Drilling Down: "Defective and Unreasonably Dangerous Condition"

By Brian A. Comer

In any South Carolina products liability action (whether brought in strict liability, negligence, and/or breach of warranty), a plaintiff must prove that the injury occurred because the product was in a "defective condition, unreasonably dangerous to the user." Rife v. Hitachi Constr. Mach. Co., 363 S.C. 209, 215, 609 S.E.2d 565, 568 (Ct. App. 2005).

Two tests have evolved in South Carolina to determine whether a product is in a "defective condition, unreasonably dangerous to the user," and the South Carolina Court of Appeals did a good job of articulating them in its preeminent case, Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995). The court stated as follows:

The first test is whether the product is unreasonably dangerous to the ordinary consumer or user given the conditions and circumstances that foreseeably attend the use of the product. Under the second test, a product is unreasonably dangerous and defective if the danger associated with the use of the product outweighs the utility of the product. . . . [T]he mere fact that a product malfunctions does not demonstrate the manufacturer's negligence nor does it establish that the product was defective. Rather, "[i]n the final analysis, we have another of the law's balancing acts and numerous factors must be considered, including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger." Thus, in South Carolina we balance the utility of the risk inherent in the design of the product with the magnitude of the risk to determine the reasonableness of the manufacturer's action in designing the product. This “balancing act” is also relevant to the determination that the product, as designed, is unreasonably dangerous in its failure to conform to the ordinary user's expectations.

Bragg, 319 S.C. at 543-44, 462 S.E.2d at 328 (citations omitted) (emphasis added).
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The Learned Intermediary Doctrine in South Carolina

By Brian A. Comer

I have done a significant amount of work on drug and medical device cases over the years, and one of the most important concepts in that products liability arena is whether or not a state has adopted the "learned intermediary" doctrine. In the prescription drug context, the learned intermediary doctrine provides that manufacturers of prescription drugs and medical devices discharge their duty of care to patients by providing warnings to the prescribing physicians. Restatement (Third) of Torts: Products Liability § 6 cmt. d, reporters’ note (1997). The justification in this particular context is that consumers cannot buy prescription drugs directly from a manufacturer. As stated by the Fourth Circuit Court of Appeals:

Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative. Pharmaceutical companies then, who must warn ultimate purchasers of dangers inherent in patent drugs sold over the counter, in selling prescription drugs are required to warn only the pre scribing physician, who acts as a "learned intermediary" between manufacturer and consumer.

Talley v. Danek Med., Inc., 179 F.3d 154, 163 (4th Cir. 1999).

South Carolina state courts have not explicitly adopted the learned intermediary doctrine in the drug and medical device context. Only two state court cases (that I have found) cite to the rule at all, Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995) and Madison v. American Home Prods. Corp., 358 S.C. 449, 595 S.E.2d 493 (1995). Madison only mentions the rule in dicta (i.e., "strict liability is inconsistent with the learned intermediary doctrine, which places the duty to warn on the prescribing physicians, and not pharmacists...."). Madison, 358 S.C. at 455, 595 S.E.2d at 496. In Bragg, one of the issues on appeal was whether or not the trial court had correctly charged the jury on the "sophisticated user defense." The charge at issue was as follows:

Now, ladies and gentlemen, under South Carolina law, a manufacturer has no duty to warn of potential risks or dangers inherent in a product if the product is distributed to what we call a learned intermediary or distributed to a sophisticated user who might be in a position to understand and assess the risks involved, and to inform the ultimate user of the risks, and to, thereby, warn the ultimate user of any alleged inherent dangers involved in the product. Simply stated, the sophisticated user defense is permitted in cases involving an employer who was aware of the inherent dangers of a product which the, the employer purchased for use in his business. Such an employer has a duty to warn his employees of the dangers of the product.

Bragg, 319 S.C. at 549, 462 S.E.2d at 331-32 (emphasis added). The South Carolina Court of Appeals concluded that the trial court properly charged the jury concerning the sophisticated user defense. Id.

