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: Koester v. Carolina Rental Center

By Brian A. Comer

Today's case brief is Koester v. Carolina Rental Center, Inc., 313 S.C. 490, 443 S.E.2d 392 (1994). Koester is a short case that focuses on proximate cause (i.e., foreseeability) and application of S.C. Code section 15-73-20 in a products case.

FACTUAL BACKGROUND: Defendant Carolina Rental Center ("Defendant") rented tree climbing equipment to climbers. 313 S.C. at 492, 443 S.E.2d at 393. However, Defendant did not include with the rental equipment a device (a "lanyard") that prevents the climber from falling away from the tree. Id. The reason for the omission was that Defendant feared liability if the device became worn and broke during use. Id. Instead, Defendant instructed consumers to purchase a rope. Id. Plaintiff was using the rental equipment when a knot is his rope gave way, and he fell 50 feet. Id., 443 S.E.2d at 394.

PROCEDURE: Plaintiff sued for negligence, breach of warranty, and strict liability. 313 S.C. at 492, 443 S.E.2d at 394. Defendant moved for summary judgment, which was granted by the trial court and affirmed by the South Carolina Court of Appeals at Koester v. Carolina Rental Center, Inc., 311 S.C. 115, 427 S.E.2d 708 (Ct. App. 1993). Id. Plaintiff petitioned the South Carolina Supreme Court for writ of certiorari to review the Court of Appeals' decision. Id. The South Carolina Supreme Court granted the petition. Id.

ISSUES: Did the appellate court err in affirming summary judgment for Defendant?

DISPOSITION: Yes. Reversed.

RULES AND OPINION: The court reviewed the standard for summary judgment and then reviewed Plaintiff's first ground for error (relating to whether his own negligence was the proximate cause of his injuries). 313 S.C. at 493, 443 S.E.2d at 394. "The touchstone of proximate cause in South Carolina is foreseeability. Foreseeability is determined by looking to the natural and probable consequences of act complained of." Id. (citing to Young v. Tide Craft, 270 S.C. 453, 462, 242 S.E.2d 671, 675 (1978)). From the evidence in the case, Defendant knew that some of their renters did not understand the equipment, knew that a rope created a risk that a knot could fail or the rope could break, and knew that experienced climbers would not climb without the safety lanyard. Id. From this evidence, it was reasonably foreseeable that a climber would be injured using a rope instead of a lanyard. Id. Therefore, the appellate court erred in finding as a matter of law that the slipping of Plaintiff's knot was the sole proximate cause of his injuries. Id.

The appellate court also erred in finding that Plaintiff's claim was barred by S.C. Code section 15-73-20 ("If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery."). Id., 443 S.E.2d at 493-94. Plaintiff attempted to use the product in the manner intended by Defendant, and therefore whether his use was unreasonable was a question of fact for the jury. Id. at 494, 443 S.E.2d at 394-95.

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Verdicts: Lawrence Keeter, et al v. Alpine Towers Int'l, Inc.

Summary and Commentary by Brian A. Comer

A York County jury awarded $4,750,000 to the family of a former Fort Mill High School student in a case that included products liability claims. The plaintiff was paralyzed when he fell during a climbing wall accident. The Rock Hill Herald reported the story in an article that is cut and pasted further below. I have also obtained a copy of the Amended Complaint and the jury verdict form from Plaintiff's counsel. A summary of the case, based on all of the information received to date, is as follows:

Date of Injury: May 5, 2006

Date of Award: June 19, 2009

County and Court: York County Court of Common Pleas, Sixteenth Judicial Circuit

Trial Judge: The Honorable John C. Hayes, III

Plaintiffs and Counsel: Lawrence "Larry" Keeter was the injured plaintiff. He was 20 years old at the time of trial, and a senior at Fort Mill High School at the time of the accident. His parents, Ronald Travis Keeter and Rebecca Keeter, were also named as plaintiffs in the Amended Complaint. They were represented by Richard A. Harpootlian and Graham L. Newman (Columbia, South Carolina).

Defendants and Counsel: Alpine Towers International, Inc. ("Alpine") (whose website, I believe, is here) and Ashley Sexton were named as defendants in the Amended Complaint (filed May 28, 2009). Alpine installed the "Alpine Tower" climbing equipment at issue in the case, according to the Amended Complaint and the news report. Ms. Sexton was the "belayer" who allegedly lost her grip on the rope that was holding the injured plaintiff. Ms. Sexton was dismissed from the case, but she was included on one portion of the verdict form in order for the jury to apportion fault. Alpine was represented by Thomas C. Salane (Columbia, South Carolina) at trial.

Nature of Injury: The injured plaintiff fractured his spine after falling 20 feet in a climbing wall accident. Heis confined to a wheelchair and doctors have told him he might never walk again, per the news report.

