Maynard v. Snapchat, Inc.

=== Opinion ===

313 Ga. 533
FINAL COPY

        S21G0555. MAYNARD et al. v. SNAPCHAT, INC.


     COLVIN, Justice.

     While driving over 100 miles per hour, Christal McGee rear-

ended a car driven by Wentworth Maynard, causing him to suffer

severe injuries. When the collision occurred, McGee was using a

“Speed Filter” feature within Snapchat, a mobile phone application,

to record her real-life speed on a photo or video that she could then

share with other Snapchat users. Wentworth and his wife, Karen

Maynard, sued McGee and Snapchat, Inc. (“Snap”),1 alleging that

Snap had negligently designed Snapchat’s Speed Filter. The trial

court dismissed the design-defect claim against Snap, and a divided

panel of the Court of Appeals affirmed, holding that Snap did not

owe a legal duty to the Maynards because a manufacturer’s duty to

design reasonably safe products does not extend to people injured by

a third party’s intentional and tortious misuse of the manufacturer’s


     1 The record indicates that Snapchat, Inc. is now known as Snap Inc.
product. See Maynard v. Snapchat, Inc., 357 Ga. App. 496, 500, 502

(851 SE2d 128) (2020).

     On certiorari, we conclude that the Court of Appeals erred. For

the reasons discussed below, a manufacturer has a duty under our

decisional law to use reasonable care in selecting from alternative

designs to reduce reasonably foreseeable risks of harm posed by its

products. When a particular risk of harm from a product is not

reasonably foreseeable, a manufacturer owes no design duty to

reduce that risk. How a product was being used (e.g., intentionally,

negligently, properly, improperly, or not at all) and who was using

it (the plaintiff or a third party) when an injury occurred are

relevant considerations in determining whether a manufacturer

could reasonably foresee a particular risk of harm from its product.

Nevertheless, our decisional law does not recognize a blanket

exception to a manufacturer’s design duty in all cases of intentional

or tortious third-party use. Because the holding of the Court of

Appeals conflicts with these principles, and because the Maynards

adequately alleged that Snap could reasonably foresee the

                                 2
particular risk of harm from the Speed Filter at issue here, we

reverse the judgment of the Court of Appeals and remand for further

proceedings.

     1. In their second amended complaint, the Maynards alleged

that, around 10:15 p.m. on September 10, 2015, McGee crashed her

car into the back of Wentworth’s vehicle while driving 107 miles per

hour. According to the Maynards, McGee told her three passengers

right before the crash that she was “just trying to get the car to 100

m.p.h. to post it on Snapchat” using Snapchat’s Speed Filter.

     The Maynards asserted a negligence claim and a derivative

loss-of-consortium claim against McGee and Snap, seeking

damages, punitive damages, and litigation expenses. In relevant

part, the Maynards alleged that Snap had negligently designed the

Speed Filter feature of the Snapchat application. Specifically, they

alleged that Snap “owed a duty to use ordinary care in designing . . .

its products, including but not limited to Snapchat’s Speed Filter.”

“Snap[ ] breached that duty,” the Maynards alleged, because (1)

Snap “did not remove, abolish, restrict access to, or otherwise use

                                  3
reasonable care to address the danger created by Snapchat’s Speed

Filter and other products,” (2) Snap’s “design decisions regarding its

Speed Filter and other products [were] unreasonable and negligent,”

and (3) Snap’s “disclaimers [and warnings were] also inadequate,

unreasonable, and knowingly ineffective.” The Maynards further

alleged that Snap had designed its products to “encourage”

dangerous behaviors and could “reasonably foresee[ ]” that the

“Speed   Filter   was   motivating,   incentivizing,   or   otherwise

encouraging its users to drive at excessive, dangerous speeds in

violation of traffic and safety laws.” Finally, the Maynards alleged

that Wentworth was injured “[a]s a result of [Snap’s] negligence,”

which was “concurrent with McGee’s negligence.”

     Snap answered the complaint, attaching copies of its Terms of

Use and a “pop-up warning” that, according to Snap, “a user first

accessing the Snapchat ‘speed filter’ would see.” The Terms of Use

stated that the user agreed not to use Snapchat “for any illegal or

unauthorized purpose,” and the warning stated, “Please, DO NOT

Snap and drive.” Snap then moved to dismiss the Maynards’ second

                                  4
amended complaint for failure to state a claim or, in the alternative,

for judgment on the pleadings.

     The trial court granted Snap’s motion, dismissing the

Maynards’ claims without leave to amend for two reasons. First, the

court concluded that Snap owed no legal duty to the Maynards

because Snap did not owe a duty as a manufacturer to design its

product to prevent McGee from driving dangerously or to control

McGee’s conduct. Second, the court concluded that the Maynards

could not establish proximate causation because (a) a driver’s

inattention, not a mobile phone application, causes a driver to wreck

a car, and (b) McGee’s criminal and negligent driving, as reflected

in her May 17, 2018 plea of no contest to serious injury by vehicle,

constituted a superseding and intervening cause that broke the

causal chain.    The trial court also granted Snap’s motion for

judgment on the pleadings, concluding that McGee’s violation of

Snap’s Terms of Use and disregard for Snap’s pop-up warning broke

the causal chain.

     The Court of Appeals granted the Maynards’ application for an

                                  5
interlocutory appeal, and a divided panel affirmed the trial court’s

determination that Snap did not owe a legal duty to the Maynards.

See Maynard, 357 Ga. App. at 498, 502.2 We granted certiorari to

determine whether the Court of Appeals erred in affirming the

dismissal of the Maynards’ second amended complaint.

     2. We review de novo a trial court’s ruling on a motion to

dismiss, “accepting as true all well-pled material allegations in the

complaint and resolving any doubts in favor of the plaintiff.”

Williams v. DeKalb County, 308 Ga. 265, 270 (2) (840 SE2d 423)

(2020) (punctuation omitted). “The existence of a legal duty,” which

can arise by statute or be imposed by decisional law, “is a question

of law for the court.” Rasnick v. Krishna Hospitality, 289 Ga. 565,

566-567 (713 SE2d 835) (2011).

     Because Georgia’s product-liability law is a creature of both

statute and decisional law, there is more than one source for the

duties that manufacturers owe with respect to the design of their



     2 The Court of Appeals did not address the trial court’s alternative
grounds for dismissal and judgment on the pleadings.
                                   6
products.    By statute, Georgia “imposes strict liability [on

manufacturers] for defective products.” Banks v. ICI Americas, 264

Ga. 732, 733 (1) (450 SE2d 671) (1994); see also Johns v. Suzuki

Motor of America, 310 Ga. 159, 163 (3) (850 SE2d 59) (2020) (“[S]trict

products liability imposes liability irrespective of negligence.”

(citation and punctuation omitted)).         Georgia’s strict-product-

liability statute provides:

           The manufacturer of any personal property sold as
     new property directly or through a dealer or any other
     person shall be liable in tort, irrespective of privity, to any
     natural person who may use, consume, or reasonably be
     affected by the property and 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). As we have explained, the phrase “not

merchantable and reasonably suited to the use intended,” as used in

this statute, means that “the manufacturer’s product when sold by

the manufacturer was defective.” Center Chem. Co. v. Parzini, 234

Ga. 868, 869 (2) (218 SE2d 580) (1975). There are several ways in

which a product can be “defective,” including by being defectively

                                   7
designed. See Banks, 264 Ga. at 733 (1) (“There are three general

categories of product defects: manufacturing defects, design defects,

and marketing/packaging defects.”). Accordingly, under Georgia’s

product-liability statute, a manufacturer who sells a product has a

duty to ensure that the product it sells does not have a design defect.

See id.; see also OCGA § 51-1-11 (b) (1).

     Similarly, under our decisional law, when designing a product,

a manufacturer has a duty to exercise reasonable care in “selecting

from among alternative product designs” to “reduce[ ] the

[reasonably] foreseeable risks of harm presented by [a] product.”

Jones v. NordicTrack, Inc., 274 Ga. 115, 118 (550 SE2d 101) (2001).

Indeed, it has been a longstanding principle of our case law

regarding allegedly defective product designs that a designer’s duty

extends only to reasonably foreseeable risks of harm. See Richmond

& Danville R. Co. v. Dickey, 90 Ga. 491, 492-493 (2) (16 SE 212)

(1892) (holding that a railroad company was “not required by law”

to exercise the “degree of diligence” necessary to reduce the risk of

injury from “a defect in [a flat-car] brake,” which allegedly had an

                                  8
“unnecessarily long” bolt, because “no other servant of this company

ha[d] ever before been injured as the plaintiff was, and there was no

reason whatever for apprehending that such an injury was in the

least likely to occur”).3



      3 In this regard, the duty owed by a manufacturer charged with negligent

design is similar in scope to the duty owed by defendants charged with many
other types of negligent conduct, which is likewise generally limited to
reasonably foreseeable risks of harm. See, e.g., Martin v. Six Flags Over
Georgia II, L.P., 301 Ga. 323, 328 (II) (801 SE2d 24) (2017) (A landowner’s duty
to protect invitees from third-party criminal attacks “extends only to
foreseeable criminal acts.” (citation and punctuation omitted; emphasis in
original)); Steagald v. Eason, 300 Ga. 717, 717, 719-720 (797 SE2d 838) (2017)
(There is no duty to restrain a vicious or dangerous dog under OCGA § 51-2-7
unless “the owner or keeper has reason to know of the dog’s propensity to do
harm of the type which it inflicts,” meaning that the owner or keeper knows of
“at least one incident that would cause a prudent person to anticipate the
actual incident that caused the injury.” (citations and punctuation omitted;
emphasis supplied)); Thurman v. Applebrook Country Dayschool, 278 Ga. 784,
785 (1) (604 SE2d 832) (2004) (“[A] person who undertakes the control and
supervision of a child . . . has [a] duty to use reasonable care to protect the child
from . . . reasonably foreseeable risk of harm.” (citation and punctuation
omitted; emphasis in original)); Munroe v. Universal Health Svcs., 277 Ga. 861,
863 (1) (596 SE2d 604) (2004) (“[A] defendant employer has a duty to exercise
ordinary care not to hire or retain an employee the employer knew or should
have known posed a risk of harm to others where it is
reasonably foreseeable from the employee’s ‘tendencies’ or propensities that the
employee could cause the type of harm sustained by the plaintiff.” (emphasis
supplied)); Southeastern Stages v. Stringer, 263 Ga. 641, 643 (437 SE2d 315)
(1993) (“[A] common carrier is not required to take measures to protect its
passengers from the intentional misconduct of third persons until something
occurs to put the carrier on notice that such conduct might be reasonably
anticipated. To establish reasonable foreseeability, more than the mere
possibility of an occurrence must be shown[.]” (citation omitted; emphasis

                                         9
      Because a manufacturer may owe a design duty under

Georgia’s product-liability statute or under this State’s decisional

law, a plaintiff injured by a defectively designed product can pursue

a claim against a manufacturer under either a statutory strict-

liability theory or a decisional-law negligence theory or both. See

Jones, 274 Ga. at 117 (noting that defective-design claims can be

brought based on negligence or strict liability). Here, the Maynards

pursued only a negligence theory of design defect against Snap.

