Open and Obvious Risk . . . or a/k/a "You Had a Bad Day"

You had a bad day. Like the song in the video, that phrase epitomizes an accident involving an open and obvious risk. The risk was right there, in front of you, and you ran headfirst into it in spite of yourself. You want to blame someone...someone should have told you about the danger. "That wheelbarrow should have warned about operating it near a trench!!!" But c'mon...you can't blame anyone. You knew better. You just had a bad day.

Admittedly, the accidents in the video are not directly on point as all of them do not necessarily involve a "product" per se. (Although any accident involving a ladder being placed near an obvious risk implicates Anderson v. Green Bull, Inc., 322 S.C. 268, 471 S.E.2d 708 (1996) discussed further below). However, the point remains the same. A seller is not required to warn of dangers or potential dangers that are generally known and recognized by users. Moore v. Barony House Restaurant, LLC, 382 S.C.35, 41, 674 S.E.2d 500, 504 (Ct. App. 2009); Anderson, 322 S.C. at 270, 471 S.E.2d at 710. This exception to the duty to warn includes dangers that are open, obvious, or matters that should be “common sense” to the user. Id; Dema v. Shore Enterprises, Ltd., 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993).

The rationale for this exception is that the product is not defective or unreasonably dangerous because these dangers are contemplated by the ultimate user. Anderson, 322 S.C. at 270, 471 S.E.3d at 710 (citing Restatement (Second) of Torts § 402A cmt. g. (1965) for the principle that “a product is defective only ‘where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”) (emphasis in original).

This exception applies where the obvious risk poses a danger to the user of the product or to others. For example, operating an unlighted golf cart on a public highway at night has been held to present an open and obvious risk. In Moore v. Barony House Restaurant, LLC, the plaintiff brought negligence and strict liability claims against a golf cart manufacturer and claimed that the manufacturer failed to provide an adequate warning about operation of the cart at night and on public roads. The South Carolina Court of Appeals affirmed the circuit court’s grant of summary judgment for both claims, finding that “operation of an unlighted golf car on a public highway at night presents an open and obvious risk.” Moore, 382 S.C. at 42, 674 S.E.2d at 504. Furthermore, the court stated that although questions of negligence are often for the jury, there is no duty to warn of an open and obvious risk as a matter of law. Id.

The threat of electrocution from placing a ladder in close proximity to power lines has also been held to be an open and obvious risk. Anderson v. Green Bull, Inc. involved a lawsuit by the personal representative of a roofer who was electrocuted when his aluminum ladder came in contact with overhead power lines. The ladder contained a red warning label that read, “KEEP ENTIRE UNIT CLEAR OF ALL UTILITY AND ELECTRICAL WIRING.” Anderson, 322 S.C. at 270, 471 S.E.2d at 710. The trial court denied the manufacturer’s motion for a directed verdict, the jury returned a $50,000 verdict in favor of the plaintiff, and the trial court denied the manufacturer’s motion for judgment notwithstanding the verdict. Id. at 269, 471 S.E.2d at 710. However, the South Carolina Court of Appeals reversed the trial court’s decisions. The court did not believe that there was any evidence from which the jury could have reasonably inferred that the ladder was defective because “the conductivity of an aluminum ladder is a condition commonly known and recognized.’” Id. at 271, 471 S.E.2d at 711. “Any person of normal intelligence would know ‘the risk posed by an aluminum ladder in close proximity to an energized high-voltage line.” Id., 471 S.E.2d at 710. The plaintiff also raised the issue of whether the ladder manufacturer should have provided a warning to users to shorten the length whenever the ladder’s length would make it more dangerous because of surrounding conditions, such as overhead high voltage transmission lines. Id. at 271 n.3, 471 S.E.2d at 711 n.3. Because the manufacturer was not required to warn users to stay clear of power lines in the first place, the manufacturer was not required to warn users to take specific measures to stay clear of the lines (i.e., by moving the ladder, shortening it, or actions). Id.

Moore and Anderson involved injuries to the users of the products at issue. However, this exception also applies where certain use of a product poses a risk to someone else. A manufacturer is not required to warn about certain uses that could pose a danger to someone else as a matter of common sense. For example, in Dema v. Shore Enterprises, Ltd., the South Carolina Court of Appeals held that an Aqua-Cycle water recreational vehicle was not defective for failure to include a warning label cautioning the user to “watch out for swimmers” and to “avoid strong current, wind, or waves.” 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993). In reaching its conclusion, the court stated as follows:

[U]sers of the Aqua-Cycle would be aware, as a matter of common sense, that they should be careful around swimmers in the surf. Because it is obvious that an Aqua-Cycle can cause injury to a swimmer, [the manufacturer] did not have a duty to warn Aqua-Cycle users of that risk.

Id. at 531-32, 435 S.E.2d at 876. South Carolina courts have used similar analysis to determine that there is no duty to warn about overtightening of lug nuts so as to avoid cracking them. Claytor v. General Motors, Corp., 277 S.C. 259, 286 S.E.2d 129 (1982).

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