Case Brief: Holland ex rel. Knox v. Morbark, Inc.

 

Holland ex rel. Knox v. Morbark, Inc., 407 S.C. 227, 754 S.E.2d 714 (Ct. App. 2014), involves a wood chipper.  Anytime I hear the words "wood chipper" I think of Marge Gunderson in the movie, Fargo: "And I guess that was your accomplice in the wood chipper . . . ."  (Yes, that is a sock-covered foot under that piece of wood).

I guess you could say I have a dark sense of humor, and the truth is, I love that movie.  I have never looked at wood chippers the same since seeing it.  Anyway, read on...

 

FACTUAL BACKGROUND: Plaintiff's job was to clean and change the cutting knives inside a wood chipper.  407 S.C. at 230, 754 S.E.2d at 716.  When he attempted to raise the hood on the machine, the interior fan blades were still rotating and came in contact with the hood.  The contact caused the hood to kick back and strike Plaintiff in the head, injuring him.  Id. 

 

PROCEDURE: Plaintiff filed a Complaint against the wood chipper manufacturer ("Manufacturer"), his employer, a prior owner of the wood chipper (before sale to his employer), and the installer of the wood chipper.  407 S.C. at 231, 754 S.E.2d at 717.  Plaintiff moved to amend his Complaint to dismiss all defendants except Manufacturer and withdraw his negligence claim.  He maintained his actions against Manufacturer for strict liability and breach of warranty.  Manufacturer consented to Plaintiff's first amendment.  Plaintiff filed a second motion to amend his Complaint.  Manufacturer opposed the second motion and filed a motion for summary judgment.  Id. 

 

The circuit court denied Plaintiff's motion to amend his Complaint because it believed allowing the amendment would prejudice Manufacturer.  Id. at 232, 754 S.E.2d at 717.  The circuit court granted Manufacturer's motion for summary judgment on grounds that (1) the wood chipper was not in the same condition at the time of the accident as when it left Manufacturer's hands; (2) Manufacturer's failure to incorporate additional safety features did not render the machine unreasonably dangerous when no other industry manufacturer had incorporated the optional safety device advanced by Plaintiff's expert; and (3) Plaintiff failed to provide a reasonable alternative design as required under South Carolina law.  Id. at 232-33, 754 S.E.2d at 717-18.  The circuit court also dismissed Plaintiff's failure to warn claim.  Id. at 233, 754 S.E.2d at 718.  Plaintiff moved for reconsideration.  After his motion was denied, he appealed.  Id.

 

ISSUES: (1) Did the circuit court err in denying Plaintiff's motion to amend his Complaint; and (2) Did the circuit court err in granting Manufacturer's motion for summary judgment?  407 S.C. at 233, 753 S.E.2d at 718.

 

DISPOSITION: Affirmed by the South Carolina Court of Appeals.

 

RULES AND OPINION:  First, the Court addressed Plaintiff's arguments concerning amendment of his Complaint.  407 S.C. at 233-37, 754 S.E.2d at 718-20.  He argued the circuit court denied his second amendment based on an erroneous conclusion that it had already granted his first motion to amend.  Id. at 233-34, 754 S.E.2d at 718.  In short, Plaintiff argued the court failed to grant his first motion to amend.  The Court of Appeals disagreed.  Although the circuit court issued no separate written order granting the amendment and dismissal of the other defendants, the evidence in the record established the circuit court permitted -- and the parties' consented to -- Plaintiff's amendment.  Indeed, Plaintiff relied on his first amended Complaint in opposing Manufacturer's motion for summary judgment.  His own behavior illustrated his belief that his first amended Complaint was properly before the circuit court.  Id. at 234, 754 S.E.2d at 718.

 

The Court then turned to Plaintiff's second motion to amend his Complaint.  Id. at 235, 754 S.E.2d at 718-19.  It reviewed the standard set forth in Rule 15 of the South Carolina Rules of Civil Procedure and the rules that (a) a motion to amend is addressed to the circuit court's discretion, and (b) the party opposing the motion has the burden of establishing prejudice.  Id. at 235, 753 S.E.2d at 719.  "Prejudice occurs when the amendment states a new claim or defense that would require the opposing party to introduce additional or different evidence to prevail in the amended action."  Id. (citing Ball v. Canadian Am. Exp. Co., Inc., 314 S.C. 272, 275, 442 S.E.2d 620, 622 (Ct. App. 1994)).  The Court affirmed denial of the second motion to amend because it found Plaintiff was in possession of the additional information about a defect theory after his experts were deposed, but he did not expound on the theory until much later at the motions hearing.  Id.  Although Plaintiff was not seeking to add a new claim, the addition of his defect theory -- raised after extensive discovery -- would have required additional depositions, hiring of rebuttal experts, and delay on the eve of trial.  Id. at 236, 754 S.E.2d at 719.  Furthermore, the second amendment would not occur until over two years after Plaintiff filed his first Complaint.  Therefore, the Court agreement Manufacturer would have been prejudiced by the granting of the second motion to amend.  Id.  The Court also pointed out in dicta that the alleged defect theory was based on an OSHA violation, and OSHA only regulates employers, not manufacturers.  Id. at 236-37, 754 S.E.2d at 719-20. 

