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.

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

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. 

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

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). 

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

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.

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

Ten Takeaways from Branham v. Ford Motor Co.

By Brian A. Comer

I'm sure many folks who have stumbled across my site as a result of the Branham v. Ford Motor Co. case are looking at the case "brief" below, and their eyes are glazing over at its sheer length. Trust me, it took awhile to digest the case and write it. So...what's the "meat of the coconut" as a former colleague of mine used to say? Here are my "Ten Takeaways from Branham v. Ford Motor Co."

(1) Where strict liability and negligence are asserted as product liability claims in South Carolina, failure to prove an element that is common to both results in a directed verdict of both. In other words, if you cannot prove the product was defective and unreasonably dangerous for one of the claims, then the other does not survive either. Although there may be circumstances where one of the claims survives, it depends on the basis of the dismissal of the other claim.

(2) There is no separate "failure to test" claim apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous. (This is significant to me, as "failure to test" has become a prevalent theory, especially in drug and medical device cases).

(3) As a sports talk radio host that I listen to says, "POWWWWWWWWW!!!!"....the consumer expectations test is GONE in a South Carolina design defect case. The risk-utility test is now the exclusive test, and it requires proof of feasible alternative design. Also, in supporting this holding, the Court cited extensively to the Restatement (Third) of Torts: Products Liability, which opens the door to its adoption in South Carolina.

(4) "The use of post-distribution evidence to evaluate a product's design through the lens of hindsight is improper." Admission of it is prejudicial.

(5) Although evidence of other incidents must be "substantially similar" and tend to prove or disprove some fact in dispute to be admissible, this issue is not even examined if the evidence is post-distribution evidence (see number 4). If it is pre-manufacture, then the Court will look at whether the data is relevant to an issue, even if the specific cause of the other incident is not known (e.g., comparative rollover data).

(6) You cannot inflame the passion and prejudice of the jury with inadmissible and prejudicial evidence in your closing argument. Period.

(7) If co-defendants are joint tortfeasors under the law, then it is improper to apportion fault on the jury form.

(8) The "harm to others" prohibition is alive and well in South Carolina when it comes to punitive damages. Trying to convince a jury that they should punish a manufacturer for all other injuries/deaths/etc. is forbidden by South Carolina and federal authority.

(9) When it comes to evidence for punitive damages, net worth is the safest harbor. Although admission of extrapolated financial data (down to hourly and daily income) has not been found to be abuse of discretion, the Court indicated there could be a limit to this kind of evidence. Furthermore, if you start getting into compensation of executives, stock options, etc., you are asking for reversal on the basis of prejudice.

(10) Courts have authority to re-align parties at any time and at their discretion.

This post is subject to the DISCLAIMER & TERMS OF USE of this website.

New Products Liability Decision: Economic Loss Rule

In yesterday's advance sheets, the South Carolina Supreme Court issued its decision in Sapp v. Ford Motor Co. The opinion can be found at page 86 at this link. This case is significant because it clarifies the economic loss rule in the products liability context and overrules a prior decision of the South Carolina Supreme Court.

FACTUAL BACKGROUND: Plaintiff-Appellant ("Sapp") purchased a 2000 Ford F-150 truck for $5,000 in 2004. The truck had 190,000 miles on it and was purchased "as is." In 2005, the cruise control on the truck stopped working, and the vehicle caught fire when Sapp parked it. The fire did not injure Sapp or damage any property other than the vehicle itself. The cost to repair the vehicle was $7,000.

PROCEDURE: Sapp filed suite against Ford alleging causes of action for negligence, strict liability, breach of warranty, and fraud/misrepresentation. He alleged that Ford knew of a design defect in the cruise control switch that would short circuit and cause a fire in the engine compartment. The circuit court granted summary judgment as to all causes of action and found that the economic loss rule precluded the tort claims. Sapp appealed.

ISSUES: Sapp argued on appeal that the circuit court erred in granting summary judgment.

DISPOSITION: The South Carolina Supreme Court agreed with the circuit court and affirmed dismissal. It also overruled its prior decision in Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc., 379 S.C. 181, 666 S.E.2d 247 (2008).

