Today's case brief is of Harris v. Rose's Stores, Inc., 315 S.C. 344, 433 S.E.2d 905 (Ct. App. 1993). This case stands for the principle that causation in a products liability case must be based on "probability," as opposed to mere "possibility."
FACTUAL BACKGROUND: A fire at a residence killed a minor child. 315 S.C. at 345, 433 S.E.2d at 906. The fire was alleged to have been caused by a ceiling fan. Id. The fan was sold by Defendant Rose's ("Rose's") to Defendant Edgar Gregory ("Gregory"), the landlord of the burned residence. Id.
PROCEDURE: Plaintiff Pamela Harris (personal representative deceased's estate and hereinafter, "Plaintiff") brought wrongful death and survival actions against Rose's under a products liability theory. 315 S.C. at 345, 433 S.E.2d at 906. The trial court granted Rose's motion for summary judgment on Plaintiff's claim and and on a cross-claim asserted by Gregory against Rose's. Id. Plaintiff appealed. Id.
ISSUE: Whether the trial court erred in granting summary judgment to Rose's based on Plaintiff's belief that she had produced sufficient circumstantial evidence that the ceiling fan, which the fire totally destroyed, was defective and a substantial contributing cause of the fire. 315 S.C. at 345, 433 S.E.2d at 906.
DISPOSITION: The South Carolina Court of Appeals held that the trial court's grant of summary judgment was proper. 315 S.C. at 347, 433 S.E.2d at 907.
RULES AND OPINION: Plaintiff relied on the deposition testimony of her expert witness and a non-expert to establish the elements of her case. 315 S.C. at 346, 433 S.E.2d at 906-07. The expert was unable to point to any direct evidence that the fan was defective and caused the fire. 315 S.C. at 346, 433 S.E.2d at 907. The most he could say was that it was "possible" that the fan caused the fire, with other factors being equally as likely to have caused it. Id. The non-expert also could not establish that the fan was the cause of the fire. Id. "Causation based upon a possibility rather than a probability is not sufficient for a plaintiff to recover in a products liability case." Id. (citing Am Law Prod Liab 3d section 4:34, at 44 (1987). On this basis, the court held that Plaintiff had not met her burden of proof in establishing that Rose's negligence was the proximate cause of the injuries. 315 S.C. at 346-47, 433 S.E.2d at 907.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Tuesday, June 30, 2009
Monday, June 29, 2009
Drilling Down: "Essentially the Same Condition" (Part V)
By Brian A. Comer
This is the final installment of a series based on some research I have been doing for an article. The first four installments can be found here (part I), and here (part II), and here (part III), and here (part IV).
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
Liability Despite A Change in the Product's Condition: A defendant may still be liable under South Carolina law even if a product is not in essentially the same condition. "'Liability [may] . . . be imposed upon a manufacturer or seller notwithstanding subsequent alteration of the product . . . [when] the alteration could have been anticipated by the manufacturer or seller, or did not causally contribute to the damages or injuries complained of.'" Fleming v. Borden, 316 S.C. 452, 458, 450 S.E.2d 589, 593 (1994) (quoting Robert D. Hersh & Henry J. Bailey, American Law of Products Liability 2d § 130 (1974)).
With regard to whether an alteration is "foreseeable," this aspect of the analysis correlates directly with one of South Carolina's tests for whether a product is in a defective condition, unreasonably dangerous for its intended use. See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 543, 462 S.E.2d 321, 328 (1995) ("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.") (emphasis added). If a jury can determine that an alteration was a foreseeable circumstance based on the product's design, then a defendant may be liable despite the fact that a product is not in "essentially the same condition." See, e.g., Kennedy v. Custom Ice Equip. Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978) (holding that there was evidence from which a jury could have determined that modifications to an ice-making machine were a foreseeable circumstance that required the incorporation of protective shields in the machine's design, and affirming submission of the case to the jury); Fleming v. Borden, 316 S.C. 452, 450 S.E.2d 589 (1994) (holding that expert testimony concerning a manufacturer's design and placement of a machine created a jury question as to whether removal of a platform for cleaning it was a foreseeable alteration, and reversing the trial court's decision to grant a directed verdict for the manufacturer).
Whether a modification causally contributed to a party's injuries does not appear to have been the focus of many South Carolina cases. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997), is the best example and involved a plaintiff who worked in the timber industry and was injured by a falling limb. The plaintiff claimed that the cause of the accident was a design defect in a log skidder. Id. at 455-60, 494 S.E.2d at 838-41. There was evidence that a log skidder was missing its driver's side door and its hand throttle. Id. at 466, 494 S.E.2d at 844. There was also testimony that neither the hand brake nor the foot brake on the log skidder were operable at the time of the accident. Id. Nevertheless, the jury found that the alterations did not causally contribute to the accident, and the South Carolina Court of Appeals held that the trial court did not err in submitting the case to the jury. Id.
This concludes this series of posts about this element of all South Carolina product liability law actions. You can find all of the installments, and other information pertaining to this particular element, by clicking here or on the "Same Condition" topic tag to the right of the page.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
This is the final installment of a series based on some research I have been doing for an article. The first four installments can be found here (part I), and here (part II), and here (part III), and here (part IV).
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
- Whether it has been "subsequently mishandled;"
- Whether it has been modified or altered;
- Whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury, which can be relevant to "wear and tear;" and
- Maintenance.
Liability Despite A Change in the Product's Condition: A defendant may still be liable under South Carolina law even if a product is not in essentially the same condition. "'Liability [may] . . . be imposed upon a manufacturer or seller notwithstanding subsequent alteration of the product . . . [when] the alteration could have been anticipated by the manufacturer or seller, or did not causally contribute to the damages or injuries complained of.'" Fleming v. Borden, 316 S.C. 452, 458, 450 S.E.2d 589, 593 (1994) (quoting Robert D. Hersh & Henry J. Bailey, American Law of Products Liability 2d § 130 (1974)).
With regard to whether an alteration is "foreseeable," this aspect of the analysis correlates directly with one of South Carolina's tests for whether a product is in a defective condition, unreasonably dangerous for its intended use. See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 543, 462 S.E.2d 321, 328 (1995) ("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.") (emphasis added). If a jury can determine that an alteration was a foreseeable circumstance based on the product's design, then a defendant may be liable despite the fact that a product is not in "essentially the same condition." See, e.g., Kennedy v. Custom Ice Equip. Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978) (holding that there was evidence from which a jury could have determined that modifications to an ice-making machine were a foreseeable circumstance that required the incorporation of protective shields in the machine's design, and affirming submission of the case to the jury); Fleming v. Borden, 316 S.C. 452, 450 S.E.2d 589 (1994) (holding that expert testimony concerning a manufacturer's design and placement of a machine created a jury question as to whether removal of a platform for cleaning it was a foreseeable alteration, and reversing the trial court's decision to grant a directed verdict for the manufacturer).
Whether a modification causally contributed to a party's injuries does not appear to have been the focus of many South Carolina cases. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997), is the best example and involved a plaintiff who worked in the timber industry and was injured by a falling limb. The plaintiff claimed that the cause of the accident was a design defect in a log skidder. Id. at 455-60, 494 S.E.2d at 838-41. There was evidence that a log skidder was missing its driver's side door and its hand throttle. Id. at 466, 494 S.E.2d at 844. There was also testimony that neither the hand brake nor the foot brake on the log skidder were operable at the time of the accident. Id. Nevertheless, the jury found that the alterations did not causally contribute to the accident, and the South Carolina Court of Appeals held that the trial court did not err in submitting the case to the jury. Id.
This concludes this series of posts about this element of all South Carolina product liability law actions. You can find all of the installments, and other information pertaining to this particular element, by clicking here or on the "Same Condition" topic tag to the right of the page.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Friday, June 26, 2009
Case Brief: Anderson v. Green Bull, Inc.
By Brian A. Comer
Today's case brief is Anderson v. Green Bull, Inc., 322 S.C. 268, 471 S.E.2d (Ct. App. 1996). This is a warnings case, and it stands for the principle that a seller is not liable for injuries caused by a product if there is an an adequate warning and the user fails to follow it. Furthermore, there is no duty to warn of common or obvious dangers.
FACTUAL BACKGROUND: Joe McLees ("Deceased") was working with another employee of Tucker Roofing ("Tucker") to replace a roof on a house. 322 S.C. at 270, 471 S.E.2d at 710. Two high-voltage power lines ran over the top of the house. Id. While they were moving an aluminum conveyor ladder, the Deceased was electrocuted and the other employee was injured. Id. Green Bull sold the ladder to Tucker, and Tucker assembled it, without modifications. Id. The ladder contained a red warning label that read, "KEEP ENTIRE UNIT CLEAR OF ALL UTILITY AND ELECTRICAL WIRING." Id.
PROCEDURE: The Deceased's personal representative ("Plaintiff") brought a strict liability action against Green Bull. 322 S.C. at 269, 471 S.E.2d at 709-10. At the close of evidence, Green Bull moved for directed verdict, which was denied. Id. at 269, 471 S.E.2d at 710. The jury returned a $50,000 verdict for the Plaintiff. Id. Green Bull moved for a judgment notwithstanding the verdict, which the trial court also denied. Id. Green Bull then appealed to the South Carolina Court of Appeals. Id.
ISSUES: Whether the trial court should have granted Green Bull's motions for directed verdict and judgment notwithstanding the verdict. 322 S.C. at 269-70, 471 S.E.2d at 710.
DISPOSITION: The South Carolina Court of Appeals reversed the decision of the trial court. 322 S.C. at 269, 471 S.E.2d at 710.
RULES AND OPINION: For any strict liability claim, a plaintiff must prove that the injury occurred because the product was in an unreasonably dangerous, defective condition. 322 S.C. at 270, 471 S.E.2d at 710. To prevent a product from being unreasonably dangerous, a seller may be required to provide a warning on the product concerning its use. Id. As stated by the court:
Id. at 270-71, 471 S.E.2d at 710 (citations omitted). On this basis, there was no evidence to infer that the roofers' injuries were caused by a defect in the ladder. Id. at 271, 471 S.E.2d at 710. It is commonly known that aluminum ladders should be kept away from power lines. Id. at 271, 471 S.E.2d at 711. Plaintiff also argued that the jury could have reasonably found that the accident resulted from "arcing" (i.e., where an electrical current "jumps" into a conductive source without direct contact), and that arcing is not common knowledge. Id. at 272, 471 S.E.2d at 711. However, the court said that there was no evidence from which a jury could reasonably conclude that arcing most probably took place. Id. For these reasons, the trial court erred in denying Green Bull's motions for directed verdict and judgment notwithstanding the verdict. Id.
CONCURRING OPINION (Cureton, J.): Judge Cureton concurred with the majority, but stated that the question presented was "whether Green Bull, knowing the foreseeable use of the ladder, had a duty to warn its users against the hazard of bringing the ladder into contact with electrical lines, and if so, whether the warning it placed on the ladder was adequate." 322 S.C. at 273, 471 S.E.2d at 712. Judge Cureton agreed that Green Bull had a duty to warn, but found that the warning provided by Green Bull was adequate. Id. at 273-74. 471 S.E.2d at 712.
DISSENTING OPINION (Howell, C.J.): Chief Judge Howell framed the issue as "not whether the trial judge considers the product unreasonably dangerous, but what the evidence reflects may reasonably be regarded as unreasonably dangerous." 322 S.C. at 275, 471 S.E.2d at 713. He reviewed the evidence concerning the use of fiberglass, how it would change the composition, utility and weight of the ladder, and the state of the art. Id. at 276-77, 471 S.E.2d at 713-14. Based on the evidence, Chief Judge Howell dissented because he believed that "there was ample competent evidence in the record for the trial judge to submit the issue of whether the ladder was defective by design to the jury." Id. at 277, 471 S.E.2d at 714.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Today's case brief is Anderson v. Green Bull, Inc., 322 S.C. 268, 471 S.E.2d (Ct. App. 1996). This is a warnings case, and it stands for the principle that a seller is not liable for injuries caused by a product if there is an an adequate warning and the user fails to follow it. Furthermore, there is no duty to warn of common or obvious dangers.
