Holiday Season Food Law (Part IV): The food poisoning cases

(This is the fourth post in my holiday series in which I am surveying South Carolina's products liability case law involving food/beverage.  See also part I, part II, and part III). 

As Christmas is behind us and New Year's Day is around the corner, it seems appropriate to begin bringing this series to a conclusion by talking about food that just flat out makes you sick. 

This Saturday evening, people around the world will ring in 2012 with all sorts of food and beverage, and undoubtedly some of them will just become sick for no apparent reason (other than maybe imbibing a bit too much).  There is another line of cases in South Carolina where the lawsuit relates to food that just made someone sick...no fragments of glass, no exploding bottles, no animal carcasses in the food.  The plaintiff just eats/drinks something and gets food poisoning of some variation.  If you are one of these unfortunate individuals, this post is dedicated to you.

In Gantt v. Columbia Coca-Cola Bottling Co., 193 S.C. 51, 7 S.E.2d 641 (1940), a man became sick after drinking a soft drink he believed contained some kind of poisonous substance.  Only after analysis by some chemists was it determined that the soft drink contained copper sulphate (which apparently is used by farmers to protect crops from rust).  7 S.E.2d at 642.  The plaintiff sued for negligence (in bottling of the soft drink, inspection, etc.), and the jury awarded $2,000.  Id.  On appeal, the defendant argued (1) there was no evidence it bottled the drink or that it contained the substance at the time of bottling, and (2) there was no evidence from which a jury could conclude it was negligent.  Id. at 643.  In a detailed opinion, the court pointed out that the only evidence of negligence was a violation of the applicable Pure Food Statute at the time (i.e., making it negligence per se if there is some poisonous or deleterious substance in the food).  Id.  It did not matter that the plaintiff failed to plead the statute in his Complaint, and "neither knowledge of the contamination nor negligence in fact is a material element of the offense."  Id.  It is negligence per se under the law, and this alone is sufficient for consideration by the jury.  Id. at 645.  However, the court reversed the case and remanded for a new trial.  Id. at 645-46.  Why?  Because the trial judge excluded testimony by the defendant the instance at issue was the only time that copper sulphate had been found in the soft drink bottled by the defendant.  Id. at 646.  In short, if the plaintiff can get the case to the jury by just showing violation of the statute, the defendant also should be able to offer testimony relevant to the standard of care, and failure to allow this testimony required a new trial.

Yummy processed and potted meat.  Love it.  My dad's generation sure did, as I often heard stories of "eating Vi-enner sausages in the field" while growing up.  I will pass, thank you very much (especially after reading Upton Sinclair's The Jungle in my high school history class).  Nevertheless, there are three South Carolina cases I have found involving potted/processed meat, and reading them is pure entertainment.  

Housand v. Armour & Co., 173 S.C. 268, 175 S.E. 516 (1934) involved consumption of "oil sausage" sold in 50-pound cans and retrieved via "an old fork which hung from the counter" in the retail shop."  175 S.E. at 517.  This is a strange case in which the "defendant" Armour was found to not actually be the right defendant, but they answered and went to trial anyway.  Ultimately, the judgment against the defendant corporation was reversed based on lack of evidence of negligence and improper expert testimony.  Id. at 518.  The court affirmed the judgment against the local defendants based on how they handled the meat (i.e., not keeping it refrigerated).  Id. at 518-20.  Hollis v. Armour & Co., 190 S.C. 170, 2 S.E.2d 681 (1939) also involved oil sausages, and the offending sausages in this case were sold from cans that had rusted.  The concept of preemption rears its head in this early case, as one of the defendant's arguments was that the State Pure Food Statute interfered with federal acts and regulations.  2 S.E.2d at 684-85.  The court disagreed, and it also believed the plaintiff had adequately pled a violation of the State Pure Food Statute so as to sustain the $1,500 award by the jury to the plaintiff.  Id. at 685.  Finally, Boylston v. Armour & Co., 196 S.C. 1, 12 S.E.2d 34 (1940) involved a ham that had a "bluish-greenish cast" that is "not unusual" in a cooked, smoked ham.  12 S.E.2d at 37.  (Uhhh...okay).  Contrary to the holding in Hollis, the Boylston court reversed the trial court and remanded the case for a new trial on grounds that the applicable State Pure Food Statute did not apply; it only applied to manufacture or sale or offer for sale of food within the state, and there was evidence that the meat at issue was prepared and sold out of state.  Id. at 38. 

Poor Armour.  These cases are a mixed-up potted mess, and reading them can be exhausting.  The above summary does not do them justice.  If you have an interest in potted meat cases, I encourage you to read them for yourself.

Last but not least, Fowler v. Coastal Coca-Cola Bottling Co., 252 S.C. 579, 167 S.E.2d 572 (1969) involved a three-year-old child who became sick after drinking a soft drink that contained something "dark in color and slick and slimy to the touch."  A pathologist determined that the substance was yeast, and he testified that certain yeasts can cause certain diseases.  Id. at 582, 167 S.E.2d at 574.  The problem was that the plaintiff's doctor testified there had been a rash of viruses at the time, and he could not say whether the plaintiff's sickness was from the virus or from the yeast in the soft drink.  Id. at 583, 167 S.E.2d at 574.  Although the court recognized a violation of the Pure Food and Drug Act in effect at the time constituted negligence per se, the plaintiff still had to show proximate causation. 

We have held that where the cause of plaintiff's injury may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable, the plaintiff has failed to carry the burden of establishing that his injury was the proximate result of defendant's negligence.

Id. at 575, 167 S.E.2d at 584.  Based on this law, the court reversed the judgment because plaintiff failed to prove proximate causation.

This is the last group of cases in this series.  In my next (concluding) post for this series, I will do my best to synthesize my blogs on food and beverage case law and bring some "order" to them.

Happy New Year!

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Merry Christmas!

Merry Christmas from the South Carolina Products Liability Law Blog.  We set a record this year...kids woke us up at 5:30 a.m.  I am sure that naps will be in order at some point during the day...for everyone.

Wherever you are celebrating, I hope you enjoy this special day, and thank you for following my blog.  I look forward to the new year and plenty of blogging in 2012.

