Wednesday, January 27, 2010

Drilling Down: The Analytical Framework for Warnings

By Brian A. Comer

I have a five-year-old daughter who is my "spirited child." She would make an excellent lawyer because she is an absolute bulldog when it comes to negotiating, and she hates to lose. However, I find that we frequently run into some variation of the following scenario when it comes to matters of discipline.

Me: "Honey, if you are not going to do what I say, then you are going to have to go to bed early."
Daughter: [Does exactly the opposite of what I told her to do].
Me: "Okay, then time for you to go to bed."
Daughter: "But what about family movie night?"
Me: "You will not be watching family movie night, because you will be in bed."
Daughter: "BUT I DIDN'T REALIZE THAT IS WHAT YOU MEANT!!!" (followed by uncontrollable sobbing).

In her own way, my daughter tries to convince me that I did not provide her with an adequate that sufficiently conveys the risks of performing or not performing certain actions. She does not succeed very often (as I know that she is very smart and that she understood exactly what I said), but this does not stop her from trying.

Similarly, in the realm of products liability litigation, a central focus is frequently whether a manufacturer or seller had a duty to warn the user of a product about potential dangers, and if so, whether the warning was adequate to convey the risks. So I want to write a bit about South Carolina warnings law.

South Carolina law recognizes that many products cannot be made completely safe for use. Claytor v. General Motors Corp., 277 S.C. 259, 264, 286 S.E.2d 129, 132 (1982). However, these products may still be useful, desirable, and serve a purpose. Id. In such cases, if the product is properly designed, manufactured, and packaged with accompanying adequate warnings and instructions, then they are not defective. Id. Otherwise, manufacturers and sellers may be discouraged from marketing many products solely because some danger accompanies the use of the product. Id.

Therefore, “[i]n order to prevent a product from being unreasonably dangerous, the seller may be required to give a warning on the product concerning its use.” Anderson v. Green Bull, Inc., 322 S.C. 268, 270, 471 S.E.2d 708, 710 (1996); see also Claytor v. General Motors Corp., 277 S.C. 259, 264, 286 S.E.2d 129, 132 (1982). If a product includes a warning that – if followed – makes it safe for use, then the product is not defective or unreasonably dangerous. Anderson, 322 S.C. at 270, 471 S.E.2d at 710; Allen v. Long Mfg. NC, Inc., 332 S.C. 422, 427, 404 S.E.2d 354, 357 (Ct. App. 1998). This foundation of South Carolina warnings law is discussed at length in comment j. to section 402A of the Restatement (Second) of Torts, and South Carolina has incorporated this comment by reference into its strict liability statute as the legislative intent of the chapter. See S.C. Code § 15-73-30 (“Comments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.”).

A review of comment j. and the case law interpreting it reveals that the warnings analysis is based on a twofold inquiry: (1) whether there is a duty to warn to begin with, and (2) whether the warning provided is “adequate” so that (if followed) the product is safe for use. See, e.g., Allen v. Long Mfg. NC, Inc., 332 S.C. 422, 427-28, 505 S.E.2d 354, 357 (Ct. App. 1998) (separating the warnings analysis into a determination of duty to warn and adequacy of the warning).

Check back for more on warnings. I hope to make this a new series.

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