 

The Court then turned to the circuit court's grant of summary judgment.  Id. at 237, 754 S.E.2d at 720.  Plaintiff claimed the circuit court erred in relying on Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010), and its requirement of proving a reasonable alternative design in design defect cases.  The Court disagreed and said that to prove a reasonable alternative design, Plaintiff was had to set forth some evidence of an alternative design, which included "consideration of costs, safety, and functionality associated with the alternative design."  Id. at 237-38, 754 S.E.2d at 720.  Plaintiff's expert admitted he was unaware of anyone in the industry that had performed a feasibility analysis for an alternative design.  Id. at 238, 754 S.E.2d at 720.  He also admitted he had not prepared an actual design for an interlock system concerning opening the hood and operating blades, only a concept.  "Because a conceptual design is insufficient to establish a reasonable alternative design, we find [Plaintiff's] claim for design defect fails as a matter of law."  Id. (citing Holst v. KCI Konecranes Int'l Corp., 390 S.C. 29, 37, 699 S.E.2d 715, 719-20 (Ct. App. 2010)).  The Court further stated that because proof of reasonable alternative design is necessary in a design defect case, it would not address Plaintiff's remaining claims of error pertaining to his design defect cause of action.  Id. at 238, 754 S.E.2d at 720-721 (citing Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 598, 598 (1999) for the principle that an appellate court may not review remaining issues when determination of a prior issue is dispositive).   

 

The Court then turned to Plaintiff's argument that the circuit court erred in granting summary judgment on his failure to warn claim.  Id. at 239, 754 S.E.2d at 721.  First, because products liability claims share common elements, Plaintiff's failure to establish a reasonable alternative design in his design defect claim prevented him from succeeding on his failure to warn claim as a matter of law.  Id. (citing to Branham, 390 S.C. at 210, 701 S.E.2d at 8 for principle that failure to establish any one of the three elements in a companion products liability claim is fatal to all related products liability claims). 

 

Notwithstanding this issue, the Court held the circuit court properly granted summary judgment.  The Court recounted the law that "'[a] product bearing a warning that the product is safe for use if the user follows the warning is neither defective nor unreasonably dangerous; therefore, the seller is not liable for any injuries caused by the use of the product if the user ignores the warning.'"  Id. (quoting Anderson v. Green Bull, Inc., 322 S.C. 268, 270, 471 S.E.2d 708, 710 (Ct. App. 1996)).  A seller is also not required to warn of dangers that are generally known and recognized, and therefore a product is not defective or unreasonably dangerous if the danger associated with the product is one the product's users generally recognize.  Id. 

 

With this context, the Court discussed how the wood chipper had decals, warnings, and an owner's manual when it left the hands of Manufacturer in 1996.  Id. at 239-40, 754 S.E.2d at 721.  These warnings were not present when Plaintiff was injured.  However, the owner prior to Plaintiff's employer had affixed warnings on the machine that warned of the potential dangers at issue in the case.  The Court found these warnings were sufficient to render the machine safe for use if the user followed the warnings.  Id. at 240, 754 S.E.2d at 721.   

 

Regardless, the Court believed it would be improper to hold Manufacturer liable for failure to warn since (a) Manufacturer affixed warnings at the time of manufacture, (b) the warnings at issue were affixed by a prior owner of the machine (not Manufacturer), (c) Manufacturer sold the machine ten years prior to the accident, and (d) three intervening owners used the machine before Plaintiff's injury.  Id.  Plaintiff also indicated in his testimony that he appreciated the danger being hit in the head by the hood if he opened it prematurely.  Manufacturer had no duty to warn Plaintiff of a danger he already recognized.  Id. at 240, 754 S.E.2d at 721-22.   

This is an interesting case that mixes in a little of everything.  There is heavy reliance on Branham and Anderson, which I consider to be two of the most important, "meaty" cases in South Carolina products liability law.  In addition, even though the Court does not quote case law concerning the "essentially same condition" element of a products liability action, it is clear there is some reliance on this law in affirming summary judgment.

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New SC Products Liability Decision: Courtney v. Nissan Motor Co., Ltd

Yesterday, the South Carolina Court of Appeals issued a new products liability decision, Courtney v. Nissan Motor Co., Ltd., Opinion Number 5106.  There were some real procedural issues in this case at the trial court level that prompted appeals by both the plaintiff and Nissan.

FACTUAL BACKGROUND: Minor plaintiff ("Plaintiff") was riding in the backseat of a 2000 Nissan Xterra.  As Plaintiff's father made a left turn, the automobile was struck by an oncoming vehicle on the right side.  Upon impact, a part of the automobile's frame punctured the fuel tank, resulting in a fire that injured Plaintiff and her mother.

PROCEDURE:  Plaintiff filed suit against Nissan alleging strict liability, negligence, and breach of warranty based on a design defect theory.  The case was tried over nine days.  At the conclusion of evidence, the court denied Nissan's request to charge the jury on the necessity of proving feasible alternative design as an element of Plaintiff's case.  The parties and the trial court agreed to submit seven special interrogatories to the jury, but the interrogatory concerning proof of feasible alternative design was to be shown to the jury after any verdict for damages.  Nissan objected and requested that this interrogatory be submitted with the others.  The trial court denied the request.   

The trial court did not differentiate between the consumer expectations test and risk utility test during its general charge to the jury on what Plaintiff had to prove in a design defect case.  Although it later charge the jury on both tests, it omitted that Plaintiff had to prove a feasible design alternative pursuant to the risk-utility test.  Prior to sending the jury to deliberate, the trial court told the jury it would be answering one additional interrogatory after the verdict was returned that was "irrelevant" to the deliberations.

The jury rendered a verdict against Nissan for $2,375,000.  The court then posed the seventh interrogatory to the jury (i.e., whether Plaintiff had proved a feasible alternative design that would have prevented the injury).  The jury responded, "no." 