Merry Christmas!

Holiday Season Food Law (Part III): The fly in the soft drink cases.

 (This is the third post in my holiday series in which I am surveying South Carolina's products liability case law involving food/beverage.  See also part I and part II). 

I was just a young'un when the Christmas version of Coca-Cola's "Hilltop" commercial came out.  You know the one I am talking about (above).  When I hear those children of the 70s croon that they would like to buy the world a Coke, it evokes memories of me tearing into my Evel Knievel motorcycle or my Stretch Monster on Christmas morning.  (Thanks Mom and Dad!).

But I digress.  As nostalgic as the commercial is, it is also appropriate for another group of cases in South Carolina, e.g., where a plaintiff sips that carbonated, caramel-colored goodness and also gets a mouthful of yellow jacket, fly, or other previously living thing.  Which brings us to our next bucket of cases for survey...

♪ ♫  On the third day of Christmas, my true love gave to me...A SOFT DRINK WITH A DEAD ANIMAL IN IT! ♪ ♫

On August 14, 1930, the South Carolina Supreme Court filed three similar cases involving a dead something-or-other in a bottle: Tate v. Mauldin, 157 S.C. 392, 154 S.E. 431 (1930) (dead rat/mouse carcas), Culbertson v. Coca Cola Bottling Co., 157 S.C. 352, 154 S.E. 424 (1930) (dead yellow jacket), and Burnette v. Augusta Coca-Cola Bottling Co., 157 S.C. 359, 154 S.E. 645 (1930) (dead "bug").  Tate appears to be the foundation of South Carolina's food products liability law and is the earliest "dead animal in a bottle case."  In Tate, the South Carolina Supreme Court set forth the fundamental principles of South Carolina's food law.  See generally 154 at S.E. 433-34.  The courts in Culbertson and Burnette then cited to Tate as support for their holdings.   

Culbertson is the most interesting of these three cases.  In Culbertson, a man took a drink of Coke and ingested a dead yellow jacket.  154 S.E. at 425.  At trial, he argued the defendant bottling company was negligent in bottling the beverage and failed to properly inspect it.  Id.  The jury awarded him $200 (which, by the way, is $2,586 by today's dollars according to this website).  On appeal, the defendant argued the trial judge should have directed a verdict because it claimed there was no evidence to support the product was sold by the defendant.  Id.  The court denied this argument based on testimony from a retail employee that the beverage at issue was purchased from the defendant.  Id.  Defendant also argued that the real reason plaintiff became sick was because he drank some whiskey to relieve his condition.  Id.  The court denied this argument because there was testimony that the whiskey was actually ingested after emitting the yellow jacket, and whether the whiskey or yellow jacket made the man sick was a jury question.  Id.  Finally, the appellate court affirmed the jury charges used by the trial court and affirmed that there was sufficient evidence of negligence to submit the case to the jury.  Id.

Floyd v. Florence Nehi Bottling Co, 188 S.C., 98, 198 S.E. 161 (1938) involved a plaintiff who swallowed dead flies in a bottle of Orange Crush.  The jury awarded $1,000 to the plaintiff at trial.  198 S.E. at 162.  The court stated that injury alone is not proof of negligence.  Id. at 163.  Instead, the plaintiff has the burden of proving negligence through direct or circumstantial evidence.  Id.  There was evidence that the bottler's inspector "inspected" 30 bottles per minute, or 14,000 bottles per day.  The jury was entitled to consider whether or not this was the proper level of care in the inspection process.  Id.  The court ultimately affirmed the judgment.  Id. at 164.

In Hobbs v. Carolina Coca-Cola Bottling Co., 194 S.C. 543, 10 S.E.2d 25 (1940), a man bought a Coke and drank about one-fourth of it before realizing that there was some "vile...poisonous...polluted...foul...contaminated...revolting substance" therein, resembling decomposed cockroaches or other bugs.  10 S.E.2d at 26.  He became sick and sued for damages.  Id.  At trial, the jury awarded the man $350, and the defendant bottling company appealed.  Id.  Instead of focusing on negligence, this case really focuses on special damages.  Id. at 27-28.  The plaintiff claimed at trial that he had to hire someone to do work that he otherwise would have done but for his sickness, and he presented the amount paid for the work as "damages" to the jury.  Id. at 27.  The defendant objected on grounds that the plaintiff had not pled these special damages in his Complaint.  Id.  The appellate court agreed with the defendant, and it reversed the judgment and remanded the case for a new trial. Id. at 28.  "[W]here damages do not necessarily result from the act complained of, and consequently are not implied by law, the plaintiff must state the particular damage sustained to in order to introduce testimony in regard to it.  The rule is to avoid surprise."  Id. at 27.  Even though there was sufficient evidence to show violation of the applicable food statute in effect at the time (constituting negligence per se), there had to be a new trial because of the admission of the evidence of special damages that had not been pled in the Complaint.  Id. at 28-29.

Finally, Cohen v. Allendale Coca-Cola Bottling Co., 291 S.C. 35, 351 S.E.2d 897 (Ct. App. 1987) involves similar facts (also involving an insect).  The jury awarded the plaintiff $4,000 in actual damages and $1,000 in punitive damages.  Id. at 37, 351 S.E.2d at 898.  The defendant bottling company appealed the trial court's failure to direct a verdict in its favor or grant judgment notwithstanding the verdict.  Id.  First, the defendant claimed there was evidence to support  the insect came to be in the bottle after plaintiff opened the drink in his office.  Id. at 37, 351 S.E.2d at 899.  Second, the defendant claimed there was no direct evidence of any negligent act or omission during the bottling and inspection process.  Id.  The court concluded there was sufficient circumstantial evidence for a jury to reasonably find the insect was in the bottle prior to the plaintiff opening it (e.g., the insect was at the bottom of the bottle and not floating, it was decomposed, and it happened on a day when plaintiff had not observed insects in his office).  Id.  Once the court admitted evidence showing the insect was in the bottle before opening it, plaintiff had also presented evidence of negligence.  Id. at 39, 351 S.E.2d at 899.  The court also believed the facts were sufficient to send the case to the jury on a breach of warranty theory.  Id.  "The presence of the insect in the bottle was evidence from which the jury could find [defendant] had breached its implied warranty that the soft drink was fit for ordinary consumption."  Id. 

