By Brian A. Comer
Today's case brief is Moore v. Barony House Restaurant, LLC, 382 S.C. 35, 674 S.E.2d 500 (Ct. App. 2009). This is (predominantly) a warnings case, and its significance relates to the concept that there is no duty to warn of open and obvious dangers associated with use of a product.
FACTUAL BACKGROUND: A doctor hosted a Christmas party in 2004 in which folks had socialized at one section of his property and then were transported to a different section across a public road for dinner. 382 S.C. at 38, 673 S.E.2d at 502. The deceased worked for the caterer and was in charge of transporting party-goers to the dinner section of the property via a golf cart. Id. Plaintiff attempted to cross the road in a golf cart that was not equipped with lights. Id. An SUV was approaching, did not see the golf cart in time, struck the cart, and killed the driver. Id. at 39, 673 S.E.2d at 502.
PROCEDURE: The deceased's estate ("Plaintiff") brought suit against the various parties responsible for the party (the doctor, caterer, golf cart manufacturer, etc.). 382 S.C. at 39, 674 S.E.2d at 502. Against the manufacturer, Plaintiff alleged causes of action for strict liability based on the manufacturer's used fleet golf cars being unreasonably dangerous in light of their foreseeable use and based on inadequate warnings. Id. Plaintiff also alleged negligence based on a failure to warn. Id. The trial court granted summary judgment in favor of the manufacturer on these claims, and Plaintiff appealed. 382 S.C. at 40, 674 S.E.2d at 503.
ISSUES: Whether the trial court erred in granting summary judgment on Plaintiff's strict liability and negligence claims relating to the manufacturer's alleged failure to warn. 382 S.C. at 40, 674 S.E.2d at 503.
DISPOSITION: The South Carolina Court of Appeals affirmed the grant of summary judgment by the trial court. 382 S.C. at 43, 674 S.E.2d at 504.
RULES AND OPINION: The Court first addressed Plaintiff's strict liability claim. 382 S.C. 40, 674 S.E.2d at 503. Plaintiff contended that the golf car was defective and unreasonably dangerous because the manufacturer marketed the used fleet golf cars for operation on public roads without affixing lights and reflective devices or without providing warnings. Id. at 41, 674 S.E.2d at 503. The Court disagreed and stated that while lights and reflectors would make the carts more safe, the absence of such optional safety features did not make the cart defective. Id. "'Most any product can be made more safe . . . . [A] bicycle is more safe if equipped with lights and a bell, but the fact that one is not so equipped does not create the inference that the bicycle is defective and unreasonably dangerous." Id. (quoting Marchant v. Mitchell Distrib. Co., 270 S.C. 29, 35-36, 240 S.E.2d 511, 513 (1977)). The Court also disagreed with Plaintiff's contention that the golf cart was defective and unreasonably dangerous because the manufacturer failed to provide adequate warnings regarding operation at night and on public roads. Id. The Court acknowledged that a product may be defective and unreasonably dangerous if it is not accompanied by an adequate warning. Id. at 41, 674 S.E.2d at 503-04. However, the Court recognized that a seller is not required to warn of dangers or potential dangers that are generally known and recognized. Id. "[O]peration of an unlighted golf car on a public highway at night presents an open and obvious risk." Id. at 42, 675 S.E.2d at 504. Therefore, the golf cart was not defective and unreasonably dangerous for failure to include a warning about nighttime operation. Id.
With regard to Plaintiff's negligence claim, the Court reiterated that there is no duty to warn of dangers that are open and obvious. Id. at 42, 674 S.E.2d at 504. Furthermore, the Court stated that although questions of negligence are often for the jury, "when the risk complained of is open and obvious to consumers, there is no duty to warn of that risk as a matter of law." Id. The Court also believed that the deceased's negligence in operating the golf cart would prohibit a recovery under a negligence theory as a matter of law. Id. at 43, 674 S.E.2d at 504.
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Showing posts with label Safety Devices. Show all posts
Showing posts with label Safety Devices. Show all posts
Thursday, March 11, 2010
Wednesday, May 27, 2009
Case Brief: Bragg v. Hi-Ranger
By Brian A. Comer and Felicia Sampson
Today's brief is of Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995). Along with Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E. 2d 671 (1978), Bragg is probably the most important products liability law case in South Carolina. Therefore, my apologies that this "brief" is not that short, but again...there's a lot to this case.