      When a plaintiff alleges that a manufacturer defectively

designed a product, the same test is used to assess breach of the

manufacturer’s design duty — that is, “whether a product was

defective” for purposes of a strict-liability claim or “whether the

manufacturer’s conduct was reasonable” for purposes of a negligence

claim.   Banks, 264 Ga. at 735 (1) n.3.           Under either theory of



supplied)); Gregory v. Johnson, 249 Ga. 151, 151, 155 (289 SE2d 232) (1982) (A
landowner has a duty only “to exercise reasonable care to
prevent foreseeable injury” from an “attractive nuisance” on the premises.
(emphasis in original)); Ellington v. Tolar Constr. Co., 237 Ga. 235, 238 (III)
(227 SE2d 336) (1976) (“Negligence consists of exposing another to whom one
owes a duty . . . to a foreseeable unreasonable probability of harm.” (emphasis
supplied)).
                                      10
recovery, the factfinder performs a “risk-utility analysis,” assessing

“the reasonableness of choosing from among various alternative

product designs” by asking whether “the risk of harm outweighs the

utility of a particular design” to determine whether “the product is

not as safe as it should be.” Id. at 734-736 (1) & n.3 (punctuation

omitted).4     Because “negligence principles” underlying the risk-



      4 Although this Court has said that the risk-utility test requires a fact-

intensive inquiry for which “no finite set of factors can be considered
comprehensive or applicable under every factual circumstance,” we have
identified “a non-exhaustive list of general factors” that might be relevant in
design-defect cases. Banks, 264 Ga. at 736 (1). These factors include:

      the usefulness of the product; the gravity and severity of the
      danger posed by the design; the likelihood of that danger; the
      avoidability of the danger, i.e., the user’s knowledge of the product,
      publicity surrounding the danger, or the efficacy of warnings, as
      well as common knowledge and the expectation of danger; the
      user’s ability to avoid danger; the state of the art at the time the
      product is manufactured; the ability to eliminate danger without
      impairing the usefulness of the product or making it too expensive;
      . . . the feasibility of spreading the loss in the setting of the
      product’s price or by purchasing insurance[;] . . . the feasibility of
      an alternative design; the availability of an effective substitute for
      the product which meets the same need but is safer; the financial
      cost of the improved design; . . . the adverse effects from the
      alternative[;] . . . the appearance and aesthetic attractiveness of
      the product; its utility for multiple uses; the convenience and
      extent of its use . . . ; and the collateral safety of a feature other
      than the one that harmed the plaintiff.

Id. at 736 (1) n.6.
                                       11
utility analysis are used to determine breach of a manufacturer’s

statutory and decisional-law duties in many design-defect cases, we

have noted that there is often significant “overlap” between strict-

liability and decisional-law negligence claims premised on design

defects. Id. at 735 (1) n.3; but see id. (noting that we have never

“conclude[d] definitively that [strict-liability and negligence]

theories merge in design defect cases”).

     In addition to proving that a product was defectively designed,

a plaintiff seeking to hold a manufacturer liable for a design defect

must show that the defect proximately caused the plaintiff’s injury.

See Jones, 274 Ga. at 117 (“[A] manufacturer [can] be held liable in

negligence or strict liability for injuries proximately caused by [a

defectively designed] product.”); OCGA § 51-1-11 (b) (1) (providing

that a product defect must be “the proximate cause of the injury

sustained”). “Proximate cause is that which, in the natural and

continuous sequence, unbroken by other causes, produces an event,

and without which the event would not have occurred.” Johnson v.

Avis Rent A Car System, 311 Ga. 588, 592 (858 SE2d 23) (2021)

                                 12
(citation and punctuation omitted).

     A breach of a duty constitutes a proximate cause of an injury

only if the injury is the “probable” result of the breach, “according to

ordinary and usual experience,” as opposed to “merely [a] possible”

result of a breach, “according to occasional experience.” Johnson,

311 Ga. at 592 (citation and punctuation omitted).            We have

explained that

     [i]t is important to recognize that “probable,” in the rule
     as to causation, does not mean “more likely than not” but
     rather “not unlikely”; or, more definitely, “such a chance
     of harm as would induce a prudent man not to run the
     risk; such a chance of harmful result that a prudent man
     would foresee an appreciable risk that some harm would
     happen.”

Id. (citation and punctuation omitted); see, e.g., Blakely v. Johnson,

220 Ga. 572, 576-577 (140 SE2d 857) (1965) (holding that making

loud noises at a service station to attract the attention of potential

customers was not a proximate cause of a motorist collision because

“the probable consequence of [the employees’] acts” was not “that a

passing motorist would negligently disregard his own safety because

of their advertising acts, and that such motorist would violate traffic

                                  13
laws and cause injuries to third persons”).

     Further, under “the well-established doctrine of intervening

causes,” a defendant’s breach of a duty does not constitute a

“proximate cause” of a plaintiff’s injury when

     there has intervened between the act of the defendant and
     the injury to the plaintiff, an independent act or omission
     of someone other than the defendant, which was
     not foreseeable by [the] defendant, was not triggered by
     [the] defendant’s act, and which was sufficient of itself to
     cause the injury.

City of Richmond Hill v. Maia, 301 Ga. 257, 259 (1) (800 SE2d 573)

(2017) (citation and punctuation omitted; emphasis in original); see

also Jordan v. Everson, 302 Ga. 364, 365-366 (806 SE2d 533) (2017)

(holding that a third party’s intervening and independent act need

not be “wrongful or negligent” to break the causal chain); Goldstein,

Garber & Salama, LLC v. J. B., 300 Ga. 840, 841 (1) (797 SE2d 87)

(2017) (“[T]his [intervening-cause] rule does not insulate the

defendant   if   the   defendant    had   reasonable    grounds     for

apprehending that such [an] act [of a third party] would be

committed.” (citation and punctuation omitted)).


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     As shown by the above discussion, considerations regarding

foreseeability are intertwined with questions of duty, breach, and

proximate causation in negligent-design cases. When determining

whether a manufacturer owes a decisional-law design duty with

respect to a particular risk of harm posed by a product, the question

is whether that particular risk was reasonably foreseeable.      See

Jones, 274 Ga. at 118. Whether a manufacturer breached its design

duty turns on whether it “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 (1) n.4 (citation and punctuation

omitted).   Finally, the proximate-cause inquiry asks whether “a

prudent [manufacturer] would foresee an appreciable risk that,” as

a result of an unreasonable design decision, “some harm would

happen” “according to ordinary and usual experience.” Johnson,

311 Ga. at 592 (citation and punctuation omitted).

     3. As noted in Division 2 above, only reasonably foreseeable

risks of harm posed by a product trigger a manufacturer’s duty to

use reasonable care in selecting from alternative designs under our

                                 15
decisional law. See Jones, 274 Ga. at 118. Applying that standard,

the Maynards adequately alleged at the motion-to-dismiss stage

that Snap owed Wentworth a design duty with respect to the

particular risk of harm at issue here — namely, injury to a driver

resulting from another person’s use of the Speed Filter while driving

at excess speed.

     Specifically, the Maynards alleged that Snap could reasonably

foresee that its product design created this risk of harm based on,

among other things, the fact that Snap knew that other drivers were

using the Speed Filter while speeding at 100 miles per hour or more

as part of “a game,” purposefully designed its products to encourage

such behavior, knew of at least one other instance in which a driver

who was using Snapchat while speeding caused a car crash, and

warned users not to use the product while driving. The Maynards

further alleged that, “[o]nce downloaded, Snapchat’s software

continues to download and install upgrades, updates, or other new

features” from Snap, meaning that the Maynards may be able to

introduce evidence showing that Snap continued developing its

                                 16
product and released new versions of the software between the

initial launch of the Speed Filter and the date of Wentworth’s

accident, after obtaining real-world information about how the

Speed Filter was in fact being used. Given these allegations, we

cannot say as a matter of law at the motion-to-dismiss stage that the

Maynards could not introduce evidence that, when designing the

Speed Filter, Snap could reasonably foresee that the product’s

design created a risk of car accidents like the one at issue here,

triggering a duty for Snap to use reasonable care in designing the

product in light of that risk. See Collins v. Athens Orthopedic Clinic,

307 Ga. 555, 560 (2) (a) (837 SE2d 310) (2019) (noting that a motion

to dismiss for failure to state a claim cannot be granted unless “the

plaintiff would not be entitled to relief under any state of provable

facts asserted in support of the allegations in the complaint and

could not possibly introduce evidence within the framework of the

complaint sufficient to warrant a grant of the relief sought” (citation

and punctuation omitted)); see also Lemmon v. Snap, Inc., Case No.

CV 19-4504-MWF (KSx), 2019 WL 7882079, at *7 (C.D. Cal. Oct. 30,

                                  17
2019) (holding that plaintiffs asserting a car-crash-related wrongful-

death claim against Snap “sufficiently alleged a duty” owed by Snap

because the plaintiffs’ allegation that “[car] accidents ha[d] occurred

as a result of users attempting to capture [a 100 m.p.h.] Snap” as

part of a “game” prevented the court from “determin[ing] that the

harm from the Speed Filter was not foreseeable as a matter of law”).

Cf. Sturbridge Partners v. Walker, 267 Ga. 785, 787 (482 SE2d 339)

(1997) (“[E]vidence of the prior burglaries was sufficient to give rise

to a triable issue as to whether or not Sturbridge had the duty to

exercise   ordinary     care   to   safeguard     its   tenants    against

the foreseeable risks posed by the prior burglaries.”).5

     4. The Court of Appeals majority opinion acknowledged the

general framework for alleging and assessing negligent-design

claims under our decisional law, which we set out in Division 2

above. Specifically, the majority noted that “manufacturers have a




     5 We take no position as to whether summary judgment might be granted

on this point or on other elements of the Maynards’ claim, after the parties
have presented evidence regarding the foreseeability of risks posed by the
product and other issues.
                                    18
duty to exercise reasonable care in manufacturing their products so

as to make products that are reasonably safe for intended or

foreseeable uses,” and that “the risk-utility balancing test . . . [is]

the test for negligence [i.e., breach] in a design defect case such as

this one.”   Maynard, 357 Ga. App. at 499-500 (citations and

punctuation omitted). Nevertheless, the majority concluded that a

manufacturer’s duty to use reasonable care to design reasonably

safe products “does not extend to the intentional (not accidental)

misuse of the product in a tortious way by a third party.” Id. at 500.