However, a second issue in Cohen was whether the verdict was excessive in light of the facts.  Id. at 39, 351 S.E.2d at 899-900.  The plaintiff's only proven out-of-pocket damages were four or five dollars for prescription nausea medicine.  Id.  He had no doctor bills, lost wages, or physical impairment.  Id. at 39, 351 S.E.2d at 900.  The court set forth the following as the applicable rule:

In a personal injury case, the amount to be awarded for the injury and any resulting pain and suffering cannot be determined with mathematical precision and is necessarily a matter of judgment on the facts of each case which must be left to the jury's discretion.  Where the amount of the verdict bears a reasonable relationship to the character and extent of the injury and the damage sustained, it is not excessive.

Id. at 40, 351 S.E.2d at 900.  The court agreed that the award of actual damages may have been liberal, but it could not conclude that the trial judge abused his discretion in denying the motion for a new trial, or that the award bore no rational to the evidence presented.  Id.  However, the court reversed the award of punitive damages.  Id.  For recovery of punitive damages, there must be evidence that a defendant's conduct is wilful, wanton, or in reckless disregard of the plaintiff's rights.  Id.  The court noted that punitive damages involve deliberate intention or present consciousness of wrongdoing, and there was no evidence that the defendant intended to furnish the plaintiff with a soft drink containing an insect.  Id. at 40-41, 351 S.E.2d at 900.  Therefore, the court ruled that the punitive damages award should have been set aside by the trial court and reversed the award.

So...I'd like to teach the world to sing, in perfect harmony . . . I'd like to buy the world a Coke, and keep it free from...bees.

Happy Holidays All!

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Holiday Season Food Law (Part II): Careful with that salmon (salmon?)...Santa.

(This is the second post in my holiday series in which I am surveying South Carolina's products liability case law involving food/beverage.  See part I here).

There are certain "non-traditional" movies I associate with Christmas, and I love this scene from "Trading Places" where Dan Akroyd plays a down and out Santa Claus who is swiping holiday goodies from a Christmas party.  My favorite part is when he steals a nice piece of salmon, stuffs it into his jacket, and then pulls it out later to feast on it while riding a bus.

The question is, what happens if -- when he bites into that salmony, beard-encrusted goodness -- he bites down on some hard substance or object and breaks a tooth?  Let's discuss this "bucket" of cases.

♪ ♫  On the second day of Christmas, my true love gave to me...A CHRISTMAS COOKIE WITH A TACK IN IT! ♪ ♫

Most of these cases involve alleged negligence by the manufacturer in either the manufacture or post-manufacture inspection of the food product.  The earliest case I have found in this group of cases is Delk v. Liggett & Myers Tobacco Co., 180 S.C. 436, 186 S.E. 383 (1936). 

Delk involved a man who bought some chewing tobacco and, after putting some in his mouth, bit down on a carpet tack.  (Ouch).  The nerve of the tooth died, the tooth became infected, and he could not consume anything but liquids for ten days.  186 S.E. at 348. Plaintiff brought a lawsuit, and the defendant moved at trial for non-suit based on (1) absence of a contractual relationship with the plaintiff, and (2) lack of proof of negligence.  Id. at 385.  The motions were denied and the plaintiff won $500.  Id. The defendant appealed based on the same aforementioned grounds, as well as an erroneous charge by the judge.  Id. With regard to the privity of contract issue, the court held the trial court was not in error because chewing tobacco qualifies as a "food," and liability will exist regardless of privity of contract.  Id. at 385-86. However, the court agreed with the defendant that there was lack of proof of negligence.

It is true that negligence may be established by circumstantial evidence as well as by positive evidence; but it is also a well settled precept founded upon the soundest principles of justice that a verdict must be supported by the evidence and not based upon conjecture, speculation, and surmise. Has [plaintiff] adduced testimony, positive or circumstantial, sufficient to show negligence on the part of appellant? We think not. The plug of tobacco was carried around in his pocket until he had taken four or five chews of same, and there was no proof of an impression made by the tack on or in said plug to show that when the tobacco was pressed the tack became a part of said plug. It is entirely possible that this tack could have become imbedded in this plug during the time that it was in possession of the jobber, retailer, or respondent.

Id. at 387.  On this basis, the court remanded the case to the trial court with instructions to enter judgment in favor of the defendant.  Id. at 388.  Although the defendant's third ground for appeal (the erroneous jury charge) was largely moot, the court found the charge was not erroneous in light of its determination that tobacco qualified as a "food."  Id.

Delk is somewhat of an anomaly in this line of cases because it involved tobacco.  This is significant because although the court believed tobacco was "food" for purposes of its negligence analysis, it did not believe that tobacco should be classified as "food" for purposes of the Pure Food and Drug Act in effect at the time.  Id. at 386.  This is a significant distinction because subsequent cases involving more common food products involve an additional statutory line of analysis when assessing negligence.

For example, both Irick v. Peoples Baking Co., 187 S.C. 238, 196 S.E. 887 (1938) and McKenzie v. Peoples Baking Co., 205 S.C. 149, 31 S.E.2d 154 (1944) involved plaintiffs who bit into cakes that had glass (Irick) and a piece of steel (McKenzie) embedded in them.  At trial, the defendants successfully moved for non-suit based on a lack of evidence of common law negligence (which was granted), and the plaintiffs appealed.  In both cases, the appellate courts reversed on grounds that the Pure Food and Drug Act in effect at the time applied to the food products, that presence of the foreign material constituted violations of same, and that a violation constituted per se negligence that required the cases to be submitted to the jury.  As stated by the McKenzie court:

[I]nclusion of a harmful foreign substance in cake prepared for human consumption (food) is a violation of our Pure Food Statute and negligence per se, and that Irick's case, supra, was correctly decided and should be adhered to, and it is. Nonsuit should not have been granted upon a contrary conclusion, as it was. Assuming that the facts in evidence, other than that involved in the appeal, warranted submission of the case to the jury (and the case was argued and heard upon such assumption), it should have been so submitted.