Other practitioners have stated unequivocally that South Carolina has adopted the learned intermediary defense, sometimes citing Bragg or Madison as support. See, e.g., the July 2007 "Headcount: Who's Adopted the Learned Intermediary Rule" at Druganddevicelaw.blogspot.com (citing to Madison as support that South Carolina has adopted the rule in the non-prescription medical product case); Lynn H. Gorod, "The Evolving Duty of Pharmacists: To Warn or Not to Warn?" 16 S. Carolina Lawyer 14, 16 (July 2004) ("The basis for not extending this duty has widely been premised on the "learned intermediary doctrine." This doctrine, which has been accepted in many jurisdictions, including South Carolina, provides that manufacturers of prescription drugs have a duty to warn prescribing physicians of a drug's known dangerous propensities.") (Emphasis added).

There is no question that Bragg provides support that South Carolina has adopted the learned intermediary doctrine (perhaps relabeled as the sophisticated user defense). However, there is a dearth of South Carolina case law in comparison to other states on this issue, and any "adoption" of the doctrine at the state level is likely to be subject to greater argument than in other states, where adoption in the drug and medical device context is often more explicit. See, e.g. Stone v. Smith, Kline & French Laboratories, 447 So. 2d 1301 (Ala. 1984); Hawkins v. Richardson-Merrell, Inc., 249 S.E.2d 286 (Ga. Ct. App. 1978); Pittman v. Upjohn Co., 890 S.W.2d 425 (Tenn. 1994) (all explicitly adopted the learned intermediary doctrine in the prescription drug context).

South Carolina's federal courts, on the other hand, have been more explicit and have predicted that South Carolina state courts would apply the learned intermediary rule, and specifically in the drug and medical device context. In Brooks v. Medtronic, Inc., 750 F.2d 1227, 1232 (4th Cir. 1984), the Fourth Circuit Court of Appeals, hearing an appeal from the District of South Carolina, stated that "Although the South Carolina Supreme Court has not addressed the issue, we conclude it would adopt the [learned intermediary] rule, generally accepted and supported by sound policy, restricting the manufacturer's duty to warn to the prescribing physician." Id. at 1231. Brooks was a medical device case involving a pacemaker, and one of the issues on appeal was whether a pacemaker manufacturer has a duty to warn a consumer directly or whether warnings to the physician are sufficient. Id. at 1230. After reviewing South Carolina strict liability law, the court pointed out that other jurisdictions had adopted the learned intermediary rule, and it believed that South Carolina would as well. Id. at 1231. This rule was again cited as the law in Tarallo v. Searle Pharmaceutical, Inc., 704 F. Supp;. 653, 659 n.2 (D.S.C. 1988), Odom v. G.D. Searle Co., 979 F.2d 1001, 1003 (4th Cir. 1992) (involving an appeal from the District of South Carolina), and Pleasant v. Dow Corning Corp., 1993 U.S. Dist. LEXIS 21488 (Jan. 7, 1993, D.S.C.).

This is the case law that I have found that interprets this area of the law in South Carolina. If anyone knows of others, please comment and let me know.

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Case Brief: Bragg v. Hi-Ranger

By Brian A. Comer and Felicia Sampson

Today's brief is of Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995). Along with Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E. 2d 671 (1978), Bragg is probably the most important products liability law case in South Carolina. Therefore, my apologies that this "brief" is not that short, but again...there's a lot to this case.

Special thanks to Felicia Sampson, a summer associate who just completed her first year of law school at the University of South Carolina School of Law, who took the lead on writing this case brief.

FACTUAL BACKGROUND: The decedent, a lineman employed by Y.C. Ballenger Electrical Contractor ("Ballenger"), died as a result of injuries sustained from jumping out of an aerial bucket manufactured by Hi-Ranger, Inc. ("Hi-Ranger") when the bucket caught on fire. Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 534, 462 S.E.2d 321, 323 (1995). The decedent had been using a hydraulically-driven wrench that was being fed hydraulic fluid under pressure by two hoses. Id. at 535, 462 S.E.2d at 324. The bucket caught fire when the conductive tool hose attached to the wrench came in contact with energized power lines. Id. "Quick disconnect couplings" used for connecting hydraulic tools were installed near the bucket. Id. at 536, 462 S.E.2d at 324. Once a tool is disconnected, the couplings prevented the hydraulic fluid from flowing. Id. at 535, 462 S.E.2d at 324. However, before the accident, a Ballenger mechanic had improperly installed a black conductive hose rather than the proper orange non-conductive hose. Id. Several linemen testified that they knew non-conductive hoses should be used on the aerial bucket, but that they did not know orange hoses were non-conductive and black hoses were conductive. Id. 535-36, 462 S.E.2d at 324.