The majority did not cite any authority directly supporting this legal

proposition, and the dissenting opinion asserted that the majority

had “creat[ed] new law” in conflict with well-established principles

of product-liability law. Id. at 504 (McFadden, C. J., dissenting). We

agree with the dissent that established principles of Georgia law do

not support the majority’s holding with respect to decisional-law

negligent-design claims.    Indeed, our decisional law provides no

basis for concluding that (1) intentional misuse, (2) third-party use

of a product, or (3) third-party tortious use of a product necessarily

                                  19
negates a manufacturer’s duty to use reasonable care to reduce

reasonably foreseeable risks from its products. Rather, as described

in Division 2 above, a manufacturer’s design duty for purposes of a

negligent-design claim extends to all reasonably foreseeable risks

posed by a product.

       (a) First, there is no blanket intentional-misuse exception to a

manufacturer’s design duty under Georgia decisional law.           The

Court of Appeals majority relied on our decision in Jones to conclude

that, although an accidental misuse of a product could result in

manufacturer liability, an intentional misuse of a product could not.

See Maynard, 357 Ga. App. at 500 & n.11 (citing Jones, 274 Ga. at

118 for support by comparison). But Jones actually contradicts this

proposition, as that decision clarified that a manufacturer may have

a design duty to reduce foreseeable risks from a product regardless

of how the product was being used or whether it was being used at

all.

       In Jones, a plaintiff who was injured “when she fell against [a]

ski exerciser” that was not in use at the time filed design-defect

                                   20
claims against the manufacturer in federal court based on strict

liability, negligence, and failure to warn. Jones, 274 Ga. at 116. The

federal district court concluded that Georgia design-defect claims

cannot “arise [absent] some use of the product” and granted the

defendant’s motion for judgment on the pleadings. Id. The United

States Court of Appeals for the Eleventh Circuit then certified a

question to this Court, asking whether a product needed to be “in

use at the time of injury for a [manufacturer] to be held liable for

defective design.” Id. at 115. We answered the question in the

negative, holding that “use” was not “a predicate to liability.” Id. at

117-118. Because “the focus [of a design-defect claim] remains on

the foreseeability of the risk of harm or the danger involved,” we

explained, it was “wholly unnecessary” to engage in the difficult task

of “characteriz[ing]” or “defining” the “type of use” of a product as,

for example, “in use,” “misuse, unintended use, or abnormal use.”

Id. at 117-118 & n.9 (punctuation omitted). “The ‘heart’ of a design

defect case,” we said, was instead whether a manufacturer had

breached its duty to “reduce[ ] the foreseeable risks of harm

                                  21
presented by [a] product” by “fail[ing] to adopt a reasonable

alternative design.” Id. at 118.

     Under Jones, then, regardless of how a product was being used

when an injury occurred — whether it was being used properly,

improperly,   intentionally,   negligently,   or not   at   all   —   a

manufacturer may owe a design duty to an injured person. See id.

at 117-118. As explained above in Division 2, a manufacturer has a

statutory duty to ensure that products it sells are not defectively

designed, see OCGA § 51-1-11 (b) (1), and a duty under our

decisional law to use reasonable care to reduce foreseeable risks of

harm from a product when selecting from alternative designs, see

Jones, 274 Ga. at 117-118. Thus, Georgia law does not recognize a

blanket exception to a manufacturer’s design duty in all cases of

intentional misuse. See Jones, 274 Ga. at 117-118; Crosby v. Cooper

Tire & Rubber Co., 240 Ga. App. 857, 861 (3) (b) (524 SE2d 313)

(1999) (“Product misuse d[oes] not relieve the manufacturer from

liability for a defective product when such misuse was known by the

manufacturer or was reasonably foreseeable by the manufacturer,

                                   22
as alleged in this case.”), rev’d in part on other grounds, Cooper Tire

& Rubber Co. v. Crosby, 273 Ga. 454 (543 SE2d 21) (2001); Ford

Motor Co. v. Stubblefield, 171 Ga. App. 331, 335-336 (2) (319 SE2d

470) (1984) (rejecting an argument that product “misuse” relieved

an automobile manufacturer of its “legal duty” to reduce a

foreseeable risk of injury from “a defect which causes injury when

activated by a foreseeable collision”).

     (b) Second, the Court of Appeals majority erred to the extent

that it concluded that a manufacturer cannot ever owe a design duty

to an injured person if the person was injured by a third party’s use

of its product. See Maynard, 357 Ga. App. at 499-500 (highlighting

that the Maynards’ claim was “predicated on McGee’s conduct”).

Under Georgia law, a manufacturer may owe a design duty to an

injured person regardless of who — the injured person or a third

party — was using the defectively designed product when the injury

occurred.   “The plain language of the [strict-product-liability]

statute extends manufacturer liability not only to those who may

use the property, but also to those persons who may ‘consume’ the

                                  23
property or ‘reasonably be affected’ by it.” Jones, 274 Ga. at 117.

Similarly, under our decisional law regarding negligent design, a

manufacturer may be liable for a plaintiff’s injury whether the

injury was caused by the plaintiff’s use or by a third party’s use of a

defectively designed product.      See, e.g., CertainTeed Corp. v.

Fletcher, 300 Ga. 327, 328-329 (1) (794 SE2d 641) (2016) (concluding

that, where a plaintiff was injured by laundering the clothing of a

third party who had worked with a manufacturer’s asbestos-laden

water pipes, the manufacturer’s design duty under Georgia

decisional law extended to the plaintiff); Ogletree v. Navistar Intl.

Transp. Corp., 271 Ga. 644, 644-645 (522 SE2d 467) (1999)

(reversing a trial court’s grant of judgment notwithstanding the

verdict to a defendant manufacturer after a jury found the

manufacturer liable for negligently designing a fertilizer spreader

truck without a back-up alarm that killed the plaintiff’s husband

while being driven by a third party); Ford Motor Co., 171 Ga. App.

at 335-336 (2) (“[A]n automobile manufacturer may be held liable for

negligently producing a vehicle with a defect which causes injury

                                  24
when activated by a foreseeable collision [caused by a third party].”).

     The rationale offered by the Court of Appeals majority for

concluding that a manufacturer could never be held liable for a third

party’s use of a defectively designed product is unpersuasive. The

majority concluded that, even if Snap owed a duty to design a

reasonably safe product, that duty did not extend to people injured

by a third party’s use of the product because Georgia does not

recognize a general duty to the whole world or a general duty to

control a third person’s conduct. See Maynard, 357 Ga. App. at 499-

500. The majority further concluded that the Maynards sought to

“impos[e] a duty on Snap[ ] to control or avoid McGee’s allegedly

tortious conduct” because the Maynards alleged that Snapchat’s

design encouraged misuse. Id. This reasoning, however, relied upon

general negligence principles inapplicable to the Maynards’ product-

liability claim and misconstrued the Maynards’ allegations.

     It is true that Georgia decisional law ordinarily does not

recognize a “general legal duty to all the world not to subject others

to an unreasonable risk of harm,” Dept. of Labor v. McConnell, 305

                                  25
Ga. 812, 816 (3) (a) (828 SE2d 352) (2019) (citation and punctuation

omitted), or a general “duty to control the conduct of third persons

to prevent them from causing physical harm to others,” Bradley

Center, Inc. v. Wessner, 250 Ga. 199, 201 (1) (296 SE2d 693) (1982)

(lead opinion), disapproved of on other grounds by McConnell, 305

Ga. at 815-816 (3) (a); see also Stanley v. Garrett, 356 Ga. App. 706,

710 (1) (848 SE2d 890) (2020). But the Maynards did not allege that

Snap breached a general duty to the whole world.            Rather, the

Maynards alleged that Snap owed a duty under our decisional law

“to use ordinary care in designing . . . its products” to reduce

reasonably foreseeable “danger created by Snapchat’s Speed Filter.”

     Nor did the Maynards’ allegations regarding “encouragement”

purport to impose a new type of duty on Snap as a manufacturer to

“control” users’ conduct.   The Maynards alleged that Snap had

“purposefully designed its product to encourage” dangerous use of

the product rather than “address[ing] the danger created by [its]

Speed Filter,” and that Snap could “reasonably foresee[ ]” that the

“Speed   Filter   was   motivating,   incentivizing,   or    otherwise

                                 26
encouraging its users to drive at excessive, dangerous speeds in

violation of traffic and safety laws,” given what it knew about how

users were in fact using the application. These allegations simply

supported the Maynards’ claim that (1) the particular risk of harm

was reasonably foreseeable, triggering Snap’s design duty, (2) Snap

breached its design duty under the risk-utility analysis, and (3)

Snap’s breach proximately caused Wentworth’s injuries. See Jones,

274 Ga. at 118 (noting that a design duty extends to “foreseeable

risks”); Banks, 264 Ga. at 736 (1) n.6 (noting that the likelihood of

the danger is a factor relevant to the risk-utility analysis, which is

an analysis of breach); see also Johnson, 311 Ga. at 592 (noting that

proximate causation turns on whether the consequence of a breach

is a foreseeable result “according to ordinary and usual experience”

(punctuation omitted)). We discern no allegation that Snap had a

duty to “control” McGee’s conduct.6




     6  Accordingly, we need not address the Court of Appeals majority’s
conclusion that public policy considerations do not favor imposing a new duty
upon manufacturers to “control” the conduct of product users. See Maynard,
357 Ga. App. at 500-502.
                                     27
     In short, the Maynards asserted a conventional design-defect

claim based on the ordinary design duty recognized under our

decisional law, a breach of that duty, and an injury proximately

caused by the breach. See Jones, 274 Ga. at 118 (addressing the

duty element of a decisional-law design-defect claim); Banks, 264

Ga. at 734-735 (1) (discussing breach of a design duty under the risk-

utility analysis); Ontario Sewing Machine Co. v. Smith, 275 Ga. 683,

687 (572 SE2d 533) (2002) (discussing the proximate-cause element

of a design-defect claim); Maynard, 357 Ga. App. at 503 (McFadden,

C. J., dissenting) (noting that the Maynards’ allegations “set out a

substantively conventional design-defect claim”).

     (c) Third, although it did not cite any supporting authority, the

Court of Appeals majority appeared to conclude that a manufacturer

can never have a duty to use reasonable care in designing its

products if a third party used a product intentionally and tortiously.

See Maynard, 357 Ga. App. at 500. There is no support for this

proposition in our decisional law, which appears to have never

squarely addressed the issue. To the extent that our precedent has

                                 28
any bearing on this issue, however, it suggests the opposite — that

a manufacturer may have a design duty, even when an injury is

caused by third-party tortious use of a product. See Pearson v.