RULES AND OPINION: The key language that summarizes the court's holding is as follows:

The purpose of the economic loss rule is to define the line between recovery in tort and recovery in contract. Contract law seeks to protect the expectancy interests of the parties. Tort law, on the other hand, seeks to protect safety interests and is rooted in the concept of protecting society as a whole from physical harm to person or property. In the context of products liability law, when a defective product only damages itself, the only concrete and measurable damages are the diminution in the value of the product, cost of repair, and consequential damages resulting from the product's failure. Stated differently, the consumer has only suffered an economic loss. The consumer has purchased an inferior product, his expectations have not been met, and he has lost the benefit of the bargain. In this instance, however, the risk of product failure has already been allocated pursuant to the terms of the agreement between the parties. On the other hand, the parties have not bargained for the situation in which a defective product creates an unreasonable risk of harm and causes personal injury or property damage. Accordingly, where a product damages only itself, tort law provides no remedy and the action lies in contract; but when personal injury or other property damage occurs, a tort remedy may be appropriate.

The court reviewed its prior decisions in Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 341, 384 S.E.2d 730, 734 (1989) and Colleton Preparatory Academy, Inc. v. Hoover Universal Inc., 379 S.C. 181, 666 S.E.2d 247 (2008). The court reiterated that its holding in Kennedy only applies in the residential home context. (In Kennedy, the court held that a homebuyer could recover in tort against a developer or builder where the builder violates an applicable building code, deviates from industry standards, or constructs a home that he knows or should have known will pose a serious risk of physical home). The court explained that the reason for the exception in Kennedy was related to the the mechanics and context of home purchasing, which make it different from the purchase of other manufactured goods.

Significantly, the court overruled its decision in Colleton Prep to the extent that it expanded the Kennedy's exception beyond the residential builder context. The court also stated that -- like the dissent in Colleton Prep -- it was cautious in permitting negligence actions where there is neither personal injury nor property damage.

Imposing liability merely for the creation of risk when there are no actual damages drastically changes the fundamental elements of a tort action, makes any amount of damages entirely speculative, and holds the manufacturer as an insurer against all possible risk of harm.

The court agreed with federal court decisions that the economic loss rule precludes a negligence action against a manufacturer where duties are created solely by contract and where the product only injured itself or where the damages were contemplated by the parties' contract.

Justice Beatty concurred in the decision but discussed the inconsistent treatment of the doctrine and suggested that the use of varying analytical frameworks does not provide the bench and bar with guidance in its application. He suggested that the Court should should pronounce a list of areas to which public policy prohibits the application of the economic loss doctrine and forego any legal analysis.

This post is subject to the DISCLAIMER & TERMS OF USE of this website.

Case Brief: Allen v. Long Mfg. NC, Inc.

Today's case brief is of Allen v. Long, Mfg. NC, Inc., 332 S.C. 422, 505 S.E.2d 354 (Ct. App. 1998). This is a warnings case, and it is significant because it discusses the adequacy of warnings, rejects that compliance with industry standards is conclusive evidence of adequacy, and establishes the heeding presumption in South Carolina.

FACTUAL BACKGROUND: Otis Allen, Sr. ("Allen") was using a portable grain auger to load grain onto a grain drill. 332 S.C. at 424, 505 S.E.2d at 355. The auger's center of gravity could change when grain was conveyed to the top of the auger without replacing the material at the bottom (which kept it stable and prevented it from becoming top heavy). Id. Allen was standing beneath the auger's discharge end when it became unstable and struck him in the head, killing him. Id. He had not anchored the lower end or supported the discharge end. Id. The auger contained a warning label with the word "CAUTION" preceding eleven different instructions. 332 S.C. at 425, 505 S.E.2d at 356.

PROCEDURE: Allen's estate ("Plaintiff") brought a wrongful death and pain and suffering action against Defendant Long Mfg. NC, Inc. ("Long", the manufacturer of the auger) and Glen Kinard, the auger's owner. 332 S.C. at 424-25, 505 S.E.2d at 355. The theories of recovery were strict liability and negligence. Id. at 424, 505 S.E.2d at 355. The trial court granted Long's motion for summary judgment. Id. Plaintiff appealed to the South Carolina Court of Appeals.

ISSUES: The questions on appeal were whether genuine issues of material fact existed regarding (1) whether the auger was in a "defective condition unreasonably dangerous" to Allen, (2) whether Long breached its duty of care by failing to provide an adequate warning, and (3) whether Allen's failure to follow the warning was the proximate cause of his injuries. 332 S.C. at 425-26, 505 S.E.2d at 356.