Special thanks to Felicia Sampson, a summer associate who just completed her first year of law school at the University of South Carolina School of Law, who took the lead on writing this case brief.
FACTUAL BACKGROUND: The decedent, a lineman employed by Y.C. Ballenger Electrical Contractor ("Ballenger"), died as a result of injuries sustained from jumping out of an aerial bucket manufactured by Hi-Ranger, Inc. ("Hi-Ranger") when the bucket caught on fire. Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 534, 462 S.E.2d 321, 323 (1995). The decedent had been using a hydraulically-driven wrench that was being fed hydraulic fluid under pressure by two hoses. Id. at 535, 462 S.E.2d at 324. The bucket caught fire when the conductive tool hose attached to the wrench came in contact with energized power lines. Id. "Quick disconnect couplings" used for connecting hydraulic tools were installed near the bucket. Id. at 536, 462 S.E.2d at 324. Once a tool is disconnected, the couplings prevented the hydraulic fluid from flowing. Id. at 535, 462 S.E.2d at 324. However, before the accident, a Ballenger mechanic had improperly installed a black conductive hose rather than the proper orange non-conductive hose. Id. Several linemen testified that they knew non-conductive hoses should be used on the aerial bucket, but that they did not know orange hoses were non-conductive and black hoses were conductive. Id. 535-36, 462 S.E.2d at 324.
PROCEDURE: The Plaintiff, personal representative of the decedent’s estate, brought an action against Hi-Ranger alleging claims based on strict liability, implied warranties, and negligence. Bragg, 319 S.C. at 534, 462 S.E.2d at 323. At trial, the Plaintiff presented expert evidence regarding design and warning defects. Id. at 535-36, 462 S.E.2d at 324. Hi-Ranger asserted defenses of contributory negligence, assumption of risk, intervening negligence, substantial change in the product after sale, open and obvious danger, and misuse of the product under S.C. Code Ann. § 15-73-20 (1976). Id. at 534, 462 S.E.2d at 323. Hi-Ranger moved for a directed verdict on each cause of action. Id. The trial court granted Hi-Ranger a directed verdict on the strict liability and warranty claims, and the jury returned a verdict in favor of Hi-Ranger on the negligence claim. Id. The Plaintiff appealed, arguing that the court’s decision to grant the motion for directed verdict on the strict liability claim—while denying the motion for directed verdict on the negligence claim—was illogical. Id. at 538, 462 S.E.2d at 325. The Plaintiff also appealed several portions of the trial court's jury charge. Id. at 534, 462 S.E.2d at 323.
ISSUES: The court analyzed whether strict liability and negligence are mutually exclusive theories of recovery such that failure to prove one theory would preclude proving the other. Bragg, 319 S.C. at 538-39, 462 S.E.2d at 325-26. The court also addressed the sufficiency of certain jury charges, including (1) whether a manufacturer has a duty to warn previous-purchasers about safety devices developed after the time of sale, or (2) whether a manufacturer has a duty to retrofit products with later-developed safety devices if the products were not defective based on the standards existing at the time of manufacture or time of sale. Id. at 547-49, 462 S.E.2d at 330-31. Finally, the court addressed whether the sophisticated user defense is appropriate where the manufacturer, regardless of the intermediary's actual knowledge, reasonably assumed that the intermediary would know the danger involved in using the product and take steps to protect its employees. Id. at 549-51, 462 S.E.2d at 331-32.
DISPOSITION: The court affirmed the judgment in favor of Hi-Ranger. Bragg, 319 S.C. at 551, 462 S.E.2d at 332.