Tippmann Pneumatics, 281 Ga. 740, 740-741, 744 (3) (642 SE2d 691)

(2007) (holding in the context of a proximate-cause analysis that

both a third party, who tortiously fired a paintball gun at the

plaintiff’s eye while mistakenly believing the safety mechanism was

engaged, and the paintball-gun manufacturer, who allegedly

designed the safety mechanism with a defective “safe” indicator,

could be liable for the resulting injury).

     (d) Contrary to the opinion of the Court of Appeals majority,

our decisional law does not recognize a blanket exception to a

manufacturer’s design duty in all cases of intentional or tortious

third-party product misuse.       Nevertheless, we emphasize that

intentional or tortious third-party misuse may be an important

consideration in determining whether a manufacturer owes a

decisional-law design duty in a particular case, whether the

manufacturer breached that duty, and whether the manufacturer’s

                                   29
breach was a proximate cause of the resulting injury.     As in other

areas of the law where a defendant’s duty extends only to reasonably

foreseeable risks, the likelihood and nature of a third party’s use of

a product may be relevant in determining whether the particular

risk of harm from a product was reasonably foreseeable, and thus

whether a manufacturer owed a decisional-law design duty to avoid

that risk in a particular case. Cf. Doe v. Prudential-Bache/A.G.

Spanos Realty Partners, 268 Ga. 604, 605-606 (492 SE2d 865) (1997)

(concluding that, although “questions of foreseeability” underlying a

landlord’s “duty to protect tenants from the [foreseeable] criminal

attacks of third parties” are “generally for a jury,” the evidence of

foreseeability on summary judgment could not support a finding

that the landlord owed a duty to the victim of a criminal attack).

Third-party product use may also be relevant in determining

whether a manufacturer breached its design duty if, for example,

danger from such use was so unlikely as to render reasonable a

manufacturer’s decision not to address it. See Banks, 264 Ga. at 736

(1) n.6 (noting that a relevant factor in the risk-utility analysis is

                                 30
the likelihood of a danger). Finally, the likelihood and nature of a

third party’s tortious product use may be relevant in determining

whether a manufacturer’s breach can be considered a proximate

cause of the injury or whether, under the doctrine of intervening

causes, the third party’s conduct should be deemed the sole

proximate cause of the injury. See Johnson, 311 Ga. at 593.

     5. Snap and its amici curiae argue that, to the extent that our

decisional law does not recognize an exception to a manufacturer’s

design duty in every case of intentional, tortious product misuse,

Georgia law would be an outlier among American jurisdictions,

imposing a significantly greater scope of liability on manufacturers

for design defects. We acknowledge that some jurisdictions have

held that manufacturers do not owe a design duty in specific cases

of intentional, tortious product misuse. Nevertheless, the cases on

which Snap and its amici curiae rely do not demonstrate that

manufacturers face significantly greater risk of liability under

Georgia decisional law than under the law of other jurisdictions.

This is so because the legal principles underlying the duty, breach,

                                31
and proximate-cause elements of a negligent-design claim set out in

Division 2 above collectively address the significant considerations

other   jurisdictions   have   relied   upon   in   concluding   that

manufacturers owe no design duty in particular cases of intentional,

tortious product misuse. In other words, Snap and its amici curiae

have not shown that the design-defect claims involving intentional,

tortious product misuse that other jurisdictions rejected for lack of

duty would fare markedly better under Georgia law.

     The primary case on which Snap and its amici curiae rely,

Modisette v. Apple Inc., 30 Cal. App. 5th 136 (241 Cal. Rptr. 3d 209)

(2018), illustrates this point well. There, the California Court of

Appeals primarily relied on a proximate-cause analysis to conclude

at the motion-to-dismiss stage that, for purposes of a California

negligent-design claim, Apple did not have a duty as a cell-phone

manufacturer to design a phone “in such a manner that a user is

incapable of using it while driving.”      Id. at 151-152 (II) (B).

Specifically, the court concluded that there was not a close

connection between Apple’s design choices and the injury suffered

                                 32
because “[i]t was [the driver’s] conduct of utilizing FaceTime while

driving at highway speed that directly placed the [plaintiffs] in

danger,” “[n]othing that Apple did induced [the driver’s] reckless

driving,”   and     the    court   was     not    “willing    to   make     a

baseline assumption that iPhone owners will ordinarily use their

phones in a dangerous manner while driving.” Id. at 147-148 (II) (B)

(citation and punctuation omitted).7

     Although Modisette characterized this reasoning as an aspect

of its “duty” analysis when addressing the plaintiffs’ negligent-

design claim, the court used the same reasoning to reject the

plaintiffs’ materially identical California strict-liability design-

defect claim for lack of proximate causation. Unlike the negligent-

design claim, the court explained, the plaintiffs’ “claims against



     7 Notably, unlike Modisette, where there was no allegation that Apple

had induced reckless driving or that drivers ordinarily engaged in dangerous
phone use while driving, the Maynards alleged here that Snap “knew or should
have known that its Speed Filter was motivating, incentivizing, or otherwise
encouraging its users to drive at excessive, dangerous speeds in violation of
traffic and safety laws,” that “many of its users” were using the Speed Filter
as part of “a game” to capture photos of them driving 100 miles per hour, and
that Snap had in fact “purposefully designed its products to encourage such
behavior[ ].”
                                     33
Apple for strict products liability . . . d[id] not require a showing that

Apple owed the [plaintiffs] a duty of care” because a duty was

imposed by California decisional law.            Id. at 152 (II) (C).

Nevertheless, following the same “duty” analysis it had conducted

with respect to the negligence claim, the court concluded that the

strict-liability claim failed for lack of proximate causation. See id.

at 153-154 (II) (C). Specifically, the court held that designing the

cell phone without lock-out technology did not proximately cause the

plaintiffs’ injuries because it was the driver who had “caused the

[plaintiffs’] injuries when he crashed into their car while he willingly

diverted his attention from the highway,” and the product design

“did nothing more than create the condition that made Plaintiffs’

injuries possible.” Id. Thus, even Snap’s best example of a case

holding that a manufacturer did not have a design duty in a specific

case of intentional misuse demonstrates that failing to recognize a

per se duty exception in such cases does not necessarily expose a

manufacturer to greater liability: California’s proximate-cause

requirement, a version of which also applies under Georgia law,

                                   34
served as an independent basis for rejecting a design-defect claim on

a motion to dismiss.

     Notably, in concluding that a manufacturer should owe no

design duty in particular cases of product misuse, other cases on

which Snap relies likewise focused on considerations that would be

highly relevant to a Georgia proximate-cause analysis. See, e.g.,

Durkee v. C.H. Robinson Worldwide, 765 FSupp.2d 742, 750 (W.D.

N.C. 2011) (concluding, on a motion to dismiss, that the

manufacturer of a texting system in a driver’s truck did not owe any

design duty to injured plaintiffs in another vehicle because “[t]he

alleged accident in this case was caused by the driver’s inattention

[while using the texting system], not any element of the design or

manufacture of the system that has been alleged”), aff’d sub

nom. Durkee v. Geologic Solutions, 502 Fed. Appx. 326 (4th Cir.

2013);8 Estate of Doyle v. Sprint/Nextel Corp., 248 P3d 947, 951 (Ok.


     8 In concluding that the manufacturer did not have a duty to design its

texting system to prevent use while traveling at interstate highway speeds,
Durkee relied on two additional rationales that we find unpersuasive. First,
the court noted that North Carolina law did not recognize a duty owed by

                                    35
Civ. App. 2011) (holding at the motion-to-dismiss stage that cell-

phone manufacturers did not owe a duty to warn of the danger of

using a cell phone while driving because “it is not necessarily

foreseeable that [cell-phone use] will cause a collision or

unreasonably endanger a particular class of persons,” and “[i]t is not

reasonable to anticipate injury every time a person uses a cellular

phone while driving”); Halbrook v. Honda Motor Co., 569 NW2d 836,

839-840 (II) (B), 840 (II) (C) (Mich. App. 1997) (holding, based on the

pleadings, that “an automobile manufacturer’s duty of reasonable

care does not extend to reducing the speed and acceleration

capabilities of its vehicles” because it is “not certain that a

motorcycle designed to travel in excess of the speed limit and

accelerate quickly will cause injury to others,” “[t]he risk of harm is


manufacturers to non-users of a product. See Durkee, 765 FSupp.2d at 748,
752. As explained in Divisions 2 and 4 above, Georgia law is to the contrary.
Second, the court concluded that, “[i]f manufacturers or designers of products
had a legal duty to third parties to anticipate improper use of their products[,]
then no product that would potentially distract a driver could be marketed.”
Id. at 749.        Durkee’s causation analysis discussed above, however,
demonstrates that this overbroad statement is untrue, as manufacturers are
not liable for injuries not proximately caused by an alleged defect, and the risk-
utility analysis also addresses this concern.

                                       36
dependent, in part, on the way the driver handles the vehicle,”

injuries might not be averted “[e]ven if vehicles were designed to

travel no faster than the maximum highway speed limit,” and the

product design “did not cause [the driver] to disobey the law”).9 One

case on which Snap relies even skipped the duty analysis entirely

and dismissed a design-defect claim involving intentional misuse

based solely on lack of causation. See Meador v. Apple, Inc., 911 F3d

260, 263 (I), 267 (III) (5th Cir. 2018) (affirming the dismissal of a

design-defect claim alleging a duty to implement lock-out features

on a cell phone because a “neurobiological compulsion to engage in

texting behavior” triggered by receipt of a text message was not a

substantial factor in causing a vehicular collision and therefore

“could not be a cause in fact of the injuries”).

      Similarly, Snap and its amici curiae rely upon cases that



      9 Although Halbrook also noted that motor vehicle manufacturers were

not in the best position to assume the costs of litigation and liability for
“careless misuse of their products by negligent drivers” and that the court was
“not willing to hold them liable for the consumers’ misuse of their products,”
Halbrook, 569 NW2d at 840 (II) (B), 840 (II) (C), there is no indication that the
result of the case would have been different had the court relied solely on
proximate-cause-related considerations.
                                       37
performed what might be characterized as a Georgia risk-utility

“breach” analysis in reaching a conclusion on summary judgment

that a manufacturer did not have a “duty” in certain cases of

intentional misuse. In Elsroth v. Johnson & Johnson, 700 FSupp.