DISPOSITION: The Court of Appeals reversed the trial court's grant of summary judgment. 332 S.C. at 426, 505 S.E.2d at 356. It found that the sufficiency of the auger's warnings was a question of fact for the jury. Id.

RULES AND OPINION: With regard to whether the auger was in a defective condition, unreasonably dangerous to the user, the court pointed out that "[i]f a warning is given which, if followed, makes the product safe for use, the product cannot be deemed defective or unreasonably dangerous." 332 S.C. at 427, 505 S.E.2d at 357 (citing Restatement (Second) of Torts section 402A cmt. j (1965)). Whether a warning is adequate is a question of fact for the jury as long as evidence has been presented that the warning was not adequate. Id. at 428, 505 S.E.2d at 357. Plaintiff's expert provided testimony regarding the auger's warning that created a genuine issue of material fact. 332 S.C. at 429, 505 S.E.2d at 358. There was nothing in the auger's warnings to explain that the machine's center of gravity could change as it emptied. Id. Furthermore, the court disagreed with the trial court's interpretation of Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1996) as establishing that a warning is adequate as a matter of law if it complies with industry standards. 332 S.C. at 430-31, 505 S.E.2d at 358-59 ("We reject this principle as unsound since it would allow the industry to set its own standard of safety, a proposition which finds no support from other jurisdictions, and which is antithetical to the underlying premise of strict liability."). Finally, the court stated that it need not address whether a feasible design alternative must be presented to survive summary judgment. Id. at 431, 505 S.E.2d at 359. The court agreed that Plaintiff failed to present a factual issue on this point, but it concluded that the court erred in ruling upon it because Long conceded that the auger required a warning to be made safe. Id. This concession foreclosed Plaintiff's argument that the auger could have been redesigned to be made safer and rendered the trial court's holding moot. Id. at 431-32, 505 S.E.2d at 359.

With regard to Long's duty of care, the court reversed the trial court's determination that Long satisfied its duty of care because its determination was premised on the legal adequacy of the auger's warning, which the Court of Appeals (supra) held was an issue of fact for the jury. Id. at 432, 505 S.E.2d at 359.

Finally, the court reversed the trial court's finding that the Plaintiff failed to introduce evidence of causation. 332 S.C. at 432-33, 505 S.E.2d at 359-60. At trial, Long successfully argued that Allen's failure to heed the auger's warning was the proximate cause of his injuries because Plaintiff's expert stated that if Allen had followed the warnings, the accident would not have occurred. Id. at 432, 505 S.E.2d at 359-60. The court stated that when an adequate warning is given, the manufacturer may assume that it will be heeded by the product user. Id. at 432-33, 505 S.E.2d at 360. However, the testimony by Plaintiff's expert created a factual issue as to whether a different, adequate warning could have changed Allen's conduct. Id. at 433, 505 S.E.2d at 360.

This post is subject to the DISCLAIMER & TERMS OF USE of this website.

Case Brief: Kennedy v. Custom Ice Equipment, Inc.

By Brian A. Comer

Today's brief is of Kennedy v. Custom Ice Equipment Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978). The is a product modification case, and it is significant because it discusses how a product may be defective if a third-party modification was foreseeable and should have been incorporated into the design. This is a pretty short case, and you can probably read it in its entirety in about the same amount of time that it takes to read this brief.

Factual Background: Plaintiff was employed at Georgetown Ice Company ("Georgetown"), which manufactured and distributed crushed ice. 271 S.C at 173, 246 S.E.2d at 177. Defendant Custom Ice Equipment, Inc. ("Defendant") designed and installed the machinery used by Georgetown. Plaintiff was instructed to empty the ice storage bins, which were supplied by an overhead conveyor that carried the ice from the ice-maker to the bins. Id. The ice was removed through an opening at the underside of the bin, through which the ice falls when a trap door is opened. Id. If the ice froze up and would not fall out, it had to be physically dislodged. Id. Georgetown had constructed a wooden "catwalk" beside the storage bins so that employees could reach in the bins and break up the frozen ice with a garden hoe. 271 S.C. at 173-74, 246 S.E.2d at 177. Plaintiff attempted to do this and was drawn into the overhead conveyor, ripping his arm off. 271 S.C. at 174, 246 S.E.2d at 177.

Procedure: Plaintiff alleged causes of action against defendant for negligent design of the overhead conveyor and for strict liability. 271 S.C. at 174, 246 S.E.2d at 177. Defendant moved for a directed verdict as to both causes of action, which were denied. Id. The case was submitted to the jury, and a verdict was returned for $208,000. Id.