RULES AND OPINION: The theory of strict liability and the theory of negligence are not mutually exclusive, and failure to prove one does not preclude proving the other. Bragg, 319 S.C. at 539, 462 S.E.2d at 326. In order to prove any products liability theory, the plaintiff must prove (1) the product injured him, (2) the injury was a result of the product's defective condition which rendered the product unreasonably dangerous to the user, and (3) at the time of the accident, the product was in the same condition as it was when it left the defendant's control. Id. Under a negligence theory, the plaintiff must also prove that the defendant failed to exercise due care. Id. The conduct of the seller or manufacturer is at issue in a negligence theory, whereas a strict liability theory focuses on a product's condition. Id. at 539-40, 462 S.E.2d at 326. It is possible for a manufacturer to be liable under a negligence theory without being liable under a strict liability theory because under strict liability, the manufacturer is not responsible for all losses caused by the product, but only for losses caused by the product's failure to perform to a standard of reasonable safety within its normal environment. Id. at 541, 462 S.E.2d at 327. Therefore, it is not inconsistent to grant a directed verdict on a strict liability claim while allowing a negligence claim to go to the jury. Id.
The fact that a product can be made safer does not mean that it is unreasonably dangerous and subject to a strict liability claim. Id. at 543, 462 S.E.2d at 328. Similarly, the fact that a product malfunctions does not demonstrate a manufacturer's negligence or that a product was defective. Id. There are two tests that determine whether a product is unreasonably dangerous for its intended use. Id. The first test asks "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." Id. Under the second test, the product is unreasonably dangerous "if the danger associated with the use of the product outweighs the utility of the product." Id. To determine whether a product is unreasonably dangerous under one of these tests, the court balances "the utility of the risk inherent in the design of the product with the magnitude of the risk," thus establishing the reasonableness of the manufacturer in designing the product. Id. at 544, 462 S.E.2d at 328. Relevant factors include the usefulness and desirability of the product, the cost for added safety, likelihood and potential seriousness of injury, and the obviousness of the danger. Id.
The court found that the testimony of the Plaintiff's expert was insufficient to prove that the aerial device, as designed and manufactured in 1984, was defective and unreasonably dangerous at the time of sale. Id. at 544, 462 S.E.2d at 329. At the time of sale, the aerial device was "merchantable and fit for the purpose for which it was sold, but caused injury due to its improper use by a third party" (i.e., due to the incorrect installation by the Ballenger mechanic of the conductive hose). Id. at 545-46, 462 S.E.2d at 329. The fact that there had been no mishaps for six years after the time of sale was additional evidence that the aerial device was not unreasonably dangerous. Id. The court found that "considering the aerial device's characteristics, risks, dangers and uses, together with the knowledge, training, and experience possessed by the intended user," and because the Plaintiff did not introduce evidence that there was a feasible design alternative for the couplings that would be useful beyond demonstration purposes, failure to use different "quick disconnect couplings" did not make the device defective and unreasonably dangerous for the intended user; therefore, Hi-Ranger was not liable for a design defect based on a strict liability claim. Id. at 546-47, 462 S.E.2d at 330. The court also found that because the evidence established that the aerial device met warning standards at the time of manufacture and sale, Hi-Ranger was not liable for a warning defect based on a strict liability claim. Id.
Plaintiff also contended that there were four jury instructions that were erroneously excluded and two charges that were erroneously given. The court also disagreed with this contention. Id. at 547, 462 S.E.2d at 330. The court found that it had accurately and completely charged the jury on assumption of risk, contributory negligence, and intervening or superseding negligence. Id. With regard to a charge concerning a manufacturer's post-sale duties, the court found that a product must be measured against the standards of care that exist at the time of sale or against the reasonable consumer expectations at the time of sale. Id. at 548-49, 462 S.E.2d at 331. The court found that because the evidence suggested that the aerial device met all appropriate standards at the time of manufacture, the trial court properly charged the jury with the law regarding the manufacturer's duty to retrofit or recall its products. Id. With regard to the sophisticated user defense, the court found that the defense applies where the manufacturer reasonably assumes that the employer knows of the danger of the product and will take measures to protect its employees, regardless of the specific knowledge of the employer. Id. at 549-51, 462 S.E.2d at 331-32. Because there was substantial evidence that Ballenger was a large electric contractor, was very familiar with bucket trucks and aerial devices, and was aware that conductive hoses should not be used in aerial buckets, the trial court properly charged the jury regarding the sophisticated user defense. Id.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Today's brief is of Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995). Along with Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E. 2d 671 (1978), Bragg is probably the most important products liability law case in South Carolina. Therefore, my apologies that this "brief" is not that short, but again...there's a lot to this case.