PROCEDURE: The Plaintiff, personal representative of the decedent’s estate, brought an action against Hi-Ranger alleging claims based on strict liability, implied warranties, and negligence. Bragg, 319 S.C. at 534, 462 S.E.2d at 323. At trial, the Plaintiff presented expert evidence regarding design and warning defects. Id. at 535-36, 462 S.E.2d at 324. Hi-Ranger asserted defenses of contributory negligence, assumption of risk, intervening negligence, substantial change in the product after sale, open and obvious danger, and misuse of the product under S.C. Code Ann. § 15-73-20 (1976). Id. at 534, 462 S.E.2d at 323. Hi-Ranger moved for a directed verdict on each cause of action. Id. The trial court granted Hi-Ranger a directed verdict on the strict liability and warranty claims, and the jury returned a verdict in favor of Hi-Ranger on the negligence claim. Id. The Plaintiff appealed, arguing that the court’s decision to grant the motion for directed verdict on the strict liability claim—while denying the motion for directed verdict on the negligence claim—was illogical. Id. at 538, 462 S.E.2d at 325. The Plaintiff also appealed several portions of the trial court's jury charge. Id. at 534, 462 S.E.2d at 323.

ISSUES: The court analyzed whether strict liability and negligence are mutually exclusive theories of recovery such that failure to prove one theory would preclude proving the other. Bragg, 319 S.C. at 538-39, 462 S.E.2d at 325-26. The court also addressed the sufficiency of certain jury charges, including (1) whether a manufacturer has a duty to warn previous-purchasers about safety devices developed after the time of sale, or (2) whether a manufacturer has a duty to retrofit products with later-developed safety devices if the products were not defective based on the standards existing at the time of manufacture or time of sale. Id. at 547-49, 462 S.E.2d at 330-31. Finally, the court addressed whether the sophisticated user defense is appropriate where the manufacturer, regardless of the intermediary's actual knowledge, reasonably assumed that the intermediary would know the danger involved in using the product and take steps to protect its employees. Id. at 549-51, 462 S.E.2d at 331-32.

DISPOSITION: The court affirmed the judgment in favor of Hi-Ranger. Bragg, 319 S.C. at 551, 462 S.E.2d at 332.

RULES AND OPINION: The theory of strict liability and the theory of negligence are not mutually exclusive, and failure to prove one does not preclude proving the other. Bragg, 319 S.C. at 539, 462 S.E.2d at 326. In order to prove any products liability theory, the plaintiff must prove (1) the product injured him, (2) the injury was a result of the product's defective condition which rendered the product unreasonably dangerous to the user, and (3) at the time of the accident, the product was in the same condition as it was when it left the defendant's control. Id. Under a negligence theory, the plaintiff must also prove that the defendant failed to exercise due care. Id. The conduct of the seller or manufacturer is at issue in a negligence theory, whereas a strict liability theory focuses on a product's condition. Id. at 539-40, 462 S.E.2d at 326. It is possible for a manufacturer to be liable under a negligence theory without being liable under a strict liability theory because under strict liability, the manufacturer is not responsible for all losses caused by the product, but only for losses caused by the product's failure to perform to a standard of reasonable safety within its normal environment. Id. at 541, 462 S.E.2d at 327. Therefore, it is not inconsistent to grant a directed verdict on a strict liability claim while allowing a negligence claim to go to the jury. Id.

The fact that a product can be made safer does not mean that it is unreasonably dangerous and subject to a strict liability claim. Id. at 543, 462 S.E.2d at 328. Similarly, the fact that a product malfunctions does not demonstrate a manufacturer's negligence or that a product was defective. Id. There are two tests that determine whether a product is unreasonably dangerous for its intended use. Id. The first test asks "whether the product is unreasonably dangerous to the ordinary consumer or user given the conditions and circumstances that foreseeably attend the use of the product." Id. Under the second test, the product is unreasonably dangerous "if the danger associated with the use of the product outweighs the utility of the product." Id. To determine whether a product is unreasonably dangerous under one of these tests, the court balances "the utility of the risk inherent in the design of the product with the magnitude of the risk," thus establishing the reasonableness of the manufacturer in designing the product. Id. at 544, 462 S.E.2d at 328. Relevant factors include the usefulness and desirability of the product, the cost for added safety, likelihood and potential seriousness of injury, and the obviousness of the danger. Id.