However, as this law continued to evolve, proof of a statutory violation was not an automatic "slam dunk" for a plaintiff.  In Coward v. Borden Foods, Inc., 267 S.C. 423, 229 S.E.2d 262 (1976), the plaintiff bit into something hard in a pack of Cracker Jacks and brought suit for negligent manufacture and violation of the applicable Food and Cosmetic Act at the time.  At trial, the court granted the defendant's motion for non-suit because there was no proof of negligence at common law or under the applicable Act.  Id. at 425, 229 S.E.2d at 263.  On appeal, the plaintiff admitted there was no proof of negligence but (again) cited to violation of the Act as per se negligence.  Id.  In this case, the court affirmed the trial court based on the evidence. 

In brief, the testimony presented by appellant was simply that, while driving and eating popcorn, she bit a hard unidentified object or substance, causing pain, and subsequently she found that the tooth was cracked. The dentist could not determine from an examination of the tooth what caused it to crack but, based upon the statements of appellant, he was of the opinion that the break was caused by the tooth striking some hard object. It was inferable that no foreign object could have gotten into the box of popcorn after it was opened by appellant.

Id. at 426, 229 S.C. at 264.  Based on this lack of evidence, there was no testimony to show that plaintiff's injury was proximately caused by an adulteration of the Cracker Jacks.  Id. at 427, 229 S.C. at 264.

Finally, Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (1998) involved a plaintiff who bit into a biscuit that appeared to have gravel or rock in it.  She sued for negligence, breach of warranty and strict liability and was awarded $60,000 (against Sara Lee) and $7,600 (against co-defendant Western Steer).  Id. at 463, 502 S.E.2d at 923-24.  Sara Lee appealed and argued that the plaintiff received a triple recovery against it on all three causes of action and should have been forced to elect remedies.  Id. at 463-64, 502 S.E.2d at 924.  The court affirmed the trial court because (1) Sara Lee did not object to the jury charges or verdict form, and (2) no election of remedies was required because only one recovery was sought and obtained.  Id. at 464, 502 S.E.2d at 924.  Sara Lee also argued that the trial court erred in denying its motion for directed verdict and judgment notwithstanding the verdict on the negligence cause of action. Id. The court also affirmed the trial court in reviewing this argument based on the "two issue" rule.  Id. "Pursuant to that rule, when the jury returns a general verdict involving two or more issues and its verdict is supported as to at least one issue, the appellate court will affirm unless the appellant appeals all causes of action."  Id.  Sara Lee did not appeal the breach of warranty or strict liability issues, and the verdict was supportable by these causes of action.  Id. at 464-65, 502 S.E.2d at 924.  In a footnote, the court said that even if the "two issue" rule did not apply, it would still affirm because Sara Lee offered no evidence that the hard substance was natural to the ingredients of the finished product, and the jury could infer a lack of due care from the rock/gravel's presence.  Id. at 465, 502 S.E.2d at 924.

Wow...all of that was a mouthful...of carpet tacks, glass, steel, and rock/gravel. 

Happy Holidays!

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Holiday Season Food Law: "It's a beautiful duck...but it's smiling at me."

Last Christmas, I enjoyed blogging about South Carolina warnings law and food products, including posting the infamous dry turkey scene from the holiday classic, "Christmas Vacation."  As the holiday season is upon us, I thought it would be appropriate to revisit this topic on a broader scale by doing a survey of South Carolina products liability law in the context of case law involving food and drink.  The Chinese turkey scene from "A Christmas Story" seemed like an appropriate way to begin this topic.  Can Ralphie's dad recover if he is traumatized by a turkey "smiling" at him? 

(Before we tackle this age old question and dive into this area of law, allow me one caveat.  This analysis does not include a review of "food" cases where the food at issue was consumed by livestock, pigs, household pets, or other non-humans.  Although I do not deny that these cases implicate products liability law, that is a post for another day).

South Carolina's general food/beverage case law appears to break down into the following categories: exploding beverage bottles, "hard" substances in food, food containing a wayward insect, and otherwise spoiled/adulterated food that leads to someone becoming sick.

Let's tackle the first topic in today's post.

♪ ♫  On the first day of Christmas, my true love gave to me...A BOTTLE THAT EXPLODED!  ♪ ♫

These cases are harder to come by in the era of plastic bottles, but I found three South Carolina cases involving glass bottles that exploded and resulted in injury.  The theories of liability include some combination/variation of the following: (1) selling a bottle that is likely to explode from excess pressure; (2) selling bottles likely to explode because of some defect in the bottle; (3) failure to take the necessary precautions in filling the bottles at the manufacturing plant; (4) failing to provide a bottle of sufficient strength; (5) failure to use due care in the manufacture of the bottle; and (6) failure to use due care in the filling of the bottle of liquid.  See, e.g., Boyd v. Marion Coca-Cola Bottling Co., 240 S.C. 383, 384, 126 S.E.2d 178, 179 (1962).

For example, in Merchant v. Columbia Coca-Cola Bottling Co., 214 S.C. 206, 51 S.E.2d 749 (1949), the plaintiff was was injured from fragments of glass after one of four bottles she picked up exploded.  She alleged a negligence claim against the defendant by reason of some bottle defect or because of excessive gas pressure.  Id. at 208, 51 S.E.2d at 750.  After presentation of the evidence at trial, the defendant moved for a non-suit.  The trial court granted the motion because it believed there was insufficient evidence to submit the case to the jury without invoking the doctrine of res ipsa loquitur, which is not applicable in South Carolina.  Id.   (For your information, the doctrine is still not recognized today.  See, e.g., Watson v. Ford Motor Co., 389 S.C. 434, 452-53, 699 S.E.2d 169, 179 (2010) ("We also note that Respondents may not rely solely on the fact that an accident occurred to prove their products liability case under a negligence theory since South Carolina does not follow the doctrine of res ipsa loquitur.")). 

