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.

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

Thursday, October 7, 2010

Case Brief: Nelson v. Coleman Co.

Today's case brief is Nelson v. Coleman Co., Inc., 249 S.C. 652, 155 S.E.2d 917 (Ct. App. 1967). This case involves a floor furnace and outlines a manufacturer's duty to test and inspect components in its products. It also discusses circumstantial evidence in a negligence case and the consequences of a defendant's failure to present its own evidence in response to a plaintiff's case. Specifically, although the decision admits that South Carolina does not recognize the Res Ipsa Loquitor doctrine, if a plaintiff is injured and provides circumstantial evidence to explain the cause of the injury, then a defendant proceeds at his own peril by not responding.

FACTUAL BACKGROUND: Plaintiff Homeowner purchased an oil burning floor furnace from Defendant Manufacturer through Defendant's authorized dealer. 249 S.C. at 655, 155 S.E.2d at 919. The dealer installed the furnace, and sixteen hours later, it emitted sparks and flames and destroyed the house and its contents. Id.

PROCEDURE: Plaintiff sued Defendant on negligence grounds. 249 S.C. at 655, 155 S.E.2d at 919. At trial, Defendant moved for nonsuit and directed verdict at the conclusion of Plaintiff's case, and without offering testimony or evidence of its own. Id. at 656, 155 S.E.2d at 919. The motions were denied, and the jury returned a verdict for Plaintiff. Id. Defendant moved for a judgment notwithstanding the verdict or a new trial, and both motions were denied. Id. Defendant appealed the denial of its motions by the trial court.

ISSUES: Defendant raised various different evidentiary and legal rulings as the basis for the appeal, including whether there was sufficient evidence of negligence and damages.

DISPOSITION: The South Carolina Supreme Court affirmed the rulings of the trial court. 249 S.C. at 662, 155 S.E.2d at 922.

RULES AND OPINION: The furnace was delivered from Defendant and installed at Plaintiff's residence without any changes to its condition. 249 S.C. at 655, 155 S.E.2d at 919. Plaintiff offered expert testimony that the fire was caused by a malfunctioning of the fuel regulator, which allowed oil to go into the burner and overflow and burn outside the furnace. Id. at 656, 155 S.E.2d at 919. Plaintiff's expert further testified that the defect in the fuel regulator was not apparent and could only be detected by testing conducted before shipping of the product. Id. at 657, 155 S.E.2d at 920. Defendant contended that the fuel regulator was manufactured by a third-party. Id. Although it was a component to Defendant's product, Defendant contended that it had no duty to test and inspect the component. Id. Even if it had a duty, Defendant contended there was no evidence that it failed to fulfill this duty. Id. The court stated the applicable law as follows:
It is generally held that a manufacturer who incorporates into his product a component made by another has a responsibility to test and inspect such component, and that his negligent failure properly to perform such duty renders him liable for injuries proximately caused thereby.
Id. In this context, the court believed that Plaintiff had provided sufficient circumstantial evidence to support that the fire was caused by the malfunctioning fuel regulator and that the defect could have been discovered by the Defendant with proper inspection and testing. Id. at 658, 155 S.E.2d at 920. Therefore, with regard to the sufficiency of evidence of negligence, there was no error in refusing the Defendant's motions. Id.

Defendant also contested whether Plaintiff had provided competent evidence to support a finding of money damages. Id. Plaintiff presented evidence that the reasonable value of items lost in the fire was $11,198.20, which included a list compiled by Plaintiff of the personal property lost in the fire. Id. at 659, 155 S.E.2d at 921. The court found that it was reasonable for Plaintiff to provide his own estimate of the value of the personal property, and there was no error in refusing Defendant's motions on grounds of insufficient evidence of damages. Id.

Defendant also contested that the trial judge erred in sustaining Plaintiff's objection to certain questions posed to Plaintiff's expert witness, i.e., "Is it customery in the trade for the manufacturers of these regulators to test them after they are manufactured." Id. at 660, 155 S.E.2d at 921. The court found that the trial judge's decision to sustain Plaintiff's objection to this question was not error because Defendant was able to pose a similar question to Plaintiff's expert and get his answer. Id. at 660-61, 155 S.E.2d at 921.

Defendant also asserted that Plaintiff's argument to the jury that Defendant had failed to produce witnesses or offer testimony was improper. Id. at 661, 155 S.E.2d at 922. The court disagreed, stating "We have held in a number of cases that it is proper for counsel to comment on the fact that the defendant has not taken the stand or offered testimony. It would be error in a criminal case so to do but not in a civil case. " Id. Therefore, the court held that this exception by Defendant was meritless. Id.

Finally, Defendant objected to the trial judge's charge that if a party fails to produce testimony of an available witness on a material issue, then the jury may infer that such testimony (if presented) would be adverse to the party failing to call the witness. Id. at 661-662, 155 S.E.2d at 922. Defendant's objection was that the trial judge left out the requirement that the witness be "available." Id. at 662, 155 S.E.2d at 922. However, the court found that Defendant had not properly preserved this objection at trial (i.e., Defendant did not request any clarification, amplification, or other curative measure by the trial judge). Id.

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

Wednesday, October 6, 2010

Forthcoming Article on SC Warnings Law

I have been busy finalizing an article on South Carolina warnings law, and I'm pleased to announced that it is (tentatively) scheduled for publication in the January 2011 edition of South Carolina Lawyer. The article focuses on the theory behind warnings, when a duty to warn arises, and what makes a warning adequate (or inadequate). I have tried to exhaustively review any South Carolina authority I could dig up to study all of the nuances of South Carolina's warnings law. Once I hear final determination of publication, I will let any of my blog readers know of the month of publication, but it is currently scheduled for January. Look for it!