The court found that the testimony of the Plaintiff's expert was insufficient to prove that the aerial device, as designed and manufactured in 1984, was defective and unreasonably dangerous at the time of sale. Id. at 544, 462 S.E.2d at 329. At the time of sale, the aerial device was "merchantable and fit for the purpose for which it was sold, but caused injury due to its improper use by a third party" (i.e., due to the incorrect installation by the Ballenger mechanic of the conductive hose). Id. at 545-46, 462 S.E.2d at 329. The fact that there had been no mishaps for six years after the time of sale was additional evidence that the aerial device was not unreasonably dangerous. Id. The court found that "considering the aerial device's characteristics, risks, dangers and uses, together with the knowledge, training, and experience possessed by the intended user," and because the Plaintiff did not introduce evidence that there was a feasible design alternative for the couplings that would be useful beyond demonstration purposes, failure to use different "quick disconnect couplings" did not make the device defective and unreasonably dangerous for the intended user; therefore, Hi-Ranger was not liable for a design defect based on a strict liability claim. Id. at 546-47, 462 S.E.2d at 330. The court also found that because the evidence established that the aerial device met warning standards at the time of manufacture and sale, Hi-Ranger was not liable for a warning defect based on a strict liability claim. Id.

Plaintiff also contended that there were four jury instructions that were erroneously excluded and two charges that were erroneously given. The court also disagreed with this contention. Id. at 547, 462 S.E.2d at 330. The court found that it had accurately and completely charged the jury on assumption of risk, contributory negligence, and intervening or superseding negligence. Id. With regard to a charge concerning a manufacturer's post-sale duties, the court found that a product must be measured against the standards of care that exist at the time of sale or against the reasonable consumer expectations at the time of sale. Id. at 548-49, 462 S.E.2d at 331. The court found that because the evidence suggested that the aerial device met all appropriate standards at the time of manufacture, the trial court properly charged the jury with the law regarding the manufacturer's duty to retrofit or recall its products. Id. With regard to the sophisticated user defense, the court found that the defense applies where the manufacturer reasonably assumes that the employer knows of the danger of the product and will take measures to protect its employees, regardless of the specific knowledge of the employer. Id. at 549-51, 462 S.E.2d at 331-32. Because there was substantial evidence that Ballenger was a large electric contractor, was very familiar with bucket trucks and aerial devices, and was aware that conductive hoses should not be used in aerial buckets, the trial court properly charged the jury regarding the sophisticated user defense. Id.

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The Obama Administration's View on Preemption

By Brian A. Comer

On Wednesday, President Obama's administration released a two page memorandum that sets forth the current administration's view on preemption and the interaction of federal and state laws. A .pdf file of the memorandum can be found at the following link (I had to open this in a new window for it to work):

http://wsj.com/public/resources/documents/20090520preemption.mem.rel.pdf

In addition, the Wall Street Journal did a nice write-up of the implications of the memorandum and how the current administration's stance differs from the previous administration. That article can be found at the following link:

http://online.wsj.com/article/SB124285702885340713.html

In a nutshell, the memorandum recognizes that executive departments and agencies during the previous administration have sometimes announced that their regulations preempt State law, including the common law, without explicit preemption by Congress or "an otherwise sufficient basis under the applicable legal principels." Memorandum at 1. As stated by the current administration in the memorandum, "the general policy of [President' Obama's] administration [is] that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with sufficient legal basis for preemption." Id. (emphasis added). The memorandum directs that heads of departments and agencies should not include in regulatory preambles statements that they intend to preempt State law through a regulation except where such provisions are also included in the regulation. Id. Furthermore, such provisions should not be included "except where such provisions would be justified under legal principles governing preemption." Memorandum at 2. Finally, the memorandum directs heads of departments and agencies to review regulations issued in the past 10 years to determine whether any statements concerning preemption are justified. Id. If they are not, then the appropriate department or agency head should "initiate appropriate action, including amending the relevant regulation. Id.