FACTUAL BACKGROUND: Joe McLees ("Deceased") was working with another employee of Tucker Roofing ("Tucker") to replace a roof on a house. 322 S.C. at 270, 471 S.E.2d at 710. Two high-voltage power lines ran over the top of the house. Id. While they were moving an aluminum conveyor ladder, the Deceased was electrocuted and the other employee was injured. Id. Green Bull sold the ladder to Tucker, and Tucker assembled it, without modifications. Id. The ladder contained a red warning label that read, "KEEP ENTIRE UNIT CLEAR OF ALL UTILITY AND ELECTRICAL WIRING." Id.
PROCEDURE: The Deceased's personal representative ("Plaintiff") brought a strict liability action against Green Bull. 322 S.C. at 269, 471 S.E.2d at 709-10. At the close of evidence, Green Bull moved for directed verdict, which was denied. Id. at 269, 471 S.E.2d at 710. The jury returned a $50,000 verdict for the Plaintiff. Id. Green Bull moved for a judgment notwithstanding the verdict, which the trial court also denied. Id. Green Bull then appealed to the South Carolina Court of Appeals. Id.
ISSUES: Whether the trial court should have granted Green Bull's motions for directed verdict and judgment notwithstanding the verdict. 322 S.C. at 269-70, 471 S.E.2d at 710.
DISPOSITION: The South Carolina Court of Appeals reversed the decision of the trial court. 322 S.C. at 269, 471 S.E.2d at 710.
RULES AND OPINION: For any strict liability claim, a plaintiff must prove that the injury occurred because the product was in an unreasonably dangerous, defective condition. 322 S.C. at 270, 471 S.E.2d at 710. To prevent a product from being unreasonably dangerous, a seller may be required to provide a warning on the product concerning its use. Id. As stated by the court:
A product bearing a warning that the product is safe for use if the user follows the warning is neither defective nor unreasonably dangerous; therefore, the seller is not liable for any injuries caused by the use of the product if the user ignores the warning. Further, a seller is not required to warn of dangers or potential dangers that are generally known or recognized. It follows, then, that a product cannot be deemed either defective or unreasonably dangerous if a danger associated with the product is one that the product's users generally recognize.
Id. at 270-71, 471 S.E.2d at 710 (citations omitted). On this basis, there was no evidence to infer that the roofers' injuries were caused by a defect in the ladder. Id. at 271, 471 S.E.2d at 710. It is commonly known that aluminum ladders should be kept away from power lines. Id. at 271, 471 S.E.2d at 711. Plaintiff also argued that the jury could have reasonably found that the accident resulted from "arcing" (i.e., where an electrical current "jumps" into a conductive source without direct contact), and that arcing is not common knowledge. Id. at 272, 471 S.E.2d at 711. However, the court said that there was no evidence from which a jury could reasonably conclude that arcing most probably took place. Id. For these reasons, the trial court erred in denying Green Bull's motions for directed verdict and judgment notwithstanding the verdict. Id.
CONCURRING OPINION (Cureton, J.): Judge Cureton concurred with the majority, but stated that the question presented was "whether Green Bull, knowing the foreseeable use of the ladder, had a duty to warn its users against the hazard of bringing the ladder into contact with electrical lines, and if so, whether the warning it placed on the ladder was adequate." 322 S.C. at 273, 471 S.E.2d at 712. Judge Cureton agreed that Green Bull had a duty to warn, but found that the warning provided by Green Bull was adequate. Id. at 273-74. 471 S.E.2d at 712.
DISSENTING OPINION (Howell, C.J.): Chief Judge Howell framed the issue as "not whether the trial judge considers the product unreasonably dangerous, but what the evidence reflects may reasonably be regarded as unreasonably dangerous." 322 S.C. at 275, 471 S.E.2d at 713. He reviewed the evidence concerning the use of fiberglass, how it would change the composition, utility and weight of the ladder, and the state of the art. Id. at 276-77, 471 S.E.2d at 713-14. Based on the evidence, Chief Judge Howell dissented because he believed that "there was ample competent evidence in the record for the trial judge to submit the issue of whether the ladder was defective by design to the jury." Id. at 277, 471 S.E.2d at 714.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Tuesday, June 23, 2009
Feedback
The site has been up about a month now, and I wanted to take the opportunity to solicit any feedback. If you have any constructive criticism, requests for content, or anything else, please comment to this post and let me know.
One thing that has been an issue on my end is that -- early on at least -- there was a problem with Internet Explorer that would cause the loading of the site (or pages within the site) to "abort" (i.e., there would be a pop-up saying "operation aborted," followed by a blank page). Is anyone having this problem when viewing the site?
This problem is not limited to this blog. It has been a problem for many blogger.com sites due to some issue with Internet Explorer. I read that it had something to do with a having a "site meter" (i.e., a tool bar that indicates how many people are visiting your site). I do not have a site meter for this reason, and I have tried to minimize which "toolbars" I have on the site so as to avoid this loading problem. I read that if you view blogger sites with a different browser (i.e. Mozilla Firefox, etc.), it is not an issue. Please let me know if you have had this problem.
In addition, if there are any links that do not work, or other issues, let me know and I will try to fix them.
In the future, I plan to continue surveying verdicts, new advance sheet opinions (state and federal), briefing past cases, and providing commentary on the elements of South Carolina products liability cases. If you have any other suggestions, I would enjoy hearing them.
One thing that has been an issue on my end is that -- early on at least -- there was a problem with Internet Explorer that would cause the loading of the site (or pages within the site) to "abort" (i.e., there would be a pop-up saying "operation aborted," followed by a blank page). Is anyone having this problem when viewing the site?
This problem is not limited to this blog. It has been a problem for many blogger.com sites due to some issue with Internet Explorer. I read that it had something to do with a having a "site meter" (i.e., a tool bar that indicates how many people are visiting your site). I do not have a site meter for this reason, and I have tried to minimize which "toolbars" I have on the site so as to avoid this loading problem. I read that if you view blogger sites with a different browser (i.e. Mozilla Firefox, etc.), it is not an issue. Please let me know if you have had this problem.
In addition, if there are any links that do not work, or other issues, let me know and I will try to fix them.
In the future, I plan to continue surveying verdicts, new advance sheet opinions (state and federal), briefing past cases, and providing commentary on the elements of South Carolina products liability cases. If you have any other suggestions, I would enjoy hearing them.
Monday, June 22, 2009
Verdicts: Lawrence Keeter, et al v. Alpine Towers Int'l, Inc.
Summary and Commentary by Brian A. Comer
A York County jury awarded $4,750,000 to the family of a former Fort Mill High School student in a case that included products liability claims. The plaintiff was paralyzed when he fell during a climbing wall accident. The Rock Hill Herald reported the story in an article that is cut and pasted further below. I have also obtained a copy of the Amended Complaint and the jury verdict form from Plaintiff's counsel. A summary of the case, based on all of the information received to date, is as follows:
Date of Injury: May 5, 2006
Date of Award: June 19, 2009
County and Court: York County Court of Common Pleas, Sixteenth Judicial Circuit
Trial Judge: The Honorable John C. Hayes, III
Plaintiffs and Counsel: Lawrence "Larry" Keeter was the injured plaintiff. He was 20 years old at the time of trial, and a senior at Fort Mill High School at the time of the accident. His parents, Ronald Travis Keeter and Rebecca Keeter, were also named as plaintiffs in the Amended Complaint. They were represented by Richard A. Harpootlian and Graham L. Newman (Columbia, South Carolina).
Defendants and Counsel: Alpine Towers International, Inc. ("Alpine") (whose website, I believe, is here) and Ashley Sexton were named as defendants in the Amended Complaint (filed May 28, 2009). Alpine installed the "Alpine Tower" climbing equipment at issue in the case, according to the Amended Complaint and the news report. Ms. Sexton was the "belayer" who allegedly lost her grip on the rope that was holding the injured plaintiff. Ms. Sexton was dismissed from the case, but she was included on one portion of the verdict form in order for the jury to apportion fault. Alpine was represented by Thomas C. Salane (Columbia, South Carolina) at trial.
Nature of Injury: The injured plaintiff fractured his spine after falling 20 feet in a climbing wall accident. Heis confined to a wheelchair and doctors have told him he might never walk again, per the news report.
Nature of claims: Plaintiffs brought the following claims in the case, as set forth in the Amended Complaint:
(Verdict Form as to Larry Keeter)
****************
A cut and paste from the news article in The Rock Hill Herald that reported the verdict is provided below.
http://www.heraldonline.com/front/story/1422640.html
Verdict brings ‘closure' for student hurt in climbing wall fall
By Matt Garfield - mgarfield@heraldonline.com
A York County jury on Friday awarded $4.7 million to the family of a former Fort Mill High School student left paralyzed in a climbing wall accident.
Larry Keeter suffered a fractured spine when he fell 20 feet to the ground during a Spring Fling field day in May 2006. Doctors have told him he might never walk again.
Keeter's family filed a lawsuit against the North Carolina-based company that installed the climbing wall. Friday's verdict delivered long-awaited relief to Keeter and his parents, who voiced hope that it would lead to improved safety conditions at similar climbing walls across the country.
“Hating somebody is not going to get me up and walking,” Keeter said. “The best thing I can do is help people realize there's a change that's needed to prevent this from happening again.”
The tower company, Alpine Towers International of Pineola, N.C., did not return phone calls seeking comment Friday afternoon. Thom Salane, an attorney for the company, also couldn't be reached.
Now 20, Keeter is confined to a wheelchair. Every day, he says, his mind flashes back to the accident.
Then a senior, Keeter had ascended the 50-foot climbing wall and was rappelling down while strapped inside a harness.
A student on the ground acting as a “belayer” lost her grip on the rope, and Keeter plummeted 20 feet, landing on his feet and then crumpling to the ground, the lawsuit states. He shattered one vertebrae; the impact sent a shock up his back and fractured his spine.
Doctors at Carolinas Medical Center in Charlotte removed bone fragments from Keeter's spinal canal and realigned his spine. They put eight bolts and two metal rods in his back.
Keeter's family brought in Columbia attorney Dick Harpootlian to pursue a lawsuit against Alpine Towers, which had installed the tower after it was donated by Carowinds.
Harpootlian cited faulty design, saying the belay equipment lacked an automatic locking device that could have prevented Keeter's fall. The suit also said Alpine did not adequately train Fort Mill High School faculty members.
“You don't put kids in a position where their lives literally hang in the balance based on the attentiveness of other kids,” Harpootlian said Friday. “That is what our experts hammered.”
Harpootlian said he expects Alpine to file an appeal.
Fort Mill officials took down the climbing wall soon after the accident. Alpine installed the tower and trained school officials on how to use it, according to the lawsuit.
There are at least 11 alpine towers in South Carolina and nearly 240 around the world, according to published reports. A 10-year safety report published in 1999 concluded that tower users reported 176 minor accidents and 18 serious accidents.
After Keeter's accident, some tower operators said they would re-evaluate their safety methods.
Keeter has made progress over the past three years. He lives in a handicapped accessible apartment near the Rock Hill Galleria and drives himself around in a car equipped with a gas pedal on the steering wheel.
He earned a computer certification from York Technical College but hasn't found steady work.
Memories from the accident are still fresh in Keeter's mind. Hitting the ground. School personnel rushing to help him. Learning at the hospital that he had broken his spine.
The jury's decision brought closure to a long ordeal, but Keeter was in no mood to celebrate. His family had waited at the courthouse until well past midnight Thursday while the jury deliberated.
Asked what he planned to do next, Keeter said he just wanted to go home and take a nap.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
A York County jury awarded $4,750,000 to the family of a former Fort Mill High School student in a case that included products liability claims. The plaintiff was paralyzed when he fell during a climbing wall accident. The Rock Hill Herald reported the story in an article that is cut and pasted further below. I have also obtained a copy of the Amended Complaint and the jury verdict form from Plaintiff's counsel. A summary of the case, based on all of the information received to date, is as follows:
Date of Injury: May 5, 2006
Date of Award: June 19, 2009
County and Court: York County Court of Common Pleas, Sixteenth Judicial Circuit
Trial Judge: The Honorable John C. Hayes, III
Plaintiffs and Counsel: Lawrence "Larry" Keeter was the injured plaintiff. He was 20 years old at the time of trial, and a senior at Fort Mill High School at the time of the accident. His parents, Ronald Travis Keeter and Rebecca Keeter, were also named as plaintiffs in the Amended Complaint. They were represented by Richard A. Harpootlian and Graham L. Newman (Columbia, South Carolina).
