The Basics: Proving "Defective Condition, Unreasonably Dangerous"

I have not done many "primer" posts recently because it is sometimes difficult to synthesize entire areas of South Carolina products liability law.  It can quickly become a lengthy (translated: "snoozer") blog post, or it may be better suited to be an article.  However, it occurred to me that I have never really provided the "basics" for proving one element of any products liability claim: that the product at issue be in a "defective condition, unreasonably dangerous." 

First, allow me to provide some historical context.  In South Carolina, there are three defects a plaintiff can allege: (1) manufacturing defect, (2) design defect, and (3) a warning defect.  Watson v. Ford Motor Co., 389 S.C. 434, 444, 699 S.E.2d 169, 174 (2010).  In Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982) and Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 543-44, 462 S.E.2d 321, 328 (Ct. App. 1995), South Carolina's appellate courts recognized two tests that had evolved for determining whether a product is defective.  The first test was the consumer expectations test, and the second test was the risk-utility test (explained in greater detail below).  The problem was that there was no real guidance on how to apply the different tests in the context of the different theories of product defect.  Generally, plaintiffs gravitated toward the consumer expectations test, and defendants gravitated toward the risk-utility test (i.e., because they believed each test was more favorable to their respective positions).  It was also unclear whether a design defect theory required proof of reasonable alternative design (i.e., as part of the risk-utility test).  Defendants generally maintained that proof of reasonable alternative design was a requirement, and a federal case in the District of South Carolina supported this argument.  (For information concerning proof of alternative design in South Carolina, see this post).  Although it was clear South Carolina recognized both tests, it was not clear which test was favored for any particular theory of defect.

Branham v. Ford Motor Co. 390 S.C. 203, 701 S.E.2d 5 (2010), clarified things.  Without going into the details of that case, the "basics" for proving product defect can now be summarized as follows:

Manufacturing Defect:  For a manufacturing defect, Branham suggests that the consumer expectations test is the applicable analysis for determining product defect by stating "[w]hile the consumer expectations test fits well in manufacturing defect cases, we do agree with Ford that the test is ill-suited in design defect cases."  Branham, 390 S.C. at 220, 701 S.E.2d at 14.  Branham quotes Claytor v. General Motors Corp., for its description of the consumer expectations test.  "'The test of whether a product is or is not defective is whether the product is unreasonably dangerous to the consumer or user given the conditions and circumstances that foreseeably attend use of the product.'"  Branham, 390 S.C. at 218, 701 S.E.2d at 13 (quoting Claytor, 277 at 262, 286 S.E.2d at 131).   Paraphrased, the standard allows a jury to infer the existence of a defect if product fails to meet reasonable expectations of consumers.  Although there is nothing in Branham to indicate the risk-utility test cannot be applied in the context of a manufacturing defect, its language suggests use of the consumer expectations test.

Design Defect: As you have probably already deduced, a big issue in Branham was whether the correct test was applied in the context of a design defect claim.  After evaluating both the consumer expectations test, the risk-utility test, and their historic application in South Carolina products liability cases, the court adopted the risk-utility test for cases in which a design defect is alleged as the theory of product defect.  Branham, 390 S.C. at 222, 701 S.E.2d at 15.  Applying the risk-utility test, "'a product is unreasonably dangerous and defective if the danger associated with the use of the product outweighs the utility of the product.'"  Id. at 218-19, 701 S.E.2d at 13 (quoting Bragg, 319 S.C. at 543, 462 S.E.2d at 328).  This is a balancing test involving numerous factors for consideration, such as usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of the danger.  Bragg, 319 S.C. at 543-44, 462 S.E.2d at 328.  "[I]n 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."  Id. at 544, 462 S.E.2d at 328.  State of the art and industry standards are also relevant to show the reasonableness of the design.  Id. at 543, 462 S.E.2d at 328.    Furthermore, in Watson v. Ford Motor Co., 389 S.C. 434, 444, 699 S.E.2d 169, 174 (2010) and 5-Star, Inc. v. Ford Motor Co., 395 S.C. 392, 718 S.E.2d 220 (Ct. App. 2011), South Carolina's appellate courts stated that the design defect cases necessarily involve sophisticated issues beyond the knowledge of the average person and therefore require expert testimony.  (For more on this element of proof, see this post). 