Nissan filed a post-trial motion for judgment notwithstanding the verdict ("JNOV"), or in the alternative, for a new trial.  Plaintiff filed a post-trial motion requesting the court disregard the jury's response to the seventh interrogatory.  Initially, the trial court denied both parties' motions.  However, three days later, the South Carolina Supreme Court issued its decision in Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010) in which it held that the risk-utility test was the exclusive test in a design defect case and required proof of feasible alternative design.  The trial court had a second hearing, and it denied Nissan's JNOV motion but granted the motion for a new trial.  Recognizing Branham, the trial court issued an order in which it concluded its decision not to charge the jury on proof of a feasible alternative design was reversible error and required the grant of a new trial.

ISSUES: Nissan appealed denial of its post-trial motion for judgment notwithstanding the verdict based on Plaintiff's failure to prove feasible alternative design.  Plaintiff also appealed the circuit court's decision to grant a new trial.  Plaintiff also claimed the circuit court erred in denying her motion to invalidate a special interrogatory in which the jury found Plaintiff failed to prove a feasible alternative design in her case against Nissan.

DISPOSITION: Affirmed by the South Carolina Court of Appeals.

RULES AND OPINION: The appellate court first addressed whether Branham applied retroactively to the instant case.  It reviewed Branham's facts and law and concluded that the South Carolina Supreme Court intended for Branham to have retroactive application.   Branham recognized no new right or cause of action; it only affirmed that the risk-utility test would be the exclusive test for design defect cases.  

Next, the appellate court held that the jury's post-verdict finding that Plaintiff failed to prove feasible alternative design did not entitled Nissan to JNOV.  Nissan pointed out evidence in the record that Plaintiff agreed to craft the special interrogatory specifically to address feasible alternative design issues.  Although the appellate court agreed, it cited to Erickson v. Jones St. Publishers, LLC, 368 S.C. 444, 480, 629 S.E. 2d 653, 672 (2006) for the principle that it is improper to submit factual issues to the jury in the form of non-binding "advisory interrogatories."  Accordingly, the appellate court found that the trial court's denial of the JNOV motion indicated neither the parties nor the trial court intended for the answer to the interrogatory to be dispositive on the issue of liability.  It also pointed out portions of the record to support that Plaintiff did not intend for the seventh interrogatory to impact liability. 

With regard to Plaintiff's cross appeal that the trial court erred in granting a new trial because the consumer expectations test was permissible at the time of decision, the appellate court pointed out it had already addressed this argument (i.e., Branham's retroactive application).  The appellate court also re-reviewed portions of Branham to highlight that the both the majority and dissent agreed that the risk-utility test was the proper test in a design defect case, and the appellate court did not believe the the majority or dissent expressly condoned use of the consumer expectations test at the time of the instant trial. 

Finally, Plaintiff argued that because the trial court charged on both the consumer expectations and risk-utility test, and the jury did not specify which theory it applied to determine liability, then the "two-issue rule" and the law of the case doctrine required reinstatement of the jury's verdict.  The appellate court disagreed that these doctrines applied.  Furthermore, Branham's holding made clear that the jury's verdict could not be supported by the consumer expectations test.  Although Nissan did not challenge the trial court's decision to incorporate the consumer expectations test into its jury charge, Branham had not been decided at the time and Nissan would not have had grounds to object.  Therefore, Nissan's failure to object did not require reinstatement.  The trial court's failure to properly instruct the jury was prejudicial to Nissan and required a new trial.

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Holiday Case Brief and Verdict Survey: Gasque v. Heublein, Inc.

I hope you have enjoyed the holidays and are ready for the new year.  This has been one of my busiest times around the holidays in awhile, but I could not miss the opportunity to do a holiday season "food" post.  Last year, I tried to do a comprehensive series about South Carolina's products liability law in the context of food cases.  However, I missed one of the more interesting cases, and I thought it would be blogworthy at this time of year (especially in light of the amount of wine and champagne that will be consumed this evening).  Gasque v. Heublein, Inc., 281 S.C. 278, 315 S.E.2d 556 (Ct. App. 1984) involves a cork that prematurely ejected and caused injury to a plaintiff's eye.  An Horry County jury returned a verdict for $750,000, and the South Carolina Court of Appeals affirmed the verdict.

FACTUAL BACKGROUND: Plaintiff sustained permanent loss of vision in his left eye when he was struck by the stopper and cork assembly of a bottle of Jacques Bonet Cold Duck sparkling wine.    281 S.C. at 281, 315 S.E.2d at 558.  The stopper allegedly ejected prematurely when Plaintiff's friend was twisting the wire retaining hood on the cork.  Id.

PROCEDURE: Plaintiff brought suit against the manufacturer-bottlers ("Defendants") of the sparkling wine, as well as three other defendants in the chain of distribution.  281 S.C. at 281, 315 S.E.2d at 558.  Plaintiff asserted causes of action for negligence, warranty, and strict liability, and he sought actual and punitive damages.  Id.  The case was submitted to the jury on the theories of negligence and strict liability.  Id.  The jury returned a general verdict for $750,000 in actual damages against Defendants.  Id.   

ISSUES: There were three issues on appeal: (1) whether the trial court erred in submitting the issues of negligent (a) design, (b) manufacture, (c) inspection, and (d) failure to warn; (2) whether the trial court erred in admitting into evidence a filmed experiment conducted by Plaintiff's expert; and (3) whether the trial court erred in failing to grant Defendants' motion for a new trial absolute on grounds that the verdict was actuated by passion, prejudice and caprice.  281 S.C. at 281, 315 S.E.2d at 558. 