151 (S.D. N.Y. 1988), for example, the court held that the

manufacturer of Tylenol gelatin capsules did not have a “duty” to

use a more tamper-resistant design in part because it was

impossible to make over-the-counter drugs tamper-proof, and the

FDA had concluded that it was not unreasonable to sell gelatin

capsules packaged in tamper-resistant packaging. See id. at 164-

165 (II) (B) (2) (b).10



      10 Elsroth also asserted that forcing drug manufacturers to design their

products “as to anticipate and frustrate criminal tampering” would be “an
unprecedented extension of the common law.” Elsroth, 700 FSupp. at 164 (II)
(B) (2) (b). This was so, the court implied, because applying such a principle in
other cases would cause absurd results contrary to established law:

      Automobile manufacturers are not liable to those burglarized
      when automobiles are used to effectuate burglaries; telephone
      companies are not liable to those defrauded when the telephone
      lines are used to perpetrate fraudulent schemes; and handgun
      manufacturers are not liable to those injured when handguns are
      used to inflict criminal harm.



                                       38
     Snap and its amici curiae also cite at least one case that,

consistent with our decisional law regarding design duties,

concluded that no design duty was owed because the particular type

of intentional, tortious product misuse at issue was so unlikely that

the particular risk of harm from the product was not reasonably

foreseeable. See, e.g., Port Auth. of New York & New Jersey v.

Arcadian Corp., 189 F3d 305, 315 (II) (E) (3d Cir. 1999) (holding at

the motion-to-dismiss stage that a manufacturer had no duty to

design its fertilizer products to be less capable of incorporation into

explosive    devices    because,    among      other   things,    terrorists’

“alteration and misuse of [the manufacturer’s] fertilizer products

were not objectively foreseeable”).11


Id. Notably, however, our approach to design-defect claims would not
necessarily imply that a manufacturer would be liable in such cases. As
discussed in Divisions 2, 3, and 4 above, to establish that a manufacturer has
a decisional-law design duty in a particular case, a plaintiff must show that
the manufacturer could reasonably foresee that the product design posed the
particular risk of harm at issue in the case. Further, a plaintiff must show
breach and proximate causation.
      11 Other cases cited by Snap and its amici curiae are unpersuasive as

they did not address design-defect claims. See, e.g., Williams v. Cingular
Wireless, 809 NE2d 473, 475, 479 (I) (D) (Ind. Ct. App. 2004) (holding that
Cingular Wireless had no duty not to furnish a cell phone to a third party who

                                     39
      Thus, we are unpersuaded that our decisional law regarding

the design duty owed by manufacturers is out of step with other

American jurisdictions.          Categorizing certain considerations as

relevant to breach or proximate causation, rather than duty, does

not render our decisional law markedly different than that of the

jurisdictions on which Snap and its amici curiae rely.12


later caused a car accident while using the phone); Ely v. Gen. Motors Corp.,
927 SW2d 774, 782 (Tex. App. 1996) (holding that a manufacturer had not
breached a fiduciary duty to the public by advertising that its automobile could
exceed the speed limit).
       We note that Snap also cites for support Schemel v. Gen. Motors Corp.,
384 F2d 802 (7th Cir. 1967), which relied on Evans v. Gen. Motors Corp., 359
F2d 822, 824 (7th Cir. 1966), to hold that an automobile manufacturer sued for
negligently designing an automobile capable of speeding was “not bound to
anticipate and guard against grossly careless misuse of his product by reckless
drivers.” Schemel, 384 F2d at 804-805. Schemel, however, was later overruled
“[i]nsofar as the decision in Schemel rests on Evans,” Huff v. White Motor
Corp., 565 F2d 104, 106 (II) n.1 (7th Cir. 1977), and it is unclear to what extent,
if any, the United States Court of Appeals for the Seventh Circuit continues to
consider Schemel good law.
       12 It is unsurprising to find that courts do not all analyze duty in precisely

the same way, given that different jurisdictions have different conceptions of
duty. As described in Division 2 above, Georgia law generally relies upon
reasonable foreseeability as a principled basis for limiting the scope of a
person’s or entity’s duty to act with reasonable care. By contrast, many of the
jurisdictions discussed in this division have adopted duty tests that allow
courts to make subjective value judgments and exercise significant discretion
in determining whether to limit the scope of duties owed by particular types of
defendants in particular types of cases. See, e.g., Halbrook, 569 NW2d at 839-
840 (II) (A), (B) (considering, among other things, which “participants to the
tragedy . . . were the most blameworthy” as part of a multi-factor test for
determining whether the defendant manufacturer owed a design duty).
                                         40
     6. Finally, Snap and its amici curiae offer various public policy

arguments for why manufacturers should owe no duty for purposes

of a negligent-design claim when an injury results from intentional

product misuse. Policy considerations “play an important role” in

“fixing the bounds of duty,” and we have “a responsibility to consider

the larger social consequences of the notion of duty and to

correspondingly tailor that notion so that the illegal consequences of

wrongs are limited to a controllable degree.”       CSX Transp. v.

Williams, 278 Ga. 888, 890 (608 SE2d 208) (2005) (citation and

punctuation omitted); CertainTeed Corp., 300 Ga. at 330 (2) (“To

impose a duty that either cannot feasibly be implemented or, even if

implemented, would have no practical effect would be poor public

policy indeed.” (citation and punctuation omitted)). Here, we are

unpersuaded that policy considerations warrant further limiting a

manufacturer’s ordinary decisional-law design duty in cases of

intentional, tortious product misuse.

     First, Snap and its amici curiae argue that, absent a per se rule

that manufacturers owe no duty not to negligently design a product

                                 41
in cases of intentional product misuse, “almost any product capable

of foreseeable, intentional misuse” would subject manufacturers “to

a jury trial under the risk-utility test,” leading to “devastating”

litigation costs and “limitless” liability. We disagree. As described

in Division 4 (d) above, intentional misuse may be a relevant factor

in determining whether a manufacturer owed a decisional-law

design duty with respect to a particular risk of harm, whether a

manufacturer breached that duty, and whether the manufacturer’s

breach was the proximate cause of an injury. Thus, for a variety of

reasons, pretrial adjudication — either at the motion-to-dismiss

stage or on summary judgment — may be warranted with respect to

certain negligent-design claims involving intentional product

misuse. See, e.g., McCarthy v. Olin Corp., 119 F3d 148, 155 (II) (A)

(2d Cir. 1997) (dismissing for lack of breach a claim that hollow-

point bullets were defectively designed “because the expanding of

the bullet was an intentional and functional element of the design

of the product,” and “some products, for example knives, must by

their very nature be dangerous in order to be functional”

                                 42
(punctuation omitted)); Briscoe v. Amazing Products, 23 SW3d 228,

229-230 (Ky. Ct. App. 2000) (affirming the dismissal of a design-

defect claim where neither the dangerous nature of a drain-cleaning

product nor allegedly defective warnings on the product proximately

caused a plaintiff’s injuries because a criminal attack using the

product was an unforeseeable superseding cause); Port Auth. of New

York & New Jersey, 189 F3d at 319 (II) (F) (holding that any design

defect in a manufacturer’s fertilizer product was not the proximate

cause of a terrorist bombing because a “bombing was not a natural

or probable consequence” of the alleged design defect, and the

terrorists’ actions in incorporating the product into bombs were also

“superseding and intervening events breaking the chain of

causation”).13

     Further, even if certain negligent-design claims involving



     13 We express no opinion as to whether dismissal or summary judgment

on risk-utility or proximate-cause grounds may be appropriate in this case.
Further, although we concluded in Division 3 that the Maynards adequately
alleged the duty component of their design-defect claim for purposes of a
motion to dismiss, we express no opinion as to whether evidence regarding the
foreseeability of risk from the product may ultimately warrant summary
judgment on that element.
                                     43
intentional misuse survive pretrial challenges and prevail before a

jury, manufacturers will not be subjected to “limitless” liability. In

cases where a jury finds that fault resides in the conduct of both a

manufacturer and a product user, the doctrines of comparative

negligence and apportionment operate to limit a manufacturer’s

liability to its degree of fault. See OCGA § 51-12-33 (a)-(c) (providing

that a damages award may be reduced in proportion to a plaintiff’s

percentage of fault, that the resulting amount may then be

apportioned among other persons according to their percentages of

fault, and that the factfinder “shall consider the fault of all persons

or entities who contributed to the alleged injury or damages” when

determining percentages of fault); Johns, 310 Ga. at 161-162 (2), 170

(5).   This is true even when a plaintiff’s design-defect claim is

premised on strict liability rather than negligence. See Johns, 310

Ga. at 169 (4) (c) (“[T]he application of comparative negligence is

possible in strict products liability claims, where manufacturers and

consumers of products are not engaged in traditional concerted

action.”). Thus, we are unpersuaded that manufacturers will face

                                  44
“devastating” litigation costs and “limitless” liability.   See John

Crane, Inc. v. Jones, 278 Ga. 747, 751 (604 SE2d 822) (2004)

(declining to diverge from longstanding negligence principles for

public-policy   reasons   because    the   ordinary   proximate-cause

standard already addressed the relevant policy concerns).

     In any event, the fact that some manufacturers may have to

litigate negligent-design claims involving intentional misuse beyond

the motion-to-dismiss stage and may ultimately be liable in

proportion to their degree of fault does not offend Georgia public

policy. As demonstrated by the Georgia product-liability statute and

our decisional law described in Division 2 above, protecting the

public from being harmed by defective products is an important

aspect of this State’s public policy. See Alexander v. Gen. Motors

Corp., 267 Ga. 339, 340 (478 SE2d 123) (1996) (noting that “the

public policy of this state as expressed in [the product-liability]

statute” is “to protect those who are injured by defective products




                                    45
placed in the stream of commerce in this state”).14 Moreover, in

adopting a lenient notice-pleading standard, the General Assembly

has opted to allow plaintiffs to seek discovery on many claims — not

just product-liability claims — that may ultimately prove non-

meritorious. See Norman v. Xytex Corp., 310 Ga. 127, 138 (2) (e)

(848 SE2d 835) (2020) (noting that “the standard for granting a

motion to dismiss is a demanding one” because “[a] complaint need

only give fair notice of the claim”). Defendant manufacturers are

not unique in having to bear the costs inherent in litigation.

Accordingly, we decline Snap’s invitation to further limit a

manufacturer’s ordinary decisional-law design duty in cases of

intentional product misuse.

      7. The trial court granted Snap’s motions to dismiss and for


      14 Although Snap points to several examples in which the General
Assembly has by statute prohibited drivers from engaging in certain dangerous
conduct while driving, we see nothing in those statutes suggesting that the
General Assembly sought to relieve manufacturers of their own duties with
respect to the products they sell, to the extent that they have any duties under
the particular circumstances of a case, simply because a driver also breached
a duty imposed by law. See, e.g., OCGA § 40-6-241 (c) (Georgia’s hands-free
law prohibiting drivers from holding mobile phones while driving a motor
vehicle on the highway); OCGA § 40-6-180 (making it illegal to “drive a vehicle
at a speed greater than is reasonable and prudent”).
                                      46
judgment on the pleadings not only because it concluded that Snap

owed no duty to Wentworth, but also because it concluded that any

negligent design was not a proximate cause of Wentworth’s injuries.