Warnings claim: (This blogger maintains that a warnings claim is a design defect claim by another name.  Therefore, one could argue that the risk-utility test is the applicable standard).  Nothwithstanding this argument, a plaintiff usually argues that a product failed to provide a warning (where there has been proof of duty to warn) or that the warning provided was inadequate.  Since a warnings claim relates to the product’s design, a plaintiff must provide proof of an alternative warning that would have prevented the product from being unreasonably dangerous (i.e., one that was adequate).  So, what is the test for adequacy of a warning?  South Carolina law does not require that a warning make a product itself “safe” in order to be adequate.  Aldana v. R.J. Reynolds Tobacco Co., No. 2:06-3366-CWH, 2008 WL 1883404, at *2 (Apr. 25, 2008 D.S.C.) (denying plaintiff’s motion for reconsideration of dismissal where plaintiff’s argument was that “the warnings did not make the defendant’s cigarette products safe because the cigarette products caused the decedent’s death.”).  Rather, the plaintiff’s burden is to show that a different and adequate warning would have made a difference in the conduct of the person warned.  Allen v. Long Mfg. NC, Inc., 332 S.C. 422, 432, 505 S.E.2d 354, 359 (Ct. App. 1998) (citing 63A Am. Jr. 2d Products Liability § 1240 (1997)).  Therefore, determining whether a warning is adequate involves an inquiry into causation and whether a different warning would have prevented the injury.  Odom v. G.D. Searle & Co., 979 F.2d 1001 (4th Cir. 1992) (affirming district court’s grant of summary judgment in failure to warn case involving intra-uterine device where plaintiff failed to prove her doctor would have a prescribed a different course of treatment if a more drastic warning had been given).  In cases involving prescription drugs and the learned intermediary doctrine, this means that a plaintiff must establish "'the additional non-disclosed risk was sufficiently high that it would have changed the treating physician's decision to prescribe the product for the plaintiff.'"  Sauls v. Wyeth Pharmaceuticals, Inc., 2012 WL 724794, at *3 (D.S.C. Mar. 7, 2012) (quoting Odom v. G.D. Searle & Co., 979 F.2d 1001, 1003 (4th Cir. 1992).

As always, I invite your feedback, and hopefully this post is useful for summarizing the applicable law for this element of any South Carolina products liability claim.

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Drilling Down: The Duty to Warn

By Brian A. Comer

I have been doing some research on South Carolina warnings law lately, and now is as good a time as any to provide some further explanation on this area of products liability law. I always enjoy cases involving warnings, primarily because I never cease to be amazed at how different sides of the bar can have totally divergent views on whether a specific warning is "adequate."

No South Carolina state court (that I have found) explicitly sets forth when the duty to warn arises in a products liability case. However, in Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir. 1971), the Fourth Circuit Court of Appeals provided extensive guidance on the duty to warn in an appeal of a South Carolina products liability action arising in diversity, and the South Carolina Supreme Court cited to Gardner’s rationale in its negligent failure to warn analysis in Livingston v. Noland Corp., 239 S.C. 521, 362 S.E.2d 16 (1987). Gardner supports that the duty to warn arises when (a) the reasonably foreseeable risks of a product – either from its intended use or from the environment in which it is used – pose a potential danger, and (b) the user may not realize the potential danger. In such cases, the manufacturer and supplier has a duty to warn the user. Gardner, 448 F.2d at 242-43; Livingston, 293 S.C. at 525, 362 S.E.2d at 18.

Gardner involved the ignition of hair rollers when the water in which they were heating boiled out of the pot. Id. at 240-41. After putting the rollers on the stove to heat, the user fell asleep in the bathtub. Id. at 241. The resulting fire substantially destroyed the apartment building, and the building owner sued the hair roller manufacturer to recover his losses. Id. at 240. One of his theories for recovery was that the manufacturer’s warning about the flammability of the rollers was inadequate. Id. The warning at issue stated as follows: “Use plenty of water. Do not let water boil away. Cautionary note: Rollers may be inflammable only if left over flame in pan without water. Otherwise Q.H.S. Setting/Rollers are perfectly safe.” Id. at 241.