Issues: Defendant appealed the denial of its motions for directed verdict as to both of Plaintiff's causes of action. 271 S.C. at 174, 246 S.E.2d at 177. The South Carolina Supreme Court reviewed the evidence for both causes of action.

Disposition: The court affirmed the decisions of the trial court. 271 S.C. at 175, 176, 246 S.E.2d at 178.

Rules and Opinion: With regard to the negligence action, Defendant alleged that the overhead conveyor was designed and installed without protective shields because its height rendered it unforeseeable that someone would come into close contact with the exposed portions of the rapidly-turning auger. 271 S.C. at 175, 246 S.E.2d at 177. Defendant compared the danger to that of a high tension power line (i.e., dangerous, but inaccessible). Id. Defendant also claimed that the risk from the conveyor was open and obvious; therefore, the Plaintiff was contributorily negligent by climbing up the conveyor. Id. Plaintiff presented evidence that ice "bridging" was a common problem in the industry and that Defendant was aware of the need to come into close contact with the conveyor to dislodge the ice. 271 S.C. at 175, 246 S.E.2d at 178. There was also evidence that Defendant knew that it was common to reach into the storage bins with garden hoes to dislodge the ice. Id. Because of the conflicting evidence , the trial judge did not err in submitting the negligence claim to the jury. Id. The court stated that questions of negligence, proximate cause, and contributory negligence are ordinarily questions of fact for the jury. Id.

With regard to the second cause of action, Defendant alleged that the screw conveyor was not defective when installed because of the insulation provided by the conveyor's height; therefore, Georgetown's modifications (i.e., constructing the catwalk) created the defect. 271 S.C. at 176, 246 S.E.2d at 178. Plaintiff admitted to the modification, but offered evidence that Defendant had actual knowledge of the construction and use of catwalks in other plants, and therefore Defendant should have foreseen the use of the catwalk. Id. Plaintiff argued that failure to anticipate the foreseeable use of the catwalk by placing protective shields on the conveyor rendered the design of the conveyor defective. Id. The court stated:

The test of whether a product is defective when sold is whether the product is unreasonably dangerous to the consumer or user given the conditions and circumstances that will foreseeably attend the use of the product. Under this test, the jury could have determined that the construction of the catwalk by Georgetown was a foreseeable circumstance that required the incorporation of protective shields in the design of the conveyor.

Id. (but see note below). Therefore, the court held that the evidence created a factual question of whether the Plaintiff's injuries were proximately caused by a defect in the product as designed, or by an unforeseeable modification by a third party. Id. The court contrasted its holding in Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E. 2d 671 (1978), where the only reasonable inference was that the product was not defective as designed. 271 S.C. at 176-77, 246 S.E.2d at 178.

Notes: This case preceded Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995, which also set forth a second test for determining whether a product is in a defective condition, unreasonably dangerous (i.e., the risk-utility test). See Bragg, 319 S.C at 543-44, 462 S.E.2d at 328.

This post is subject to the DISCLAIMER & TERMS OF USE of this website.

Case Brief: Sunvillas Homeowners Ass'n, Inc. v. Square D Co.

By Brian A. Comer

Today's brief is of Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 391 S.E.2d 868 (Ct. App. 1990). The case is most often cited for for the principle that the mere fact that a product malfunctions does not establish the manufacturer's negligence or that the product was defective.

Factual Background: A fire occurred at a beachfront condominium project. Square D manufactured a circuit breaker utilized in the project. 301 S.C. at 332, 391 S.E.2d at 869.

Procedure: Sunvillas Homeowners Association ("Sunvillas") sued various defendants to recover damages resulting from the fire, and the only defendant involved in the appeal was Square D. 301 S.C. at 332, 391 S.E.2d at 869. Sunvillas claimed the circuit breaker was negligently designed or manufactured. Id. At the end of the plaintiff's case, Square D made a motion for directed verdict, which the trial judge granted. Id. "Square D then moved to amend the complaint to conform to the proof on the issue of warranty. The trial judge denied the motion the basis that he had already directed a verdict when the motion was made." Id. at 334, 391 S.E.2d at 870.

