United States Court of Appeals,

Eleventh Circuit.

Nos. 93-9458, 94-8028.

Robert Eugene HENRY, Plaintiff-Appellant,

Tonya Renee Henry, Plaintiff,

v.

GENERAL MOTORS CORPORATION, Defendant-Appellee.

Aug. 16, 1995.

Appeals from the United States District Court for the Southern

District of Georgia. (No. CV492-269), B. Avant Edenfield, Chief

Judge.

Before COX, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Robert Eugene Henry sued General Motors Corporation (GM),

asserting several product liability claims. A jury found in favor

of GM, and Henry appeals. He contends that the district court

erred in granting GM's pretrial motion for summary judgment on his

negligent-failure-to-warn and negligent-failure-to-instruct claims.

Henry also contends that the district court erred in evidentiary

rulings and in instructing the jury at trial. Finding no error, we

affirm.

I. Background

Henry became paraplegic when a General Motors pickup truck

fell off a jack and struck his shoulders. Henry had jacked the

truck up in order to replace the truck's front brake pads. After

removing the wheel, he set it beside the jacked-up truck to sit on

as he put his head and shoulders into the wheel well to reach the

pads. The truck came off the jack, and when it fell the edge of
the wheel well struck his shoulders, causing a compression fracture

of his lower spine.

The accident and injury may have occurred for at least two

reasons. First, Henry used the wrong part of the jack to lift the

truck. GM jacks for this truck have two jacking points: a

concavity on top of the jack, and a hook that extends from that

concavity down the outside of the jack. On a two-wheel drive

vehicle such as the one on which Henry was working, the concavity

is designed to lift the rear axle, and the hook is designed to lift

the front control arm. Henry improperly used the concavity to lift

the front control arm. Second, Henry made himself vulnerable by

putting his head and shoulders in the wheel well.

The jack carried a yellow sticker with four warnings. One

warning advised the user not to get under a jack-lifted vehicle.

The jack sticker did not explain the proper use of the two jacking

points, but it warned the user to follow the jacking instructions.

The jacking instructions provided under the hood and in the owner's

manual did not verbally refer to the jack's concavity and hook.

The illustrations accompanying the instructions did show the jack's

hook being used to lift the control arm in front and the jack's

concavity to lift the rear axle. The illustrations were small,

however, and they did not highlight the jacking points.

Henry is illiterate. Although he noticed the jack sticker and

knew that the sticker's yellow color signified a warning, he did

not ask anyone to read it to him. Neither did he have someone read

the owner's manual or the jacking instructions placed on the

underside of the truck's hood, near the jack storage.
 1

The factual basis for Henry's failure-to-warn claim has

been somewhat elusive. In the pretrial order, he articulated it

as follows:

Plaintiff contends GM was negligent in the design

of a defective jack system because it is impossible to

understand how to properly use the jack. More

specifically, Plaintiff contends that reference to the

jack and all instructions provided by GM do not

successfully communicate how and where the jack should

be connected to the truck during use. As a result of

this failure, Mr. Henry unknowingly did not choose GM's

intended method, and as a result, the jack system was

unstable and failed.

(R. 78 at 7). 

Henry sued GM on several theories. He alleged negligent

design, manufacture, warnings, and instructions. He also asserted

a strict liability claim. GM moved for summary judgment on the

negligent-failure-to-warn and -instruct claims. GM contended that

it had no duty to warn because the danger of the truck's falling on

a person beneath it was open and obvious. In the alternative, GM

contended that even if it had a duty to warn of the danger that the

truck might fall, Henry's failure to read the warning sticker and

owner's manual, not GM's failure to warn adequately, was the

proximate cause of the accident. In response, Henry argued that

the danger of using the wrong jacking point was not open and

obvious. Henry contended further that his illiteracy distinguishes

his case from cases in which the plaintiff neglected to read the

warning.1

The district court granted GM's motion for summary judgment on

his negligent-failure-to-warn and negligent-failure-to-instruct

claims. The case proceeded to trial on Henry's strict liability

claim, and the jury returned a verdict for GM. Henry appeals.
 2

Henry also challenges several of the district court's

evidentiary rulings at trial and contends that the jury

instructions were flawed. We reject these contentions without

further discussion. See 11th Cir.R. 36-1. 

II. Issue and Standard of Review

 Henry primarily asserts that the district court erroneously

granted GM partial summary judgment based on the court's conclusion

that Henry's failure to read any warning precluded recovery for

negligent failure to warn.2 We review the district court's

granting of summary judgment de novo, applying the same standards

as the district court. Georgia Power Co. v. International Bhd. of

Elec. Workers, Local 84, 995 F.2d 1030, 1031 (11th Cir.1993), cert.

denied, --- U.S. ----, 114 S.Ct. 1644, 128 L.Ed.2d 364 (1994).