The district judge granted a directed verdict in favor of the manufacturer on grounds that the hair rollers were not “inherently dangerous.” Id. at 240. Therefore, the manufacturer had no duty to provide a more extensive warning than the one provided. Id. On appeal, the Fourth Circuit rejected the district judge’s focus on the inherent danger of the rollers as the determinative factor for the manufacturer’s duty to warn. Id. at 242. Instead, the court suggested that the duty to warn arises if a supplier and manufacturer “(a) . . . know or have reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, [and] (b) they lack reason to believe that the user will realize the potential danger. . . . “ Id. at 242 (citing Restatement (Second) of Torts §§ 388 and 295 (1965)). The court elaborated that the duty is determined through an analysis of foreseeability, and it cited to Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969) as the applicable South Carolina law. Gardner, 448 F.2d at 242-43. The court quoted from Mickle as follows:

Normally a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold: thus he is expected to reasonably foresee only injuries arising in the course of such use. However, he must also be expected to anticipate the environment which is normal for the use of his product and where, as here, that environment is the home, he must anticipate the reasonably foreseeable risk of the use of his product in such an environment. These are risks which are inherent in the proper use for which his product is manufactured.

Id. (quoting Mickle, 252 S.C. at 233, 166 S.E.2d at 187).

Using this framework, the court determined that a jury could conclude that a momentary interruption that results in water boiling away is so common that the manufacturer should have foreseen that it could occur while its product was being used. Id. at 243. The court also concluded that a jury could find that the manufacturer knew or should have known that the heat to which the product would be subjected during those occasions could exceed the normal ignition point of the hair roller’s contents. Id. Therefore, the court concluded that the jury could have found that there was a duty to warn of these risks. Id.

I will continue to post on when the duty to warn arises as I continue to research warnings law. However, from my research to date, no other case summarizes when the duty arises better than Gardner.

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Drilling Down: The Analytical Framework for Warnings

By Brian A. Comer

I have a five-year-old daughter who is my "spirited child." She would make an excellent lawyer because she is an absolute bulldog when it comes to negotiating, and she hates to lose. However, I find that we frequently run into some variation of the following scenario when it comes to matters of discipline.

Me: "Honey, if you are not going to do what I say, then you are going to have to go to bed early."
Daughter: [Does exactly the opposite of what I told her to do].
Me: "Okay, then time for you to go to bed."
Daughter: "But what about family movie night?"
Me: "You will not be watching family movie night, because you will be in bed."
Daughter: "BUT I DIDN'T REALIZE THAT IS WHAT YOU MEANT!!!" (followed by uncontrollable sobbing).

In her own way, my daughter tries to convince me that I did not provide her with an adequate warning...one that sufficiently conveys the risks of performing or not performing certain actions. She does not succeed very often (as I know that she is very smart and that she understood exactly what I said), but this does not stop her from trying.

Similarly, in the realm of products liability litigation, a central focus is frequently whether a manufacturer or seller had a duty to warn the user of a product about potential dangers, and if so, whether the warning was adequate to convey the risks. So I want to write a bit about South Carolina warnings law.

South Carolina law recognizes that many products cannot be made completely safe for use. Claytor v. General Motors Corp., 277 S.C. 259, 264, 286 S.E.2d 129, 132 (1982). However, these products may still be useful, desirable, and serve a purpose. Id. In such cases, if the product is properly designed, manufactured, and packaged with accompanying adequate warnings and instructions, then they are not defective. Id. Otherwise, manufacturers and sellers may be discouraged from marketing many products solely because some danger accompanies the use of the product. Id.