Issues: The two issues on appeal were (1) whether the trial judge erred in granting Square D's motion for a directed verdict at the end of the plaintiff's case, and (2) whether the trial judge erred in denying the motion to amend Sunvillas complaint to add a breach of warranty claim. 301 S.C. at 332, 391 S.E.2d at 869.

Disposition: The South Carolina Court of Appeals affirmed the decisions of the trial court.

Rules and Opinion: The court first addressed the granting of the directed verdict motion. 301 S.C. at 332-34, 391 S.E.2d at 869-70. Sunvillas employed the services of an expert qualified in electrical engineering and origin of electrical fires. Id. at 332, 391 S.E.2d at 870. The expert sent the circuit breaker to Square D for analysis, but he did not agree with their opinion that the cause of the malfunction was water and waterborne contaminants which had followed the top lead-in wires into the breaker. Id. He agreed that there was corrosion in the breaker, but denied that it was the cause of the failure. Id. Though he could not identify the defect, he based his opinion of product defect on the fact that the breaker malfunctioned. Id. In affirming the trial court's directed verdict for Square D, the court stated that "[t]he mere fact that a product malfunctions does not demonstrate the manufacturer's negligence nor tend to establish the product was defective." Id. at 333, 391 S.E.2d at 870. Though negligence may be proven by circumstantial evidence, "the plaintiff must show such circumstances as would justify the inference that the damages suffered were due to the negligent act of the defendant and the question may not be left to mere conjecture or speculation." Id. at 334, 391 S.E.2d at 870. Sunvillas' expert did not testify about design alternatives, and he did not identify a specific defect in the breaker that was the result of a manufacturing error. Id. The jury would have been left to speculate about the how Square D failed to exercise due care, so the trial court was correct in granting the directed verdict. Id.

With regard to the denial of plaintiff's motion to amend the complaint, this issue is somewhat confusing because the court's decision is not entirely clear on who moved for the amendment of the complaint. At the outset of the opinion, the court states that Sunvillas made the motion. 301 S.C. 332, 391 S.E.2d at 869. However, at the beginning of the discussion, the court states that "Square D moved to amend the complaint to conform to the proof on the issue of warranty." Id. at 334, 391 S.E.2d at 870. Later, the court again states that it was Sunvilla's motion. Id. at 335, 391 S.E.2d at 871. Regardless, the court stated that the motion was governed by S.C.R.C.P. 15(b) and that there was no evidence that the issue of implied warranty was tried by express or implied consent. Id. Sunvillas chose to plead only negligence, and "[i]t did not move to amend until after the trial judge had ruled against it on a directed verdict motion." Id. The court agreed with commentators that the opposing party may not be conscious of the relevance of certain evidence to issues not raised by the pleadings if that matter is not made clear. Id. "Since defect of the project was relevant to neglengence as well as warranty and we find no indication of implied consent to try a warranty claim, we affirm the trial court's decision to deny the motion." Id. The second portion of S.C.R.C.P. 15(b) (dealing with objection to the introduction of evidence as being not within the pleadings) was not applicable to the case. Id.

This post is subject to the DISCLAIMER & TERMS OF USE of this website.

Drilling Down: "Defective and Unreasonably Dangerous Condition"

By Brian A. Comer

In any South Carolina products liability action (whether brought in strict liability, negligence, and/or breach of warranty), a plaintiff must prove that the injury occurred because the product was in a "defective condition, unreasonably dangerous to the user." Rife v. Hitachi Constr. Mach. Co., 363 S.C. 209, 215, 609 S.E.2d 565, 568 (Ct. App. 2005).

Two tests have evolved in South Carolina to determine whether a product is in a "defective condition, unreasonably dangerous to the user," and the South Carolina Court of Appeals did a good job of articulating them in its preeminent case, Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995). The court stated as follows:

The first test is whether the product is unreasonably dangerous to the ordinary consumer or user given the conditions and circumstances that foreseeably attend the use of the product. Under the second test, a product is unreasonably dangerous and defective if the danger associated with the use of the product outweighs the utility of the product. . . . [T]he mere fact that a product malfunctions does not demonstrate the manufacturer's negligence nor does it establish that the product was defective. Rather, "[i]n the final analysis, we have another of the law's balancing acts and numerous factors must be considered, including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger." Thus, in South Carolina we balance the utility of the risk inherent in the design of the product with the magnitude of the risk to determine the reasonableness of the manufacturer's action in designing the product. This “balancing act” is also relevant to the determination that the product, as designed, is unreasonably dangerous in its failure to conform to the ordinary user's expectations.

