Thursday, May 21, 2009

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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