However, the South Carolina Supreme Court reversed the trial court on appeal.  The basis for the reversal was that the appellate court found that the plaintiff had provided evidence that both prior and subsequent to the plaintiff's injury, bottles of Coca Cola bottled and distributed by the defendant to the retailer had burst and exploded under similar circumstances.  Merchant, 214 S.C. at 211, 51 S.E.2d at 751-52.  Specifically, the store clerk testified that the store had nothing to do with the actual handling of the crates of soft drink other than to remove the top crate when it became empty.  Id. at 209, 51 S.E.2d at 750-51.  He also testified bottles had exploded prior to the plaintiff's incident, and in the same manner, and another bottle from the same shipment exploded about two hours after plaintiff's incident.  Id.  Another employee provided similar corroborating testimony.  Id. at 209, 51 S.E.2d at 751. 

Based on the evidence, the court was not concerned with whether to apply res ipsa loquitor.  Id. at 210, 51 S.E.2d at 751.  Instead, it believed that the circumstantial evidence was sufficient to take the case to the jury on the issue of negligence.  Id.  Citing to a North Carolina case, the court stated the one exploding bottle is not enough to make a case for neglience.  Id.  However, quoting from the same North Carolina case, the court adopted the following as a "sound rule of law" in cases involving multiple exploding bottles:

But in cases where compensation is sought for injury caused by such explosion, the rule established by this court is that when it is made to appear that other bottles filled by the same bottler, under similar circumstances, about the same time, have exploded, there is afforded some evidence of negligence sufficient to be submitted to the jury, as it would thus form the basis for the permissible inference that the bottler had not exercised that degree of care required of him under the circumstances.  And this court has been careful, before permitting plaintiff's case to be submitted to the jury, to require that plaintiff offer evidence of other instances of bottles filled by defendant exploding under "substantially similar circumstances and reasonable proximity in time."

Id. at 210-11, 51 S.E.2d at 751 (quoting Davis v. Coca-Cola Bottling Co. of Asheville, 228 N.C. 32, 44 S.E.2d 337 (1947) (citations omitted).  A later case, Boyd v. Marion Coca-Cola Bottling Co., 240 S.C. 383, 126 S.E.2d 178 (1962), had similar facts and reached the same holding and rule of law. 

Together, Merchant and Boyd are cases where the bottle exploded and glass fragments injured the plaintiff.  However, there is another case where the explosion of the bottle itself is not what caused the plaintiff's injury.  Instead, the plaintiff was injured in a typical "slip and fall" case while cleaning up the mess from the exploding bottle. 

For a fascinating case that is a treasure trove of information on proximate causation, foreseeability, intervening acts, contributory negligence, and assumption of risk, be sure to look at Wallace v. Owens-Illinois, Inc., 300 S.C. 518, 389 S.E.2d 155 (Ct. App. 1989).  This case is way too "meaty" to summarize in this post (and I plan to make it a future "Case Brief").  However, rest assured that it includes heavy analysis of these concepts to basically hold that a bottler can be liable if a consumer is injured while cleaning up the mess from a bottle that has exploded.  I am not sure that I agree with the holding, but it is an interesting opinion.  The nutshell is that the court held that the consumer's attempt to clean up the spill was a foreseeable response and did not break the chain of causation.  Id. at 520-22, 389 S.E.2d at 156-57. Furthermore, contributory negligence was not applicable based on the nature of the product liability claims.  Id. at 522-24, 389 S.E.2d at 157-58.  Finally, the consumer's choice to remove the hazard created by the spill was not a voluntary assumption of risk; the consumer really had no choice but to attempt the clean-up.  Id. at 524-25, 389 S.E.2d at 158-59.

Be on the lookout for the next post, where I will address the dreaded "hard substance" in food products.

Happy Holidays!

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Case Brief: Samson v. Greenville Hospital System

Today's case brief is for a very brief (i.e., two pages) case, Samson v. Greenville Hospital System, 297 S.C. 409, 377 S.E.2d 311 (1989).  The case involves whether "blood" is a product for strict liability purposes.

FACTUAL BACKGROUND: Plaintiffs alleged Helen Samson contracted the AIDS virus from a blood transfusion given to her while she was a patient at a hospital.  297 S.C. at 409-10, 377 S.E.2d at 311.  Plaintiffs also alleged the blood was supplied by a blood center that colected, stored, and distributed blood received from donors.  Id.

PROCEDURE: Plaintiffs alleged a cause of action for strict liability against the distributing blood center.  297 S.C. at 410, 377 S.E.2d at 311.

ISSUE(S): The United States District Court certified a question to the South Carolina Supreme Court regarding whether blood is a product for purposes of a strict liability claim.  297 S.C. at 410, 377 S.E.2d at 311-12.

DISPOSITION: Blood is not a "product" for purposes of a strict liability claim.  297 S.C. at 409, 411, 377 S.E.2d at 311, 312.

RULES AND OPINION: The court cited to the strict liability statute at S.C. Code  § 15-73-10 (1976) and its application to products, not services.  297 S.C. at 410, 377 S.E.2d at 311.  The statute's plain language does not address whether blood is a product for purposes of strict liability.  Id.  Therefore, the court had to assess whether the South Carolina State Legislature intended for blood to be a product or service and looked to earlier legislation dealing with blood to answer this question.  297 S.C. at 410, 377 S.E.2d at 311-12.

The court cited to S.C. Code  § 44-43-10 ("Applicability of implied warranties of merchantability and fitness"), which states as follows:

The implied warranties of merchantability and fitness are not applicable to a contract for the sale, procurement, processing, distribution, or use of human tissues including, but not limited to, corneas, bones or organs, whole blood, plasma, blood products, or blood derivatives. Human tissue, whole blood, plasma, blood products, and blood derivatives must not be considered commodities subject to sale or barter, and the transplanting, injection, transfusion, or other transfer of these substances into the human body are considered a medical service.

Id. at 410-11, 377 S.E.2d at 312.  Based on this language, the court held that the Legislature did not intend for blood to be classified as a product.  Id. at 411, 377 S.E.2d at 312.  "Furthermore, this construction is consistent with the underlying purpose of the blood shield statute [S.C. Code § 44-43-10], namely, to facilitate a readily available supply of blood by limiting liability to defects resulting from negligence."  Id.

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Do I Have to Have an Expert to Bring a Products Liability Action in South Carolina?

