Wednesday, October 13, 2010

Drilling Down: Does SC Recognize a Post-Sale Duty to Warn?

From doing research on warnings and from my experience in litigation, a frequent question that comes up is whether a manufacturer has a post-sale duty to warn, i.e., after the product is sold in the marketplace.

South Carolina does not recognize a post-sale duty to warn. In Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995), the South Carolina Court of Appeals agreed with the trial court’s charge that a manufacturer “has no duty to notify previous purchasers of its products about later developed safety devices or to retrofit those products if the products were nondefective under standards existing at the time of the manufacture or sale.” Bragg, 319 S.C. at 548, 462 S.E.2d 331. Subsequent cases have also cited to Bragg’s language and have indicated that South Carolina does not recognize a post-sale duty to warn. Ervin v. Continental Conveyor & Equip. Co., Inc., 674 F. Supp.2d 709, 725 (D.S.C. 2009); Campbell v. Gala Indus., Inc., No. 6:04-2036-RBH, 2006 WL, at *4-5 1073796 (D.S.C. Apr. 20, 2006).

I have seen defendants try to argue that Bragg's language supports that a manufacturer-defendant has no post-sale duty to warn...period. For example, I was involved in a case where one of the issues at trial was whether a manufacturer's service representative had a duty to notify a customer that a guard on the machine at issue was missing (i.e., a guard that might have prevented the injury at issue). The issue was framed as more of a negligent maintenance and inspection issue, as opposed to a products liability issue. However, the manufacturer argued that Bragg's language supported that it had no post-sale duty to warn of the missing guard during its maintenance of the machine.

This is not how I interpret Bragg. From my reading (and I welcome your comments), it clearly applies to improvements made after the manufacture of the product. In such cases, the manufacturer has no duty to circulate a new warning about the consequences not having the improvement, and it certainly has no duty to recall all products to retrofit them. However, I do not believe that it -- carte blanche -- means that a manufacturer has no post-sale duty to warn of any kind. See also Hubband & Felix, The South Carolina Law of Torts 292 (1997) ("Moreover, Bragg does not appear to be applicable to situations where a seller discovers dangers or defects after the sale. In this situation, the weight of authority clearly imposes a duty of due care on the seller.). Rather, the manufacturer has no post-sale duty to warn about improvements.

Although this is the current status of South Carolina law, recent opinions issued by the South Carolina Supreme Court have cited to the Restatement (Third) of Torts: Products Liability (1998) to support adoption of the risk-utility test as the exclusive test for a design defect claim. See Branham v. Ford Motor Co., No. 26860, 2010 WL 3219499 (S.C. Sup. Ct. Aug. 16, 2010) (citing to Restatement (Third) of Torts: Products Liability § 2b (1998) in support of adoption of risk-utility test); Watson v. Ford Motor Co., No. 26786, 2010 WL 3543725 (S.C. Sup. Ct. Sept. 13, 2010) (reiterating in footnote four its adoption of the Restatement (Third) approach for the risk-utility test in Branham). These opinions have been the subjects of prior blog posts where I noted the citation to the Restatement (Third).

Although this citation does not change South Carolina’s lack of recognition of a post-sale duty to warn, it may have opened the door for plaintiffs to argue that South Carolina should adopt other sections of the Restatement (Third), and specifically section 10. Section 10 of the Restatement (Third) provides for “Liability Of Commercial Product Seller Or Distributor For Harm Caused By Post–Sale Failure To Warn,” or a post-sale duty to warn.

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1 comment:

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