DISPOSITION: The South Carolina Court of Appeals affirmed the trial court on all three issues.

OPINION: The appellate court addressed each of the issues in the order in which they were raised, as set forth below.

(1) Submission of Negligence Theories

With regard to negligent design, Plaintiff presented reports of studies commissioned by one of the Defendants concerning premature ejection of champagne stoppers.  281 S.C. at 282, 315 S.E.2d at 559.  The reports identified the problem of premature ejection and suggested design alternatives to correct it.  Id. at 282-83, 315 S.E.2d at 559.  Defendants' Quality Control Director also testified that before Defendants' switched from wood stoppers to polyethylene stoppers, they had no reports of injuries.  Id.  One of the reports also discussed the various problems with polyethylene stoppers versus wood stoppers.  Id.  In short, the evidence showed Defendants were aware of the problem of premature ejection, knew about feasible alternative designs, were aware that wood corks were safer, and elected to use an undrilled and uncoated polyethylene stopper to retain the festive "pop" of the cork.  Id. at 283, 315 S.E.2d at 559.  Plaintiff also presented expert testimony in support of his theory.  Id. at 284, 315 S.E.2d at 559.  The evidence was sufficient to submit the issue of negligent design to the jury.

With regard to negligent manufacture, Plaintiff presented the cork at issue and had his expert testify there was a groove on it that was distinguishable from other stoppers.  Id. at 284, 315 S.E.2d at 560.  Plaintiff's expert testified the groove was caused by improper attachment of the wire retainer to the stopper during manufacture, and this manufacturing defect contributed to premature ejection.  Id.  Based on this evidence, the court upheld submission of negligent manufacture to the jury.  Id.

With regard to negligent inspection, the court concluded that the testimony of Defendants' Quality Control Director supported submission of this issue to the jury.  Id. at 285, 315 S.E.2d at 560.  The director testified a pressure check was performed on only one out of every 30,000 to 40,000 bottles, and quality control personnel had only one or two seconds to ascertain whether or not the wire hood was properly attached to the stopper.  Id.

With regard to negligent failure to warn, the court concluded that the warning at issue was approximately 1/8 the size of the print used to advertise the product's name, and it did not mention premature ejection (just that the contents were under high pressure and that the bottle should be pointed away).  Id.  The court held the language of the warning, its placement, and print size created a jury question as to its adequacy.  Id.  The issue of negligent failure to wan was properly submitted to the jury.  Id.

(2) Admission Into Evidence of Filmed Experiment

To be admissible at trial, an experiment or test must have been made under conditions and circumstances substantially similar to those prevailing at the time of the occurrence involved in the controversy.  Id. at 286, 315 S.E.2d at 560 (citing Weaks v. South Carolina State Highway Dep't, 250 S.C. 535, 159 S.E.2d 234 (1968)).  Plaintiff's expert introduced a filmed experiment conducted by his expert where a stopper in the product at issue spontaneously ejected when the expert began twisting the wire retaining hood.  Id.  The trial judge allowed the jury to view the experiment.  Id.  Defendants argued the admission was error because the experiment utilized champagne (instead of sparkling wine), involved a different size bottle, and had different temperatures.  Id. at 286, 315 S.E.2d 560-61.  Plaintiff's expert testified the properties the experimental bottle were substantially the same.  Id., 315 S.E.2d at 561. 

The court noted that admission of evidence is a matter for the trial judge's discretion and will not be disturbed absent abuse of discretion.  Id.  The court also noted that Defendants vigorously cross examined the expert on the distinctions between the experiment and and facts of the case.  Id. at 287, 315 S.E.2d at 561.  The court held the conditions of the filmed experiment were substantially similar to those existing at the time of injury.  Id.  However, even if they were not, this issue did not warrant reversal because the experiment was cumulative of other evidence introduced by Plaintiff (including testimony of the friend who opened the bottle, experts, and the information contained in Defendants' reports about premature ejection).  Id. (citing Beasley v. Kerr-McGee Chem. Corp., 273 S.C. 523, 257 S.E.2d 726 (1979)).

(3) Excessiveness of Verdict

The court noted it has limited power to interfere with verdict amounts, which are left almost entirely to the judge and jury.  Id. at 287, 315 S.E.2d at 561 (citing Charles v. Texas Co., 199 S.C. 156, 18 S.E.2d 719, 729 (1942)).  The court cannot reduce a verdict, and it will only strike a verdict down completely if the amount is so shockingly excessive as to indicate it is the result of passion, caprice, and prejudice.  Id.  In view of the severity and permanency of Plaintiff's injury, the court did not find the verdict of $750,000 to be excessive.  Id. at 288, 315 S.E.2d at 562.  In short, there was substantial evidence concerning Plaintiff's pain, multiple surgeries, impact on vision, and change in lifestyle.  Id. at 288-89, 315 S.E.2d at 562.  Based on the evidence, the court did not find the verdict to be excessive.  It also reviewed verdicts for loss of vision cases elsewhere that were also similar to the jury's verdict.  Id.

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Fourth of July Case Brief: Hatfield v. Atlas Enterprises, Inc.