Defendants and Counsel: Alpine Towers International, Inc. ("Alpine") (whose website, I believe, is here) and Ashley Sexton were named as defendants in the Amended Complaint (filed May 28, 2009). Alpine installed the "Alpine Tower" climbing equipment at issue in the case, according to the Amended Complaint and the news report. Ms. Sexton was the "belayer" who allegedly lost her grip on the rope that was holding the injured plaintiff. Ms. Sexton was dismissed from the case, but she was included on one portion of the verdict form in order for the jury to apportion fault. Alpine was represented by Thomas C. Salane (Columbia, South Carolina) at trial.
Nature of Injury: The injured plaintiff fractured his spine after falling 20 feet in a climbing wall accident. Heis confined to a wheelchair and doctors have told him he might never walk again, per the news report.
Nature of claims: Plaintiffs brought the following claims in the case, as set forth in the Amended Complaint:
- Negligence as to Defendant Sexton (relating to her duty to properly belay the injured plaintiff);
- Negligence as to Alpine (relating to its duty to adequately train high school faculty members so as to ensure proper supervision of participants and use of the equipment);
- Products liability (strict liability) as to Alpine (relating to failure to provide adequate instructions and warnings, and failure to incorporate an aut0-locking device);
- Products liability (negligence) as to Alpine (relating to failure to cure deficiencies in its instructions, warnings, and safety devices);
- Loss of services as to Defendant Sexton and Alpine (relating to loss of services by Plaintiff's parents).
(Verdict Form as to Larry Keeter)
- Strict Liability: "We find for Larry Keeter $ five hundred & 00/100 ($500.00) in actual damages."
- Products Liability (Negligence): The jury found Alpine to have been negligent with regard to "Inadequate Instructions and Warnings and Failure to Incoporate an Autolocking Belay Device." The jury apportioned 100 percent fault to Alpine with regard to this theory. The jury awarded $900,000 in actual damages and $160,000 in punitive damages to Larry Keeter for this claim.
- General Negligence: The jury found Alpine generally negligence with regard to "Failure to Adequately Train"). The jury apportioned 100 percent fault to Alpine with regard to this theory. The jury awarded $2,500,000 in actual damages and $950,000 in punitive damages to Larry Keeter for this claim.
(Verdict Form as to Travis and Rebecca Keeter)
- Loss of Service: The jury found for Travis and Rebecca Keeter with regard to this theory and awarded $240,000 in actual damages.
(Verdict Form (pertaining to fault apportionment))
- The jury apportioned fault as to Larry Keeter's fall in the amount of 40% for Alpine and 60% for Ashley Sexton.
****************
A cut and paste from the news article in The Rock Hill Herald that reported the verdict is provided below.
http://www.heraldonline.com/front/story/1422640.html
Verdict brings ‘closure' for student hurt in climbing wall fall
By Matt Garfield - mgarfield@heraldonline.com
A York County jury on Friday awarded $4.7 million to the family of a former Fort Mill High School student left paralyzed in a climbing wall accident.
Larry Keeter suffered a fractured spine when he fell 20 feet to the ground during a Spring Fling field day in May 2006. Doctors have told him he might never walk again.
Keeter's family filed a lawsuit against the North Carolina-based company that installed the climbing wall. Friday's verdict delivered long-awaited relief to Keeter and his parents, who voiced hope that it would lead to improved safety conditions at similar climbing walls across the country.
“Hating somebody is not going to get me up and walking,” Keeter said. “The best thing I can do is help people realize there's a change that's needed to prevent this from happening again.”
The tower company, Alpine Towers International of Pineola, N.C., did not return phone calls seeking comment Friday afternoon. Thom Salane, an attorney for the company, also couldn't be reached.
Now 20, Keeter is confined to a wheelchair. Every day, he says, his mind flashes back to the accident.
Then a senior, Keeter had ascended the 50-foot climbing wall and was rappelling down while strapped inside a harness.
A student on the ground acting as a “belayer” lost her grip on the rope, and Keeter plummeted 20 feet, landing on his feet and then crumpling to the ground, the lawsuit states. He shattered one vertebrae; the impact sent a shock up his back and fractured his spine.
Doctors at Carolinas Medical Center in Charlotte removed bone fragments from Keeter's spinal canal and realigned his spine. They put eight bolts and two metal rods in his back.
Keeter's family brought in Columbia attorney Dick Harpootlian to pursue a lawsuit against Alpine Towers, which had installed the tower after it was donated by Carowinds.
Harpootlian cited faulty design, saying the belay equipment lacked an automatic locking device that could have prevented Keeter's fall. The suit also said Alpine did not adequately train Fort Mill High School faculty members.
“You don't put kids in a position where their lives literally hang in the balance based on the attentiveness of other kids,” Harpootlian said Friday. “That is what our experts hammered.”
Harpootlian said he expects Alpine to file an appeal.
Fort Mill officials took down the climbing wall soon after the accident. Alpine installed the tower and trained school officials on how to use it, according to the lawsuit.
There are at least 11 alpine towers in South Carolina and nearly 240 around the world, according to published reports. A 10-year safety report published in 1999 concluded that tower users reported 176 minor accidents and 18 serious accidents.
After Keeter's accident, some tower operators said they would re-evaluate their safety methods.
Keeter has made progress over the past three years. He lives in a handicapped accessible apartment near the Rock Hill Galleria and drives himself around in a car equipped with a gas pedal on the steering wheel.
He earned a computer certification from York Technical College but hasn't found steady work.
Memories from the accident are still fresh in Keeter's mind. Hitting the ground. School personnel rushing to help him. Learning at the hospital that he had broken his spine.
The jury's decision brought closure to a long ordeal, but Keeter was in no mood to celebrate. His family had waited at the courthouse until well past midnight Thursday while the jury deliberated.
Asked what he planned to do next, Keeter said he just wanted to go home and take a nap.
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Friday, June 19, 2009
Case Brief: Schall v. Sturm, Ruger Co.
By Brian A. Comer
Today's brief is of Schall v. Sturm, Ruger Co., 278 S.C.646, 300 S.E.2d 735 (1983). This case is most often cited for the rule that a cause of action for strict liability does not exist if a product entered the stream of commerce prior to the enactment of the strict liability statute, which became effective on July 9, 1974.
FACTUAL AND PROCEDURAL BACKGROUND: There were no plaintiff-specific facts in the opinion. Instead, pursuant to Rule 46, Rules of Practice of the South Carolina Supreme Court, the United States District Court for the District of South Carolina certified a question to the South Carolina Supreme Court. 278 S.C. at 647-48, 300 S.E.2d at 735.
CERTIFIED QUESTION: "Does a cause of action in strict liability exist under Section 15-73-10, Code of Laws of South Carolina, 1976, in favor of a party injured after July 9, 1974, by a product that was placed in the stream of commerce prior to codification of Restatement (Second) of Torts Section 402A?" 278 S.C. at 647-48, 300 S.E.2d at 735.
DISPOSITION: "Absent clear legislative direction, and deferring policy determinations to the General Assembly, we find that a cause of action resting upon strict liability under Section 15-73-10, Code, 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." 278 S.C. at 650, 300 S.E.2d at 737.
RULES AND OPINION: Strict liability became the law of South Carolina by the enactment of 1974 Act No. 1184 (effective July 9, 1974). 278 S.C. at 648, 300 S.E.2d at 736. The Act adopted almost verbatim the rule set forth in Restatement (Second) of Torts section 402A, as well as its comments (as its legislative intent). Id. Strict liability was not recognized by South Carolina's common law prior to the Act. Id. Recovery for strict liability does not rest upon any rights or duties that are established by some transaction, as is the case with a breach of warranty lawsuit. Id. It also renders the concept of a duty irrelevant because a party can recover even though a seller "has exercised all possible care in the preparation and sale of his product. . . . " Id. Rather, it is an entirely new cause of action. Id. For this reason, "operative events" (i.e. time of sale, time of injury, etc.) distort the nature of this theory of recovery. Id. at 649, 300 S.E.2d at 726.
Id. Therefore, the nature of strict liability precludes the use of time as being dispositive of the issue. Id. at 649-50, 300 S.E.2d at 736-37. Rather, strict liability's policy objectives govern it, and the General Assembly's adoption of strict liability reflects its legislative judgment as to when the theory of recovery should exist. Id. at 650, 300 S.E.2d at 737. Because there is nothing in the Act to provide guidance as to when inchoate strict liability can be deemed to exist, the court follows the "well-settled rule that a statute may not be applied retroactively in the absence of specific provision or clear legislative intent to the contrary." Id.
NOTES: The rule in Schall is important for any older equipment that is still in service. In my own experience, I have noticed that farm machinery can frequently implicate the policies set forth in Schall. A farmer may purchase older equipment because it is sold at a discounted price, refurbish it, use it, and then resell it to another farmer . . . who continues the cycle. I had a case involving a corn picker that was very old, but was still in use despite its age and modifications over the years. Schall was very important to the outcome of that case.
Furthermore, though products that pre-date the 1974 Act cannot be the subject of a strict liability claim, it may also be difficult for a plaintiff to prevail on other products liability theories, as well (i.e., negligence and breach of warranty). Under any theory of recovery in a South Carolina products liability case, the plaintiff has to prove that the product was in "essentially the same condition" at the time of the injury as when it left the control of the defendant. This is likely to be more difficult with an older product that pre-dates the 1974 Act. The product's age, its modification and maintenance over the years, and any mishandling may detract from arguments that is can satisfy the "essentially the same condition" requirement. For more information on this particular element, see "Same Condition."
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Today's brief is of Schall v. Sturm, Ruger Co., 278 S.C.646, 300 S.E.2d 735 (1983). This case is most often cited for the rule that a cause of action for strict liability does not exist if a product entered the stream of commerce prior to the enactment of the strict liability statute, which became effective on July 9, 1974.
FACTUAL AND PROCEDURAL BACKGROUND: There were no plaintiff-specific facts in the opinion. Instead, pursuant to Rule 46, Rules of Practice of the South Carolina Supreme Court, the United States District Court for the District of South Carolina certified a question to the South Carolina Supreme Court. 278 S.C. at 647-48, 300 S.E.2d at 735.
CERTIFIED QUESTION: "Does a cause of action in strict liability exist under Section 15-73-10, Code of Laws of South Carolina, 1976, in favor of a party injured after July 9, 1974, by a product that was placed in the stream of commerce prior to codification of Restatement (Second) of Torts Section 402A?" 278 S.C. at 647-48, 300 S.E.2d at 735.
DISPOSITION: "Absent clear legislative direction, and deferring policy determinations to the General Assembly, we find that a cause of action resting upon strict liability under Section 15-73-10, Code, 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." 278 S.C. at 650, 300 S.E.2d at 737.
RULES AND OPINION: Strict liability became the law of South Carolina by the enactment of 1974 Act No. 1184 (effective July 9, 1974). 278 S.C. at 648, 300 S.E.2d at 736. The Act adopted almost verbatim the rule set forth in Restatement (Second) of Torts section 402A, as well as its comments (as its legislative intent). Id. Strict liability was not recognized by South Carolina's common law prior to the Act. Id. Recovery for strict liability does not rest upon any rights or duties that are established by some transaction, as is the case with a breach of warranty lawsuit. Id. It also renders the concept of a duty irrelevant because a party can recover even though a seller "has exercised all possible care in the preparation and sale of his product. . . . " Id. Rather, it is an entirely new cause of action. Id. For this reason, "operative events" (i.e. time of sale, time of injury, etc.) distort the nature of this theory of recovery. Id. at 649, 300 S.E.2d at 726.
Neither conduct nor obligation underlie recovery but rather the combination of a defective product with an instance of causally related injury. Strict liability would be best analogized to a legal status: inchoate at the moment when the product leaves the seller's hands in a defective condition that is unreasonably dangerous, ripe for determination at the instant of injury, and fixed by action and final judgment.
