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.