As an update to this post, please see this post and also this post.  In Graves v. CAS Medical Systems, Inc., the South Carolina Supreme Court provided further guidance on the role of expert testimony in a South Carolina products liability case.  As explained more fully in the posts linked above, the court basically took a case-by-case approach to expert testimony in design defect cases and seemed to back off of the language in Watson v. Ford Motor Co. and 5-Star, Inc. v. Ford Motor Co., which are discussed below.

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Recently, I was spinning my wheels on the necessity of expert testimony in a products liability case and whether there is a case -- on point -- in South Carolina that requires it.  As context, I have never known a products liability case to not include expert testimony.  Furthermore, I have seen plenty of parties get summary judgment when they successfully excluded the opposing party's expert.  The reason I was spinning my wheels about it is because sometimes these somewhat "obvious" points of law do not have a case that actually points out the obvious.  (A good example is that it was not until the Branham v. Ford Motor Co. 390 S.C. 203, 701 S.E.2d 5 (2010) case that our state appellate court definitively set forth the necessity of proof of feasible alternative design in a design defect case.  There was state court case law suggesting it, and our federal district court had indicated that state law would require it.  Furthermore, in my experience, all plaintiffs presented such evidence.  However, there was nothing on point by our state appellate court saying you had to have it in state court.  That finally changed with Branham, at least for a design defect case.)

So, I decided to look this point up.  Generally, the admission of expert testimony is governed by South Carolina Rule of Evidence 702, which sets forth as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

This would clearly appear to apply to a products liability case.  After all, if a plaintiff is arguing that a product has a design or manufacturing defect, then articulating the nature of the defect would seem to fall outside the realm of ordinary lay knowledge. 

Two fairly recent cases affirmed my hunch.  I recently briefed 5-Star, Inc. v. Ford Motor Co.,  2011 WL 3568546 (Aug. 10, 2011 S.C. Ct. App.) and forgot that it addressed this issue.  5-Star involved allegations that a negligently designed speed control deactivation switch in a Ford truck caused a warehouse fire.  The South Carolina Court of Appeals set forth the following with regard to the necessity of expert testimony in a products liability case:

In order to gain more than this limited understanding of the operation of the switch, and in particular, in order to understand whether 5 Star met its burden of proving that the design of the switch was negligent in 1996, a jury, the trial court, and this court on appeal would need the benefit of expertise in several subjects that are not included in this record. In other words, this is precisely the type of “design defect claim” our supreme court recently stated “necessarily involve[s] sophisticated issues of engineering, technical science, and other complex concepts that are quintessentially beyond the ken of a lay person.” Watson, 389 S.C. at 444, 699 S.E.2d at 174. When the plaintiff in a product liability case bears the burden of proof as to any issue within a subject matter beyond the common knowledge and understanding of lay jurors, that plaintiff must present expert witness testimony in order to meet its burden. 389 S.C. at 445, 699 S.E.2d at 175 (“Expert testimony ... is necessary in cases in which the subject matter falls outside the realm of ordinary lay knowledge.”).  Because 5 Star failed to present any expert testimony on the design of the speed control deactivation switch and whether the design was negligent in 1996, the trial court erred in not directing a verdict in favor of Ford.

Id. at *4 (emphasis added). 

The "Watson" case cited by the court is Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169 (2010).  Watson involved a vehicle rollover case where the plaintiff alleged the cruise control system and seatbelts were defective.  The court in Watson had this to say about expert testimony in a products liability case:

Expert testimony may be used to help the jury to determine a fact in issue based on the expert's specialized knowledge, experience, or skill and is necessary in cases in which the subject matter falls outside the realm of ordinary lay knowledge. Stated differently, expert evidence is required where a factual issue must be resolved with scientific, technical, or any other specialized knowledge. Expert testimony differs from lay testimony in that an expert witness is permitted to state an opinion based on facts not within his firsthand knowledge or may base his opinion on information made available before the hearing so long as it is the type of information that is reasonably relied upon in the field to make opinions. See Rule 703, SCRE. On the other hand, a lay witness may only testify as to matters within his personal knowledge and may not offer opinion testimony which requires special knowledge, skill, experience, or training. See Rules 602 and 701, SCRE.

389 S.C. at 445-46, 699 S.E.2d at 175 (empasis added).  The court applied this law to exclude certain expert testimony and reverse the jury's verdict against Ford in the trial court.

So, with all of that, I am satisfied.  Although it is not as easy as finding a case that says "all products liability cases require the testimony of an expert," the guidance provided in 5-Star and Watson certainly suggests that products liability cases involve technical and specialized subject matter that fall outside the realm of ordinary laypersons.  For that reason, you need an expert.

I welcome any comments if your experience has been different either in South Carolina or elsewhere.

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What I've Been Up To

Well, it has been like drinking water from a fire hose here lately at the South Carolina Products Liability Law Blog.  As I indicated in a previous post, the last couple of months have been very busy, and my apologies for not having a more consistent blog schedule.  I have finally come up for air, and I look forward to some posts again very soon.

As I indicated in my prior post, I did a presentation on South Carolina tort reform to the Palmetto Paralegal Association on October 7, 2011.  The presentation was well-received, especially when I talked about the entire "Branham" issue that reared its head in the midst of the debate of the bill (and ultimately was not part of the final legislation). 

I am now tailoring this presentation (albeit a much briefer version) for presentation at a breakout session at the SCDTAA Annual Meeting.  I have been working with Frances Zacher and Ashley Cuttino to basically plan a joint breakout session for the products liability and torts/insurance substantive committees.  We plan to include a brief presentation by me on the "nuts and bolts" of the tort reform bill, and then a panel discussion with input from members of our judiciary about how it will affect case administration.  Frances and Ashley are going to lead this discussion and moderate, and we hope that it gives attending members the opportunity to learn more about the legislation and what it means for administration at the trial level (i.e., bifurcation of liability and punitive damages, etc.).