Special thanks to Felicia Sampson, a summer associate who just completed her first year of law school at the University of South Carolina School of Law, who took the lead on writing this case brief.
FACTUAL BACKGROUND: The decedent, a lineman employed by Y.C. Ballenger Electrical Contractor ("Ballenger"), died as a result of injuries sustained from jumping out of an aerial bucket manufactured by Hi-Ranger, Inc. ("Hi-Ranger") when the bucket caught on fire. Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 534, 462 S.E.2d 321, 323 (1995). The decedent had been using a hydraulically-driven wrench that was being fed hydraulic fluid under pressure by two hoses. Id. at 535, 462 S.E.2d at 324. The bucket caught fire when the conductive tool hose attached to the wrench came in contact with energized power lines. Id. "Quick disconnect couplings" used for connecting hydraulic tools were installed near the bucket. Id. at 536, 462 S.E.2d at 324. Once a tool is disconnected, the couplings prevented the hydraulic fluid from flowing. Id. at 535, 462 S.E.2d at 324. However, before the accident, a Ballenger mechanic had improperly installed a black conductive hose rather than the proper orange non-conductive hose. Id. Several linemen testified that they knew non-conductive hoses should be used on the aerial bucket, but that they did not know orange hoses were non-conductive and black hoses were conductive. Id. 535-36, 462 S.E.2d at 324.
PROCEDURE: The Plaintiff, personal representative of the decedent’s estate, brought an action against Hi-Ranger alleging claims based on strict liability, implied warranties, and negligence. Bragg, 319 S.C. at 534, 462 S.E.2d at 323. At trial, the Plaintiff presented expert evidence regarding design and warning defects. Id. at 535-36, 462 S.E.2d at 324. Hi-Ranger asserted defenses of contributory negligence, assumption of risk, intervening negligence, substantial change in the product after sale, open and obvious danger, and misuse of the product under S.C. Code Ann. § 15-73-20 (1976). Id. at 534, 462 S.E.2d at 323. Hi-Ranger moved for a directed verdict on each cause of action. Id. The trial court granted Hi-Ranger a directed verdict on the strict liability and warranty claims, and the jury returned a verdict in favor of Hi-Ranger on the negligence claim. Id. The Plaintiff appealed, arguing that the court’s decision to grant the motion for directed verdict on the strict liability claim—while denying the motion for directed verdict on the negligence claim—was illogical. Id. at 538, 462 S.E.2d at 325. The Plaintiff also appealed several portions of the trial court's jury charge. Id. at 534, 462 S.E.2d at 323.
ISSUES: The court analyzed whether strict liability and negligence are mutually exclusive theories of recovery such that failure to prove one theory would preclude proving the other. Bragg, 319 S.C. at 538-39, 462 S.E.2d at 325-26. The court also addressed the sufficiency of certain jury charges, including (1) whether a manufacturer has a duty to warn previous-purchasers about safety devices developed after the time of sale, or (2) whether a manufacturer has a duty to retrofit products with later-developed safety devices if the products were not defective based on the standards existing at the time of manufacture or time of sale. Id. at 547-49, 462 S.E.2d at 330-31. Finally, the court addressed whether the sophisticated user defense is appropriate where the manufacturer, regardless of the intermediary's actual knowledge, reasonably assumed that the intermediary would know the danger involved in using the product and take steps to protect its employees. Id. at 549-51, 462 S.E.2d at 331-32.
DISPOSITION: The court affirmed the judgment in favor of Hi-Ranger. Bragg, 319 S.C. at 551, 462 S.E.2d at 332.
