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.

1. Whether it has been "subsequently mishandled;"
2. Whether it has been modified or altered;
3. 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;"
4. Maintenance.

Today I'm going to profile the first factor, which has its roots in the strict liability statute.
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.
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