Therefore, “[i]n order to prevent a product from being unreasonably dangerous, the seller may be required to give a warning on the product concerning its use.” Anderson v. Green Bull, Inc., 322 S.C. 268, 270, 471 S.E.2d 708, 710 (1996); see also Claytor v. General Motors Corp., 277 S.C. 259, 264, 286 S.E.2d 129, 132 (1982). If a product includes a warning that – if followed – makes it safe for use, then the product is not defective or unreasonably dangerous. Anderson, 322 S.C. at 270, 471 S.E.2d at 710; Allen v. Long Mfg. NC, Inc., 332 S.C. 422, 427, 404 S.E.2d 354, 357 (Ct. App. 1998). This foundation of South Carolina warnings law is discussed at length in comment j. to section 402A of the Restatement (Second) of Torts, and South Carolina has incorporated this comment by reference into its strict liability statute as the legislative intent of the chapter. See S.C. Code § 15-73-30 (“Comments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.”).

A review of comment j. and the case law interpreting it reveals that the warnings analysis is based on a twofold inquiry: (1) whether there is a duty to warn to begin with, and (2) whether the warning provided is “adequate” so that (if followed) the product is safe for use. See, e.g., Allen v. Long Mfg. NC, Inc., 332 S.C. 422, 427-28, 505 S.E.2d 354, 357 (Ct. App. 1998) (separating the warnings analysis into a determination of duty to warn and adequacy of the warning).

Check back for more on warnings. I hope to make this a new series.

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The Basics: Breach of Warranty Overview

By: Brian A. Comer and Andrew DeHoll

I have not posted much on the breach of warranty theory for a products liability action, so I am hoping to do another "series" of sorts that covers various aspects of this theory. A summer associate with whom I worked last year, Andrew DeHoll, did a great deal of work on researching warranty law for me, so I want to give him recognition for all his help. Thanks very much Andrew!

If this turns into a series, it makes sense to start out with a general overview. South Carolina law allows people injured by defective products to recover damages under three contract theories: breach of an express warranty, breach of an implied warranty of merchantability; and breach of an implied warranty of fitness for a particular purpose. See Herring v. Home Depot, Inc., 350 S.C. 373, 379–80, 565 S.E.2d 773, 776 (Ct. App. 2002) ("Breach of warranty is an action affirming the contract."). These theories are codified at S.C. Code sections 36-2-313 (express warranty), 36-2-314 (implied warranty of merchantability), and 36-2-315 (implied warranty of fitness for particular purpose). Unlike other products liability theories (which have a statute of limitations of three years), a claim brought pursuant to a warranty theory has a statute of limitations of six years, as set forth in S.C. Code section 36-2-725.

(As discussed in prior blogs, any products liability theory in South Carolina requires proof of three foundational elements, and breach of warranty is no exception. A plaintiff must prove: (1) the plaintiff or his or her property was injured by the product; (2) the injury occurred because the product was in a defective condition, unreasonably dangerous to the user; and (3) at the time of the accident, the product was in essentially the same condition as when it left the hands of the defendant. For a full explanation of the case law behind these three elements, see this post.)

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The Basics: Successor Liability in Products Liability Actions

By Brian A. Comer

As I have begun settling in with my new law firm, I have received a couple of case files that have successor liability issues in the products liability arena. Therefore, it seemed like a good topic for a quick blog entry to summarize this area of the law.

A former colleague of mine, Tim Orr, wrote an excellent article for South Carolina Lawyer in the March 2006 edition that fully summarizes this area of the law, and I would highly recommend the article for anyone with a products liability successor liability issue. The article is aptly titled "Successor Liability" and fully analyzes this area of the law. It also provided me with a great primer for a conference call with a client today.

In a nutshell, Simmons v. Mark Lift Indus., Inc., 366 S.C. 308, 622 S.E.3d 213 (2005) addressed this issue in a certified question from the United States District Court. The court stated as follows:

[I]n the absence of statute, a successor or purchasing company ordinarily is not liable for the debts of a predecessor or selling company unless (1) there was an agreement to assume such debts, (2) the circumstances surrounding the transaction warrants [sic] a finding of a consolidation or merger of the two corporations, (3) the successor company was a mere continuation of the predecessor, or (4) the transaction was entered into fraudulently for the purpose of wrongfully defeating creditors’ claims.

