          Case: 18-14003   Date Filed: 04/29/2019   Page: 1 of 8


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 18-14003
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:16-cv-01520-ELR



RONNIE JAROD THURMOND,

                                                         Plaintiff - Appellant,

                                versus

FEDERAL SIGNAL CORPORATION,
VACTOR MANUFACTURING, INC.,

                                                      Defendants - Appellees,

ENVIRONMENTAL PRODUCTS OF FLORIDA CORP., et al.,

                                                                   Defendants.

                     ________________________

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

                            (April 29, 2019)
                Case: 18-14003       Date Filed: 04/29/2019      Page: 2 of 8


Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

       In this personal injury case, Ronnie Thurmond appeals the district court’s

decision to partially exclude his expert’s opinion and to grant summary judgment

in favor of Vactor Manufacturing and its parent company, Federal Signal

Corporation (collectively, “Vactor”). Thurmond asserted strict liability and

negligence claims against Vactor under Georgia law after he suffered significant

injuries to his arm and hand while performing maintenance on a sewer cleaner, the

Vactor 2103.1 On appeal, Thurmond argues (1) that the district court erred in

concluding that Thurmond’s own carelessness, rather than Vactor’s purported

negligence or a design defect in the Vactor 2103, was the sole proximate cause of

his injuries, (2) that because the grant of summary judgment is due to be reversed,

his “claim for punitive damages is due to be revived,” and (3) that the district court

abused its discretion in “excluding the alternative design opinions of Thurmond’s

expert,” Dr. Jeffery H. Warren. After careful review, we disagree with

Thurmond’s first two contentions, and as a result, we need not address the third.




1
 Thurmond also brought a failure-to-warn claim, but he did not contest Vactor’s motion for
summary judgment as to that claim before the district court.

                                               2
                Case: 18-14003    Date Filed: 04/29/2019   Page: 3 of 8


                                           I

         “We review de novo a district court’s grant of summary judgment, applying

the same legal standards that controlled the district court’s decision.” Pipkins v.

City of Temple Terrace, 267 F.3d 1197, 1199 (11th Cir. 2001) (citations omitted).

Accordingly, we must construe the facts and draw all reasonable inferences in the

light most favorable to Thurmond. Id. (citations omitted). Summary judgment

was proper here if Vactor has shown that “there is no genuine dispute as to any

material fact” and it “is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

         We start with a brief review of the facts. Thurmond’s injuries occurred

while working in the sewer department of the City of Loganville, Georgia.

Thurmond and a co-worker, Jack Montelbano, were using the Vactor 2103 and

noticed that its rodder hose began to leak. Accordingly, their supervisor told them

to replace the damaged hose. Whether Thurmond had replaced a rodder hose

before the date of his injury is a matter of some dispute; he asserts that he had not,

whereas Montelbano claims that Thurmond had done so previously and even

trained Montelbano on the procedure.

         Thurmond admits that he did not consult the Vactor 2103 manual before

attempting to change the rodder hose. In his words, he “just figured out how to do

it as he went along.” He did not de-energize the machine or turn off the


                                           3
                Case: 18-14003       Date Filed: 04/29/2019       Page: 4 of 8


hydraulics, despite the fact that a decal on the drum warned users—in all caps—

“not [to] work on or near an exposed shaft when engine is running” and to “[s]hut

off engine before working on power take off [(“PTO”)] driven equipment.” He

reached into the hose reel drum in order to feed in the new rodder hose, and with

his arm in the machine up to his bicep, he inadvertently contacted the hose control

lever, which caused the hose reel to rotate. As a result, his arm became trapped,

causing what he describes as “severe, permanent, disfiguring, and de-gloving

injuries” to both his arm and hand.

       Thurmond brought his claims in Georgia state court, but Environmental

Products of Florida—which is no longer a party to this litigation—removed the

case to federal court on the basis of diversity of citizenship, pursuant to 28 U.S.C.

§ 1441(b).

                                               II

       Under Georgia law, proximate cause is an essential element of both

negligence and strict liability causes of action.2 See Talley v. City Tank Corp., 279

S.E.2d 264, 269 (Ga. Ct. App. 1981). Proximate cause is predicated on

foreseeability, as it includes “all of the natural and probable consequences of the

tortfeasor’s negligence.” Edwards v. Campbell, 792 S.E.2d 142, 147 (Ga. Ct. App.



2
 Because Thurmond’s negligence and strict liability claims both rest on the contention that the
Vactor 2103 is defectively designed, our assessment of proximate cause applies to both claims.

                                               4
               Case: 18-14003     Date Filed: 04/29/2019     Page: 5 of 8


2016) (quoting Granger v. MST Transp., LLC, 764 S.E.2d 872, 874 (Ga. Ct. App.

2014)). Where, however, there is “an independent, intervening, act of someone

other than the defendant, which was not foreseeable by defendant . . . and which

was sufficient of itself to cause the injury,” a plaintiff cannot establish that the

defendant proximately caused her injuries. Walker v. Giles, 624 S.E.2d 191, 200

(Ga. Ct. App. 2005) (citations and quotations omitted); see also Edwards, 792

S.E.2d at 147 (stating that “negligence, even if proven, can[not] be actionable”

without proximate cause and that “the requirement of proximate cause constitutes a

limit on legal liability”) (internal quotation marks omitted).