Wherever you are spending your Fourth of July holiday, it is likely in close proximity to some fireworks.  This made me wonder: are there any South Carolina products liability cases involving fireworks?  I did the obligatory electronic searches: "products liability" and . . . "fireworks," "roman candles," "bottle rockets," "m-80s" . . . you get the idea.  I am sure I missed some terms, but I found one case, and it makes for a very short case brief.  So, enjoy Hatfield v. Atlas Enterprises, Inc., 274 S.C. 247, 262 S.E.2d 900 (1980), the "lone fireworks products liability case" (I have found) in South Carolina.

Factual Background: Plaintiff was injured at father's fireworks store when a spark allegedly ignited fireworks.

Procedure: Plaintiff (through her guardian ad litem) brought suit against fireworks manufacturers for negligence, strict liability and breach of warranty.  Defendants filed a demurrer to Plaintiff's strict liability claim on grounds that South Carolina did not recognize strict liability at the time the cause of action arose (i.e., December 17, 1970).  The trial court sustained the demurrer.

Issues:  Whether the trial court erred in sustaining the demurrer.

Disposition:  Affirmed and remanded for further proceedings.

Rules and Procedure: The doctrine of strict liability in tort, imposed as a result of a product's defective condition, did not emerge until the South Carolina Legislature enacted S.C. Code sections 15-73-10 (1976) et seq.  Because Plaintiff's injury pre-dated the enactment, strict liability in tort was not recognized as the common law of South Carolina at the time.  The court also held this provision should not be applied retrospectively based on reasoning in Hyder v. Jones, 271 S.C. 85, 87-89, 245 S.E.2d 123 (1978).  Finally, while those engaged in abnormally dangerous activities have been held strictly liable for damages, this doctrine has not been extended to the manufacturers or distributors of ultrahazardous products outside of the context of Restatement of Torts (Second) section 402A.  Therefore, the court declined to extend it in this case.

Happy Fourth of July!

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New SC Products Liability Decision: Keeter v. Alpine Towers, Int'l

This week, the South Carolina Court of Appeals released its opinion in Keeter v. Alpine Towers International, Inc.  You can find the decision here on page 72 and here.  As you may recall, I blogged about this jury verdict back on June 22, 2009.  (See this post for more information about the verdict).  There is some very important information in this case on how to properly structure a verdict form in a products liability case.

FACTUAL BACKGROUND: Plaintiff Larry Keeter (“Keeter”) fell more than twenty feet from a climbing tower to the ground.  He was seventeen at the time, broke a vertebra, and was rendered a permanent paraplegic.  Alpine Towers (“AT”) originally sold the climbing tower to an amusement park.  Keeter’s high school purchased the tower from the park and hired AT to move it, install it, and train high school faculty to safely use it.  The sale contract identified AT as the “seller.”  The tower’s central safety feature was a “belay system” which utilized four participants and system of pullies to control the ascent/descent of a climber.  As Keeter was climbing, the rope in the belay system became tight.  When someone assisting (the “belayer”) tried to free the rope, she lost the assistance of the belay device, could not control the rope, and Keeter fell. 

PROCEDURE: Keeter and his parents sued for (1) strict liability; (2) negligent design of the climbing tower, and (3) negligence in failing to properly train high school faculty.  (A copy of the Amended Complaint can be found here).  Plaintiffs also filed suit against the belayer for negligence.  Plaintiffs settled with the high school before filing suit and dismissed the belayer before trial.  The jury returned a verdict on each cause of action.  It awarded $500 for strict liability, $900,000 in actual damages and $160,000 in punitive damages for negligent design, and $2,500,000 in actual damages and $950,000 in punitive damages for AT’s negligence in training the high school’s faculty.  The jury also returned a verdict for Keeter’s parents for $240,000 in actual damages.  After hearing post-trial motions, the court required Keeter to elect between his causes of action and ordered that the high school’s settlement be set off against Keeter’s recovery.  Keeter filed a motion requesting the court to enter a cumulative amount rather than requiring him to elect, and the court denied the motion.  The court entered judgment for $2,500,000 in actual damages and $950,000 in punitive damages on the negligent training cause of action.  Both Plaintiffs and AT appealed.

ISSUES: (1) Whether the trial court was in error in denying AT’s directed verdict, post-trial, and new trial motions, including the sufficiency of evidence for all causes of action, whether the chain of causation was broken by intervening and superseding negligent acts, the sufficiency of evidence for punitive damages, and apportionment of fault; and (2) whether the trial court erred in treating Plaintiffs’ verdicts as “three awards” and requiring him to elect his remedy.

DISPOSITION: The South Carolina Court of Appeals (1) affirmed denial of AT’s motions, and (2) reversed the trial court’s interpretation of the jury verdict and remanded with instructions that it enter judgment in Keeter’s favor against AT for $3,400,500 in actual damages and $1,100,000 in punitive damages.

RULES AND OPINION: The first half of the opinion addresses AT’s appeal, which is summarized as follows:

• Strict Liability – There was sufficient evidence that a reasonable alternative design would have prevented Keeter’s fall.  The tower incorporated a device called “Trango Jaws” in the belay system, which relied on the absence of human error to safely belay a climber.  Plaintiff’s experts introduced evidence that a device called a “GriGri” would automatically stop the rope if the belayer lost control and not rely on the absence of human error. 

• Negligent Design – There was sufficient evidence to support a negligent design theory.  Plaintiffs relied on the failure to incorporate the GriGri for this theory, but Plaintiffs also introduced evidence that AT conducted a ten-year study that the majority of accidents on climbing towers resulted from human error and belayers dropping climbers.  Despite this information, AT did not design for human error by incorporating a locking device.  Plaintiff also introduced evidence of breach duty of reasonable care in designing warnings and instructions for the tower.  AT omitted an instruction to have someone within reaching distance of active belay ropes and beside the climber.  There also should have been end user warnings for first-time climbers and belayers.