The Court of Appeals, however, did not address the Maynards’

challenge to the trial court’s proximate-cause analysis. On remand,

the Court of Appeals is directed to address whether the trial court

erred in dismissing the Maynards’ claims against Snap and in

granting judgment on the pleadings to Snap for lack of proximate

causation.

     Judgment reversed and case remanded with direction. All the
Justices concur, except Boggs, P. J., Warren and McMillian, JJ., who
concur specially in part, and Bethel and LaGrua, JJ., who dissent.
Peterson and Ellington, JJ., disqualified.




      WARREN, Justice, concurring specially in part.

      Because I believe the lead opinion15 has faithfully applied


      15 A majority of the members of this Court have joined Divisions 1, 2, 3,

4, and 7 and the judgment of Justice Colvin’s opinion. But because Divisions
5 and 6 have no majority, I will refer to Justice Colvin’s opinion as the “lead
opinion.”
                                      47
Georgia’s lenient notice pleading standard for civil cases, as well as

the relevant Georgia decisional law on products liability, I concur in

the judgment in this case and concur fully in Divisions 1, 2, 3, 4, and

7. I write separately to explain my misgivings with Divisions 5 and

6 of the lead opinion.

     Divisions 5 and 6 largely serve as a rebuttal of arguments made

by Snap and amici curiae that Georgia products liability law would

be an outlier among other jurisdictions and would “impos[e] a

significantly greater scope of liability on manufacturers for design

defects,” Op. at 546, given that some other courts have granted

product manufacturers’ motions to dismiss in certain cases involving

intentional, tortious misuse of a product. The lead opinion concludes

that manufacturers do not “face significantly greater risk of liability

under Georgia decisional law than under the law of other

jurisdictions” because “the legal principles underlying the duty,

breach, and proximate-cause elements of a negligent-design claim .

. . collectively address the significant considerations other

jurisdictions have relied upon in concluding that manufacturers owe

                                  48
no design duty in particular cases of intentional, tortious product

misuse.”   Op. at 546.    Though it does not say so outright, the

implication of this conclusion is that a manufacturer facing a design-

defect claim under Georgia law may not be able to prevail at the

motion-to-dismiss stage on the theory that the manufacturer did not

owe a duty to the person who intentionally misused its product, but

may nonetheless prevail at the summary-judgment stage—or

perhaps at trial—after the manufacturer successfully has proven

that the plaintiff cannot satisfy one or more elements of a design-

defect claim. This implication, however correct, is not insignificant.

     I generally agree with the lead opinion’s conclusion that

Georgia law does not “impos[e] a significantly greater scope of

liability on manufacturers for design defects.” Op. at 546 (emphasis

supplied). In my view, however, the lead opinion’s assessment of the

end result too easily casts aside the costs and burdens that may be

incurred along the way.      Specifically, manufacturers may face

significant discovery and other litigation expenses when (for

example) a product user properly pleads that a manufacturer owed

                                 49
her a duty, the case survives a motion to dismiss, and the

manufacturer later prevails on summary judgment or at trial on

what seems to be a fairly obvious (but fact-dependent) proximate

causation argument—such as an intervening cause.                   Even if a

manufacturer ultimately does not face liability for the alleged design

defect, the cost of proceeding past a motion to dismiss is real, and it

is one that is not acknowledged adequately in Divisions 5 and 6 of

the lead opinion.16

      At the same time, however, the notice pleading standard

established by the General Assembly is a lenient one, and the lead

opinion has analyzed carefully the allegations of the complaint in

this case in light of that standard. Moreover, policy-related concerns

about the real-world costs a manufacturer faces when it cannot

prove at the outset that it owed no duty to an injured plaintiff as a

matter of Georgia law—but can later show through discovery or at


      16 Of course, a manufacturer can prevail on a motion to dismiss on any

element of a design-defect claim. But given the procedural posture of this case,
the only element we are examining is duty, and whether the allegations of the
plaintiff’s operative complaint are sufficient here to allege duty under Georgia
law.
                                      50
trial that the design-defect claim fails on one or more elements—

cannot displace our obligation to apply Georgia law, as the lead

opinion does today.

     Finally, I have studied the dissent and acknowledge that it

makes an intuitively appealing argument that manufacturers

should never owe a design duty to users for the “ways [a] product

might be used in the commission of a crime.” But that argument is

completely devoid of legal authority and appears to be inconsistent

with the Georgia authority on which the lead opinion relies, so I

cannot join it.

     For these reasons, I concur in the judgment and in Divisions 1,

2, 3, 4, and 7.



     I am authorized to state that Presiding Justice Boggs and

Justice McMillian join this opinion.




                                 51
     BETHEL, Justice, dissenting.

     I agree with most of what is said in the majority opinion. By

and large, I believe it accurately captures the current state of the

law of Georgia. But, because I believe the majority expands and

extends the design duty of manufacturers beyond what is reasonably

                                52
foreseeable, I respectfully dissent.

     Of critical importance to my perspective is that I understand

the theory of the case before us to be dependent on the product being

used in the course of criminal behavior in order for the alleged tort

to have been completed. This is not mere intentional or tortious

misuse. Nor is it a case where a crime happened to be committed at

the same time as the alleged tort. Rather, the Maynards’ second

amended complaint alleges that Snap’s product was being used by

McGee in the commission of several crimes under the laws of

Georgia when the harm was inflicted. There was no allegation that

the operation of the product itself could in any way cause the harm

sustained independent of criminal behavior.

     As the majority discusses at length, when a particular risk of

harm from a product is not reasonably foreseeable, a manufacturer

owes no design duty to reduce that risk. On that much, we agree.

However, “reasonable foreseeability” necessarily includes fewer

potential outcomes than “foreseeability.” In my view, imposing a

duty on a manufacturer at the design stage to account for and design

                                  53
against its product being used in the commission of a crime falls

beyond what is reasonably foreseeable under traditional principles

of tort law.

      Leaving for another day any consideration of a product

designed specifically and solely for criminal use, the universe of

reasonable uses of an otherwise legal product that a manufacturer

must anticipate extends only to those uses that are lawful. When

designing a product and considering the risks it poses, a

manufacturer is not responsible for contemplating and guarding

against the myriad ways the product might be used in the

commission of a crime or crimes.17 I know of no case in the decisional




      17 An alternate path to this conclusion is by considering how proximate

causation informs duty in a tort case. As the majority acknowledges, lack of
proximate causation can be determined in some cases as a matter of law,
including when a criminal act by a third party is the alleged intervening cause.
See, e.g., Goldstein, Garber & Salama, LLC v. J. B., 300 Ga. 840, 843 (797
SE2d 87) (2017) (“Although questions of the foreseeability of intervening
criminal acts are usually for the factfinder, when, as here, the evidence on the
matter is plain and undisputable, it is properly for the court’s adjudication.”).
Where, as here, the cause of action is dependent on criminal conduct in order
to complete a design defect claim, I would hold that the causal chain is broken
as a matter of law because the criminal conduct is an intervening cause of the
injury. Thus, manufacturers should have no duty to design a product to guard
against what are intervening causes as a matter of law.
                                       54
law of this state, or in the common law adopted by this state,

imposing a duty on manufacturers to design their products to

preclude their use in a crime. And such a duty clearly does not arise

from our products-liability statute. See OCGA § 51-1-11 (b) (1)

(providing that manufacturers are liable when the property “sold by

the manufacturer was not merchantable and reasonably suited to

the use intended” (emphasis supplied)). In my view, this would be

the first occasion where Georgia law was understood to impose a

duty on manufacturers to account for the criminal conduct of others

in the design of their product. I am not inclined to join in this judicial

extension of our decisional law. Accordingly, I dissent.

     I am authorized to state that Justice LaGrua joins in this

dissent.




                                   55
                      Decided March 15, 2022.

       Certiorari to the Court of Appeals of Georgia — 357 Ga. App.

496.

       Bondurant Mixson & Elmore, Michael B. Terry, Naveen

Ramachandrappa, Amanda K. Seals; Neff Injury Law, Michael L.

Neff, D. Dwayne Adams, T. Shane Peagler, Susan M. Cremer;

Henningsen Injury Attorneys, Todd R. Henningsen, for appellants.

       Greenberg Traurig, Lori G. Cohen, Sean P. Jessee, Andrew Z.

Smith; Gower Wooten & Darneille, Anne D. Gower, Robert D.

Johnson; Munger Tolles & Olson, Jonathan H. Blavin, John B.

Major, Anne K. Conley, for appellee.

       Rogers & Fite, Brian D. Rogers; Warshauer Law Group, Lyle G.

Warshauer; Hotchkiss Law Firm, Paul I. Hotchkiss; Hasty Pope

Davies, Jonathan A. Pope; Bey & Associates, N. John Bey; The Ashby

Firm, Andrew S. Ashby; King & Spalding, W. Ray Persons; Rogers

& Hardin, Michael L. Eber, amici curiae.




                                 56


=== Opinion ===

In the Supreme Court of Georgia



                                     Decided: March 15, 2022


           S21G0555. MAYNARD et al. v. SNAPCHAT, INC.


     COLVIN, Justice.

     While driving over 100 miles per hour, Christal McGee rear-

ended a car driven by Wentworth Maynard, causing him to suffer

severe injuries. When the collision occurred, McGee was using a

“Speed Filter” feature within Snapchat, a mobile phone application,

to record her real-life speed on a photo or video that she could then

share with other Snapchat users. Wentworth and his wife, Karen

Maynard, sued McGee and Snapchat, Inc. (“Snap”),1 alleging that

Snap had negligently designed Snapchat’s Speed Filter. The trial

court dismissed the design-defect claim against Snap, and a divided

panel of the Court of Appeals affirmed, holding that Snap did not

owe a legal duty to the Maynards because a manufacturer’s duty to


     1   The record indicates that Snapchat, Inc. is now known as Snap Inc.
design reasonably safe products does not extend to people injured by

a third party’s intentional and tortious misuse of the manufacturer’s

product. See Maynard v. Snapchat, Inc., 357 Ga. App. 496, 500, 502

(851 SE2d 128) (2020).

     On certiorari, we conclude that the Court of Appeals erred. For

the reasons discussed below, a manufacturer has a duty under our

decisional law to use reasonable care in selecting from alternative

designs to reduce reasonably foreseeable risks of harm posed by its

products. When a particular risk of harm from a product is not

reasonably foreseeable, a manufacturer owes no design duty to

reduce that risk. How a product was being used (e.g., intentionally,

negligently, properly, improperly, or not at all) and who was using

it (the plaintiff or a third party) when an injury occurred are

relevant considerations in determining whether a manufacturer

could reasonably foresee a particular risk of harm from its product.