      Thurmond argues that the district court erred in concluding—on both his

negligence and strict liability claims—that he failed to establish proximate cause as

a matter of law. The question whether he himself “was the sole proximate cause of

his injuries and [whether] his conduct was unforeseeable,” Thurmond contends,

should have been left to the jury. We disagree.

      It is true, as Thurmond points out, that proximate cause is “usually submitted

to the jury as a question of fact.” Edwards, 792 S.E.2d at 147 (quotations omitted).

But the question “may be decided as a matter of law [when] the evidence shows

clearly and palpably that the jury could reasonably draw but one conclusion, that

the defendant’s acts were not the proximate cause of the injury.” Id. (quotations

omitted). Here, the district court did not err in concluding, as a matter of law, that


                                            5
              Case: 18-14003     Date Filed: 04/29/2019    Page: 6 of 8


Thurmond’s own carelessness, not any action on the part of Vactor, was the sole

proximate cause of his injuries. Thurmond does not dispute that the City of

Loganville’s safety committee found that “[t]he vehicle was left running while the

work was being performed” and concluded that Thurmond “was at fault due to

carelessness and failure to follow safety procedures.” Indeed, the City’s Standard

Operating Procedures mandate that employees follow appropriate “lockout-tagout”

procedures, which include, as relevant here, that equipment “must be turned off”

and “isolate[d] . . . from its energy sources” “prior to repairs.” Because of

Thurmond’s “carelessness,” his injury is too attenuated from Vactor’s actions to

give rise to liability. Cf. Omark Indus., Inc. v. Alewine, 319 S.E.2d 24, 25–26 (Ga.

Ct. App. 1984) (holding, in a failure-to-warn case, that plaintiff had failed to

establish proximate cause as a matter of law where the injury “clearly resulted

from negligent installation or maintenance occurring after the product left the

manufacturer rather than from a defect in the product itself”).

      Thurmond counters that his failure to de-energize the Vactor 2103 “was

certainly foreseeable to Vactor” by dint of the fact that the company included

warnings—both in its manual and on the Vactor 2103 itself—to power off the

machine during rodder-hose replacement. But “[f]oreseeability means that which

is objectively reasonable to expect, not merely what might occur.” Greenway v.

Peabody Int’l Corp., 294 S.E.2d 541, 547 (Ga. Ct. App. 1982) (quotations


                                           6
                Case: 18-14003       Date Filed: 04/29/2019       Page: 7 of 8


omitted). The mere fact that a company outlines basic safety procedures in its

warnings does not provide evidence that Vactor reasonably expected users to

disregard them completely. It is not “objectively reasonable to expect” that an end

user opts to just “figure[] out how to do it as he went along” without consulting the

Vactor 2103 manual or adhering to the City’s rudimentary safety procedures. 3

       Also cutting against Thurmond’s argument that his “carelessness” was

foreseeable is the fact that of the approximately 500 units of the Vactor 2103 sold

there has not been another injury like Thurmond’s since Vactor began selling the

product in 1993. See Woods v. A.R.E. Accessories, LLC, 815 S.E.2d 205, 211 (Ga.

Ct. App. 2018) (finding that a particular misuse was not foreseeable, in part,

because “nothing in the record” showed reports of a similar incident). “It would

impose too heavy a responsibility” to hold Vactor to “guard against”—as here—

“what is unusual and unlikely to happen” or “only remotely and slightly probable.”

Atlanta Gas Light Co. v. Gresham, 394 S.E.2d 345, 347 (Ga. 1990) (citations and

quotations omitted). See also Govea v. City of Norcross, 608 S.E.2d 677, 684 (Ga.

Ct. App. 2004) (stating that “[i]t is well established that a wrongdoer is not

responsible for a consequence which is merely possible” and defining “possible


3
  Thurmond purports to identify a dispute of material fact over whether the City had trained him
on lockout-tagout procedures and whether it made the Vactor 2103 manual available to its
employees. But the claim that Thurmond was not trained on these procedures, if true,
underscores that the conduct of someone other than Vactor was an intervening cause that broke
the chain of causation.

                                                7
              Case: 18-14003     Date Filed: 04/29/2019    Page: 8 of 8


consequences” to be “those which happen so infrequently that they are not

expected to happen again”) (citations and quotations omitted).

      At bottom, Georgia tort law does not operate to hold a manufacturer to a

“duty . . . to design [its] product as to render it wholly incapable of producing

injury.” Woods, 815 S.E.2d at 210. The district court did not err in holding that

Thurmond’s “carelessness” was an unforeseeable intervening cause of his injuries,

such that he cannot establish proximate cause as a matter of law.

                                          III

      Because we conclude that Thurmond’s own actions proximately caused his

injuries, the district court need not have reached the question whether the Vactor

2103 was defectively designed. See Talley, 279 S.E.2d at 269 (“Unless the

manufacturer’s defective product can be shown to be the proximate cause of the

injuries, there can be no recovery.”). We therefore need not determine whether the

district court properly excluded Warren’s alternative design opinion. And because

“there can be no recovery,” id., the district court correctly held that Thurmond’s

“derivative claim for punitive damages also cannot survive.”

AFFIRMED.




                                           8