Id. Therefore, the nature of strict liability precludes the use of time as being dispositive of the issue. Id. at 649-50, 300 S.E.2d at 736-37. Rather, strict liability's policy objectives govern it, and the General Assembly's adoption of strict liability reflects its legislative judgment as to when the theory of recovery should exist. Id. at 650, 300 S.E.2d at 737. Because there is nothing in the Act to provide guidance as to when inchoate strict liability can be deemed to exist, the court follows the "well-settled rule that a statute may not be applied retroactively in the absence of specific provision or clear legislative intent to the contrary." Id.
NOTES: The rule in Schall is important for any older equipment that is still in service. In my own experience, I have noticed that farm machinery can frequently implicate the policies set forth in Schall. A farmer may purchase older equipment because it is sold at a discounted price, refurbish it, use it, and then resell it to another farmer . . . who continues the cycle. I had a case involving a corn picker that was very old, but was still in use despite its age and modifications over the years. Schall was very important to the outcome of that case.
Furthermore, though products that pre-date the 1974 Act cannot be the subject of a strict liability claim, it may also be difficult for a plaintiff to prevail on other products liability theories, as well (i.e., negligence and breach of warranty). Under any theory of recovery in a South Carolina products liability case, the plaintiff has to prove that the product was in "essentially the same condition" at the time of the injury as when it left the control of the defendant. This is likely to be more difficult with an older product that pre-dates the 1974 Act. The product's age, its modification and maintenance over the years, and any mishandling may detract from arguments that is can satisfy the "essentially the same condition" requirement. For more information on this particular element, see "Same Condition."
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Wednesday, June 17, 2009
Drilling Down: "Essentially the Same Condition" (Part IV)
By Brian A. Comer
This is the fourth installment of a series based on some research I have been doing for an article. The first three installments can be found here (part I), and here (part II), and here (part III).
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
The best case (involving interpretation of South Carolina law) that I have found that references a product's maintenance record is Oglesby v. Gen. Motors Corp., 190 F.3d 244 (4th Cir. 1999). Oglesby involved a truck's radiator hose that detached and sprayed hot coolant on the plaintiff mechanic. Id. at 247. The truck was purchased "used" in 1991 and had 156,000 miles on it at the time of the 1995 injury. Id. at 252. The record did not include any information concerning the prior owner's repair or maintenance records. Id. After the 1991 purchase, the truck's owner removed the radiator on at least two occasions and had removed and repaired its hoses. Id. The court believed that the inlet connector on the hose could have been damaged during either of those repairs due to improper removal, handling or installation. Id. In addition to pointing out the potential impact of this maintenance, the court also stated that the inlet connector may have been damaged due to engine overheating. Id. "Without evidence demonstrating the condition of the inlet connector when it was sold by General Motors and left its custody, [the plaintiff] cannot carry his burden under South Carolina law for proving strict liability and breach of warranty." Id. The court also found that the plaintiff had not offered any evidence of negligence by General Motors. Id.
From the opinion, Oglesby focuses on a product's maintenance, as well as "wear and tear." Furthermore, the court's statements concerning improper removal, handling or installation of the radiator also suggest that the case ties in with the "subsequent mishandling" component of this analysis. From my review of the case law, the courts do not appear to distinguish between the factors in the manner in which I have set them forth in this series. Clearly, there can be some overlap between "subsequent mishandling" and maintenance, as I have distinguished them in this series. However, I liked how the court in Oglesby categorized the actions of the truck owner a little more innocuously, i.e. as routine maintenance, than how the court categorized the boat repairman's actions in Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995).
The point to remember is that a person's actions do not have to be as extreme as the "splicing" that occurred in Bragg. It may just be a matter of doing general maintenance improperly, or overtightening a bolt, that causes a product to not be in "essentially the same condition." See Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982) (holding that that cracks in and subsequent breakdown of the lug bolts on a tire were the result of subsequent mishandling of the product at issue (i.e., due to over-tightening) and affirming a directed verdict by the trial court).
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
This is the fourth installment of a series based on some research I have been doing for an article. The first three installments can be found here (part I), and here (part II), and here (part III).
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
- Whether it has been "subsequently mishandled;"
- Whether it has been modified or altered;
- Whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury, which can be relevant to "wear and tear;" and
- Maintenance.
The best case (involving interpretation of South Carolina law) that I have found that references a product's maintenance record is Oglesby v. Gen. Motors Corp., 190 F.3d 244 (4th Cir. 1999). Oglesby involved a truck's radiator hose that detached and sprayed hot coolant on the plaintiff mechanic. Id. at 247. The truck was purchased "used" in 1991 and had 156,000 miles on it at the time of the 1995 injury. Id. at 252. The record did not include any information concerning the prior owner's repair or maintenance records. Id. After the 1991 purchase, the truck's owner removed the radiator on at least two occasions and had removed and repaired its hoses. Id. The court believed that the inlet connector on the hose could have been damaged during either of those repairs due to improper removal, handling or installation. Id. In addition to pointing out the potential impact of this maintenance, the court also stated that the inlet connector may have been damaged due to engine overheating. Id. "Without evidence demonstrating the condition of the inlet connector when it was sold by General Motors and left its custody, [the plaintiff] cannot carry his burden under South Carolina law for proving strict liability and breach of warranty." Id. The court also found that the plaintiff had not offered any evidence of negligence by General Motors. Id.
From the opinion, Oglesby focuses on a product's maintenance, as well as "wear and tear." Furthermore, the court's statements concerning improper removal, handling or installation of the radiator also suggest that the case ties in with the "subsequent mishandling" component of this analysis. From my review of the case law, the courts do not appear to distinguish between the factors in the manner in which I have set them forth in this series. Clearly, there can be some overlap between "subsequent mishandling" and maintenance, as I have distinguished them in this series. However, I liked how the court in Oglesby categorized the actions of the truck owner a little more innocuously, i.e. as routine maintenance, than how the court categorized the boat repairman's actions in Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995).
The point to remember is that a person's actions do not have to be as extreme as the "splicing" that occurred in Bragg. It may just be a matter of doing general maintenance improperly, or overtightening a bolt, that causes a product to not be in "essentially the same condition." See Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982) (holding that that cracks in and subsequent breakdown of the lug bolts on a tire were the result of subsequent mishandling of the product at issue (i.e., due to over-tightening) and affirming a directed verdict by the trial court).
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Monday, June 15, 2009
Case Brief: Barnwell v. Barber-Colman Co.
By Brian A. Comer
Today's brief is of Barnwell v. Barber-Colman Co., 301 S.C. 534, 393 S.E.2d 162 (1989). This case is most often cited for the rule that a plaintiff cannot recover punitive damages in a cause of action based solely on strict liability. Punitive damages are not available for strict liability claims in South Carolina.
FACTUAL BACKGROUND: Plaintiff's hand was badly mangled in a piece of textile machinery manufactured by Defendant Barber-Colman ("Defendant"). 301 S.C. at 536, 393 S.E.2d at 162.
PROCEDURE: Plaintiff sued Defendant and elected to proceed to trial solely under the theory of strict liability, alleging that the machinery was equipped with a defectively designed guard. 301 S.C. at 536, 393 S.E.2d at 162. The jury returned a verdict for Plaintiff in the amount of $1 million in actual damages and $2.8 million in punitive damages. Id.
ISSUE: The court accepted on certification from the United States District Court for the District of South Carolina the following question of law: "Under South Carolina law, are punitive damages recoverable in a cause of action based solely on the theory of strict liability?" 301 S.C. at 536, 393 S.E.2d at 162.
DISPOSITION: "We hold that punitive damages are not recoverable in a cause of action based solely upon the theory of strict liability." 301 S.C. at 536, 393 S.E.2d at 162.
RULES AND OPINION: South Carolina recognized strict liability in 1974 through Act Number 1184. 301 S.C. at 536, 393 S.E.2d at 163. The Act incorporated almost verbatim the definition of strict liability from Restatement (Second) of Torts section 402A. Id. "Where a cause of action is created by statute, the statute determines what damages may be recovered." Id. The Act does not specifiy that punitive damages are recoverable, and S.C. Code section 15-73-10(1) states that a seller of a defecive product "is subject to liability for physical harm caused . . . ." Id. at 536-37, 393 S.E.2d at 163 (emphasis in original). Punitive damages are not assessed to compensate a plaintiff for physical harm suffered. Id. at 537, 393 S.E.2d at 163. Their purpose is to punish the wrongdoer and deter him and others from similar future action. Id. Therefore, punitive damages are not recoverable under the Act. Id. The dissent's conclusion that the court's decision places South Carolina in the minority is deceiving because South Carolina is one of a small number of states that adopted strict liability by legislative enactment, as opposed to judicial decision. Id. "Where the legislature has, by statute, acted upon a subject, the judiciary is limited to interpretation and construction of that statute." Id. To read something into the statute that was not put there by the legislature would be to legislate, and not to interpret. Id. at 538, 393 S.E. 2d at 163-64. If punitive damages are to be permitted by the statute, then the legislature would have to amend it. Id. at 538, 393 S.E.2d at 164.
DISSENT: Justice Finney wrote a dissent in which he set forth his opinion that South Carolina law permits recovery of punitive damages in actions based solely on strict liaiblity. 301 S.C. at 538-43, 393 S.E.2d at 164-66. South Carolina allows punitive damages in numerous types of tort actions. Id. at 539, 393 S.E.2d at 164. The General Assembly, in adopting S.C. Code section 15-73-10, did not specify limits on the type of damages that are recoverable. Id. at 539-40, 393 S.E.2d at 164-65. They simply codified Restatement (Second) of Torts section 402A, and other jurisdictions that have interpreted it have found that strict liability and punitive damages are compatible. Id. The cases relied on by the majority are distinguishable by the fact that the statutes at issue in those cases were more explicit, and current public policy favors allowing punitive damages in almost every kind of tort action. Id. at 541, 393 S.E.2d at 165. From the language of the strict liability statute, "liability" was intended to be given a broader meaning than the one assigned by the majority. Id. at 541-42, 393 S.E.2d at 165-66. The General Assembly's intent was to permit the statute to operate under existing South Carolina law. Id. at 542, 393 S.E.2d at 166. Because South Carolina's law favors punitive damages awards in tort action, it is reasonable that punitive damages would extend to strict liability. Id. There is nothing in the Act to indicate any legislative intent to change the common law, and therefore the court may not extend the application of the statute to achieve that intent. Id. Though punitive damages are compatible with strict liability cases, they should only be awarded where the defendant had prior knowledge of the specific defect complained of by the plaintiff, but the defendant continued to market the product anyway. Id. Strict liability was not intended to be a shield for manufacturers to limit recovery to compensatory damages, and it does not make sense to allow punitive damages for certain products liability theories (e.g., negligence), but not for strict liability. Id. at 542-43, 393 S.E.2d at 166.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Today's brief is of Barnwell v. Barber-Colman Co., 301 S.C. 534, 393 S.E.2d 162 (1989). This case is most often cited for the rule that a plaintiff cannot recover punitive damages in a cause of action based solely on strict liability. Punitive damages are not available for strict liability claims in South Carolina.
FACTUAL BACKGROUND: Plaintiff's hand was badly mangled in a piece of textile machinery manufactured by Defendant Barber-Colman ("Defendant"). 301 S.C. at 536, 393 S.E.2d at 162.
PROCEDURE: Plaintiff sued Defendant and elected to proceed to trial solely under the theory of strict liability, alleging that the machinery was equipped with a defectively designed guard. 301 S.C. at 536, 393 S.E.2d at 162. The jury returned a verdict for Plaintiff in the amount of $1 million in actual damages and $2.8 million in punitive damages. Id.
ISSUE: The court accepted on certification from the United States District Court for the District of South Carolina the following question of law: "Under South Carolina law, are punitive damages recoverable in a cause of action based solely on the theory of strict liability?" 301 S.C. at 536, 393 S.E.2d at 162.