III. Discussion

Summary judgment is proper when "the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law." Fed.R.Civ.P. 56(c). "Rule 56(c)

mandates the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will bear

the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S.

317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Under

Georgia law, to recover for negligence, a plaintiff must show "(1)

a legal duty to conform to a standard of conduct raised by the law

for the protection of others against unreasonable risks of harm;
(2) a breach of this standard; (3) a legally attributable causal

connection between the conduct and the resulting injury; and (4)

some loss or damage flowing to the plaintiff's legally protected

interest as a result of the alleged breach of the legal duty."

Bradley Ctr., Inc. v. Wessner, 250 Ga. 199, 296 S.E.2d 693, 695

(1982). The manufacturer can breach its duty to warn in two ways:

(1) by failing "to take adequate measures to communicate the

warning to the ultimate user," or (2) by failing "to provide a

warning that, if communicated, was adequate to apprise the user of

the product's potential risks." Rhodes v. Interstate Battery Sys.,

722 F.2d 1517, 1519 (11th Cir.1984).

 GM has shown itself entitled to summary judgment. First,

Henry's deposition testimony negates the element of breach in a

claim based on Rhodes 's first prong. Unlike the plaintiff in

Rhodes, who never even saw the warning, Henry testified that he not

only saw the yellow sticker on the jack, but knew that the sticker

signified a warning. Thus, no fact dispute exists as to whether

the warning was "communicated[d] to the ultimate user." See id.

 Second, Henry's uncontroverted failure to examine the warning

once he had noticed it negates the causation element of a claim

based on Rhodes 's second prong. See id. Under Georgia law, a

product user's failure to read an allegedly negligent warning, not

the warning itself, is considered the proximate cause of an injury

resulting from product misuse. See, e.g., Powell v. Harsco Corp.,

209 Ga.App. 348, 433 S.E.2d 608, 610 ("The alleged inadequacy of

the installation instructions [for a fiberglass catwalk] cannot be

the proximate cause of the collapse of the catwalk and [decedent's]
death when the installer did not read the installation directions

that [the defendant's] subsidiary actually provided."), cert.

denied, 209 Ga.App. 348, 433 S.E.2d 608 (1993); Cobb Heating & Air

Conditioning Co. v. Hertron Chem. Co., 139 Ga.App. 803, 229 S.E.2d

681, 682 (1976) ("This court has held that any insufficiency of the

warning on the label of a product may not be the proximate cause of

the [accident] when the user fails to read the label."); Parzini

v. Center Chem. Co., 129 Ga.App. 868, 201 S.E.2d 808, 809 (1973)

("[T]he evidence shows that [the plaintiff] did not read the

warning[,] and therefore any inadequacy with regard to such warning

would not be the proximate cause of his injuries.").

Henry urges us to reject this Georgia rule as a matter of

public policy in cases such as his in which the plaintiff is

illiterate. He points to widespread illiteracy in our society and

the imperative of protecting the illiterate from product hazards.

Although we are not unsympathetic to Henry's concerns, we must

apply Georgia law. See Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58

S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Nothing in the rationale of

the cited cases suggests that Georgia would consider the product

user's illiteracy relevant once the manufacturer has communicated

the existence of a warning. The reasoning behind the rule is based

on causation, not contributory negligence or any fault on the part

of the product user. Why the user failed to read the warning thus

does not matter. Whatever the user's reason, if the user is aware

of a warning but ignores its language, the manufacturer's

negligence in drafting the warning ceases as a matter of law to be

a cause of the injury.
Because Henry thus failed to carry his summary judgment burden

as to either of Rhodes 's two kinds of failure to warn, summary

judgment was appropriate.

IV. Conclusion

Finding no error, we AFFIRM the judgment of the district

court.

AFFIRMED.

BARKETT, Circuit Judge, concurring in part, and dissenting in

part:

I dissent because I believe this court's precedent requires

reversal of summary judgment on one of Henry's negligent failure to

warn claims. Although the majority correctly identifies the two

tests for measuring a manufacturer's duty to warn set forth in

Rhodes v. Interstate Battery Sys., 722 F.2d 1517 (11th Cir.1984),

the majority misapplies one of the tests to Henry's claims. In

Rhodes we stated that a manufacturer can breach its duty to warn

(1) by failing "to take adequate measures to communicate the

warning to the ultimate user," or (2) by failing "to provide a

warning that, if communicated, was adequate to apprise the user of

the product's potential risks." Id. at 1519. While, as to the

second test, I agree that Henry's failure to read the warning

precluded a jury determination as to the adequacy of the content of

the warning, our precedent dictates that, as to the first test,

Henry's failure to read is not dispositive of his alternate claim

that the manufacturer breached its duty to warn by failing "to take

adequate measures to communicate the warning to the ultimate user."