RULES AND OPINION: The theory of strict liability and the theory of negligence are not mutually exclusive, and failure to prove one does not preclude proving the other. Bragg, 319 S.C. at 539, 462 S.E.2d at 326. In order to prove any products liability theory, the plaintiff must prove (1) the product injured him, (2) the injury was a result of the product's defective condition which rendered the product unreasonably dangerous to the user, and (3) at the time of the accident, the product was in the same condition as it was when it left the defendant's control. Id. Under a negligence theory, the plaintiff must also prove that the defendant failed to exercise due care. Id. The conduct of the seller or manufacturer is at issue in a negligence theory, whereas a strict liability theory focuses on a product's condition. Id. at 539-40, 462 S.E.2d at 326. It is possible for a manufacturer to be liable under a negligence theory without being liable under a strict liability theory because under strict liability, the manufacturer is not responsible for all losses caused by the product, but only for losses caused by the product's failure to perform to a standard of reasonable safety within its normal environment. Id. at 541, 462 S.E.2d at 327. Therefore, it is not inconsistent to grant a directed verdict on a strict liability claim while allowing a negligence claim to go to the jury. Id.
The fact that a product can be made safer does not mean that it is unreasonably dangerous and subject to a strict liability claim. Id. at 543, 462 S.E.2d at 328. Similarly, the fact that a product malfunctions does not demonstrate a manufacturer's negligence or that a product was defective. Id. There are two tests that determine whether a product is unreasonably dangerous for its intended use. Id. The first test asks "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." Id. Under the second test, the product is unreasonably dangerous "if the danger associated with the use of the product outweighs the utility of the product." Id. To determine whether a product is unreasonably dangerous under one of these tests, the court balances "the utility of the risk inherent in the design of the product with the magnitude of the risk," thus establishing the reasonableness of the manufacturer in designing the product. Id. at 544, 462 S.E.2d at 328. Relevant factors include the usefulness and desirability of the product, the cost for added safety, likelihood and potential seriousness of injury, and the obviousness of the danger. Id.
The court found that the testimony of the Plaintiff's expert was insufficient to prove that the aerial device, as designed and manufactured in 1984, was defective and unreasonably dangerous at the time of sale. Id. at 544, 462 S.E.2d at 329. At the time of sale, the aerial device was "merchantable and fit for the purpose for which it was sold, but caused injury due to its improper use by a third party" (i.e., due to the incorrect installation by the Ballenger mechanic of the conductive hose). Id. at 545-46, 462 S.E.2d at 329. The fact that there had been no mishaps for six years after the time of sale was additional evidence that the aerial device was not unreasonably dangerous. Id. The court found that "considering the aerial device's characteristics, risks, dangers and uses, together with the knowledge, training, and experience possessed by the intended user," and because the Plaintiff did not introduce evidence that there was a feasible design alternative for the couplings that would be useful beyond demonstration purposes, failure to use different "quick disconnect couplings" did not make the device defective and unreasonably dangerous for the intended user; therefore, Hi-Ranger was not liable for a design defect based on a strict liability claim. Id. at 546-47, 462 S.E.2d at 330. The court also found that because the evidence established that the aerial device met warning standards at the time of manufacture and sale, Hi-Ranger was not liable for a warning defect based on a strict liability claim. Id.
Plaintiff also contended that there were four jury instructions that were erroneously excluded and two charges that were erroneously given. The court also disagreed with this contention. Id. at 547, 462 S.E.2d at 330. The court found that it had accurately and completely charged the jury on assumption of risk, contributory negligence, and intervening or superseding negligence. Id. With regard to a charge concerning a manufacturer's post-sale duties, the court found that a product must be measured against the standards of care that exist at the time of sale or against the reasonable consumer expectations at the time of sale. Id. at 548-49, 462 S.E.2d at 331. The court found that because the evidence suggested that the aerial device met all appropriate standards at the time of manufacture, the trial court properly charged the jury with the law regarding the manufacturer's duty to retrofit or recall its products. Id. With regard to the sophisticated user defense, the court found that the defense applies where the manufacturer reasonably assumes that the employer knows of the danger of the product and will take measures to protect its employees, regardless of the specific knowledge of the employer. Id. at 549-51, 462 S.E.2d at 331-32. Because there was substantial evidence that Ballenger was a large electric contractor, was very familiar with bucket trucks and aerial devices, and was aware that conductive hoses should not be used in aerial buckets, the trial court properly charged the jury regarding the sophisticated user defense. Id.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Friday, May 22, 2009
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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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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