Nevertheless, our decisional law does not recognize a blanket

exception to a manufacturer’s design duty in all cases of intentional

or tortious third-party use. Because the holding of the Court of

                                 2
Appeals conflicts with these principles, and because the Maynards

adequately alleged that Snap could reasonably foresee the

particular risk of harm from the Speed Filter at issue here, we

reverse the judgment of the Court of Appeals and remand for further

proceedings.

     1. In their second amended complaint, the Maynards alleged

that, around 10:15 p.m. on September 10, 2015, McGee crashed her

car into the back of Wentworth’s vehicle while driving 107 miles per

hour. According to the Maynards, McGee told her three passengers

right before the crash that she was “just trying to get the car to 100

m.p.h. to post it on Snapchat” using Snapchat’s Speed Filter.

     The Maynards asserted a negligence claim and a derivative

loss-of-consortium claim against McGee and Snap, seeking

damages, punitive damages, and litigation expenses. In relevant

part, the Maynards alleged that Snap had negligently designed the

Speed Filter feature of the Snapchat application. Specifically, they

alleged that Snap “owed a duty to use ordinary care in designing . . .

its products, including but not limited to Snapchat’s Speed Filter.”

                                  3
“Snap[] breached that duty,” the Maynards alleged, because (1) Snap

“did not remove, abolish, restrict access to, or otherwise use

reasonable care to address the danger created by Snapchat’s Speed

Filter and other products,” (2) Snap’s “design decisions regarding its

Speed Filter and other products [were] unreasonable and negligent,”

and (3) Snap’s “disclaimers [and warnings were] also inadequate,

unreasonable, and knowingly ineffective.” The Maynards further

alleged that Snap had designed its products to “encourage”

dangerous behaviors and could “reasonably foresee[]” that the

“Speed   Filter   was   motivating,   incentivizing,   or   otherwise

encouraging its users to drive at excessive, dangerous speeds in

violation of traffic and safety laws.” Finally, the Maynards alleged

that Wentworth was injured “[a]s a result of [Snap’s] negligence,”

which was “concurrent with McGee’s negligence.”

     Snap answered the complaint, attaching copies of its Terms of

Use and a “pop-up warning” that, according to Snap, “a user first

accessing the Snapchat ‘speed filter’ would see.” The Terms of Use

stated that the user agreed not to use Snapchat “for any illegal or

                                  4
unauthorized purpose,” and the warning stated, “Please, DO NOT

Snap and drive.” Snap then moved to dismiss the Maynards’ second

amended complaint for failure to state a claim or, in the alternative,

for judgment on the pleadings.

     The trial court granted Snap’s motion, dismissing the

Maynards’ claims without leave to amend for two reasons. First, the

court concluded that Snap owed no legal duty to the Maynards

because Snap did not owe a duty as a manufacturer to design its

product to prevent McGee from driving dangerously or to control

McGee’s conduct. Second, the court concluded that the Maynards

could not establish proximate causation because (a) a driver’s

inattention, not a mobile phone application, causes a driver to wreck

a car, and (b) McGee’s criminal and negligent driving, as reflected

in her May 17, 2018 plea of no contest to serious injury by vehicle,

constituted a superseding and intervening cause that broke the

causal chain.    The trial court also granted Snap’s motion for

judgment on the pleadings, concluding that McGee’s violation of

Snap’s Terms of Use and disregard for Snap’s pop-up warning broke

                                  5
the causal chain.

     The Court of Appeals granted the Maynards’ application for an

interlocutory appeal, and a divided panel affirmed the trial court’s

determination that Snap did not owe a legal duty to the Maynards.

See Maynard, 357 Ga. App. at 498, 502.2 We granted certiorari to

determine whether the Court of Appeals erred in affirming the

dismissal of the Maynards’ second amended complaint.

     2. We review de novo a trial court’s ruling on a motion to

dismiss, “accepting as true all well-pled material allegations in the

complaint and resolving any doubts in favor of the plaintiff.”

Williams v. DeKalb County, 308 Ga. 265, 270 (2) (840 SE2d 423)

(2020) (punctuation omitted). “The existence of a legal duty,” which

can arise by statute or be imposed by decisional law, “is a question

of law for the court.” Rasnick v. Krishna Hospitality, Inc., 289 Ga.

565, 566-567 (713 SE2d 835) (2011).

     Because Georgia’s product-liability law is a creature of both



     2 The Court of Appeals did not address the trial court’s alternative
grounds for dismissal and judgment on the pleadings.
                                   6
statute and decisional law, there is more than one source for the

duties that manufacturers owe with respect to the design of their

products.     By statute, Georgia “imposes strict liability [on

manufacturers] for defective products.” Banks v. ICI Americas, Inc.,

264 Ga. 732, 733 (1) (450 SE2d 671) (1994); see also Johns v. Suzuki

Motor of Am., Inc., 310 Ga. 159, 163 (3) (850 SE2d 59) (2020)

(“[S]trict   products   liability   imposes   liability irrespective   of

negligence.” (punctuation omitted)).          Georgia’s strict-product-

liability statute provides:

      The manufacturer of any personal property sold as new
      property directly or through a dealer or any other person
      shall be liable in tort, irrespective of privity, to any
      natural person who may use, consume, or reasonably be
      affected by the property and 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). As we have explained, the phrase “not

merchantable and reasonably suited to the use intended,” as used in

this statute, means that “the manufacturer’s product when sold by

the manufacturer was defective.” Center Chem. Co. v. Parzini, 234

                                     7
Ga. 868, 869 (2) (218 SE2d 580) (1975). There are several ways in

which a product can be “defective,” including by being defectively

designed. See Banks, 264 Ga. at 733 (1) (“There are three general

categories of product defects: manufacturing defects, design defects,

and marketing/packaging defects.”). Accordingly, under Georgia’s

product-liability statute, a manufacturer who sells a product has a

duty to ensure that the product it sells does not have a design defect.

See id.; see also OCGA § 51-1-11 (b) (1).

     Similarly, under our decisional law, when designing a product,

a manufacturer has a duty to exercise reasonable care in “selecting

from among alternative product designs” to “reduce[] the

[reasonably] foreseeable risks of harm presented by [a] product.”

Jones v. NordicTrack, Inc., 274 Ga. 115, 118 (550 SE2d 101) (2001).

Indeed, it has been a longstanding principle of our case law

regarding allegedly defective product designs that a designer’s duty

extends only to reasonably foreseeable risks of harm. See Richmond

& D.R. Co. v. Dickey, 90 Ga. 491, 492-493 (2) (16 SE 212) (1892)

(holding that a railroad company was “not required by law” to

                                  8
exercise the “degree of diligence” necessary to reduce the risk of

injury from “a defect in [a flat-car] brake,” which allegedly had an

“unnecessarily long” bolt, because “no other servant of this company

ha[d] ever before been injured as the plaintiff was, and there was no

reason whatever for apprehending that such an injury was in the

least likely to occur”). 3


      3 In this regard, the duty owed by a manufacturer charged with negligent
design is similar in scope to the duty owed by defendants charged with many
other types of negligent conduct, which is likewise generally limited to
reasonably foreseeable risks of harm. See, e.g., Martin v. Six Flags Over
Georgia II, L.P., 301 Ga. 323, 328 (II) (801 SE2d 24) (2017) (A landowner’s duty
to protect invitees from third-party criminal attacks “extends only to
foreseeable criminal acts.” (emphasis in original; citation and punctuation
omitted)); Steagald v. Eason, 300 Ga. 717, 717, 719-720 (797 SE2d 838) (2017)
(There is no duty to restrain a vicious or dangerous dog under OCGA § 51-2-7
unless “the owner or keeper has reason to know of the dog’s propensity to do
harm of the type which it inflicts,” meaning that the owner or keeper knows of
“at least one incident that would cause a prudent person to anticipate the
actual incident that caused the injury.” (emphasis supplied; citations and
punctuation omitted)); Thurman v. Applebrook Country Dayschool, Inc., 278
Ga. 784, 785 (1) (604 SE2d 832) (2004) (“[A] person who undertakes the control
and supervision of a child . . . has [a] duty to use reasonable care to protect the
child from . . . . reasonably foreseeable risk of harm.” (emphasis in original;
citation and punctuation omitted)); Munroe v. Universal Health Servs., Inc.,
277 Ga. 861, 863 (1) (596 SE2d 604) (2004) (“[A] defendant employer has
a duty to exercise ordinary care not to hire or retain an employee the employer
knew or should have known posed a risk of harm to others where it is
reasonably foreseeable from the employee’s ‘tendencies’ or propensities that the
employee could cause the type of harm sustained by the plaintiff.” (emphasis
supplied)); Southeastern Stages, Inc. v. Stringer, 263 Ga. 641, 643 (437 SE2d
315) (1993) (“[A] common carrier is not required to take measures to protect its

                                        9
      Because a manufacturer may owe a design duty under

Georgia’s product-liability statute or under this State’s decisional

law, a plaintiff injured by a defectively designed product can pursue

a claim against a manufacturer under either a statutory strict-

liability theory or a decisional-law negligence theory or both. See id.

at 117 (noting that defective-design claims can be brought based on

negligence or strict liability). Here, the Maynards pursued only a

negligence theory of design defect against Snap.