Id.

Rhodes recognizes that a manufacturer breaches its duty to
warn if it fails to convey the warning adequately, notwithstanding

how clear it is. The warning may be a paragon of clarity, but if

it is illegible, or located in an irrelevant place, or not properly

associated with the product, or otherwise not adequately

communicated to the user, the manufacturer may be liable. And, as

Rhodes specifically explains, the plaintiff's failure to read the

warning does not bar the submission of this question to the jury.

Thus, I must disagree with the majority's reasoning that because

Henry "not only saw the yellow sticker on the jack, but knew that

the sticker signified a warning," as a matter of law "the warning

was "communicate[d] to the ultimate user.' " The majority's

decision violates the dictates of Rhodes by permitting the district

court to usurp the jury's role of deciding whether General Motors

("G.M.") took adequate measures to communicate the warning under

the circumstances presented here.

Like Henry, the plaintiff in Rhodes did not read the warning

on the product in question. Rhodes had been out drinking one

night, and returned to his car to find its battery dead. It was

dark, and in order to check the fluid levels, he struck a match and

removed the plug covers from the battery cells. He did not read

the warnings embossed on the battery which indicated, among other

things, that batteries produce explosive gases and that sparks,

flame and cigarettes should be kept away. The battery exploded,

covering Rhodes' face and eyes with sulfuric acid. Rhodes admitted

that he had not read the warning label on that battery or on the

batteries of any of the other cars he had owned over the years. He

sought recovery in negligence for failure to provide an adequate
warning of the dangers associated with the product. The

manufacturer argued, as does G.M. here, that Rhodes was precluded

from recovery as a matter of law because he had "failed to read the

warning label, which fully and adequately described the inherent

dangers of the battery." Id. at 1518. This court reversed summary

judgment granted to defendants, concluding that, despite Rhodes'

failure to read the battery's warning, his claims presented genuine

issues of material fact as to the adequacy of defendants' means of

conveying the warning to a consumer in his position.

The relevant Georgia case law, as found in Parzini v. Center

Chemical Co., 129 Ga.App. 868, 201 S.E.2d 808 (1973), Cobb Heating

& Air Conditioning Co. v. Hertron Chemical Co., 139 Ga.App. 803,

229 S.E.2d 681 (1976), and McLeskey v. Olin Mathieson Chemical

Corp., 127 Ga.App. 178, 193 S.E.2d 16 (1972), is not to the

contrary. As this court explained in Rhodes, these Georgia cases

"hold only that an injured party cannot claim inadequacy of the

contents of a warning if he never bothered to read the warning.

They do not bar a claim, such as Rhodes', that an injury was caused

by the manufacturer's failure to take appropriate measures to

communicate the potential risks to the ultimate user." Rhodes, 722

F.2d at 1520 (emphasis added). The Rhodes court concluded that

"[a] factual issue exists as to the adequacy of the defendants'

adopted means of conveying the warning. It is for the jury to

decide whether or not their chosen method was negligent." Id.

In the instant case, the majority rests its analysis on the

finding that the manufacturer communicated the existence of a

warning. But it does not follow from the fact that G.M.
 1

In his deposition, Walter Zych, an expert witness for G.M.,

testified that it was foreseeable that illiterates would use G.M.

jacks:

Q: So would you agree with me, then, that there would

be users of G.M. jacking systems that don't know

how to read or have a sixth grade or lower reading

capability?

A: That may be, yes. 

 2

There is no further basis to distinguish the facts in

Rhodes and Henry. Rhodes did not see the warning because it was

dark. Had he had a flashlight, for example, or had the battery

warning glowed in the dark the outcome might have been different. 

Similarly, Henry did not attend to the warning because he could

not read it. Had he been able to read or had the manufacturer

provided an appropriate pictogram, the outcome might have been

different. 

communicated the existence of a warning to Henry, that G.M. took

adequate measures to communicate to Henry the specific warning as

to the G.M. jack, which is what the first Rhodes test requires.