In short, this administration is putting its own stamp on the preemption issue, and from the memorandum, it appears to be the opposite of the prior administration's views on this legal principle. What does this mean for products liability litigation in general? State law tort claims that were previously deemed "preempted" under federal law are more likely to be recognized as viable claims. Only time will tell, but it will be interesting to see the stance taken by the courts in light of the current administration's views.

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Case Brief: Young v. Tide Craft, Inc.

By Brian A. Comer

Periodically, I will try and profile certain South Carolina products liability cases. One of the most significant cases is Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E. 2d 671 (1978). Set forth below is a brief of the case and its significant points of law. (Okay, so the below is not too "brief", but this is a long opinion with lots of "meat on the bone," so trust me when I say that it is about as "brief" as I can make it).

FACTUAL BACKGROUND: Plaintiff's husband ("Husband") died in a boating accident. Young, 270 S.C. at 458, 242 S.E.2d at 673. The boat employed a "pop-up stick" steering system that consisted of a "stick" or "lever" attached to a pulley wheel (i.e., instead of a conventional steering wheel). Id. Part of the mechanism consisted of a "cable pulley" system. This system involved a 3/16 inch plastic covered steel cable threaded through a series of pulleys and connected to the engine. Id. at 459, 242 S.E.2d at 674. Husband began having problems with the steering stick. Id. He took the boat to a repairman (Hegel), and the repairman made temporary repairs, which involved stripping away the frayed portion of the cable's sheathing and resetting the cable. Hegel told Husband that the boat would eventually need to be rewired. Id. at 459-460, 242 S.E.2d at 674. Husband later brought the boat back to Hegel for rewiring, but Hegel did not have sufficient cable to rewire the system. Id. Husband wanted to use the boat the following weekend, so Hegel and Husband talked about splicing in a portion of new cable to replace the frayed portion. Id. After discussing this option, the decision to splice was made. Id.

PROCEDURE: The Plaintiff (wife of the decedent) brought actions for wrongful death and conscious pain and suffering against the boat manufacturer, retailer, and the boat repair shop. Young, 270 S.C. at 461 242 S.E.2d at 675. Both of Plaintiff's actions were based on alternative theories of negligence, breach of implied warranty, and strict liability in tort. Id. The jury returned a verdict against the boat manufacturer with regard to the conscious pain and suffering action and warded $30,000 in actual damages. In the wrongful death action, the jury returned a verdict of $160,000 in actual damages and $10,000 in punitive damages against the manufacturer. Id. The jury absolved the retailer and boat repair shop of liability. Id.

ISSUES: The court analyzed two separate and distinct aspects of claimed liability in the case. First, Plaintiff contended that the manufacturer was chargeable with the splicing and resulting disengagement of a steering cable from the tiller clamp, making the manufacturer liable for damages. Young, 270 S.C. at 461, 242 S.E.2d at 675. Second, Plaintiff argued that even if the manufacturer could not be charged with the splicing of the steering cable, the manufacturer was still liable because certain alleged defects of the boat which became operative after the cable separated were contributing causes of Husband's death. Id.

DISPOSITION: The court reversed. With regard to the first issue, the manufacturer could not be held liable since the intervening acts of the boat repairman consituted the sole proximate cause of the disengagement of the steering cable (as a matter of law). With regard to the second issue, the Plaintiff failed to establish proximate cause (with one exception that was disposed of on other grounds.

