55 (2) (495

SE2d 77) (1997) (physical precedent only).

      It is undisputed that the front master cylinder on Johns’s bike was subject to

the recall, so this issue turns on whether the defect in Johns’s motorcycle was the

same defect that gave rise to the recall. See Harley-Davidson Motor Co., 244 Ga. at

286 (2). In contending that it does not, Suzuki again takes a very narrow view of the

purpose of the recall, insisting that it was meant to address a buildup of hydrogen gas

– not zinc formate, and resulted in “spongy” brakes – not a total brake failure. First,

we note that Johns experienced the “spongy” brake problem – the same problem

described in the recall – prior to his brake’s total failure. But nevertheless, both

defects involved corrosion byproduct created as a result of a defectively designed

master cylinder that then interfered with the functioning of the front brake.

Consequently, the trial court did not abuse its broad discretion in admitting the recall

evidence. See generally Chrysler Group, 339 Ga. App. at 747 (7). Likewise, the trial

court had broad discretion in determining whether the evidence was overly prejudicial

pursuant to OCGA § 24-4-403, and did not err in allowing it. See generally State v.

Orr, __ Ga. __ (4) (b) (Case No. S18G0994) (“[E]xclusion of evidence under Rule

                                          20
403 is an extraordinary remedy that should be used only sparingly to prohibit matter

of scant or cumulative probative force, dragged in by the heels for the sake of its

prejudicial effect.”) (citation and punctuation omitted); Harley-Davidson Motor Co.,

244 Ga. 284, 286 (260 SE2d 20) (1979).

       (ii) Suzuki contends that the trial court erred by allowing evidence of two

unrelated motorcycle accidents involving front brake failure as evidence of Suzuki’s

knowledge of the defect, asserting that the evidence should have been excluded as

irrelevant.

       “In product liability actions, evidence of other incidents involving the product

is admissible, and relevant to the issues of notice of a defect, provided there is a

showing of substantial similarity.” (Citations and punctuation omitted.) Ford Motor

Co. v. Reese, 300 Ga. App. 82, 89 (3) (684 SE2d 279) (2009); see Cooper Tire &

Rubber Co. v. Crosby, 273 Ga. 454, 455 (1) (543 SE2d 21) (2001). “In order to show

substantial similarity, the plaintiff must come forward with evidence (1) that the

products involved in the other incidents and the present incident shared a common

design and manufacturing process; (2) that the products suffered from a common

defect; and (3) that any common defects shared the same causation.” (Citation and

punctuation omitted.) Reese, 300 Ga. App. at 89-90 (3); see Crosby, 273 Ga. att 456

                                          21
(1). We will defer to the trial court’s exercise of its discretion with respect to the

admission of similar evidence and will not reverse absent clear abuse. See Reese, 300

Ga. App. at 89 (3); see Crosby, 273 Ga. att 456 (1).

         Here, the trial court admitted evidence from two Suzuki GSX-R motorcycle

owners who also experienced a complete front brake failure while riding their

motorcycles. There is no dispute that the master cylinder on their motorcycles shared

a common design. The first witness described the failure “like flicking a light

switch”; he was able to “pull the brake lever all the way back” and experienced no

resistence. After listing to the witness’s proffered testimony, the trial court noted that

it was “exactly like what [Johns] experienced.” The witness replaced the bike’s

master brake front cylinder after the accident and had no further problems with the

brake.

         The second witness also described a total brake failure, stating that “there was

nothing happening” when he squeezed the front brake, and that he “pulled all the way

back . .. with no compression behind it.” When he took the bike in to get repaired

after the accident, the front brake master cylinder was replaced.

         The trial court relied on the similarities in between the witnesses’ accounts and

Johns’s accident to conclude that the motorcycles shared a common defect and that

                                            22
those defects shared a common causation. The trial court did not abuse its discretion

by admitting evidence of the similar incidents, particularly in light of Suzuki’s

repeated denials that the design defect at issue in the recall could result in a total loss

of front brake pressure. See Chrysler Group, LLC v. Walden, 339 Ga. App. 733, 739-

740 (2) (792 SE2d 754) (2016); Reese, 300 Ga. App. at 89 (3); Skil Corp. v. Lugsdin,

168 Ga.App. 754, 754-755 (1) (309 SE2d 921) (1983).

                                  Case No. A19A0109

       Johns argues on cross-appeal that the trial court erred by reducing the jury’s

award in accordance with the jury’s assessment of fault pursuant to OCGA § 51-12-

33 (a), which he contends has no applicability to an award based on a strict liability

claim. He argues that this error was compounded by reducing his wife’s award for

loss of consortium.