DISPOSITION: "We hold that punitive damages are not recoverable in a cause of action based solely upon the theory of strict liability." 301 S.C. at 536, 393 S.E.2d at 162.
RULES AND OPINION: South Carolina recognized strict liability in 1974 through Act Number 1184. 301 S.C. at 536, 393 S.E.2d at 163. The Act incorporated almost verbatim the definition of strict liability from Restatement (Second) of Torts section 402A. Id. "Where a cause of action is created by statute, the statute determines what damages may be recovered." Id. The Act does not specifiy that punitive damages are recoverable, and S.C. Code section 15-73-10(1) states that a seller of a defecive product "is subject to liability for physical harm caused . . . ." Id. at 536-37, 393 S.E.2d at 163 (emphasis in original). Punitive damages are not assessed to compensate a plaintiff for physical harm suffered. Id. at 537, 393 S.E.2d at 163. Their purpose is to punish the wrongdoer and deter him and others from similar future action. Id. Therefore, punitive damages are not recoverable under the Act. Id. The dissent's conclusion that the court's decision places South Carolina in the minority is deceiving because South Carolina is one of a small number of states that adopted strict liability by legislative enactment, as opposed to judicial decision. Id. "Where the legislature has, by statute, acted upon a subject, the judiciary is limited to interpretation and construction of that statute." Id. To read something into the statute that was not put there by the legislature would be to legislate, and not to interpret. Id. at 538, 393 S.E. 2d at 163-64. If punitive damages are to be permitted by the statute, then the legislature would have to amend it. Id. at 538, 393 S.E.2d at 164.
DISSENT: Justice Finney wrote a dissent in which he set forth his opinion that South Carolina law permits recovery of punitive damages in actions based solely on strict liaiblity. 301 S.C. at 538-43, 393 S.E.2d at 164-66. South Carolina allows punitive damages in numerous types of tort actions. Id. at 539, 393 S.E.2d at 164. The General Assembly, in adopting S.C. Code section 15-73-10, did not specify limits on the type of damages that are recoverable. Id. at 539-40, 393 S.E.2d at 164-65. They simply codified Restatement (Second) of Torts section 402A, and other jurisdictions that have interpreted it have found that strict liability and punitive damages are compatible. Id. The cases relied on by the majority are distinguishable by the fact that the statutes at issue in those cases were more explicit, and current public policy favors allowing punitive damages in almost every kind of tort action. Id. at 541, 393 S.E.2d at 165. From the language of the strict liability statute, "liability" was intended to be given a broader meaning than the one assigned by the majority. Id. at 541-42, 393 S.E.2d at 165-66. The General Assembly's intent was to permit the statute to operate under existing South Carolina law. Id. at 542, 393 S.E.2d at 166. Because South Carolina's law favors punitive damages awards in tort action, it is reasonable that punitive damages would extend to strict liability. Id. There is nothing in the Act to indicate any legislative intent to change the common law, and therefore the court may not extend the application of the statute to achieve that intent. Id. Though punitive damages are compatible with strict liability cases, they should only be awarded where the defendant had prior knowledge of the specific defect complained of by the plaintiff, but the defendant continued to market the product anyway. Id. Strict liability was not intended to be a shield for manufacturers to limit recovery to compensatory damages, and it does not make sense to allow punitive damages for certain products liability theories (e.g., negligence), but not for strict liability. Id. at 542-43, 393 S.E.2d at 166.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Friday, June 12, 2009
Drilling Down: "Essentially the Same Condition" (Part III)
By Brian A. Comer
This is the third installment of a series based on some research I have been doing for an article. The first two installments can be found here (part I) and here (part II).
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
The amount of time that has elapsed between when a product left the manufacturer's control and when the plaintiff was injured is also relevant to whether a product is in "essentially the same condition." The most significant case to analyze this factor is Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969), an automotive collision case in which the plaintiff was impaled on the gearshift. Mickle, 252 S.C. at 202, 166 S.E.2d at 173. The protective knob on the gearshift collapsed as the plaintiff was thrown against it during the accident. Id. at 217, 166 S.E.2d at 178-79. One of the issues in the case was whether the manufacturer could be liable for the collapse of the knob after thirteen years of use prior to the accident. Id. at 236-37, 166 S.E.2d at 189. The plastic material used to make the knob was available in a wide range of colors, including black. Id. at 234-35, 166 S.E.2d at 187-88. The manufacturer chose to use a white material in the model at issue, and exposure to ultraviolet rays of sunlight caused this material to deteriorate over time. This deterioration included hairline cracks, which made the knob more susceptible to shattering on impact. Id. at 235, 166 S.E.2d at 188. In subsequent models, the manufacturer changed the color of the knobs to black, which made them highly resistant to ultraviolet rays. Id. at 235, 166 S.E.2d at 188. There was no evidence that the black knobs ever deteriorated with age or normal use. Id.
The court stated the applicable law as follows:
From a reading of Mickle v. Blackmon, it is apparent that courts have applied the lapse of time factor in different ways, depending on the issues arising in the case. On one hand, the amount of time that has elapsed may be relevant to the degree to which a product has undergone normal "wear and tear" and, as a result, may not be in "essentially the same condition." On the other hand, the amount of time that has elapsed without injury may also be relevant to indicate that the seller was not responsible for the defect, e.g., where a product may have been altered or modified. Subsequent cases have also incorporated this analysis into their review of product modifications that have undergone wear and tear or that have been out of the control of the manufacturer for a significant period of time. See Fernandez v. Spar Tek Indus., Inc., No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *29 (D.S.C. June 10, 2008); Ellison v. Rehab. Servs. of Columbus, No. 3:06-1053-CMC, 2007 U.S. Dist. LEXIS 10882, at *6 (D.S.C. Feb. 12, 2007); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 545-46 462 S.E.2d 321, 329-30 (Ct. App. 1995).
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
This is the third installment of a series based on some research I have been doing for an article. The first two installments can be found here (part I) and here (part II).
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
- Whether it has been "subsequently mishandled;"
- Whether it has been modified or altered;
- Whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury, which can be relevant to "wear and tear;" and
- Maintenance.
The amount of time that has elapsed between when a product left the manufacturer's control and when the plaintiff was injured is also relevant to whether a product is in "essentially the same condition." The most significant case to analyze this factor is Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969), an automotive collision case in which the plaintiff was impaled on the gearshift. Mickle, 252 S.C. at 202, 166 S.E.2d at 173. The protective knob on the gearshift collapsed as the plaintiff was thrown against it during the accident. Id. at 217, 166 S.E.2d at 178-79. One of the issues in the case was whether the manufacturer could be liable for the collapse of the knob after thirteen years of use prior to the accident. Id. at 236-37, 166 S.E.2d at 189. The plastic material used to make the knob was available in a wide range of colors, including black. Id. at 234-35, 166 S.E.2d at 187-88. The manufacturer chose to use a white material in the model at issue, and exposure to ultraviolet rays of sunlight caused this material to deteriorate over time. This deterioration included hairline cracks, which made the knob more susceptible to shattering on impact. Id. at 235, 166 S.E.2d at 188. In subsequent models, the manufacturer changed the color of the knobs to black, which made them highly resistant to ultraviolet rays. Id. at 235, 166 S.E.2d at 188. There was no evidence that the black knobs ever deteriorated with age or normal use. Id.
The court stated the applicable law as follows:
"If the chattel is in good condition when it is sold, the seller is not responsible when it undergoes subsequent changes, or wears out. There mere lapse of time since the sale by the defendant, during which there has been continued safe use of the product, is always relevant, as indicating that the seller was not responsible for the defect. There have been occasional cases in which, upon the particular facts, it has held to be conclusive. It is, however, quite certain that Neither [sic] long continued lapse of time nor changes in ownership will be sufficient in themselves to defeat recovery when there is clear evidence of an original defect in thing sold."Id. at 237, 166 S.E.2d at 189 (emphasis added) (quoting Lynch v. Int'l Harvester Co. of America, 60 F.2d 223, 224 (10th Cir. 1932)). The court reviewed numerous other cases in which a plaintiff had been injured by an older product, and the focus of this inquiry was on whether the alleged "defect" at issue was due to wear and tear, or whether it was due to faulty manufacture or fabrication. Id. at 189-90, 166 S.E.2d at 237-40. After reviewing the case law, the court reached the following conclusion:
Here, as in the cases just referred to, there was evidence of an original weakness in the gearshift assembly which caused the collapse of the protective knob. The deterioration of the product and its consequent failure was the very risk created by the negligent choice of material, or the jury could so find. The rule relied upon, that manufacturer is not liable for the failure of a product due to deterioration from ordinary wear and tear or misuse, simply does not fit these facts.Id. at 240, 166 S.E.2d at 190. The court conceded that the amount of time that had elapsed between the marketing of the product and the injury was a "formidable obstacle" to assigning liability to the manufacturer. Id. However, "[t]he important inquiry is not how long the knob lasted but what caused its failure." Id. In Mickle, the failure had less to do with "wear and tear" and the passage of time, and more to do with the manufacturer's choice of material.
From a reading of Mickle v. Blackmon, it is apparent that courts have applied the lapse of time factor in different ways, depending on the issues arising in the case. On one hand, the amount of time that has elapsed may be relevant to the degree to which a product has undergone normal "wear and tear" and, as a result, may not be in "essentially the same condition." On the other hand, the amount of time that has elapsed without injury may also be relevant to indicate that the seller was not responsible for the defect, e.g., where a product may have been altered or modified. Subsequent cases have also incorporated this analysis into their review of product modifications that have undergone wear and tear or that have been out of the control of the manufacturer for a significant period of time. See Fernandez v. Spar Tek Indus., Inc., No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *29 (D.S.C. June 10, 2008); Ellison v. Rehab. Servs. of Columbus, No. 3:06-1053-CMC, 2007 U.S. Dist. LEXIS 10882, at *6 (D.S.C. Feb. 12, 2007); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 545-46 462 S.E.2d 321, 329-30 (Ct. App. 1995).
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Wednesday, June 10, 2009
Case Brief: Kennedy v. Custom Ice Equipment, Inc.
By Brian A. Comer
Today's brief is of Kennedy v. Custom Ice Equipment Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978). The is a product modification case, and it is significant because it discusses how a product may be defective if a third-party modification was foreseeable and should have been incorporated into the design. This is a pretty short case, and you can probably read it in its entirety in about the same amount of time that it takes to read this brief.
Factual Background: Plaintiff was employed at Georgetown Ice Company ("Georgetown"), which manufactured and distributed crushed ice. 271 S.C at 173, 246 S.E.2d at 177. Defendant Custom Ice Equipment, Inc. ("Defendant") designed and installed the machinery used by Georgetown. Plaintiff was instructed to empty the ice storage bins, which were supplied by an overhead conveyor that carried the ice from the ice-maker to the bins. Id. The ice was removed through an opening at the underside of the bin, through which the ice falls when a trap door is opened. Id. If the ice froze up and would not fall out, it had to be physically dislodged. Id. Georgetown had constructed a wooden "catwalk" beside the storage bins so that employees could reach in the bins and break up the frozen ice with a garden hoe. 271 S.C. at 173-74, 246 S.E.2d at 177. Plaintiff attempted to do this and was drawn into the overhead conveyor, ripping his arm off. 271 S.C. at 174, 246 S.E.2d at 177.
Procedure: Plaintiff alleged causes of action against defendant for negligent design of the overhead conveyor and for strict liability. 271 S.C. at 174, 246 S.E.2d at 177. Defendant moved for a directed verdict as to both causes of action, which were denied. Id. The case was submitted to the jury, and a verdict was returned for $208,000. Id.
Issues: Defendant appealed the denial of its motions for directed verdict as to both of Plaintiff's causes of action. 271 S.C. at 174, 246 S.E.2d at 177. The South Carolina Supreme Court reviewed the evidence for both causes of action.
Disposition: The court affirmed the decisions of the trial court. 271 S.C. at 175, 176, 246 S.E.2d at 178.
