Wednesday, May 20, 2009

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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