Case Brief: Benford v. Berkeley Heating Co.

Today's case "brief" (I should call these "surveys" since they admittedly are never very "brief") is Benford v. Berkeley Heating Co., 258 S.C. 357, 188 S.E.2d 841 (Ct. App. 1972). The case involves a furnace and component blower switch that -- although found not to be defective in design -- combines with improper installation to cause a fire. There is some artful pleading and and election of remedies that influence the outcome of this case. It is not a case of "bad facts make bad law," as I do not disagree with the court's findings based on the theory of recovery. However, I am not sure that the outcome would be the same if this case was heard today or if the case asserted negligence or strict liability as a theory of recovery.

FACTUAL BACKGROUND: Berkeley Heating Company ("Berkeley") installed a furnace manufactured by The Trane Company ("Trane") in the crawlspace of a new home in August of 1977. 258 S.C. at 361, 188 S.E.3d at 842. The home burned on November 30, 1967. Id. As installed, the furnace's vent was only two and three-quarter inches from the pine joist where the fire originated. Id. Trane's manual required clearance of at least six inches between the heater's draft hood and the joist. Id. The manual also required that the flue pipe to be pitched upwards to facilitate escape of exhaust through a "short and direct route." Id. However, as installed by Berkeley, the flue pipe was ten feet long and made three ninety degree turns. Id. Two experts investigated the fire for Plaintiff Marvin Benford ("Plaintiff"). Id. The first expert did not find anything wrong with the furnace itself, but cited to three errors in the furnace's installation: (1) inadequate clearance between the draft hood and joist, (2) three ninety degree elbows in the vent connector, and (3) the down pitch of the vent connector to the chimney. Id. at 361-362, 188 S.E.2d at 842. Another expert investigated the case for Plaintiff in February of 1969. Id. at 362, 188 S.E.2d at 842. He concluded that the blower had not operated during the fire. Id.

PROCEDURE: After receiving the first expert's report, Plaintiff sued Berkeley alone in Charleston County. 258 S.C. at 362, 188 S.E.2d at 842. After the second expert's report, Plaintiff discontinued his Charleston County suit against Berkeley alone and commenced a lawsuit against Berkeley and Trane in Dorchester County. Id. Plaintiff sought recovery on several theories, including negligence and implied warranty. Id. Plaintiff alleged that the failure of the blower to operate caused the temperature to become higher than normal. Id. The higher temperature and faulty installation by Berkeley combined to cause the fire. Id. The trial court required Plaintiff to elect a remedy for recovery at the end of his testimony, and Plaintiff chose breach of implied warranty. Id. The jury found in favor Berkeley, but returned a verdict against Trane. Id. at 361, 188 S.E. 2d at 842. Trane appealed.

ISSUES: Whether the trial court erred in not granting Trane's motion for judgment notwithstanding the verdict or for a new trial. 258 S.C. at 361, 188 S.E.2d at 842.

DISPOSITION: Reversed. "For the reasons stated, the only reasonable inference from the evidence is that the intervening independent negligence of Berkeley was not reasonably foreseeable by Trane and that the destruction of plaintiff's house was not a natural and probable result of the failure of the blower switch. Trane's motion for judgment Non obstante verdicto should have been granted." 258 S.C. 368, 188 S.E.2d at 846.

RULES AND OPINION: The court set forth the applicable law for breach of implied warranty as follows:

The vendor is answerable for breach of implied warranty incident to a sale, as for any breach of contract, "for whatever damages follow as a natural consequence and proximate result of his conduct, or which may be reasonably be supposed to have been within the contemplation of the parties at the time the contract was made as a probable result of a breach of it."

258 S.C. at 362, 188 S.E.2d at 843 (quoting Nat'l Tire & Rubb Co. v. Hoover, 128 S.C. 344, 347-48, 122 S.E. 858, 859 (1924)). Applying this law, liability only extends to consequences that would follow the breach in the usual course of events, i.e., events that are foreseeable. Id. The court found that there was sufficient evidence to support the verdict that the switch was defective when it left Trane's hands. Id. at 363, 188 S.E.2d at 843. The court therefore reviewed whether there was evidence to support that the fire was a natural and foreseeable consequence of Trane's breach of implied warranty. Id. In other words, the court reviewed whether Trane could have foreseen the fire as a probable and natural result of the failure of the blower switch. Id.

The court reviewed the normal function of the heater and determined that if the blower switch does not operate, the air inside the heat exchanger to the unit continues to to grow hotter instead of being expelled into the dust system. Id. at 364, 188 S.E.3d at 843. The unit can complete a cycle in this manner, but it is said to be "cycling on the limit switch" and the result is that the draft hood reaches a much higher peak temperature than it otherwise would during normal cycling. Id. at 364, 188 S.E.2d at 843-44. The limit switch's function is to prevent dangerous overheating. Id. at 364, 188 S.E.2d at 844. Be that as it may, the furnace is designed to run in this manner so that there is sufficient heat to prevent pipes from freezing if the blower fails while a family is away. Id.