Rules and Opinion: With regard to the negligence action, Defendant alleged that the overhead conveyor was designed and installed without protective shields because its height rendered it unforeseeable that someone would come into close contact with the exposed portions of the rapidly-turning auger. 271 S.C. at 175, 246 S.E.2d at 177. Defendant compared the danger to that of a high tension power line (i.e., dangerous, but inaccessible). Id. Defendant also claimed that the risk from the conveyor was open and obvious; therefore, the Plaintiff was contributorily negligent by climbing up the conveyor. Id. Plaintiff presented evidence that ice "bridging" was a common problem in the industry and that Defendant was aware of the need to come into close contact with the conveyor to dislodge the ice. 271 S.C. at 175, 246 S.E.2d at 178. There was also evidence that Defendant knew that it was common to reach into the storage bins with garden hoes to dislodge the ice. Id. Because of the conflicting evidence , the trial judge did not err in submitting the negligence claim to the jury. Id. The court stated that questions of negligence, proximate cause, and contributory negligence are ordinarily questions of fact for the jury. Id.
With regard to the second cause of action, Defendant alleged that the screw conveyor was not defective when installed because of the insulation provided by the conveyor's height; therefore, Georgetown's modifications (i.e., constructing the catwalk) created the defect. 271 S.C. at 176, 246 S.E.2d at 178. Plaintiff admitted to the modification, but offered evidence that Defendant had actual knowledge of the construction and use of catwalks in other plants, and therefore Defendant should have foreseen the use of the catwalk. Id. Plaintiff argued that failure to anticipate the foreseeable use of the catwalk by placing protective shields on the conveyor rendered the design of the conveyor defective. Id. The court stated:
Id. (but see note below). Therefore, the court held that the evidence created a factual question of whether the Plaintiff's injuries were proximately caused by a defect in the product as designed, or by an unforeseeable modification by a third party. Id. The court contrasted its holding in Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E. 2d 671 (1978), where the only reasonable inference was that the product was not defective as designed. 271 S.C. at 176-77, 246 S.E.2d at 178.
Notes: This case preceded Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995, which also set forth a second test for determining whether a product is in a defective condition, unreasonably dangerous (i.e., the risk-utility test). See Bragg, 319 S.C at 543-44, 462 S.E.2d at 328.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Today's brief is of Kennedy v. Custom Ice Equipment Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978). The is a product modification case, and it is significant because it discusses how a product may be defective if a third-party modification was foreseeable and should have been incorporated into the design. This is a pretty short case, and you can probably read it in its entirety in about the same amount of time that it takes to read this brief.
Factual Background: Plaintiff was employed at Georgetown Ice Company ("Georgetown"), which manufactured and distributed crushed ice. 271 S.C at 173, 246 S.E.2d at 177. Defendant Custom Ice Equipment, Inc. ("Defendant") designed and installed the machinery used by Georgetown. Plaintiff was instructed to empty the ice storage bins, which were supplied by an overhead conveyor that carried the ice from the ice-maker to the bins. Id. The ice was removed through an opening at the underside of the bin, through which the ice falls when a trap door is opened. Id. If the ice froze up and would not fall out, it had to be physically dislodged. Id. Georgetown had constructed a wooden "catwalk" beside the storage bins so that employees could reach in the bins and break up the frozen ice with a garden hoe. 271 S.C. at 173-74, 246 S.E.2d at 177. Plaintiff attempted to do this and was drawn into the overhead conveyor, ripping his arm off. 271 S.C. at 174, 246 S.E.2d at 177.
Procedure: Plaintiff alleged causes of action against defendant for negligent design of the overhead conveyor and for strict liability. 271 S.C. at 174, 246 S.E.2d at 177. Defendant moved for a directed verdict as to both causes of action, which were denied. Id. The case was submitted to the jury, and a verdict was returned for $208,000. Id.
Issues: Defendant appealed the denial of its motions for directed verdict as to both of Plaintiff's causes of action. 271 S.C. at 174, 246 S.E.2d at 177. The South Carolina Supreme Court reviewed the evidence for both causes of action.
Disposition: The court affirmed the decisions of the trial court. 271 S.C. at 175, 176, 246 S.E.2d at 178.
Rules and Opinion: With regard to the negligence action, Defendant alleged that the overhead conveyor was designed and installed without protective shields because its height rendered it unforeseeable that someone would come into close contact with the exposed portions of the rapidly-turning auger. 271 S.C. at 175, 246 S.E.2d at 177. Defendant compared the danger to that of a high tension power line (i.e., dangerous, but inaccessible). Id. Defendant also claimed that the risk from the conveyor was open and obvious; therefore, the Plaintiff was contributorily negligent by climbing up the conveyor. Id. Plaintiff presented evidence that ice "bridging" was a common problem in the industry and that Defendant was aware of the need to come into close contact with the conveyor to dislodge the ice. 271 S.C. at 175, 246 S.E.2d at 178. There was also evidence that Defendant knew that it was common to reach into the storage bins with garden hoes to dislodge the ice. Id. Because of the conflicting evidence , the trial judge did not err in submitting the negligence claim to the jury. Id. The court stated that questions of negligence, proximate cause, and contributory negligence are ordinarily questions of fact for the jury. Id.
With regard to the second cause of action, Defendant alleged that the screw conveyor was not defective when installed because of the insulation provided by the conveyor's height; therefore, Georgetown's modifications (i.e., constructing the catwalk) created the defect. 271 S.C. at 176, 246 S.E.2d at 178. Plaintiff admitted to the modification, but offered evidence that Defendant had actual knowledge of the construction and use of catwalks in other plants, and therefore Defendant should have foreseen the use of the catwalk. Id. Plaintiff argued that failure to anticipate the foreseeable use of the catwalk by placing protective shields on the conveyor rendered the design of the conveyor defective. Id. The court stated:
The test of whether a product is defective when sold is whether the product is unreasonably dangerous to the consumer or user given the conditions and circumstances that will foreseeably attend the use of the product. Under this test, the jury could have determined that the construction of the catwalk by Georgetown was a foreseeable circumstance that required the incorporation of protective shields in the design of the conveyor.
Id. (but see note below). Therefore, the court held that the evidence created a factual question of whether the Plaintiff's injuries were proximately caused by a defect in the product as designed, or by an unforeseeable modification by a third party. Id. The court contrasted its holding in Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E. 2d 671 (1978), where the only reasonable inference was that the product was not defective as designed. 271 S.C. at 176-77, 246 S.E.2d at 178.
Notes: This case preceded Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995, which also set forth a second test for determining whether a product is in a defective condition, unreasonably dangerous (i.e., the risk-utility test). See Bragg, 319 S.C at 543-44, 462 S.E.2d at 328.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Tuesday, June 9, 2009
Explanation of the "Basics" Topic Tag
By Brian A. Comer
As a lawyer, sometimes I am called on to provide "overviews" of certain areas of the law for a client. For this reason, I created "The 'Basics'" as a topic tag (see right side of blog).
Posts that are tagged with this label are designed to provide overviews of significant aspects of South Carolina products liability law (i.e., each of the elements, tests, learned intermediary doctrine, etc.). In other words, it is my attempt to give a "high level" summary about a significant part of South Carolina's products liability law. Some of these postings become more exhaustive than they probably should be (e.g., see the current series on what it means for a product to be in "essentially the same condition"). However, I am trying to make the topics narrow, and my intention is for the information to be substantive enough that a person could read it and get a general summary of the basic law.
So...if you ever need the "basics", click on that tag.
As a lawyer, sometimes I am called on to provide "overviews" of certain areas of the law for a client. For this reason, I created "The 'Basics'" as a topic tag (see right side of blog).
Posts that are tagged with this label are designed to provide overviews of significant aspects of South Carolina products liability law (i.e., each of the elements, tests, learned intermediary doctrine, etc.). In other words, it is my attempt to give a "high level" summary about a significant part of South Carolina's products liability law. Some of these postings become more exhaustive than they probably should be (e.g., see the current series on what it means for a product to be in "essentially the same condition"). However, I am trying to make the topics narrow, and my intention is for the information to be substantive enough that a person could read it and get a general summary of the basic law.
So...if you ever need the "basics", click on that tag.
Monday, June 8, 2009
Drilling Down: "Essentially the Same Condition" (Part II)
By Brian A. Comer
This is the second installment of what I guess I can call a "series" based on some research I have been doing for an article. The first installment can be found here.
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
Modification or alteration of a product, including modification to its safety features and warnings, may also serve as evidence that a product is not in the same condition. Fernandez v. Spar Tek Indus., Inc., C.A. No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *28 (D.S.C. June 10, 2008). Unlike cases where a court characterizes subsequent changes as "mishandling," alteration or modification cases appear (from my research at least) to involve a situation where a party made an attempt to "fix" or adapt a product for continued use.
For example, Fernandez v. Spar Tek Industries., Inc. involved a plywood press, and the plaintiff's expert testified that "[an] interlocking chain had been added and certain warnings changed, further suggesting that changes relating to safety devices likely were made in the over twenty-two years between when the machines left [the manufacturer's] control and when [the plaintiff] was injured." The district court granted summary judgment for the entirety of the plaintiff's products liability claims (brought in strict liability and negligence) because the plaintiff could not provide affirmative evidence that the plywood press at issue was in "essentially the same condition," despite these changes. Id. at *31.
Although the South Carolina Supreme Court did not directly address the "essentially the same condition" requirement in Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E.2d 671 (1978), it is clear from a reading of the case (see the linked brief of the case) that subsequent alteration by a boat repairman was a key issue. The court held that "the only reasonable inference that can be drawn from the evidence is that the damages here sustained would not have occurred absent [the boat repairman's] unforeseeable actions." Id. at 468, 242 S.E.2d at 678.
It is also worth mentioning Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 536-37, 462 S.E.2d 321, 324-25 (Ct. App. 1995) on this point. Though it was not dispositive of the issue in the case, the court pointed out in Bragg that the majority of the safety decals that were on the boom of the aerial bucket truck at issue had been painted over or removed as a result of actions to refurbish it. Bragg is more significant for "subsequent mishandling" and "lapse of time" (the subject of a future post), but I thought this point was interesting as another basis for finding that the product was not in essentially the same condition.
I will profile the impact of the amount of time that has elapsed between the time a product left a manufacturer's control and the time of injury in the next installment of this series.
Comments are welcome!
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
This is the second installment of what I guess I can call a "series" based on some research I have been doing for an article. The first installment can be found here.
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
- Whether it has been "subsequently mishandled;"
- Whether it has been modified or altered;
- Whether a significant amount of time has elapsed between when the product left the
- manufacturer's control and the time of injury, which can be relevant to "wear and tear;"
Maintenance.
Modification or alteration of a product, including modification to its safety features and warnings, may also serve as evidence that a product is not in the same condition. Fernandez v. Spar Tek Indus., Inc., C.A. No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *28 (D.S.C. June 10, 2008). Unlike cases where a court characterizes subsequent changes as "mishandling," alteration or modification cases appear (from my research at least) to involve a situation where a party made an attempt to "fix" or adapt a product for continued use.
For example, Fernandez v. Spar Tek Industries., Inc. involved a plywood press, and the plaintiff's expert testified that "[an] interlocking chain had been added and certain warnings changed, further suggesting that changes relating to safety devices likely were made in the over twenty-two years between when the machines left [the manufacturer's] control and when [the plaintiff] was injured." The district court granted summary judgment for the entirety of the plaintiff's products liability claims (brought in strict liability and negligence) because the plaintiff could not provide affirmative evidence that the plywood press at issue was in "essentially the same condition," despite these changes. Id. at *31.
Although the South Carolina Supreme Court did not directly address the "essentially the same condition" requirement in Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E.2d 671 (1978), it is clear from a reading of the case (see the linked brief of the case) that subsequent alteration by a boat repairman was a key issue. The court held that "the only reasonable inference that can be drawn from the evidence is that the damages here sustained would not have occurred absent [the boat repairman's] unforeseeable actions." Id. at 468, 242 S.E.2d at 678.
It is also worth mentioning Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 536-37, 462 S.E.2d 321, 324-25 (Ct. App. 1995) on this point. Though it was not dispositive of the issue in the case, the court pointed out in Bragg that the majority of the safety decals that were on the boom of the aerial bucket truck at issue had been painted over or removed as a result of actions to refurbish it. Bragg is more significant for "subsequent mishandling" and "lapse of time" (the subject of a future post), but I thought this point was interesting as another basis for finding that the product was not in essentially the same condition.