RULES AND OPINION: The "touchstone" of proximate cause in South Carolina is foreseeability. 270 S.C. at 462, 242 S.E.2d at 675. It is determined by looking to the "natural and probable consequences" of the complained of act. Id. "The actor cannot be charged with 'that which is unpredictable or that which could not be expected to happen.'" Id. at 463, 242 S.E.2d at 676. (quoting Stone v. Bethea, 251 S.C. 157, 161-62, 161 S.E.2d 171, 173 (1968)). In order to determine whether a consequence is natural and probable, the actor's conduct must be viewed in light of the surrounding circumstances. Id. "Where there is a contention that an intervening agency interrupts the foreseeable chain of events, there are two consequences to be tested: (1) the injury complained of, and (2) the acts of the intervening agency. If the acts of the intervening agency are a probably consequence of the primary wrongdoer's actions, i.e., 'foreseeable', the primary wrongdoer is liable. However, even if the intervening acts are not foreseeable, the primary wrongdoer is nevertheless liable if his actions alone 'would have cuased the loss in natural course.'" Id. (quoting Benford v. Berkeley Heating Co., 258 S.C. 357, 365, 188 S.E.2d 841 (1972)). Based on this rule, the court stated that it must determined (1) whether the actions of the repairman were a probable consequence of the alleged defects and/0r negligence attributable to the manufacturer, and (2) if the answer to the first question is "no", whether the injury at issue would have followed in natural course in the absence of the repairman's actions. Id. at 463-464, 242 S.E.2d 676.

Based on the evidence, the court concluded that the only reasonable inference was that the repairman's actions were not foreseeable. 270 S.C. 464, 242 S.E.2d at 676. He knew and admitted that splicing was dangerous, and he told Husband the same when he finished the repairs. Id. Based on the repairman's own practice and knowledge of the industry, the likelihood of a steering cable being spliced was highly remote. Id. at 465, 242 S.E.2d at 676. "Adding together the remoteness of the possibility that splicing would take place under any given set of circumstances with Hegel's knowledge of the danger involved, it can not be seriously contended that Hegel's actions were a probable consequence of any wrongdoing on the part of Tide Craft." Id. at 465, 242 S.E.2d at 677. This was not a case where a third party's ignorance led to the creation of a highly dangerous condition. Id. The repairman "unleashed" the risk with full knowledge of the dangerous consequences. Id. With regard to the second question (whether the injury would have occurred in the natural course absent the repairman's actions), the court concluded that there was no evidence that would support an inference that the cable would have separated or that there would have been a loss of steering without the splicing. Id.

With regard to the second aspect of the case, Plaintiff alleged that the boat had a propensity to eject an occupant, and that the manufacturer failed to install a "kill switch" that would cut the motor if an occupant was ejected from his seat. 270 S.C. 466, 242 S.E.2d at 677. The court held that the Plaintiff failed to establish that the propensity to eject was a proximate cause of Husband's injury, and the failure to install a kill switch is not a defect under products liability theories of warranty, negligence, or strict liability. Id. at 467, 242 S.E.2d at 671. The court stated that the Plaintiff needed to show that in the absence of the alleged defects (i.e. swivel seating without locking devices, height of seats, etc.), the forces generated by the loss of steering alone would not have thrown Husband overboard. Id. at 467, 242 S.E.2d at 678. The court concluded that the opinion of Plaintiff's expert on this issue was "simply a surmise" and inadequate to prove causation. 270 S.C. at 467-68, 242 S.E.2d at 678. Based on the expert's analysis, he could not say with any reasonable degree of accuracy that the forces attributed to the alleged defects contributed to Husband's ejection to the extent that the ejection would not have occurred in the absence of the alleged defects. Id. at 470, 242 S.E.2d at 679. Since Plaintiff could not meet this burden, her allegations of failure to test and failure to warn about ejection were also not proximate causes of the injury in question. Id. With regard to the "kill switch" defect theory, the court analyzed strict liability and said that "the absence of the kill switch must constitute a defect 'unreasonably dangerous to the user or consumer.'" Id. at 471, 242 S.E.2d at 679. The test of whether or not the failure to incorporate a safety device in a product constitutes a "defect" is whether the product, in the absence of the feature, is unreasonably dangerous to the user or consumer. Id. The court framed the test as follows: "The question that presents itself is whether the absence of the kill switch per se rendered the boat 'dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics . . . " Id. at 471, 242 S.E.2d at 680 (citing Restatement (Second) of Torts, section 402A cmt. i (1965)). In short, the court said that being ejected is a well-known risk of boating, and it was one that Husband was aware of based on his frequent fishing and boating activity. Accordingly, "the lack of a kill switch does not constitute a defect within the meaning of the strict liability in tort statute." 270 S.C. 472, 242 S.E.2d at 680. The court reached the same conclusion with regard to the warranty and negligence theories. Id.