Significantly, Plaintiff did not claim defective manufacture and design of the heater by Trane, or that the installation manual was inadequate. Id. at 365, 188 S.E.2d at 844. Plaintiff's sole claim against Trane was with regard to the defective blower switch. Id. His installation claim was directed solely at Berkeley. Id. The court found that in the absence of proof to the contrary, Plaintiff's evidence supported that Berkeley's improper installation "interrupted the normally foreseeable train of events linking manufacture with use." Id. Berkeley's installation did not "usually and naturally" precede the use of a furnace. Id. Therefore, "[u]nless there was evidence reasonably pointing to the conclusion that the defective blower switch alone would have caused the loss in natural course, the judgment must fall." Id. The court reviewed the testimony of Plaintiff's experts, and it could not find any such evidence. Id. at 365-68, 188 S.E.2d at 844-46. Plaintiff's first expert said that the defective blower switch would not have caused the fire without the faulty installation. Id. at 365-66, 188 S.E.2d at 844. Plaintiff's second expert admitted during his testimony that the faulty installation made the difference in the fire's ignition. Id. at 366-68, 188 S.E.2d at 844-46.

The court recognized that Trane anticipated that its blower may not work all the time for a variety of different reasons (e.g., clogging, etc.), so it was designed to cycle safely on the limit switch when properly installed. Id. at 368, 188 S.E.2d at 846. "Any evidence that the furnace cycling on the limit switch would have caused the fire, even if it had been installed in the manner directed by the manual, would have pointed to a defect in design as the cause of the fire, which is not charged as a ground of recovery." Id. Based on Plaintiff's theory of recovery, the court reversed the verdict.

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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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Case Brief: Young v. Tide Craft, Inc.

By Brian A. Comer

Periodically, I will try and profile certain South Carolina products liability cases. One of the most significant cases is Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E. 2d 671 (1978). Set forth below is a brief of the case and its significant points of law. (Okay, so the below is not too "brief", but this is a long opinion with lots of "meat on the bone," so trust me when I say that it is about as "brief" as I can make it).

FACTUAL BACKGROUND: Plaintiff's husband ("Husband") died in a boating accident. Young, 270 S.C. at 458, 242 S.E.2d at 673. The boat employed a "pop-up stick" steering system that consisted of a "stick" or "lever" attached to a pulley wheel (i.e., instead of a conventional steering wheel). Id. Part of the mechanism consisted of a "cable pulley" system. This system involved a 3/16 inch plastic covered steel cable threaded through a series of pulleys and connected to the engine. Id. at 459, 242 S.E.2d at 674. Husband began having problems with the steering stick. Id. He took the boat to a repairman (Hegel), and the repairman made temporary repairs, which involved stripping away the frayed portion of the cable's sheathing and resetting the cable. Hegel told Husband that the boat would eventually need to be rewired. Id. at 459-460, 242 S.E.2d at 674. Husband later brought the boat back to Hegel for rewiring, but Hegel did not have sufficient cable to rewire the system. Id. Husband wanted to use the boat the following weekend, so Hegel and Husband talked about splicing in a portion of new cable to replace the frayed portion. Id. After discussing this option, the decision to splice was made. Id.

PROCEDURE: The Plaintiff (wife of the decedent) brought actions for wrongful death and conscious pain and suffering against the boat manufacturer, retailer, and the boat repair shop. Young, 270 S.C. at 461 242 S.E.2d at 675. Both of Plaintiff's actions were based on alternative theories of negligence, breach of implied warranty, and strict liability in tort. Id. The jury returned a verdict against the boat manufacturer with regard to the conscious pain and suffering action and warded $30,000 in actual damages. In the wrongful death action, the jury returned a verdict of $160,000 in actual damages and $10,000 in punitive damages against the manufacturer. Id. The jury absolved the retailer and boat repair shop of liability. Id.

ISSUES: The court analyzed two separate and distinct aspects of claimed liability in the case. First, Plaintiff contended that the manufacturer was chargeable with the splicing and resulting disengagement of a steering cable from the tiller clamp, making the manufacturer liable for damages. Young, 270 S.C. at 461, 242 S.E.2d at 675. Second, Plaintiff argued that even if the manufacturer could not be charged with the splicing of the steering cable, the manufacturer was still liable because certain alleged defects of the boat which became operative after the cable separated were contributing causes of Husband's death. Id.

DISPOSITION: The court reversed. With regard to the first issue, the manufacturer could not be held liable since the intervening acts of the boat repairman consituted the sole proximate cause of the disengagement of the steering cable (as a matter of law). With regard to the second issue, the Plaintiff failed to establish proximate cause (with one exception that was disposed of on other grounds.