I will profile the impact of the amount of time that has elapsed between the time a product left a manufacturer's control and the time of injury in the next installment of this series.
Comments are welcome!
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Friday, June 5, 2009
Case Brief: Dema v. Shore Enterprises, Ltd.
By Brian A. Comer
Today's case brief is of Dema v. Shore Enterprises, Ltd., 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993). The case is most often cited for for the principle that "a product is not defective for failure to warn of the obvious." Id. at 530, 435 S.E.2d at 876. This is a short case, and you can probably read it in its entirety in about as much time as it takes to read this brief.
Factual Background: Plaintiff Dema was body surfing on a public beach and collided with a recreational vehicle known as an Aqua-Cycle. 312 S.C. at 529, 435 S.E.2d at 875-76.
Procedure: Plaintiff and his wife brought a products liability action against various individuals and entities, including the Aqua-Cycle manufacturer. 312 S.C. at 529, 435 S.E.2d at 876-77. At trial, Plaintiffs claimed that the failure to place certain warnings on the watercraft (to "watch out for swimmers" and to "avoid strong current, wind or waves") made the craft defective and unreasonably dangerous. Id. at 530, 435 S.E.2d at 876. The trial court granted a directed verdict in favor of the manufacturer as to the Plaintiffs' claims for strict liability, breach of implied warranty, and negligence because it found that failure to place a warning on the watercraft was not the proximate cause of the injuries. Id. Plaintiffs also claimed at trial that the town was negligent in allowing Aqua-Cycles to be used on the beach in the vicinity of swimmers. Id. at 531, 435 S.E.2d at 876. The trial court granted a directed verdict on the ground that there was no evidence that the town had actual notice of a defective or dangerous condition as required under the South Carolina Tort Claims Act. Id. The jury found in favor of the remaining defendants on the remaining claims. Id. at 530, 435 S.E.2d at 875.
Issues: The Plaintiffs appealed from the directed verdicts in favor of the (1) manufacturer, and (2) the Town of Hilton Head. 312 SC. at 530, 435 S.E.2d at 875.
Disposition: The South Carolina Court of Appeals affirmed the trial court. 312 S.C. at 530, 435 S.E.2d at 875.
Rules and Opinion: With regard to the first issue, the South Carolina Court of Appeals first reviewed the three elements that a plaintiff must establish in any products liability claim. 312 S.C. at 530, 435 S.E.2d at 876. The only element in dispute was whether "the injury occurred because the product was in a defective condition unreasonably dangerous to the user." Id. The court reviewed the evidence to determine, in the light most favorable to the nonmoving party, whether the evidence was susceptible to the reasonable inference that the Aqua-Cycle was defective. Id. "A product is not defective for failure to warn of the obvious." Id. (citing Koester v. Carolina Rental Ctr., Inc., 311 S.C. 115, 427 S.E.2d 708 (Ct. App. 1993)). The evidence was indisputable that Aqua-Cycle users would be aware, based on common sense, that they should be careful around swimmers in the surf. Id. at 530-31, 435 S.E.2d at 876. Because of the obviousness of the risk, the manufacturer did not have a duty to warn users of the Aqua-Cycle of the risk. Id. It affirmed the trial court's directed verdict in favor of the manufacturer. Id.
With regard to the second issue, the South Carolina Court of Appeals stated that it did not need to determine whether the town had notice of a dangerous condition. 312 S.C. at 531, 435 S.E.2d at 876. Instead, because the jury found that the franchisee (Shore Enterprises) was not negligent in renting Aqua-Cycles, it could not have found the town liable for allowing the franchisee to rent the Aqua-Cycle that Plaintiff Dema collided with. Id. at 531, 435 S.E.2d at 877.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Today's case brief is of Dema v. Shore Enterprises, Ltd., 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993). The case is most often cited for for the principle that "a product is not defective for failure to warn of the obvious." Id. at 530, 435 S.E.2d at 876. This is a short case, and you can probably read it in its entirety in about as much time as it takes to read this brief.
Factual Background: Plaintiff Dema was body surfing on a public beach and collided with a recreational vehicle known as an Aqua-Cycle. 312 S.C. at 529, 435 S.E.2d at 875-76.
Procedure: Plaintiff and his wife brought a products liability action against various individuals and entities, including the Aqua-Cycle manufacturer. 312 S.C. at 529, 435 S.E.2d at 876-77. At trial, Plaintiffs claimed that the failure to place certain warnings on the watercraft (to "watch out for swimmers" and to "avoid strong current, wind or waves") made the craft defective and unreasonably dangerous. Id. at 530, 435 S.E.2d at 876. The trial court granted a directed verdict in favor of the manufacturer as to the Plaintiffs' claims for strict liability, breach of implied warranty, and negligence because it found that failure to place a warning on the watercraft was not the proximate cause of the injuries. Id. Plaintiffs also claimed at trial that the town was negligent in allowing Aqua-Cycles to be used on the beach in the vicinity of swimmers. Id. at 531, 435 S.E.2d at 876. The trial court granted a directed verdict on the ground that there was no evidence that the town had actual notice of a defective or dangerous condition as required under the South Carolina Tort Claims Act. Id. The jury found in favor of the remaining defendants on the remaining claims. Id. at 530, 435 S.E.2d at 875.
Issues: The Plaintiffs appealed from the directed verdicts in favor of the (1) manufacturer, and (2) the Town of Hilton Head. 312 SC. at 530, 435 S.E.2d at 875.
Disposition: The South Carolina Court of Appeals affirmed the trial court. 312 S.C. at 530, 435 S.E.2d at 875.
Rules and Opinion: With regard to the first issue, the South Carolina Court of Appeals first reviewed the three elements that a plaintiff must establish in any products liability claim. 312 S.C. at 530, 435 S.E.2d at 876. The only element in dispute was whether "the injury occurred because the product was in a defective condition unreasonably dangerous to the user." Id. The court reviewed the evidence to determine, in the light most favorable to the nonmoving party, whether the evidence was susceptible to the reasonable inference that the Aqua-Cycle was defective. Id. "A product is not defective for failure to warn of the obvious." Id. (citing Koester v. Carolina Rental Ctr., Inc., 311 S.C. 115, 427 S.E.2d 708 (Ct. App. 1993)). The evidence was indisputable that Aqua-Cycle users would be aware, based on common sense, that they should be careful around swimmers in the surf. Id. at 530-31, 435 S.E.2d at 876. Because of the obviousness of the risk, the manufacturer did not have a duty to warn users of the Aqua-Cycle of the risk. Id. It affirmed the trial court's directed verdict in favor of the manufacturer. Id.
With regard to the second issue, the South Carolina Court of Appeals stated that it did not need to determine whether the town had notice of a dangerous condition. 312 S.C. at 531, 435 S.E.2d at 876. Instead, because the jury found that the franchisee (Shore Enterprises) was not negligent in renting Aqua-Cycles, it could not have found the town liable for allowing the franchisee to rent the Aqua-Cycle that Plaintiff Dema collided with. Id. at 531, 435 S.E.2d at 877.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Thursday, June 4, 2009
Verdicts and Advance Sheets
By Brian A. Comer
I am on the lookout for new cases that come out in the Advance Sheets that deal with South Carolina products law, and they will go to the top of my "Case Brief" queue when they are released. I did not see any in the latest release from the appellate courts.
In addition, I am also on the lookout for any new products liability trial verdicts that come out, either for plaintiffs or defendants. I have not seen any in the last couple weeks, but also plan to profile those.
If anyone sees any that come out, or know of any that I may have missed, please comment! I would love to include it in my blog, and though I am on the lookout, would love for any readers to assist in being my "eyes and ears" on that kind of "breaking news."
I am on the lookout for new cases that come out in the Advance Sheets that deal with South Carolina products law, and they will go to the top of my "Case Brief" queue when they are released. I did not see any in the latest release from the appellate courts.
In addition, I am also on the lookout for any new products liability trial verdicts that come out, either for plaintiffs or defendants. I have not seen any in the last couple weeks, but also plan to profile those.
If anyone sees any that come out, or know of any that I may have missed, please comment! I would love to include it in my blog, and though I am on the lookout, would love for any readers to assist in being my "eyes and ears" on that kind of "breaking news."
Drilling Down: "Essentially the Same Condition" (Part I)
By Brian A. Comer
A products liability case in South Carolina may be brought under several theories, including strict liability, negligence, and/or breach of warranty. A full discussion of the theories and elements can be found here. Regardless of the theory of recovery, the plaintiff must establish that the product was in essentially the same condition at the time of the accident as when it left the hands of the defendant. Rife v. Hitachi Constr. Mach. Co., Ltd., 363 S.C. 209, 215, 609 S.E.2d 565, 568 (Ct. App. 2005). What exactly does this requirement mean?
I am in the process of drafting an article for (hopeful) publication that explores this requirement in detail, but I thought I would provide a few brief "abstracts" that highlight the statutory and case law that I have found on this particular topic. Today I'm going to highlight the burden of proof and one of the factors relevant to whether a product is in "essentially the same condition."
Burden of Proof: First, the plaintiff has the burden of proving this element, and failure to do so is fatal to the plaintiff's case. See Oglesby v. General Motors Corp., 190 F.3d 244, 251-52 (4th Cir. 1999); Fernandez v. Spark Tek Indus., Inc., No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *29 (D.S.C. June 10, 2008); Restatement (Second) of Torts § 402A cmt. g. (1965). This may require that a plaintiff provide "affirmative evidence" -- including possibly expert testimony -- that a product was in the same condition at the time of injury as when it left the control of the defendant. Fernandez, 2008 U.S. Dist. LEXIS 45393, at *29; Ellison v. Rehab. Servs. of Columbus, No. 3:06-1053-CMC, 2007 U.S. Dist. LEXIS 10882, at *6 (Feb. 12, 2007 D.S.C.). There is no presumption that a product is in the same condition based solely on the absence of proof to the contrary. Such a presumption would impermissibly shift the burden of proof to the defendant. Ellison, 2007 U.S. Dist. LEXIS 10882, at *6 (stating that the plaintiff failed to provide a legal foundation for the court's adoption of a rebuttable presumption that the machine at issue was unchanged and granting defendant's motion for summary judgment based on evidence of changes in the machine's condition). A plaintiff's visual inspection of a product is not enough to establish the absence of any modification. Id. Furthermore, the absence of modifications, by itself, does not prove that a product is in the same condition as when it left the control of the defendant. Id. This is based on the normal effects of usage of a product (i.e., "wear and tear") and the common need for maintenance, especially for machines with moving parts. Id. Just one modification – even if to a part of the product not at issue – counters any presumption that a machine was in essentially the same condition as when it left the control of the defendant. Id. at *7.
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
Strict Liability and "Subsequent Mishandling": The strict liability statute provides the best source for initial guidance with regard to the "essentially the same condition" element. South Carolina Code section 15-73-10(1)(b) sets forth that a product must “reach the user or consumer without substantial change in the condition in which it is sold." S.C. Code. Ann 15-73-10(1)(b) (1976) (emphasis added). In this context, "essentially the same condition" is equated to "without substantial change" in a product's condition. Comment g. to Restatement (Second) of Torts section 402A has been adopted as the legislative intent of South Carolina's strict liability code, and it also provides guidance.
I'll address the other factors in some forthcoming posts. I didn't want this one to be too long or drawn out, and I also want to be sure I can continue to provide substantive updates.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
A products liability case in South Carolina may be brought under several theories, including strict liability, negligence, and/or breach of warranty. A full discussion of the theories and elements can be found here. Regardless of the theory of recovery, the plaintiff must establish that the product was in essentially the same condition at the time of the accident as when it left the hands of the defendant. Rife v. Hitachi Constr. Mach. Co., Ltd., 363 S.C. 209, 215, 609 S.E.2d 565, 568 (Ct. App. 2005). What exactly does this requirement mean?
I am in the process of drafting an article for (hopeful) publication that explores this requirement in detail, but I thought I would provide a few brief "abstracts" that highlight the statutory and case law that I have found on this particular topic. Today I'm going to highlight the burden of proof and one of the factors relevant to whether a product is in "essentially the same condition."
