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.

• 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.

Today I'm going to profile the third factor, whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury.
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).

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