DISSENT: Justice Ness dissented from the opinion. The thrust of Justice Ness's dissent was that the extent of liability and the issue of proximate cause should have been left to the jury. 270 S.C. at 473, 242 S.E.2d at 681. Justice Ness believed that the testimony of Plaintiff's expert was based on his examination of the boat and the physical evidence. Id. at 474, 242 S.E.2d at 681. Whether the expert was qualified and competent was a matter of discretion for the trial judge. Id. at 475, 242 S.E.2d at 681. He also focused on the evidence supporting that the manufacturer failed to test its product and failed to warn about the propensity for ejection. Id. at 475-76, 242 S.E.2d at 682. Finally, he referred to Plaintiff's expert's testimony concerning the kill switch as evidence that such failure contributed to Husband's ejection. Id.

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Drilling Down: Negligence

By Brian A. Comer

I'm slowly but surely trying to get through each theory that can be used to assert a products liability claim in South Carolina. Let's take a closer look at the negligence theory...

When a products liability action is brought pursuant to a negligence theory, the plaintiff must establish the following:
(1) the plaintiff was injured by a product;
(2) the product was in essentially the same condition at the time of the accident that it was in when it left the hands of the defendant;
(3) the injury to the plaintiff occurred because the product was in a defective condition unreasonably dangerous to the user; and
(4) the manufacturer breached its duty to exercise reasonable care to adopt a safe design. 30 S.C. Jur. Products Liability § 15 (citing Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108 (Ct. App. 1985), appeal dismissed, 286 S.C. 127, 332 S.E.2d 102 (1985); Allen v. Long Mfg. NC, Inc., 332 S.C. 422, 505 S.E.2d 354 (Ct. App. 1998), reh'g denied, (Oct. 21, 1998) and cert. denied, (May 28, 1999).

As the South Carolina Court of Appeals clarified in Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 540, 462 S.E.2d 321, 326 (Ct. App. 1995), "'the distinction between strict liability and negligence in design-defect and failure to warn cases is that in strict liability, knowledge of the condition of the product and the risks involved in that condition will be imputed to the manufacturer, wheres in negligence these elements must be proven.'" (Quoting Bilotta v. Kelley Co., 346 N.W.2d 616 (Minn.1984)). Unlike strict liability, the focus of a negligence theory is on the conduct of the defendant, and liability is determined based on fault. Id. at 539, 462 S.E.2d at 326. Therefore, as explained by the court in Bragg, "it is possible under certain circumstances for a supplier of products to be held liable under a negligence theory even though the supplier is not strictly liable." Id. at 541, 462 S.E.2d at 327.

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Drilling Down: Strict Liability

By Brian A. Comer
South Carolina has adopted the Restatement (Second) of Torts, section 402A (1965) in the"Defective Products Act," which is codified at Title 15, Chapter 73 of the South Carolina Code.
S.C. Code Ann. § 15-73-10 sets forth as follows:
§ 15-73-10. Liability of seller for defective product.
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer, or to his property, if
(a) The seller is engaged in the business of selling such a product, and
(b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in subsection (1) shall apply although
(a) The seller has exercised all possible care in the preparation and sale of his product, and
(b) The user or consumer has not bought the product from or entered into any contractual relation with the seller.
In addition, the comments to Section 402A have been incorporated by reference as the intent of the South Carolina General Assembly. See S.C. Code Ann 15-73-30 ("Comments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.").
Both the Defective Products Act and the South Carolina courts have imposed some restrictions on recovery in a strict liability action. For example, S.C. Code Ann. § 15-73-20 sets forth that "If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery." The South Carolina Supreme Court has also held that “a cause of action resting upon strict liability under Section 15-73-10… does not exist in South Carolina where a product entering the stream of commerce prior to July 9, 1974, is alleged to have caused injury thereafter.” Schall v. Sturm, Ruger Co., 278 S.C. 646, 650, 300 S.E.2d 735, 737 (1983) (answering a certified question from the United States District Court for the District of South Carolina); see also Bray v. Marathon Corp., 356 S.C. 111, 117 588 S.E.2d 93, 96 n.6 (2003) (confirming the holding in Schall).
Punitive damages are not recoverable under a strict liability action. S.C. Code Ann. §36-1-106 (“[N]either consequential or special nor penal damages may be had except as specifically provided in [the South Carolina Commercial Code] or by other rule of law.”); Barnwell v. Barber-Colman Co., 301 S.C. 534, 537, 393 S.E.2d 162, 163 (1989) (holding punitive damages are not recoverable under the strict liability statute).
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The "Basics"

