Wednesday, March 2, 2011

More on the Legislative Amendment to Overturn Branham v. Ford

I wanted to provide an update on the post below concerning the proposed amendment to reverse the holding in Branham v. Ford. Admittedly, I was not at the hearing in question, and all the information I had at the time of my post was through the grapevine and from the article in the South Carolina Chamber of Commerce Update. Since my post, I have learned that the bill in question is H.B. 3375, which is entitled the "South Carolina Fairness in Civil Justice Act of 2011." At the hyperlink, you can find the various versions of the bill, by date. The version with the amendment in question is here, which is the committee report from February 23, 2011.

As you read through it, you are not going to find language that says "hey, this is the part that reverses Branham v. Ford." Instead, the amendment is more subtle. It strikes Sections 15-73-10, 20 and 30 of the South Carolina Code and adopts identical Sections 15-73-11, 21 and 31. My understanding is that the expressed purpose of the amendment was to overturn Branham. I am told that at the hearing, it was stated that the Branham case stood for the principle that if the Legislature did not actively renew a statue after a number of years, the Supreme Court felt it was empowered to overturn statutory authority and to adopt a rule of law directly contrary to the statute. Therefore, the amendment is to "renew" the statutory authority. The amendment re-adopts the comments to Section 402A of the Restatement (Second) of Torts as new Section 15-73-31.

My brief of Branham discusses how the South Carolina Supreme Court addressed the evolution of products liability law since incorporation of comment 402A into the statute, including the Restatement (Third) of Torts: Products Liability in 1998. The Restatement (Third) and the majority of jurisdictions have evolved toward the risk-utility test for design defect cases, and South Carolina's appellate courts have also gravitated toward this test over the years. Therefore, it makes sense to adopt it as the test for design defect cases. I do not read Branham as some sort of judicial slap to the face of the statutory authority or the Legislature. Rather, it is an attempt to keep South Carolina current in products liability law. However, I welcome reader comments.

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