                                                                  [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                            _______________                 OCTOBER 10, 2001
                                                           THOMAS K. KAHN
                                                                CLERK
                               No. 98-9169
                            _______________
                  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
                  ______________________________

                            (October 10, 2001)

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

      In Jones v. NordicTrack, Inc., 236 F.3d 658 (11th Cir. 2000), we certified

the following question to the Supreme 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?” Id. at 661. The

Supreme Court of Georgia responded as follows:

      The answer is that in a products liability action for defective design the focus

      is not on use of the product. Under Georgia law, the proper analysis in a

      design defect case is to balance the risks inherent in a product design against

      the utility of the product so designed.

Jones v. NordicTrack, Inc., __ S.E.2d __ (2001). The Georgia Supreme Court thus

made clear that product “use” is not a necessary predicate to liability in design

defect cases, and the court further explained that the appropriate analysis instead

entails a weighing of the risk/utility factors enunciated in Banks v. ICI Americas,

450 S.E.2d 671 (1994). Id. at __.

      In granting judgment on the pleadings in favor of NordicTrack, Inc. and

NordicTrack Fitness at Home (“NordicTrack”), the district judge focused

exclusively on whether Plaintiff-Appellant Laura Jones was using the product at

the time of her accident. Jones v. Nordictrack, Inc., R1-17-3 (N.D. Ga. May 7,


                                           2
1998). Finding that the product was not in “use” when Jones suffered her injury,

the district judge treated this determination as dispositive of Jones’s design defect

claims and declined to balance the risk/utility factors laid down in Banks. Id. at 6.

      Consequently, we REVERSE the district court’s grant of judgment on the

pleadings in favor of NordicTrack and REMAND with instructions that the district

court employ the Banks risk/utility balancing test in reconsideration of whether

NordicTrack’s motion should be granted.




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