Nature of claims: Plaintiffs brought the following claims in the case, as set forth in the Amended Complaint:

• Negligence as to Defendant Sexton (relating to her duty to properly belay the injured plaintiff);
• Negligence as to Alpine (relating to its duty to adequately train high school faculty members so as to ensure proper supervision of participants and use of the equipment);
• Products liability (strict liability) as to Alpine (relating to failure to provide adequate instructions and warnings, and failure to incorporate an aut0-locking device);
• Products liability (negligence) as to Alpine (relating to failure to cure deficiencies in its instructions, warnings, and safety devices);
• Loss of services as to Defendant Sexton and Alpine (relating to loss of services by Plaintiff's parents).

Jury Verdict: The jury awarded $4,750,000 to Plaintiffs. The jury returned three verdict forms, which set forth the award as follows:

(Verdict Form as to Larry Keeter)

• Strict Liability: "We find for Larry Keeter $ five hundred & 00/100 ($500.00) in actual damages."
• Products Liability (Negligence): The jury found Alpine to have been negligent with regard to "Inadequate Instructions and Warnings and Failure to Incoporate an Autolocking Belay Device." The jury apportioned 100 percent fault to Alpine with regard to this theory. The jury awarded $900,000 in actual damages and $160,000 in punitive damages to Larry Keeter for this claim.
• General Negligence: The jury found Alpine generally negligence with regard to "Failure to Adequately Train"). The jury apportioned 100 percent fault to Alpine with regard to this theory. The jury awarded $2,500,000 in actual damages and $950,000 in punitive damages to Larry Keeter for this claim.

(Verdict Form as to Travis and Rebecca Keeter)

• Loss of Service: The jury found for Travis and Rebecca Keeter with regard to this theory and awarded $240,000 in actual damages.

(Verdict Form (pertaining to fault apportionment))

• The jury apportioned fault as to Larry Keeter's fall in the amount of 40% for Alpine and 60% for Ashley Sexton.

****************

A cut and paste from the news article in The Rock Hill Herald that reported the verdict is provided below.

http://www.heraldonline.com/front/story/1422640.html

Verdict brings ‘closure' for student hurt in climbing wall fall

By Matt Garfield - mgarfield@heraldonline.com

A York County jury on Friday awarded $4.7 million to the family of a former Fort Mill High School student left paralyzed in a climbing wall accident.

Larry Keeter suffered a fractured spine when he fell 20 feet to the ground during a Spring Fling field day in May 2006. Doctors have told him he might never walk again.

Keeter's family filed a lawsuit against the North Carolina-based company that installed the climbing wall. Friday's verdict delivered long-awaited relief to Keeter and his parents, who voiced hope that it would lead to improved safety conditions at similar climbing walls across the country.

“Hating somebody is not going to get me up and walking,” Keeter said. “The best thing I can do is help people realize there's a change that's needed to prevent this from happening again.”

The tower company, Alpine Towers International of Pineola, N.C., did not return phone calls seeking comment Friday afternoon. Thom Salane, an attorney for the company, also couldn't be reached.

Now 20, Keeter is confined to a wheelchair. Every day, he says, his mind flashes back to the accident.

Then a senior, Keeter had ascended the 50-foot climbing wall and was rappelling down while strapped inside a harness.

A student on the ground acting as a “belayer” lost her grip on the rope, and Keeter plummeted 20 feet, landing on his feet and then crumpling to the ground, the lawsuit states. He shattered one vertebrae; the impact sent a shock up his back and fractured his spine.

Doctors at Carolinas Medical Center in Charlotte removed bone fragments from Keeter's spinal canal and realigned his spine. They put eight bolts and two metal rods in his back.

Keeter's family brought in Columbia attorney Dick Harpootlian to pursue a lawsuit against Alpine Towers, which had installed the tower after it was donated by Carowinds.

Harpootlian cited faulty design, saying the belay equipment lacked an automatic locking device that could have prevented Keeter's fall. The suit also said Alpine did not adequately train Fort Mill High School faculty members.

“You don't put kids in a position where their lives literally hang in the balance based on the attentiveness of other kids,” Harpootlian said Friday. “That is what our experts hammered.”
Harpootlian said he expects Alpine to file an appeal.

Fort Mill officials took down the climbing wall soon after the accident. Alpine installed the tower and trained school officials on how to use it, according to the lawsuit.

There are at least 11 alpine towers in South Carolina and nearly 240 around the world, according to published reports. A 10-year safety report published in 1999 concluded that tower users reported 176 minor accidents and 18 serious accidents.

After Keeter's accident, some tower operators said they would re-evaluate their safety methods.
Keeter has made progress over the past three years. He lives in a handicapped accessible apartment near the Rock Hill Galleria and drives himself around in a car equipped with a gas pedal on the steering wheel.

He earned a computer certification from York Technical College but hasn't found steady work.

Memories from the accident are still fresh in Keeter's mind. Hitting the ground. School personnel rushing to help him. Learning at the hospital that he had broken his spine.

The jury's decision brought closure to a long ordeal, but Keeter was in no mood to celebrate. His family had waited at the courthouse until well past midnight Thursday while the jury deliberated.

Asked what he planned to do next, Keeter said he just wanted to go home and take a nap.

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