       Johns’s argument is premised upon the common law principle that a plaintiff’s

comparative negligence is not a defense to a product liability claim based upon strict

liability. See generally Deere & Co. v. Brooks, 250 Ga. 517, 518 (1) (299 SE2d 704)

(1983). The question at issue is how that common law principle is impacted by

Georgia’s apportionment statute, OCGA § 51-12-33 (a), which provides as follows:



                                            23
      Where an action is brought against one or more persons for injury to
      person or property and the plaintiff is to some degree responsible for the
      injury or damages claimed, the trier of fact, in its determination of the
      total amount of damages to be awarded, if any, shall determine the
      percentage of fault of the plaintiff and the judge shall reduce the amount
      of damages otherwise awarded to the plaintiff in proportion to his or her
      percentage of fault.


      We begin by noting that by its plain terms, the statute governs actions “for

injury to person,” without in any way distinguishing between the theories upon which

those claims are premised. See Deal v. Coleman, 294 Ga. 170, 172-73 (1) (a) (751

SE2d 337) (2013) (“When we consider the meaning of a statute, we must presume

that the General Assembly meant what it said and said what it meant.”) (citation and

punctuation omitted.). The statute then directs a trial court reduce the amount of

damages awarded to the plaintiff by the jury in proportion to his or her percentage of

“fault,” but notably does not refer to the plaintiff’s “negligence.” OCGA § 51-12-33

(a); see Couch v. Red Roof Inns, 291 Ga. 359, 362 (1) (729 SE2d 378) (2012)

(holding that “fault” as used in the statute “is not meant to be synonymous with

negligence, but instead includes other types of wrongdoing”).

      Further, although it is not immediately clear from the text of the statute its

impact on the common law principles as they relate to claims premised on strict

                                         24
liability, our analysis of that issue is largely guided by the Supreme Court’s opinion

in Couch, 291 Ga. 359. The Couch Court examined whether OCGA § 51-12-33 (a)

allowed a jury to consider the “fault” of a criminal assailant and include the assailant

when apportioning its damage award to the plaintiff. Id. at 359 (1). The Court held

that it did, despite its recognition of the long-standing common law rule against

apportionment to intentional tortfeasors. Id. at 366 (1).

      In so doing, the Couch Court stated, in no uncertain terms, that OCGA § 51-12-

33 was intended by the General Assembly “to displace the common law of

apportionment.” Id. at 364 (1); see also Zaldivar v. Prickett, 297 Ga. 589, 594 (1)

(774 SE2d 688) (2015). The Court further noted that the legislature had excluded

certain torts from the statutory provision immediately proceeding OCGA § 51-12-33,

and held that if had it intended to exclude any acts from the apportionment statute, it

would have done so. Couch, 291 Ga. at 362-363 (1) (“[W]hat a legislature normally

does, if it wants to make sure that readers understand that a word with a broad

ordinary meaning does not include something within that meaning, is to expressly

define that thing out of the category.”).

      Reading the plain language of the statute in conjunction with the Supreme

Court’s holding in Couch, we conclude that the trial court did not err in apportioning

                                            25
Johns’s damage award on his claim for strict product liability. Further, because Gwen

Johns’s loss of consortium claim was derivative of and arises out of the tort

committed against Johns, her award must also be reduced. See Zaldivar, 297 Ga. at

589, n.1; Barnett v. Farmer, 308 Ga. App. 358, 362 (2) (707 SE2d 570) (2011)

(physical precedent only).5

      Judgment affirmed in Case No. A19A0108; Judgment affirmed in Case No.

A19A0109. Miller, P. J., and Reese, J., concur.




      5
        This holding renders moot Johns’s assertion that the trial court erred in failing
to award prejudgment interest pursuant to OCGA § 51-12-14 (a), because the jury’s
verdict does not exceed Johns’s pretrial demand.

                                           26