Henry, like Rhodes, failed to read the product warning, and

asserted that the warning was inadequately communicated to the

user. At issue in both cases was the plaintiff's claim that

defendants had negligently failed to provide a warning reasonably

likely to apprise him of the product's dangerous qualities.1 Both

plaintiffs failed to read the respective warnings, and each in

effect claimed that the warning at issue "was not likely to warn a

consumer in his position of the potential dangers" and that the

defendants were negligent in "not attempting to convey the risks in

a more effective manner." Id. at 1520 (emphasis added). The fact

that Henry, unlike Rhodes, noticed a "warning" does not change the

result.2

 Henry may have been aware of a warning of some kind, as

one may be aware of small print on a label, but a warning as to

what, when and where? It is an unwarranted leap of reasoning to
 3

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th

Cir.1981), we held that decisions of the former Fifth Circuit

reached before October 1, 1981, are binding on the Eleventh

Circuit. 

assume, as a matter of law, that illiterates, though they cannot

read, are thoroughly acquainted with the conventions that govern

the use and understanding of printed warning labels in a highly

literate society. Even if the G.M. sticker did make an

"existential" communication of some kind with Henry, it would still

be a question for the jury whether G.M. took measures to

communicate the jack warning that were adequate for the purposes of

an illiterate like Henry under all the pertinent evidence presented

on this issue. Summary judgment is improper in this case for the

identical reason that we found it improper in Rhodes.

Nor is Rhodes an isolated case. Indeed, in two other cases,

neither of which is addressed by the majority, this circuit has

confirmed the impropriety of summary judgment in circumstances

where the evidence has shown that plaintiff in some sense had the

opportunity to read the warning but did not, or did read and

understand the warning but failed to heed it. In Stapleton v.

Kawasaki Heavy Indus., Ltd., 608 F.2d 571 (5th Cir.1979), for

example, a homeowner sued a motorcycle manufacturer and distributor

for damages resulting from a fire in her home caused when a

motorcycle tipped over and leaked gasoline which was subsequently

ignited by a pilot light.3 The leak resulted from the motorcycle's

fuel switch having been left in the "on" position. Although there

was a warning about possible gasoline leakage in this situation in

the owner's manual, the jury returned special verdicts finding that
defendants were negligent and had breached their duty to warn. On

appeal, defendants, citing Cobb, Parzini, and McLeskey, argued that

the plaintiff was barred from making her claim because, as a matter

of law, failure to read a label is contributory negligence. This

court held that "[w]hether adequate efforts were made to

communicate a warning to the ultimate user and whether the warning

if communicated was adequate are uniformly held questions for the

jury." Stapleton, 608 F.2d at 573 (citing West v. Broderick &

Bascom Rope Co., 197 N.W.2d 202 (Iowa 1972); Hubbard-Hall Chemical

Co. v. Silverman, 340 F.2d 402 (1st Cir.1965)). We explained that

the jury must determine whether putting the warning on page 13 in

an ordinary typeface was an adequate effort, and whether the

warning so located was sufficient to warn the user of the danger.

After noting that the cited cases all involved warnings that were

attached to products, and observing that the plaintiff's son, who

had tipped the motorcycle over, had testified that he "looked

through the manual" though he "really didn't read it," we reasoned

that "the jury could conclude that the danger posed by the gas

leakage was sufficiently great that the warning should have been

presented in a way immediately obvious to even a casual reader."

Id.

Similarly, in Watson v. Uniden, 775 F.2d 1514 (11th Cir.1985),

we reversed a grant of summary judgment to defendants on Watson's

negligence claims in a product liability suit. Having properly

installed a Uniden telephone and used it to call out for awhile

without incident, Watson found it ringing and proceeded to answer

it for the first time. As she placed the receiver to her ear, the
phone rang again and permanently impaired her hearing. Unlike an

ordinary phone, the Uniden had a speaker in the handset which

produced the ring as well as the caller's voice. The handset had

a sticker on its inside face which read "CAUTION—LOUD RING Move

switch to talk position before holding receiver to ear." The

Watsons read the instruction book when they received the phone and

Mr. Watson explained the procedure to Mrs. Watson when he installed

it. However, Mrs. Watson did not move the switch to the talk

position and the phone rang directly in her ear. She knew she was

supposed to move it but simply forgot to do so. Relying on Rhodes,

this court disagreed with the district court that the warning on

the handset was adequate as a matter of law and found that "the

adequacy of the warning is an issue a jury must decide." Id. at

1516. We explained that "the general rule in Georgia is that

questions of negligence and proximate cause, except in plain,

palpable and indisputable cases, are solely for the jury, and the

courts will decline to decide such questions unless reasonable

minds cannot differ as to the conclusions to be reached." Id.

Finally, we concluded that "Mrs. Watson asserted a claim based upon

Uniden's negligent failure to provide a warning reasonably likely

to apprise her of the phone's dangerous qualities, and she should

be allowed to attempt to persuade a jury so to find. A factual

issue exists as to the adequacy of Uniden's means of conveying the

warning." Id.

Because this court's decisions in Rhodes, Stapleton and Watson

require reversal of summary judgment in this case, I respectfully

DISSENT.