• Negligent Training – AT did not provide certain materials to high school faculty that it used in other training sessions (i.e., a syllabus).  AT also did not teach faculty supervisors to stand directly behind a belayer and to assist students in avoiding errors.  AT also did not teach the high school to test students’ competency before allowing them to belay a climber.  Therefore, there was sufficient evidence to support a negligent training theory.

• Intervening Causation – “’For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.’”  (Quoting McKnight v. S.C. Dep’t of Corr., 385 S.C. 380, 387, 684 S.E.2d 566, 569 (Ct. App. 2009)).  There was ample evidence to support that the actions of the high school and belayer were foreseeable, and therefore the chain of causation was not broken to insulate AT from liability.  AT knew the high school would be using students as belayers, and their ten-year study informed them of the human error risks.  The same human error that resulted in Keeter’s injury was not only foreseeable by AT, it was actually foreseen.

• Punitive Damages – With regard to Plaintiffs’ claim that AT recklessly designed the tower, there was evidence that AT knew the majority of falls were caused by human error, could have used an alternative design to account for human error, and the cost of the alternative design was inconsequential.  Therefore, this was evidence that AT was “conscious of the probability of resulting injury” from its negligence, and therefore reckless.  With regard to Plaintiffs’ claim that AT was reckless in failing to properly train high school faculty, there was sufficient evidence that AT knew the high school would use student belayers and that they were less attentive and more susceptible to error.  Nevertheless, AT still failed to properly train faculty, did not include certain materials in their training processes, removed certain instructions about where to stand in relation to a climber, failed to teach competency testing, and did not inform the high school of the option of using the GriGri.  This was sufficient evidence of recklessness.

• Apportionment of Fault – Because of the court’s ruling on punitive damages, it was unnecessary to address the issue of apportionment of fault because the apportionment statute “does not apply to a defendant whose conduct is determined to be . . . reckless.”  (Quoting S.C. Code § 15-38-15(F)).

The second half of the opinion addresses Plaintiffs’ appeal and election of remedies.  “’Election of remedies involves a choice between different forms of redress afforded by law for the same injury . . . . It is the act of choosing between inconsistent remedies allowed by law on the same set of facts.’” (Quoting Taylor v. Medenica, 324 S.C. 200, 218, 479 S.E.2d 35, 44-45 (1996)).  The court pointed out that Keeter asserted three causes of action, but sought only one remedy, i.e., “damages.”  “When a plaintiff seeks only one remedy, there is nothing to elect.”  Therefore, the court held the doctrine of election of remedies did not apply.  The doctrine applies to election of “remedies” and not election of “verdicts.”  The court cited to Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (Ct. App. 1998) as support (and you can see a short summary of that case in this post).

However, the court also cited to the importance of not allowing a double recovery.  To prevent a double recovery, the court must interpret the verdict to determine the jury’s intent.  The court concluded the trial court erred in its interpretation of the verdict to be “three awards” and therefore “inconsistent.”  The error arose with the jury form, which you can find here.  The verdict form was correct in that it required the jury to write its verdict for each cause of action.  However, because Keeter only sought one remedy – damages – and because that remedy could not vary from one cause of action to another, the trial court should have required the jury to write one amount for the damages (and not separate amounts for each cause of action).  “The use of three blanks for damages in the verdict form left the verdict ambiguous as to the amount of damages the jury intended to award.”  To determine the jury’s intent in an ambiguous verdict, the court should consider the entire proceedings to determine what the jury intended.  In reviewing the record, the jury appeared to intend to award a cumulative amount, and it is the duty of the court to sustain verdicts when a logical reason for reconciling them can be found.  Therefore the court found the jury intended the verdicts to be added together for a total verdict in Keeter’s favor of $3,400,500 actual damages and $1,100,000 in punitive damages. 

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Case Brief: Campbell v. Robbins Tire and Rubber Company, Inc.

Today's "Case Brief" is Campbell v. Robbins Tire and Rubber Co., Inc., 256 S.C. 230, 182 S.E.2d 73 (1971) and involves a plaintiff who was injured while inflating at tire.  The guy in the video clip is not a plaintiff...he's actually trying to pop the tire tube.  I find his facial expressions of anticipation pretty funny.

Campbell is relatively short case, and I like it because (one can argue) it supports the necessity of expert testimony in a products liability case in order to prove defect.  The mere fact that a product malfunctions does not demonstrate it was defective.  A plaintiff has to prove this critical element.  (Although not exactly the same, this also ties into the fact that South Carolina does not recognize the doctrine of res ipsa loquitor).

FACTUAL BACKGROUND:  Plaintiff purchased two tire tubes manufactured by Defendant.  256 S.C. at 231, 182 S.E.2d at 74.  He put one on his truck, and it exploded during inflation, causing him to be injured.  Id.

PROCEDURE: Plaintiff sued Defendant for negligence in failing to inspect the tube before putting it on the market, in manufacturing a defective tube with weak seams and rubber, and in failing to warn Plaintiff of the defect.  256 S.C. at 232, 182 S.E.2d at 74.  At trial, Plaintiff won a verdict for actual damages.  Id.  Defendant made the appropriate motions during trial for directed verdict and for judgment notwithstanding the verdict on grounds that there was no evidence of defect or actionable negligence.  Id.  These motions were denied, and Defendant appealed.  Id. 