Burden of Proof: First, the plaintiff has the burden of proving this element, and failure to do so is fatal to the plaintiff's case. See Oglesby v. General Motors Corp., 190 F.3d 244, 251-52 (4th Cir. 1999); Fernandez v. Spark Tek Indus., Inc., No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *29 (D.S.C. June 10, 2008); Restatement (Second) of Torts § 402A cmt. g. (1965). This may require that a plaintiff provide "affirmative evidence" -- including possibly expert testimony -- that a product was in the same condition at the time of injury as when it left the control of the defendant. Fernandez, 2008 U.S. Dist. LEXIS 45393, at *29; Ellison v. Rehab. Servs. of Columbus, No. 3:06-1053-CMC, 2007 U.S. Dist. LEXIS 10882, at *6 (Feb. 12, 2007 D.S.C.). There is no presumption that a product is in the same condition based solely on the absence of proof to the contrary. Such a presumption would impermissibly shift the burden of proof to the defendant. Ellison, 2007 U.S. Dist. LEXIS 10882, at *6 (stating that the plaintiff failed to provide a legal foundation for the court's adoption of a rebuttable presumption that the machine at issue was unchanged and granting defendant's motion for summary judgment based on evidence of changes in the machine's condition). A plaintiff's visual inspection of a product is not enough to establish the absence of any modification. Id. Furthermore, the absence of modifications, by itself, does not prove that a product is in the same condition as when it left the control of the defendant. Id. This is based on the normal effects of usage of a product (i.e., "wear and tear") and the common need for maintenance, especially for machines with moving parts. Id. Just one modification – even if to a part of the product not at issue – counters any presumption that a machine was in essentially the same condition as when it left the control of the defendant. Id. at *7.
Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.
- Whether it has been "subsequently mishandled;"
- Whether it has been modified or altered;
- Whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury, which can be relevant to "wear and tear;"
- Maintenance.
Strict Liability and "Subsequent Mishandling": The strict liability statute provides the best source for initial guidance with regard to the "essentially the same condition" element. South Carolina Code section 15-73-10(1)(b) sets forth that a product must “reach the user or consumer without substantial change in the condition in which it is sold." S.C. Code. Ann 15-73-10(1)(b) (1976) (emphasis added). In this context, "essentially the same condition" is equated to "without substantial change" in a product's condition. Comment g. to Restatement (Second) of Torts section 402A has been adopted as the legislative intent of South Carolina's strict liability code, and it also provides guidance.
g. Defective condition. The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate user, which will be unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition and subsequent mishandling or other causes make it harmful by the time it is consumed. . . .(Emphasis added). Therefore, at least in the strict liability context, a change in condition may also be due to "subsequent mishandling or other causes." At least three South Carolina cases have addressed "subsequent mishandling" in a products liability action. See Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982) (holding that that cracks in and subsequent breakdown of the lug bolts on a tire were the result of subsequent mishandling of the product at issue (i.e., due to over-tightening) and affirming a directed verdict by the trial court); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 545, 462 S.E.2d 321, 329-330 (Ct. App. 1995) (holding that replacement of hydraulic fluid hoses on the bucket truck just prior to the accident constituted "improper use by a third party" and was the cause of the injury); and Jackson v. Bermuda Sands, Inc., No. 4530, 2009 WL 1037043, at *3 (S.C. Ct. App. Apr. 14, 2009) (holding that an alleged "crack" in a collapsed chair would constitute subsequent mishandling of a product unless the plaintiff could prove that the chair was cracked at the time that it left the manufacturer).
I'll address the other factors in some forthcoming posts. I didn't want this one to be too long or drawn out, and I also want to be sure I can continue to provide substantive updates.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Tuesday, June 2, 2009
I am on twitter!
I have always been fairly resistant to the whole social networking phenomenon, but I have broken down and started a twitter profile. I figured that it would be a good way to notify of new blog posts, and I am working on setting up the rss feed from this site to my twitter account so that new posts will be announced over there. This post is a "test" for that purpose. Check out twitter.com/bacomer for my profile (and I will be checking it out to see if this post was announced over there).
Monday, June 1, 2009
Case Brief: Sunvillas Homeowners Ass'n, Inc. v. Square D Co.
By Brian A. Comer
Today's brief is of Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 391 S.E.2d 868 (Ct. App. 1990). The case is most often cited for for the principle that the mere fact that a product malfunctions does not establish the manufacturer's negligence or that the product was defective.
Factual Background: A fire occurred at a beachfront condominium project. Square D manufactured a circuit breaker utilized in the project. 301 S.C. at 332, 391 S.E.2d at 869.
Procedure: Sunvillas Homeowners Association ("Sunvillas") sued various defendants to recover damages resulting from the fire, and the only defendant involved in the appeal was Square D. 301 S.C. at 332, 391 S.E.2d at 869. Sunvillas claimed the circuit breaker was negligently designed or manufactured. Id. At the end of the plaintiff's case, Square D made a motion for directed verdict, which the trial judge granted. Id. "Square D then moved to amend the complaint to conform to the proof on the issue of warranty. The trial judge denied the motion the basis that he had already directed a verdict when the motion was made." Id. at 334, 391 S.E.2d at 870.
Issues: The two issues on appeal were (1) whether the trial judge erred in granting Square D's motion for a directed verdict at the end of the plaintiff's case, and (2) whether the trial judge erred in denying the motion to amend Sunvillas complaint to add a breach of warranty claim. 301 S.C. at 332, 391 S.E.2d at 869.
Disposition: The South Carolina Court of Appeals affirmed the decisions of the trial court.
Rules and Opinion: The court first addressed the granting of the directed verdict motion. 301 S.C. at 332-34, 391 S.E.2d at 869-70. Sunvillas employed the services of an expert qualified in electrical engineering and origin of electrical fires. Id. at 332, 391 S.E.2d at 870. The expert sent the circuit breaker to Square D for analysis, but he did not agree with their opinion that the cause of the malfunction was water and waterborne contaminants which had followed the top lead-in wires into the breaker. Id. He agreed that there was corrosion in the breaker, but denied that it was the cause of the failure. Id. Though he could not identify the defect, he based his opinion of product defect on the fact that the breaker malfunctioned. Id. In affirming the trial court's directed verdict for Square D, the court stated that "[t]he mere fact that a product malfunctions does not demonstrate the manufacturer's negligence nor tend to establish the product was defective." Id. at 333, 391 S.E.2d at 870. Though negligence may be proven by circumstantial evidence, "the plaintiff must show such circumstances as would justify the inference that the damages suffered were due to the negligent act of the defendant and the question may not be left to mere conjecture or speculation." Id. at 334, 391 S.E.2d at 870. Sunvillas' expert did not testify about design alternatives, and he did not identify a specific defect in the breaker that was the result of a manufacturing error. Id. The jury would have been left to speculate about the how Square D failed to exercise due care, so the trial court was correct in granting the directed verdict. Id.
With regard to the denial of plaintiff's motion to amend the complaint, this issue is somewhat confusing because the court's decision is not entirely clear on who moved for the amendment of the complaint. At the outset of the opinion, the court states that Sunvillas made the motion. 301 S.C. 332, 391 S.E.2d at 869. However, at the beginning of the discussion, the court states that "Square D moved to amend the complaint to conform to the proof on the issue of warranty." Id. at 334, 391 S.E.2d at 870. Later, the court again states that it was Sunvilla's motion. Id. at 335, 391 S.E.2d at 871. Regardless, the court stated that the motion was governed by S.C.R.C.P. 15(b) and that there was no evidence that the issue of implied warranty was tried by express or implied consent. Id. Sunvillas chose to plead only negligence, and "[i]t did not move to amend until after the trial judge had ruled against it on a directed verdict motion." Id. The court agreed with commentators that the opposing party may not be conscious of the relevance of certain evidence to issues not raised by the pleadings if that matter is not made clear. Id. "Since defect of the project was relevant to neglengence as well as warranty and we find no indication of implied consent to try a warranty claim, we affirm the trial court's decision to deny the motion." Id. The second portion of S.C.R.C.P. 15(b) (dealing with objection to the introduction of evidence as being not within the pleadings) was not applicable to the case. Id.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Today's brief is of Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 391 S.E.2d 868 (Ct. App. 1990). The case is most often cited for for the principle that the mere fact that a product malfunctions does not establish the manufacturer's negligence or that the product was defective.
Factual Background: A fire occurred at a beachfront condominium project. Square D manufactured a circuit breaker utilized in the project. 301 S.C. at 332, 391 S.E.2d at 869.
Procedure: Sunvillas Homeowners Association ("Sunvillas") sued various defendants to recover damages resulting from the fire, and the only defendant involved in the appeal was Square D. 301 S.C. at 332, 391 S.E.2d at 869. Sunvillas claimed the circuit breaker was negligently designed or manufactured. Id. At the end of the plaintiff's case, Square D made a motion for directed verdict, which the trial judge granted. Id. "Square D then moved to amend the complaint to conform to the proof on the issue of warranty. The trial judge denied the motion the basis that he had already directed a verdict when the motion was made." Id. at 334, 391 S.E.2d at 870.
Issues: The two issues on appeal were (1) whether the trial judge erred in granting Square D's motion for a directed verdict at the end of the plaintiff's case, and (2) whether the trial judge erred in denying the motion to amend Sunvillas complaint to add a breach of warranty claim. 301 S.C. at 332, 391 S.E.2d at 869.
Disposition: The South Carolina Court of Appeals affirmed the decisions of the trial court.
Rules and Opinion: The court first addressed the granting of the directed verdict motion. 301 S.C. at 332-34, 391 S.E.2d at 869-70. Sunvillas employed the services of an expert qualified in electrical engineering and origin of electrical fires. Id. at 332, 391 S.E.2d at 870. The expert sent the circuit breaker to Square D for analysis, but he did not agree with their opinion that the cause of the malfunction was water and waterborne contaminants which had followed the top lead-in wires into the breaker. Id. He agreed that there was corrosion in the breaker, but denied that it was the cause of the failure. Id. Though he could not identify the defect, he based his opinion of product defect on the fact that the breaker malfunctioned. Id. In affirming the trial court's directed verdict for Square D, the court stated that "[t]he mere fact that a product malfunctions does not demonstrate the manufacturer's negligence nor tend to establish the product was defective." Id. at 333, 391 S.E.2d at 870. Though negligence may be proven by circumstantial evidence, "the plaintiff must show such circumstances as would justify the inference that the damages suffered were due to the negligent act of the defendant and the question may not be left to mere conjecture or speculation." Id. at 334, 391 S.E.2d at 870. Sunvillas' expert did not testify about design alternatives, and he did not identify a specific defect in the breaker that was the result of a manufacturing error. Id. The jury would have been left to speculate about the how Square D failed to exercise due care, so the trial court was correct in granting the directed verdict. Id.
With regard to the denial of plaintiff's motion to amend the complaint, this issue is somewhat confusing because the court's decision is not entirely clear on who moved for the amendment of the complaint. At the outset of the opinion, the court states that Sunvillas made the motion. 301 S.C. 332, 391 S.E.2d at 869. However, at the beginning of the discussion, the court states that "Square D moved to amend the complaint to conform to the proof on the issue of warranty." Id. at 334, 391 S.E.2d at 870. Later, the court again states that it was Sunvilla's motion. Id. at 335, 391 S.E.2d at 871. Regardless, the court stated that the motion was governed by S.C.R.C.P. 15(b) and that there was no evidence that the issue of implied warranty was tried by express or implied consent. Id. Sunvillas chose to plead only negligence, and "[i]t did not move to amend until after the trial judge had ruled against it on a directed verdict motion." Id. The court agreed with commentators that the opposing party may not be conscious of the relevance of certain evidence to issues not raised by the pleadings if that matter is not made clear. Id. "Since defect of the project was relevant to neglengence as well as warranty and we find no indication of implied consent to try a warranty claim, we affirm the trial court's decision to deny the motion." Id. The second portion of S.C.R.C.P. 15(b) (dealing with objection to the introduction of evidence as being not within the pleadings) was not applicable to the case. Id.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
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