By Brian A. Comer
It seems appropriate that a first entry about products liability law in South Carolina would include "the basics", i.e., the legal theories that can serve as a basis for a products liability claim.
A person can bring a products liability claim based on negligence, strict liability in tort, and/or breach of warranty. Small v. Pioneer Mach., Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App.1997); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App.1995). "Strict liability and negligence are not mutually exclusive theories of recovery; that is, an injury may give rise to claims that can be established either under principles of strict liability or negligence, and failure to prove one theory does not preclude proving the other." Bragg, 319 S.C. at 539, 462 S.E.2d at 326.
Regardless of the theory that serves as a basis for recovery, a plaintiff must establish three elements in a South Carolina products liability claim: (1) the plaintiff was injured by the product; (2) the injury occurred because the product was in a defective condition, unreasonably dangerous to the user; and (3) the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant. Rife v. Hitachi Const. Mach. Co., Ltd., 363 S.C. 209, 215, 609 S.E.2d 565, 568 (Ct. App. 2005); Bragg, 319 S.C. at 539, 462 S.E.2d at 326. In addition to the above, in a negligence action "the plaintiff bears the additional burden of demonstrating the defendant (seller or manufacturer) failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault." Bragg, 319 S.C. at 539, 462 S.E.2d at 326. As stated by another court, the plaintiff must also prove "that the manufacturer breached its duty to exercise reasonable care to adopt a safe design." Rife, 363 S.C at 215, 609 S.E.2d at 569.
There is no statute of limitations specific to products liability actions in South Carolina. Instead, the applicable statute of limitations is the same as any personal injury, wrongful death, or property damage statute. For these actions, the limitations is six years for causes of action that accrue prior to April 5, 1988, and three years for causes of action arising on or after April 5, 1988. See S.C. Code Ann. §§ 15-3-530, 15-3-535, and 15-3-545. The statue of limitations for breach of warranty actions is six years. Id. at § 36-2-725. With the exception of actions brought as medical malpractice actions, all action "must be commenced within three years after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action." S.C. Code Ann. 15-3-535. In other words, the date of discovery is significant for determining when the statute of limitations begins to run.
These are "the basics," and my hope is to focus on each of them in greater detail in subsequent postings.
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Welcome!

Greetings! Welcome to my blog on South Carolina products liability law. This blog has two goals: (1) to educate myself and "stay current" on trends in South Carolina concerning products liability law, and (2) to educate individuals and companies who may be interested in this area of the law, including the latest cases, statutes, court decisions, and other law. I hope that you find the blog useful, and I welcome any comments. Please check back often for new posts. In addition, please feel free to contact me at (803)255-0446 or at bcomer@collinsandlacy.com if you have any questions.

DISCLAIMER & TERMS OF USE

By Brian A. Comer

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE ACCESSING ANY WEBPAGES IN THIS BLOG. By using or accessing this blog you signify acknowledgment and assent to the conditions of use set forth below. If you do not agree to these terms of use, please do not use this website. The author of this blog, Brian A. Comer (“Author”), can revise these terms of use at any time by updating this posting, and your use afterwards signifies your acceptance of the changed terms. Please check these terms of use periodically for changes. This blog site is published by and reflects the personal views of the Author, in his individual capacity. It does not necessarily represent the views of his law firm (Collins & Lacy, P.C.), or any of his clients. This blog site is the Author's personal project, and it is not sponsored or endorsed by any law firm or client. This blog site is intended to disseminate the Author's personal views of various issues that arise in the context of South Carolina products liability law and litigation, and related topics. No representation is made about the accuracy of the information, which solely constitutes the Author’s personal views on these issues. The information contained in this blog site is provided only as general information and personal opinions, and blog topics may or may not be updated after being initially posted.

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