ISSUE(S): Whether the trial court erred in denying Defendant's directed verdict and judgment notwithstanding the verdict motions. 

DISPOSITION: Yes, the trial court was in error.  256 S.C. at 234, 182 S.E.2d at 75.  Reversed and remanded.  Id.

RULES AND OPINION: The court noted that it "elementary" that for Plaintiff to recover, he has the burden of proving defect and that the defect proximately caused his injury.  256 S.C. at 232, 182 S.E.2d at 74. The record showed that Plaintiff testified he had been a service station operator for 15 years, and a large part of his job was repairing, servicing and mounting truck tires.  Id. at 233, 182 S.E.2d at 74.  He testified as to precisely how he went about inflating the tire, including an account of the amount of air pressure in the tire during inflation.  Id.  During this process, the tire exploded.  Id.

The court noted that although Plaintiff offered evidence of injury, there was no evidence going to the issue of defect.  Id. at 233-34, 182 S.E.2d at 75.  Conversely, Defendant had the tube examined and inspected by an independent expert who found no inclusions, cracks, holes, or thin spots.  Id.  The expert confirmed the tube's correct chemical composition and tensile strength, and he offered testimony that the tube was inspected prior to delivery to dealers.  Id.

After reviewing this evidence, the court stated that Plaintiff failed to establish that there was a defect in the tire.  Id. at 234, 182 S.E.2d at 75.  "The burden was on [Plaintiff] to show that the tube was defective and such resulted from the negligent manufacture thereof by the appellant.  The mere fact that the tube exploded does not demonstrate the manufacturer's negligence nor tend to establish that the tube was defective."  Id. (emphasis added).  Viewing the record in the light most favorable to Plaintiff, the court concluded that the only reasonable inference was that Defendant was not guilty of negligence, and the trial judge should have directed a verdict in Defendant's favor.  Id.  The court reversed the trial court and remanded the case for entry of judgment in favor of Defendant.  Id.

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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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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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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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Case Brief: Rhodes v. McDonald

Rhodes v. McDonald, 345 S.C. 500, 548 S.E.2d 220 (Ct. App. 2001), involves the installation of vinyl siding.  It stands for the principle that a plaintiff cannot recover punitive damages in a breach of warranty action.

FACTUAL BACKGROUND: Defendant Bill Gillespie ("Gillespie") owned and operated an insulation company, Defendant Southern Insulation ("SI").  345 S.C. at 502, 548 S.E.2d at 221.  Plaintiffs contracted with SI to install vinyl siding on their mobile home and extend the room over their kitchen.  Id.  After installation, plaintiffs complained that the siding was "wavy looking."  Id.  Despite assurances that it would "settle down," it became worse and began pulling apart.  Id.  It also led to the roof "bowing up."  Id.

PROCEDURE: Plaintiffs brought an action against defendants for breach of contract and breach of certain implied warranties.  345 S.C. at 501, 548 S.E.2d at 221.  A jury awarded plaintiffs $11,464.50 in actual damages and $27,500 in punitive damages.  Id. at 503, 548 S.E.2d at 221.  Defendants appealed. 

ISSUE: Whether the trial court erred in failing to grant defendants' motions for directed verdict (1) as to Gillespie's individual liability and (2) as to the availability of punitive damages in the breach of contract and breach of implied warranty causes of action.  345 S.C. at 501, 548 S.E.2d at 221.  Defendants also contended that the trial court erred in submitting an improper special verdict form to the jury.  Id.

DISPOSITION: Affirmed with regard to individual liability of Gillespie.  Reversed with regard to award of punitive damages.    The special interrogatories question was not preserved for appeal (and moot in light of the punitive damages reversal).

OPINION: With regard to the availability of punitive damages, the court agreed that the trial court should not have submitted this issue to the jury.  345 S.C. at 503-05, 548 S.E.2d at 221-23.  The measure of damages that a buyer may recover under the Uniform Commercial Code ("UCC") is set forth at S.C. Code sections 36-2-714 and 715.  Id. at 503, 548 S.E.2d at 222.  The court reviewed the wording of both statutes and concluded that the plain language of the statutes indicated intent by the legislature to limit damages recoverable for breach of warranty to actual, incidental, and consequential damages.  Id. at 503-04, 548 S.E.2d at 221-22.  There was no provision for punitive damages in either statute.  Id.  This is further supported by S.C. Code section 36-1-106(1), which provides, in part, that "neither consequential or special nor penal damages may be had except as specifically provided in the act or by other rule of law."  Id. at 505, 548 S.E.2d at 222.  Again, the court pointed out that the UCC does not include such a provision.  Id.  Although punitive damages are allowed in South Carolina in a breach of contract action where the breach is accompanied by a fraudulent act, there was no such evidence in the case.  Id. at 505, 548 S.E.2d at 222-23.

With regard to the trial court's failure to direct a verdict for Gillespie as to his individual liability, the court disagreed.  Id. at 505, 548 S.E.2d at 223.  SI was not incorporated at the time of the contract, and the general rule is that owners of unincorporated companies are not entitled to the same protection as owners of incorporated entities.  Id.

Finally, the court held that defendants had not adequately preserved their argument relating to the trial court's submission of special interrogatories to the jury.  Id. at 506, 548 S.E.2d at 223.  Therefore, the court did not address this issue, but also pointed out that it was moot in light of the reversal of the punitive damages award.