Bragg, 319 S.C. at 543-44, 462 S.E.2d at 328 (citations omitted) (emphasis added).
This post is subject to the DISCLAIMER & TERMS OF USE of this website.

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.

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

Drilling Down: Negligence

By Brian A. Comer

I'm slowly but surely trying to get through each theory that can be used to assert a products liability claim in South Carolina. Let's take a closer look at the negligence theory...

When a products liability action is brought pursuant to a negligence theory, the plaintiff must establish the following:
(1) the plaintiff was injured by a product;
(2) the product was in essentially the same condition at the time of the accident that it was in when it left the hands of the defendant;
(3) the injury to the plaintiff occurred because the product was in a defective condition unreasonably dangerous to the user; and
(4) the manufacturer breached its duty to exercise reasonable care to adopt a safe design. 30 S.C. Jur. Products Liability § 15 (citing Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108 (Ct. App. 1985), appeal dismissed, 286 S.C. 127, 332 S.E.2d 102 (1985); Allen v. Long Mfg. NC, Inc., 332 S.C. 422, 505 S.E.2d 354 (Ct. App. 1998), reh'g denied, (Oct. 21, 1998) and cert. denied, (May 28, 1999).

As the South Carolina Court of Appeals clarified in Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 540, 462 S.E.2d 321, 326 (Ct. App. 1995), "'the distinction between strict liability and negligence in design-defect and failure to warn cases is that in strict liability, knowledge of the condition of the product and the risks involved in that condition will be imputed to the manufacturer, wheres in negligence these elements must be proven.'" (Quoting Bilotta v. Kelley Co., 346 N.W.2d 616 (Minn.1984)). Unlike strict liability, the focus of a negligence theory is on the conduct of the defendant, and liability is determined based on fault. Id. at 539, 462 S.E.2d at 326. Therefore, as explained by the court in Bragg, "it is possible under certain circumstances for a supplier of products to be held liable under a negligence theory even though the supplier is not strictly liable." Id. at 541, 462 S.E.2d at 327.

This post is subject to the DISCLAIMER & TERMS OF USE of this website.

The "Basics"

By Brian A. Comer
It seems appropriate that a first entry about products liability law in South Carolina would include "the basics", i.e., the legal theories that can serve as a basis for a products liability claim.
A person can bring a products liability claim based on negligence, strict liability in tort, and/or breach of warranty. Small v. Pioneer Mach., Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App.1997); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App.1995). "Strict liability and negligence are not mutually exclusive theories of recovery; that is, an injury may give rise to claims that can be established either under principles of strict liability or negligence, and failure to prove one theory does not preclude proving the other." Bragg, 319 S.C. at 539, 462 S.E.2d at 326.
Regardless of the theory that serves as a basis for recovery, a plaintiff must establish three elements in a South Carolina products liability claim: (1) the plaintiff was injured by the product; (2) the injury occurred because the product was in a defective condition, unreasonably dangerous to the user; and (3) the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant. Rife v. Hitachi Const. Mach. Co., Ltd., 363 S.C. 209, 215, 609 S.E.2d 565, 568 (Ct. App. 2005); Bragg, 319 S.C. at 539, 462 S.E.2d at 326. In addition to the above, in a negligence action "the plaintiff bears the additional burden of demonstrating the defendant (seller or manufacturer) failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault." Bragg, 319 S.C. at 539, 462 S.E.2d at 326. As stated by another court, the plaintiff must also prove "that the manufacturer breached its duty to exercise reasonable care to adopt a safe design." Rife, 363 S.C at 215, 609 S.E.2d at 569.
There is no statute of limitations specific to products liability actions in South Carolina. Instead, the applicable statute of limitations is the same as any personal injury, wrongful death, or property damage statute. For these actions, the limitations is six years for causes of action that accrue prior to April 5, 1988, and three years for causes of action arising on or after April 5, 1988. See S.C. Code Ann. §§ 15-3-530, 15-3-535, and 15-3-545. The statue of limitations for breach of warranty actions is six years. Id. at § 36-2-725. With the exception of actions brought as medical malpractice actions, all action "must be commenced within three years after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action." S.C. Code Ann. 15-3-535. In other words, the date of discovery is significant for determining when the statute of limitations begins to run.
These are "the basics," and my hope is to focus on each of them in greater detail in subsequent postings.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.