New SC Products Liability Decision

The South Carolina Supreme Court handed down a massive products liability decision in yesterday's advance sheets, Branham v. Ford Motor Company, Opinion Number 26860 (Aug. 16, 2010). The case can be found here and beginning on page 52 here. This opinion is over 40 pages long in the Advance Sheets, and a quick skim indicates that it may be a tutorial for years to come on South Carolina products liability law.

I have only had time for a quick skim, but the case involves the rollover of a 1987 Ford Bronco II 4x2 manufactured in 1986. At trial, a minor passenger brought suit against the driver and Ford, and the jury awarded $16 million in actual damages and $15 million in punitive damages. In its opinion, the South Carolina Supreme Court reverses and remands the findings of liability and award of actual damages. The bases for this decision are (1) that whether a product is defective is measured on the basis of information available at the time of manufacture, and post-manufacture evidence is generally not admissible, (2) the plaintiff introduced evidence of other incidents that was not substantially similar to the accident in dispute, and (3) the closing argument was a direct appeal to the passion and prejudice of the jury.

Folks, this opinion has a TON of information relating to design defect theories, post-distribution evidence, admissibility of similar incidents, appropriateness of closing arguments, verdict forms, apportionment of fault among tortfeasors, actual and punitive damages, and "alignment of parties." And check out this language:

While the consumer expectations test fits well in manufacturing defect cases, we do agree with Ford that the test is ill-suited in design defect cases. We hold today that the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design. In doing so, we recognize our Legislature's presence in the area of strict liability for products liability.

We now have clear direction from South Carolina's Supreme Court on the consumer expectations and risk-utility tests (summarized here), and we also have clear direction on whether feasible alternative design is a required element (the subject of this post).

This case will definitely will be the subject of a forthcoming brief, but clearly it is one that will be required reading.

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