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Case Brief: Holst v. KCI Konecranes Int'l Corp., 390 S.C. 29, 699 S.E.2d 715 (Ct. App. 2010)

It has been awhile since I posted a Case Brief, so I thought I would provide one for Holst v. KCI Konecranes Int'l Corp, 390 S.C. 29, 699 S.E.2d 715 (Ct. App. 2010).  I originally blogged about this case when it came out, and its opinion has now been published.  This is a crane accident case involving a "KCI rubber-tired gantry crane" at a terminal of the South Carolina State Ports Authority in Charleston, South Carolina.  I was not familiar with a "gantry crane" and how it differed from a regular crane, so I did the trusty google image search to see what came up.  I am glad that I did.  As you can see from one of the the pictures (below), it is different than your typical idea of a "crane."  (This picture is only intended to give you an idea of a "rubber-tired gantry crane" generally.  I have no idea if it is the make or model of the crane at issue).

The case has some good discussion about the necessity of alternative design in a design defect case.  There is also discussion of what the court looks at in terms of other manufacturers and industry standards when evaluating design, warnings, etc. 

FACTUAL BACKGROUND: Decedent was a checker at a terminal at the port in Charleston, South Carolina.  390 S.C. at 33, 699 S.E.2d at 718.  He was responsible for identifying containers needed for transport between the container yard and ships.  Id.  He would instruct crane operators to move and load the containers in the proper sequence.  Id. at 33-34, 699 S.E.2d at 718.  Decedent was killed when a crane operator lowered containers in an area where he was standing, crushing him.  Id. at 34, 699 S.E.2d at 718.

PROCEDURE: Plaintiff (decedent’s wife) filed suit alleging negligence, breach of warranty, and strict liability for defective design against the crane manufacturer.  390 S.C. at 34, 699 S.E.2d at 718.  The crane manufacturer moved for summary judgment, which was granted by the lower court.  Id. at 34-35, 699 S.E.2d at 718.  Plaintiff appealed.  Id.

ISSUE: Whether the circuit (trial) court erred in granting KCI's motion for summary judgment.

DISPOSITION: The South Carolina Court of Appeals affirmed the grant of summary judgment.  390 S.C. at 44, 699 S.E.2d at 723.

OPINION: Plaintiff’s first argument was that the lower court improperly weighed conflicting testimony concerning product defect, compliance with industry standards, and comparisons of the crane to others on the market.  390 S.C. at 35-36, 699 S.E.2d at 719.  Plaintiff cited to the testimony of two experts (Dr. George Pearsall and Richard Leonard) to support that the crane operator did not have obstruction-free visibility and that the crane should have been equipped with a camera.  Id. at 36, 699 S.E.2d at 719.  Even so, both experts for plaintiff conceded that a camera would not eliminate a blind spot, they did not know of other manufacturers who utilized a camera, and the crane met industry standards/regulations.  Id.  Mr. Leonard testified that he had never seen a comparable model crane with greater visibility than the one at issue.  Id.  Because of a lack of evidence of alternative design or that a risk-utility test was conducted with regard to the crane by plaintiff’s experts, the court held that plaintiff could not establish the crane was defective and unreasonably dangerous as a matter of law.  Id. at 37, 699 S.E.2d at 719-20. 

With regard to compliance with industry standards, the court reviewed American Society of Mechanical Engineers standard B30.2-1.5.1(b) and International Organization for Standardization section 8566-1.  Id. at 37-38, 699 S.E.2d at 720.  The court affirmed that the manufacturer complied with these standards from the evidence and that the operator’s access to a telephone, intercom with a loudspeaker, and two-way radio also aided in his “view” of the load block so as to bring the crane into compliance with applicable standards.  Id.  Finally, the court affirmed that plaintiff’s experts failed to provide evidence that another crane was similar enough to the one at issue so as to provide proof that other cranes on the market had better visibility.  Id. at 38-39, 699 S.E.2d at 720. 

           

Plaintiffs also argued that the lower court applied an improper legal standard by basing its grant of summary judgment on the crane’s conformity with industry custom.  Id. at 39, 699 S.E.2d at 721.  The appellate court did not agree and noted that conformity with industry standards was only one factor considered by the trial court.  Id.

Plaintiff also argued that the lower court erred in applying inapplicable legal standards from certain Fourth Circuit Court of Appeals and South Carolina state court cases (i.e., Sexton By & Through Sexton v. Bell Helmets, Inc., 926 F.2d 331 (4th Cir. 1991), Marchant v. Mitchell Distributing Co., 270 S.C. 29, 240 S.E.2d 511 (1977), and Bragg v. Hi-Ranger, Inc., 319 S.C. 531 462 S.E.2d 321 (Ct. App. 1995)). Id. at 40-42, 699 S.E.2d at 721-22.  The court distinguished each cited case on legal or factual grounds and ruled that the lower court did not err in relying on them.  Id.

Finally, the court addressed summary judgment on each of plaintiff’s claims (strict liability, negligence – defective design, and negligence – failure to warn).  Id. at 42-44, 699 S.E.2d at 722-23.  The court cited to its prior discussion as also applying to support dismissal of the strict liability claim.  Id. at 42, 699 S.E.2d at 722.  On the negligent design claim, the court focused on the superiority of the design of the crane in comparison to others, its compliance with applicable standards, and the fact that the blind spot could not be eliminated to support its holding that there was no material issue of fact.  Id. at 42-43, 699 S.E.2d at 722-23.  The court also found that the crane included proper warnings both in the Operator’s Manual and on the crane itself so as to support summary judgment on plaintiff’s negligent failure to warn claim.  Id. at 43-44, 699 S.E.2d at 723.  Affirmed.

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