Wednesday, December 29, 2010

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

video

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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Thursday, December 9, 2010

'Tis the Season for Good Food...And Warnings



During this time of year when we enjoy turkey, turkey ala king, turkey sandwiches, turkey soup, turkey casserole, and crazy delicious holiday food (see above classic example from National Lampoon's "Christmas Vacation"), it is a good time to reflect on...warnings. Yes, that's right, there is even a body of law concerning warnings about food.

You are probably saying to yourself right now, "I've always thought that the turkey packaging should warn about L-Tryptophan and the danger of driving after Christmas lunch." Whether sleepiness after excessive turkey consumption is an open and obvious risk (and therefore constitutes an exception to the duty to warn) is an issue that will be debated for eons among the most sophisticated jurists.

But I digress. The reality is that food warnings law is set forth fairly clearly in comment J. to section 402A of the Restatement (Second) of Torts. As you will recall, South Carolina has incorporated this comment by reference into its strict liability statute as the legislative intent of the chapter. See S.C. Code Ann. § 15-73-30 (1976) (“Comments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.”). Comment j. includes certain exceptions to the duty to warn, and it just so happens that two such exceptions deal with warnings about food.

(1) Common Allergies

The first exception to the duty to warn set forth in comment j. is that “the seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them.” Restatement (Second) of Torts § 402A cmt. j. Although this exception to the duty to warn may be straightforward when the consumer’s conduct relates to avoiding individual food products, it becomes more problematic when these food products are ingredients in other dishes. Comment j. therefore qualifies this exception with additional language.
Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge of the presence of the ingredient and the danger.
For example, the Food Allergen Labeling and Consumer Act (“FALCA”) went into effect in 2006 to require that packaged foods containing milk, eggs, fish, crustacean shellfish, peanuts, tree nuts, wheat and soy must display them prominently in the ingredient list. See 21 U.S.C. § 201 et. seq. According to FALCA, these “Big Eight” food allergens account for 90 percent of all food-allergic reactions, and federal law requires their disclosure on packaged foods. Id. at § 201(2). Comment j. provides some of the rationale for this disclosure: a substantial number of the population is allergic to these ingredients, and the consumer may not know if one of the ingredients is in a food product without the disclosure.

Neither South Carolina state nor federal courts have interpreted this specific aspect of comment j. in the context of a food products failure to warn case. However, in Vaughn v. Nissan Motor Corp., 77 F.3d 736, 738 (4th Cir. 1996), the court stated in dicta that the “ordinary consumer” standard for determining if a product is unreasonably dangerous does not necessarily apply in the case of products associated with allergic reactions in an appreciable number of consumers.

(2) Products Consumed Over a Long Period of Time

Comment j. also carves out an exception to the duty to warn if the potential danger of a product relates to its use over a long period of time or in excessive quantities: “[A] seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized.” Restatement (Second) of Torts § 402A cmt. j. As examples, the comment cites to alcoholic beverages and foods containing substances such as saturated fats. A seller has no duty to warn about the risks associated with such products from extended or excessive consumption.

Neither South Carolina state nor federal courts have interpreted this exception in comment j. In Aldana v. R.J. Reynolds Tobacco Co., No. 2:06-3366-CWH, 2008 WL 1883404 (D.S.C. Apr. 25, 2008), the court cited to this portion of comment j. to support that the warnings for defendant’s cigarette products were not required to make the product itself “safe,” but the court did not otherwise apply it to excessive or extended use of cigarettes. Id. at *2.

From the South Carolina Products Liability Law Blog, here's wishing you and your friends/families a very Merry Christmas and happy holiday season.

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