RULES AND OPINION: The "touchstone" of proximate cause in South Carolina is foreseeability. 270 S.C. at 462, 242 S.E.2d at 675. It is determined by looking to the "natural and probable consequences" of the complained of act. Id. "The actor cannot be charged with 'that which is unpredictable or that which could not be expected to happen.'" Id. at 463, 242 S.E.2d at 676. (quoting Stone v. Bethea, 251 S.C. 157, 161-62, 161 S.E.2d 171, 173 (1968)). In order to determine whether a consequence is natural and probable, the actor's conduct must be viewed in light of the surrounding circumstances. Id. "Where there is a contention that an intervening agency interrupts the foreseeable chain of events, there are two consequences to be tested: (1) the injury complained of, and (2) the acts of the intervening agency. If the acts of the intervening agency are a probably consequence of the primary wrongdoer's actions, i.e., 'foreseeable', the primary wrongdoer is liable. However, even if the intervening acts are not foreseeable, the primary wrongdoer is nevertheless liable if his actions alone 'would have cuased the loss in natural course.'" Id. (quoting Benford v. Berkeley Heating Co., 258 S.C. 357, 365, 188 S.E.2d 841 (1972)). Based on this rule, the court stated that it must determined (1) whether the actions of the repairman were a probable consequence of the alleged defects and/0r negligence attributable to the manufacturer, and (2) if the answer to the first question is "no", whether the injury at issue would have followed in natural course in the absence of the repairman's actions. Id. at 463-464, 242 S.E.2d 676.

Based on the evidence, the court concluded that the only reasonable inference was that the repairman's actions were not foreseeable. 270 S.C. 464, 242 S.E.2d at 676. He knew and admitted that splicing was dangerous, and he told Husband the same when he finished the repairs. Id. Based on the repairman's own practice and knowledge of the industry, the likelihood of a steering cable being spliced was highly remote. Id. at 465, 242 S.E.2d at 676. "Adding together the remoteness of the possibility that splicing would take place under any given set of circumstances with Hegel's knowledge of the danger involved, it can not be seriously contended that Hegel's actions were a probable consequence of any wrongdoing on the part of Tide Craft." Id. at 465, 242 S.E.2d at 677. This was not a case where a third party's ignorance led to the creation of a highly dangerous condition. Id. The repairman "unleashed" the risk with full knowledge of the dangerous consequences. Id. With regard to the second question (whether the injury would have occurred in the natural course absent the repairman's actions), the court concluded that there was no evidence that would support an inference that the cable would have separated or that there would have been a loss of steering without the splicing. Id.

With regard to the second aspect of the case, Plaintiff alleged that the boat had a propensity to eject an occupant, and that the manufacturer failed to install a "kill switch" that would cut the motor if an occupant was ejected from his seat. 270 S.C. 466, 242 S.E.2d at 677. The court held that the Plaintiff failed to establish that the propensity to eject was a proximate cause of Husband's injury, and the failure to install a kill switch is not a defect under products liability theories of warranty, negligence, or strict liability. Id. at 467, 242 S.E.2d at 671. The court stated that the Plaintiff needed to show that in the absence of the alleged defects (i.e. swivel seating without locking devices, height of seats, etc.), the forces generated by the loss of steering alone would not have thrown Husband overboard. Id. at 467, 242 S.E.2d at 678. The court concluded that the opinion of Plaintiff's expert on this issue was "simply a surmise" and inadequate to prove causation. 270 S.C. at 467-68, 242 S.E.2d at 678. Based on the expert's analysis, he could not say with any reasonable degree of accuracy that the forces attributed to the alleged defects contributed to Husband's ejection to the extent that the ejection would not have occurred in the absence of the alleged defects. Id. at 470, 242 S.E.2d at 679. Since Plaintiff could not meet this burden, her allegations of failure to test and failure to warn about ejection were also not proximate causes of the injury in question. Id. With regard to the "kill switch" defect theory, the court analyzed strict liability and said that "the absence of the kill switch must constitute a defect 'unreasonably dangerous to the user or consumer.'" Id. at 471, 242 S.E.2d at 679. The test of whether or not the failure to incorporate a safety device in a product constitutes a "defect" is whether the product, in the absence of the feature, is unreasonably dangerous to the user or consumer. Id. The court framed the test as follows: "The question that presents itself is whether the absence of the kill switch per se rendered the boat 'dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics . . . " Id. at 471, 242 S.E.2d at 680 (citing Restatement (Second) of Torts, section 402A cmt. i (1965)). In short, the court said that being ejected is a well-known risk of boating, and it was one that Husband was aware of based on his frequent fishing and boating activity. Accordingly, "the lack of a kill switch does not constitute a defect within the meaning of the strict liability in tort statute." 270 S.C. 472, 242 S.E.2d at 680. The court reached the same conclusion with regard to the warranty and negligence theories. Id.

DISSENT: Justice Ness dissented from the opinion. The thrust of Justice Ness's dissent was that the extent of liability and the issue of proximate cause should have been left to the jury. 270 S.C. at 473, 242 S.E.2d at 681. Justice Ness believed that the testimony of Plaintiff's expert was based on his examination of the boat and the physical evidence. Id. at 474, 242 S.E.2d at 681. Whether the expert was qualified and competent was a matter of discretion for the trial judge. Id. at 475, 242 S.E.2d at 681. He also focused on the evidence supporting that the manufacturer failed to test its product and failed to warn about the propensity for ejection. Id. at 475-76, 242 S.E.2d at 682. Finally, he referred to Plaintiff's expert's testimony concerning the kill switch as evidence that such failure contributed to Husband's ejection. Id.

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