Finally, I attended the Primerus annual conference this past weekend in Charleston, South Carolina.  Collins & Lacy, P.C. is a proud member of the Primerus network of law firms, and the annual meeting included lawyers from all across the country.  There were some interesting presentations, and I was thoroughly impressed by a presentation conducted by Bob Weiss at Alyn-Weiss & Associates, Inc. in Lakewood, Colorada.  Bob presented the results of eight different studies on legal marketing, and some of what he found was very, very interesting.  Specifically, he reviewed some statistics of how counsel is chosen by clients and how it has changed over the years as a result of social media and the internet.  In short, the days of getting mileage out of a yellow pages ad are over (although he gave a caveat that it may still be relevant to a plaintiff's practice).  Surprisingly, studies indicate that "Youtube" and "Wikipedia" are pretty significant tools that counsel -- even in-house counsel -- use to choose counsel.  And as Bob put it, "That's right...youtube and Wikipedia."  Who knew. 

Anyway, thanks for your patience, and I hope to post some new, more substantive, products liability posts here in the next week.

"Uncle!" a/k/a "Thank you sir may I have another!"

Aye, yaye, yaye...it has been over a month since my last post.  My sincere apologies.  The last month has been a busy one here at the South Carolina Products Liability Law Blog with many depositions, work on various files, out of town travel, and other matters.  I hope to get back on a more consistent blog schedule soon. 

In terms of what is going on with me (outside of quite a bit of work per the above), I am speaking on October 7, 2011 at the Palmetto Paralegal Association Annual Seminar here in Columbia on the subject of tort reform and the bill passed by the South Carolina General Assembly and signed into law by Governor Haley. 

Along with other SCDTAA members, I am planning a panel discussion of this same topic for the South Carolina Defense Trial Attorneys Association Annual Meeting November 3-6, 2011 at Amelia Island (i.e., as part of the "breakout" section for the Products Liability Substantive Law Committee).

Finally, I will be attending the 2011 Primerus Annual Conference, which is being held right here in South Carolina in Charleston on October 20-23, 2011.  Primerus is an international society of the world’s finest independent boutique law firms, and Collins and Lacy, P.C. is a proud member. 

There is quite a bit going on as we head into the last quarter of 2011.  Check in soon for more updates and substantive legal discussion of South Carolina products liability law.

New SC Products Liability Case: 5 Star, Inc. v. Ford Motor Co.

Recently, the South Carolina Court of Appeals issued its decision in 5 Star, Inc. v. Ford Motor Company.  You can find the opinion on page 120 here, and also here.  This is a negligent design defect case, and the court basically re-affirms that a negligence theory requires conduct evidence.

FACTUAL BACKGROUND: Plaintiff 5 Star, Inc. (“Plaintiff”) is a lawn maintenance/pressure washing company.  It bought a 1996 Ford F-250 pickup truck in February 2005.  In September 2005, Plaintiff’s owner parked the truck in a warehouse containing tractors, trailers, lawnmowers, and other business equipment.  Upon returning a couple of days later, Plaintiff’s owner discovered a fire had occurred.  Although there were no personal injuries, the truck was destroyed and the building and certain equipment was severely damaged.  Before the lawsuit and before Ford could inspect the truck, Plaintiff’s owner had the truck towed and crushed.

PROCEDURE: Plaintiff filed a products liability action against Ford Motor Co. ("Ford") alleging that negligence in the design of a speed control deactivation switch in the truck caused the fire.  Ford asked the circuit court to dismiss the case as a sanction for spoliation of evidence.  The circuit court declined but instructed the jury that it could draw a negative inference from Plaintiff’s actions.  Ford moved for a directed verdict at the close of Plaintiff’s case and at the end of trial, both of which were denied.  The case was submitted to the jury exclusively on the claim of negligent design.  The jury returned a verdict for $41,000 in actual damages.

ISSUE(S): (1) Whether the circuit court erred in declining to dismiss the action as a sanction for Plaintiff’s spoliation of evidence; (2) whether the circuit court erred in denying Ford’s motion for a directed verdict based on a lack of evidence that Ford was negligent in design of the speed control deactivation switch.

DISPOSITION: The court did not reach the question of whether the circuit court abused its discretion in ruling on the motion to dismiss based on spoliation, citing to Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 518 S.E.2d 591, 598 (1999) and its recognition that an appellate court need not address remaining issues when resolution of one issue is dispositive.  (See footnote 2).  With regard to denial of Ford’s directed verdict motion, the court reversed the jury verdict and entered judgment in favor of Ford.

RULES AND OPINION: In addition to the three elements common to all products liability claims, a plaintiff asserting a negligent design theory must prove that the defendant manufacturer’s conduct in designing the product breached its duty of due care.  Ford argued on appeal that Plaintiff failed to present such conduct evidence, or to present evidence that the product was in essentially the same condition as when it left the defendant (i.e., one of the three common elements).  (The court did not discuss whether the product was in essentially the same condition for the same reason that it did not address spoliation).

Instead, the court focused on Plaintiff’s failure to present evidence of negligent conduct in the design of the product on or before the time of manufacture.  The court elaborated on how a negligence theory is different in that “’[t]he focus [in a negligence action] is upon the action of the defendant.  The mere fact a product malfunctions does not demonstrate the manufacturer’s negligence.”  Quoting Sunvillas Homeowner’s Ass’n v. Square D Co., 301 S.C. 330, 333, 391 S.E.2d 868, 870 (Ct. App. 1990). 

Ford conceded the switch was defective.  However, Plaintiff was obligated to offer evidence that Ford’s conduct was negligent.  Plaintiff failed to offer any evidence of Ford’s conduct whatsoever.  Neither the City Fire Investigator witness nor Plaintiff’s cause and origin expert testified to any events at or before the manufacture of the truck and switch.  Furthermore, neither witness was qualified as an expert in automotive design or other expertise so as to enable them to offer opinions on whether Ford’s conduct was negligent.  The only other witness who could have provided conduct testimony was a desgn analysis engineer for Ford.  He was qualified as an a vehicle fire cause and origin expert, but he offered no conduct facts/opinions, and Plaintiff's counsel did not ask him any questions relating to Ford's conduct in designing the switch that occurred in 1996 or earlier.