      When a plaintiff alleges that a manufacturer defectively

designed a product, the same test is used to assess breach of the

manufacturer’s design duty – that is, “whether a product was

defective” for purposes of a strict-liability claim or “whether the




passengers from the intentional misconduct of third persons until something
occurs to put the carrier on notice that such conduct might be reasonably
anticipated. To establish reasonable foreseeability, more than the mere
possibility of an occurrence must be shown[.]” (emphasis supplied; citation
omitted)); Gregory v. Johnson, 249 Ga. 151, 151, 155 (289 SE2d 232) (1982) (A
landowner has a duty only “to exercise reasonable care to
prevent foreseeable injury” from an “attractive nuisance” on the premises.
(emphasis in original)); Ellington v. Tolar Const. Co., 237 Ga. 235, 238 (III)
(227 SE2d 336) (1976) (“Negligence consists of exposing another to whom one
owes a duty . . . to a foreseeable unreasonable probability of harm.” (emphasis
supplied)).
                                      10
manufacturer’s conduct was reasonable” for purposes of a negligence

claim.    Banks, 264 Ga. at 735 n.3 (1).            Under either theory of

recovery, the factfinder performs a “risk-utility analysis,” assessing

“the reasonableness of choosing from among various alternative

product designs” by asking whether “the risk of harm outweighs the

utility of a particular design” to determine whether “the product is

not as safe as it should be.” Id. at 734-736 & n.3 (1) (punctuation

omitted).4    Because “negligence principles” underlying the risk-


      4 Although this Court has said that the risk-utility test requires a fact-
intensive inquiry for which “no finite set of factors can be considered
comprehensive or applicable under every factual circumstance,” we have
identified “a non-exhaustive list of general factors” that might be relevant in
design-defect cases. Banks, 264 Ga. at 736 (1). These factors include:

      the usefulness of the product; the gravity and severity of the
      danger posed by the design; the likelihood of that danger; the
      avoidability of the danger, i.e., the user’s knowledge of the product,
      publicity surrounding the danger, or the efficacy of warnings, as
      well as common knowledge and the expectation of danger; the
      user’s ability to avoid danger; the state of the art at the time the
      product is manufactured; the ability to eliminate danger without
      impairing the usefulness of the product or making it too expensive;
      . . . the feasibility of spreading the loss in the setting of the
      product’s price or by purchasing insurance[;] . . . the feasibility of
      an alternative design; the availability of an effective substitute for
      the product which meets the same need but is safer; the financial
      cost of the improved design; . . . the adverse effects from the
      alternative[;] . . . the appearance and aesthetic attractiveness of

                                       11
utility analysis are used to determine breach of a manufacturer’s

statutory and decisional-law duties in many design-defect cases, we

have noted that there is often significant “overlap” between strict-

liability and decisional-law negligence claims premised on design

defects. Id. at 735 n.3 (1); but see id. (noting that we have never

“conclude[d] definitively that [strict-liability and negligence]

theories merge in design defect cases”).

      In addition to proving that a product was defectively designed,

a plaintiff seeking to hold a manufacturer liable for a design defect

must show that the defect proximately caused the plaintiff’s injury.

See Jones, 274 Ga. at 117 (“[A] manufacturer [can] be held liable in

negligence or strict liability for injuries proximately caused by [a

defectively designed] product.”); OCGA § 51-1-11 (b) (1) (providing

that a product defect must be “the proximate cause of the injury

sustained”). “Proximate cause is that which, in the natural and



      the product; its utility for multiple uses; the convenience and
      extent of its use . . . ; and the collateral safety of a feature other
      than the one that harmed the plaintiff.

Id. at 736 n.6 (1).
                                       12
continuous sequence, unbroken by other causes, produces an event,

and without which the event would not have occurred.” Johnson v.

Avis Rent A Car Sys., LLC, 311 Ga. 588, 592 (858 SE2d 23) (2021)

(citation and punctuation omitted).

     A breach of a duty constitutes a proximate cause of an injury

only if the injury is the “probable” result of the breach, “according to

ordinary and usual experience,” as opposed to “merely [a] possible”

result of a breach, “according to occasional experience.” Id. (citation

and punctuation omitted). We have explained that

     [i]t is important to recognize that “probable,” in the rule
     as to causation, does not mean “more likely than not” but
     rather “not unlikely”; or, more definitely, “such a chance
     of harm as would induce a prudent man not to run the
     risk; such a chance of harmful result that a prudent man
     would foresee an appreciable risk that some harm would
     happen.”

Id. (citation and punctuation omitted); see, e.g., Blakely v. Johnson,

220 Ga. 572, 576-577 (140 SE2d 857) (1965) (holding that making

loud noises at a service station to attract the attention of potential

customers was not a proximate cause of a motorist collision because

“the probable consequence of [the employees’] acts” was not “that a

                                  13
passing motorist would negligently disregard his own safety because

of their advertising acts, and that such motorist would violate traffic

laws and cause injuries to third persons”).

     Further, under “the well-established doctrine of intervening

causes,” a defendant’s breach of a duty does not constitute a

“proximate cause” of a plaintiff’s injury when

     there has intervened between the act of the defendant and
     the injury to the plaintiff, an independent act or omission
     of someone other than the defendant, which was
     not foreseeable by [the] defendant, was not triggered by
     [the] defendant’s act, and which was sufficient of itself to
     cause the injury.

City of Richmond Hill v. Maia, 301 Ga. 257, 259 (1) (800 SE2d 573)

(2017) (emphasis in original; citation and punctuation omitted); see

also Jordan v. Everson, 302 Ga. 364, 365-366 (806 SE2d 533) (2017)

(holding that a third party’s intervening and independent act need

not be “wrongful or negligent” to break the causal chain); Goldstein,

Garber & Salama, LLC v. J.B., 300 Ga. 840, 841 (1) (797 SE2d 87)

(2017) (“[T]his [intervening-cause] rule does not insulate the

defendant    if   the   defendant    had   reasonable   grounds     for


                                    14
apprehending that such [an] act [of a third party] would be

committed.” (citation and punctuation omitted)).

     As shown by the above discussion, considerations regarding

foreseeability are intertwined with questions of duty, breach, and

proximate causation in negligent-design cases. When determining

whether a manufacturer owes a decisional-law design duty with

respect to a particular risk of harm posed by a product, the question

is whether that particular risk was reasonably foreseeable.      See

Jones, 274 Ga. at 118. Whether a manufacturer breached its design

duty turns on whether it “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 (1) (citation and punctuation

omitted).   Finally, the proximate-cause inquiry asks whether “a

prudent [manufacturer] would foresee an appreciable risk that,” as

a result of an unreasonable design decision, “some harm would

happen” “according to ordinary and usual experience.” Johnson,

311 Ga. at 592 (citation and punctuation omitted).

     3. As noted in Division 2 above, only reasonably foreseeable

                                 15
risks of harm posed by a product trigger a manufacturer’s duty to

use reasonable care in selecting from alternative designs under our

decisional law. See Jones, 274 Ga. at 118. Applying that standard,

the Maynards adequately alleged at the motion-to-dismiss stage

that Snap owed Wentworth a design duty with respect to the

particular risk of harm at issue here – namely, injury to a driver

resulting from another person’s use of the Speed Filter while driving

at excess speed.

     Specifically, the Maynards alleged that Snap could reasonably

foresee that its product design created this risk of harm based on,

among other things, the fact that Snap knew that other drivers were

using the Speed Filter while speeding at 100 miles per hour or more

as part of “a game,” purposefully designed its products to encourage

such behavior, knew of at least one other instance in which a driver

who was using Snapchat while speeding caused a car crash, and

warned users not to use the product while driving. The Maynards

further alleged that, “[o]nce downloaded, Snapchat’s software

continues to download and install upgrades, updates, or other new

                                 16
features” from Snap, meaning that the Maynards may be able to

introduce evidence showing that Snap continued developing its

product and released new versions of the software between the

initial launch of the Speed Filter and the date of Wentworth’s

accident, after obtaining real-world information about how the

Speed Filter was in fact being used. Given these allegations, we

cannot say as a matter of law at the motion-to-dismiss stage that the

Maynards could not introduce evidence that, when designing the

Speed Filter, Snap could reasonably foresee that the product’s

design created a risk of car accidents like the one at issue here,

triggering a duty for Snap to use reasonable care in designing the

product in light of that risk. See Collins v. Athens Orthopedic Clinic,

P.A., 307 Ga. 555, 560 (2) (a) (837 SE2d 310) (2019) (noting that a

motion to dismiss for failure to state a claim cannot be granted

unless “the plaintiff would not be entitled to relief under any state

of provable facts asserted in support of the allegations in the

complaint and could not possibly introduce evidence within the

framework of the complaint sufficient to warrant a grant of the relief

                                  17
sought” (punctuation omitted)); see also Lemmon v. Snap, Inc., Case

No. CV 19-4504-MWF (KSX), 2019 WL 7882079, at *7 (C.D. Cal. Oct.

30, 2019) (holding that plaintiffs asserting a car-crash-related

wrongful-death claim against Snap “sufficiently alleged a duty”

owed by Snap because the plaintiffs’ allegation that “[car] accidents

ha[d] occurred as a result of users attempting to capture [a 100

m.p.h.] Snap” as part of a “game” prevented the court from

“determin[ing] that the harm from the Speed Filter was not

foreseeable as a matter of law”). Cf. Sturbridge Partners, Ltd. v.

Walker, 267 Ga. 785, 787 (482 SE2d 339) (1997) (“[E]vidence of the

prior burglaries was sufficient to give rise to a triable issue as to

whether or not Sturbridge had the duty to exercise ordinary care to

safeguard its tenants against the foreseeable risks posed by the

prior burglaries.”). 5

     4. The Court of Appeals majority opinion acknowledged the




     5 We take no position as to whether summary judgment might be granted
on this point or on other elements of the Maynards’ claim, after the parties
have presented evidence regarding the foreseeability of risks posed by the
product and other issues.
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general framework for alleging and assessing negligent-design

claims under our decisional law, which we set out in Division 2

above. Specifically, the majority noted that “manufacturers have a

duty to exercise reasonable care in manufacturing their products so

as to make products that are reasonably safe for intended or

foreseeable uses,” and that “the risk-utility balancing test . . . [i]s

the test for negligence [i.e., breach] in a design defect case such as

this one.”   Maynard, 357 Ga. App. at 499-500 (citations and

punctuation omitted). Nevertheless, the majority concluded that a

manufacturer’s duty to use reasonable care to design reasonably

safe products “does not extend to the intentional (not accidental)

misuse of the product in a tortious way by a third party.” Id. at 500.

The majority did not cite any authority directly supporting this legal

proposition, and the dissenting opinion asserted that the majority

had “creat[ed] new law” in conflict with well-established principles

of product-liability law. Id. at 504 (McFadden, C.J., dissenting). We

agree with the dissent that established principles of Georgia law do

not support the majority’s holding with respect to decisional-law

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negligent-design claims.   Indeed, our decisional law provides no

basis for concluding that (1) intentional misuse, (2) third-party use

of a product, or (3) third-party tortious use of a product necessarily

negates a manufacturer’s duty to use reasonable care to reduce

reasonably foreseeable risks from its products. Rather, as described

in Division 2 above, a manufacturer’s design duty for purposes of a

negligent-design claim extends to all reasonably foreseeable risks

posed by a product.

     (a) First, there is no blanket intentional-misuse exception to a

manufacturer’s design duty under Georgia decisional law.          The

Court of Appeals majority relied on our decision in Jones to conclude

that, although an accidental misuse of a product could result in

manufacturer liability, an intentional misuse of a product could not.

See Maynard, 357 Ga. App. at 500 & n.11 (citing Jones, 274 Ga. at

118 for support by comparison). But Jones actually contradicts this

proposition, as that decision clarified that a manufacturer may have

a design duty to reduce foreseeable risks from a product regardless

of how the product was being used or whether it was being used at

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all.

       In Jones, a plaintiff who was injured “when she fell against [a]

ski exerciser” that was not in use