In short, the court held that Plaintiff failed to present expert testimony to prove that Ford was negligent in its design of the switch in 1996.  Therefore, the circuit court erred in not directing a verdict in favor of Ford.  The court distinguished its opinion from the holding in Duncan v. Ford Motor Co., 285 S.C. 119, 128, 682 S.E.2d 877, 881 (Ct. App. 2009) because the plaintiff in Duncan presented expert testimony concerning Ford's conduct.  (See footnote 4). 

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Drilling Down: Implied Warranty of Fitness for a Particular Purpose a/k/a The Stiletto Heel Warranty

You are probably wondering why there are pictures of a red stiletto heel and a hiking shoe at the beginning of this blog post.  Although you may not realize it, the contrast in function and use of these shoes provides the perfect example of this particular warranty.  How?  Read on, as we drill down a bit on the implied warranty of fitness for particular purpose.

The implied warranty of fitness for particular purpose is set forth in S.C. Code § 36-2-315.  It states:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modfied under the next section (§ 36-2-316) an implied warranty that the goods shall be fit for such purpose.

So what exactly does this mean?  Official Comment 2 provides some guidance.  A particular purpose differs from an ordinary purpose for which goods are used because it envisages a specific use by the buyer that is peculiar to his/her business.  "For example, shoes are generally used for the purpose of walking upon ordinary ground, but a seller may know that a particular pair was selected to be used for climbing mountains."  (S.C. Code § 36-2-315, Off. Cmt. 2).

So imagine this hypothetical: Gisele Bundchen walks into a shoe store and says, "Tom and I were thinking about getting away this weekend for a hike somewhere...maybe on the Appalachian Trail.  Can you give me some shoes for that?"  Overwhelmed by her beauty, the merchant automatically reaches for a pair of fire engine red stiletto heels and gawks as Gisele tries them on.  Speechless, he hands her the change as she buys the heels and heads out the door. 

If Gisele breaks a heel and her ankle while on her hiking trip, then she may have an action for breach of implied warranty of fitness for particular purpose against the seller.  Why?  Because she conveyed to him a very particular purpose for which she needed some gear, and it was different from the ordinary purpose for which shoes are generally used (i.e., walking on ordinary ground). 

Obviously, this is an oversimplification of a cause of action for breach of this implied warranty.  However, you get the point.  This implied warranty contemplates -- as its name suggests -- a very specific purpose for the product.  Whether this warranty arises is basically a question of fact determined by the circumstances of the contracting.  The buyer does not necessarily have to prove knowledge of the particular purpose or reliance thereon by the buyer if the circumstances are such that the seller has reason to know of the purpose or reliance.   (S.C. Code § 36-2-315, Off. Cmt. 1).

This really is not known as "The Stiletto Heel Warranty" (and you probably figured out by now that I made that up).  However, it helps me remember how this implied warranty differs from ordinary use encompassed by the implied warranty of merchantability.

Have a nice weekend all.

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Case Brief: Soaper v. Hope Industries, Inc., 309 S.C. 438, 424 S.E.2d 493 (1992)

Today's Case Brief is for Soaper v. Hope Indus., Inc., 309 S.C. 438, 424 S.E.2d 493 (1992).  Soaper involved a color film processor and printer, and it is significant because it illustrates a merger of “fitness for particular purpose” with the warranty of merchantability under its facts.

FACTUAL BACKGROUND: Plaintiff purchased a color film processing machine from Defendant for use in his fast photo business.  309 S.C. at 439, 424 S.E. 2d at 494.  The machine malfunctioned over a period of three years, and Plaintiff ultimately had to close his business.  Id.

PROCEDURE: Plaintiff sued Defendant alleging (1) breach of express warranty, (2) breach of the implied warranty of merchantability, and (3) breach of the implied warranty of fitness for particular purpose.  309 S.C. at 439, 424 S.E. 2d at 494.  At trial, Plaintiff proceeded solely on the cause of action for breach of implied warranty of fitness for a particular purpose.  The jury returned a verdict for Plaintiff for $84,783.40 (i.e., the full value of the machine and its component parts).  Id.  The South Carolina Court of Appeals affirmed, finding ample evidence that "the goods were defective so as to be unfit for their intended use in Soapers fast photo business."  306 S.C. 531, ----, 413 S.E.2d 38, 40 (Ct. App. 1992).  Defendant sought rehearing, which the Court of Appeals denied.  309 S.C. at 439, 424 S.E. 2d at 494.  The South Carolina Supreme Court granted certiorari on the issue sought for re-hearing by Defendant.  Id.

ISSUE(S): "Does a purchaser establish a warranty of fitness for a particular purpose when goods, purchased solely for their ordinary purpose, are found to be unfit for any and all purposes?"  309 S.C. at 439, 424 S.E. 2d at 494.

DISPOSITION:  "[W]here a product is not fit for any purpose, it is not fit for its particular purpose.  Accordingly, the Court of Appeals opinion is affirmed as modified."  309 S.C. at 441, 424 S.E.2d at 495.

RULES AND OPINION: The implied warranty of fitness for a particular purpose arises under the Uniform Commercial Code, S.C. Code section 36-2-315 (1976).  309 S.C. at 439, 424 S.E. 2d at 494.  Defendant maintained that this warranty applies only when the buyer has a particular purpose for a product other than its ordinary/contemplated use.  Id. at 440, 424 S.E.2d at 494.  The court recognized that there was authority for this position but declined to follow it.  Id., 424 S.E.2d at 495.  The court referred to comment 2 to section 2-315, which states that "a contract may of course include both a warranty of merchantability and one of fitness for a particular purpose."  Id.  Section 2-317 also requires that warranties arising under the UCC "be construed as consistent with each other and as cumulative."  Id. 

When Plaintiff purchased the product, he made known to Defendant that his particular purpose for the machine was fast film developing.  Id. at 441, 424 S.E.2d at 395.  When it failed in that purpose, it was both unmerchantable and unfit for its particular purpose.  Id.

We hold that, where the particular purpose for which a product is purchased is also the ordinary or intended purpose of the product, the warranties of merchantability and of fitness for a particular purpose merge and are cumulative, such that a plaintiff may proceed upon either theory. 

Id. at 440, 424 S.E.2d at 495.  This holding accords with other jurisdictions.  Id. at 441, 424 S.E.2d at 495.

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