Id. at 312, 622 S.E.2d at 215 (quoting Brown v. Am. Ry. Express Co., 128 S.C.428, 123 S.E. 97 (1924). Simmons is significant because it adopted the court's opinion in the commercial case of Brown v. Am. Ry. Express Co. and extends the test applied by the Brown court for successor liability to all products liability actions. Adoption of these four exceptions aligns South Carolina with the majority of states that have adopted these same four exceptions. As of the date of Tim's article, he cites to 30 states that have also retained an applied these exceptions in the products liability setting. See Tim Orr, Successor Liability, March 2006 edition of South Carolina Lawyer, at 35.

As I am learning, it is critical to examine the transaction documents at issue in a successor liability case to determine if the purchasing entity intended to assume the seller's liabilities. This can also become a "form versus substance" issue where the purchasing company is merely a continuation of the predecessor, i.e., it has a "common identity" of the officers, directors and stockholders between the predecessor and successor. In such cases, a court may find that the owners and directors of a company merely dissolved the company and formed a new one to avoid the prior debts and liabilities. In such cases, the "mere continuation" exception may apply to make the successor company liable.

I will try to profile each of these exceptions in future blog entries, but the above serves as "the basics" for now.

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Drilling Down: "Essentially the Same Condition" (Part V)

By Brian A. Comer

This is the final installment of a series based on some research I have been doing for an article. The first four installments can be found here (part I), and here (part II), and here (part III), and here (part IV).

Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.

• Whether it has been "subsequently mishandled;"
• Whether it has been modified or altered;
• Whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury, which can be relevant to "wear and tear;" and
• Maintenance.

Today I'm going to profile how a party may still be liable even if a product was not in essentially the same condition.
Liability Despite A Change in the Product's Condition: A defendant may still be liable under South Carolina law even if a product is not in essentially the same condition. "'Liability [may] . . . be imposed upon a manufacturer or seller notwithstanding subsequent alteration of the product . . . [when] the alteration could have been anticipated by the manufacturer or seller, or did not causally contribute to the damages or injuries complained of.'" Fleming v. Borden, 316 S.C. 452, 458, 450 S.E.2d 589, 593 (1994) (quoting Robert D. Hersh & Henry J. Bailey, American Law of Products Liability 2d § 130 (1974)).
With regard to whether an alteration is "foreseeable," this aspect of the analysis correlates directly with one of South Carolina's tests for whether a product is in a defective condition, unreasonably dangerous for its intended use. See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 543, 462 S.E.2d 321, 328 (1995) ("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.") (emphasis added). If a jury can determine that an alteration was a foreseeable circumstance based on the product's design, then a defendant may be liable despite the fact that a product is not in "essentially the same condition." See, e.g., Kennedy v. Custom Ice Equip. Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978) (holding that there was evidence from which a jury could have determined that modifications to an ice-making machine were a foreseeable circumstance that required the incorporation of protective shields in the machine's design, and affirming submission of the case to the jury); Fleming v. Borden, 316 S.C. 452, 450 S.E.2d 589 (1994) (holding that expert testimony concerning a manufacturer's design and placement of a machine created a jury question as to whether removal of a platform for cleaning it was a foreseeable alteration, and reversing the trial court's decision to grant a directed verdict for the manufacturer).
Whether a modification causally contributed to a party's injuries does not appear to have been the focus of many South Carolina cases. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997), is the best example and involved a plaintiff who worked in the timber industry and was injured by a falling limb. The plaintiff claimed that the cause of the accident was a design defect in a log skidder. Id. at 455-60, 494 S.E.2d at 838-41. There was evidence that a log skidder was missing its driver's side door and its hand throttle. Id. at 466, 494 S.E.2d at 844. There was also testimony that neither the hand brake nor the foot brake on the log skidder were operable at the time of the accident. Id. Nevertheless, the jury found that the alterations did not causally contribute to the accident, and the South Carolina Court of Appeals held that the trial court did not err in submitting the case to the jury. Id.
This concludes this series of posts about this element of all South Carolina product liability law actions. You can find all of the installments, and other information pertaining to this particular element, by clicking here or on the "Same Condition" topic tag to the right of the page.
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Drilling Down: "Essentially the Same Condition" (Part IV)

By Brian A. Comer

This is the fourth installment of a series based on some research I have been doing for an article. The first three installments can be found here (part I), and here (part II), and here (part III).

Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.

• Whether it has been "subsequently mishandled;"


• Whether it has been modified or altered;


• Whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury, which can be relevant to "wear and tear;" and


• Maintenance.

Today I'm going to profile the fourth factor: the degree to which a product has undergone maintenance. Whether a product is in "essentially the same condition" may depend on its maintenance history. This factor may overlap with "subsequent mishandling," depending on the nature of the maintenance involved.
The best case (involving interpretation of South Carolina law) that I have found that references a product's maintenance record is Oglesby v. Gen. Motors Corp., 190 F.3d 244 (4th Cir. 1999). Oglesby involved a truck's radiator hose that detached and sprayed hot coolant on the plaintiff mechanic. Id. at 247. The truck was purchased "used" in 1991 and had 156,000 miles on it at the time of the 1995 injury. Id. at 252. The record did not include any information concerning the prior owner's repair or maintenance records. Id. After the 1991 purchase, the truck's owner removed the radiator on at least two occasions and had removed and repaired its hoses. Id. The court believed that the inlet connector on the hose could have been damaged during either of those repairs due to improper removal, handling or installation. Id. In addition to pointing out the potential impact of this maintenance, the court also stated that the inlet connector may have been damaged due to engine overheating. Id. "Without evidence demonstrating the condition of the inlet connector when it was sold by General Motors and left its custody, [the plaintiff] cannot carry his burden under South Carolina law for proving strict liability and breach of warranty." Id. The court also found that the plaintiff had not offered any evidence of negligence by General Motors. Id.
From the opinion, Oglesby focuses on a product's maintenance, as well as "wear and tear." Furthermore, the court's statements concerning improper removal, handling or installation of the radiator also suggest that the case ties in with the "subsequent mishandling" component of this analysis. From my review of the case law, the courts do not appear to distinguish between the factors in the manner in which I have set them forth in this series. Clearly, there can be some overlap between "subsequent mishandling" and maintenance, as I have distinguished them in this series. However, I liked how the court in Oglesby categorized the actions of the truck owner a little more innocuously, i.e. as routine maintenance, than how the court categorized the boat repairman's actions in Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995).
The point to remember is that a person's actions do not have to be as extreme as the "splicing" that occurred in Bragg. It may just be a matter of doing general maintenance improperly, or overtightening a bolt, that causes a product to not be in "essentially the same condition." See Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982) (holding that that cracks in and subsequent breakdown of the lug bolts on a tire were the result of subsequent mishandling of the product at issue (i.e., due to over-tightening) and affirming a directed verdict by the trial court).
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Drilling Down: "Essentially the Same Condition" (Part III)

By Brian A. Comer

This is the third installment of a series based on some research I have been doing for an article. The first two installments can be found here (part I) and here (part II).

Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.

• Whether it has been "subsequently mishandled;"


• Whether it has been modified or altered;


• Whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury, which can be relevant to "wear and tear;" and


• Maintenance.

Today I'm going to profile the third factor, whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury.
The amount of time that has elapsed between when a product left the manufacturer's control and when the plaintiff was injured is also relevant to whether a product is in "essentially the same condition." The most significant case to analyze this factor is Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969), an automotive collision case in which the plaintiff was impaled on the gearshift. Mickle, 252 S.C. at 202, 166 S.E.2d at 173. The protective knob on the gearshift collapsed as the plaintiff was thrown against it during the accident. Id. at 217, 166 S.E.2d at 178-79. One of the issues in the case was whether the manufacturer could be liable for the collapse of the knob after thirteen years of use prior to the accident. Id. at 236-37, 166 S.E.2d at 189. The plastic material used to make the knob was available in a wide range of colors, including black. Id. at 234-35, 166 S.E.2d at 187-88. The manufacturer chose to use a white material in the model at issue, and exposure to ultraviolet rays of sunlight caused this material to deteriorate over time. This deterioration included hairline cracks, which made the knob more susceptible to shattering on impact. Id. at 235, 166 S.E.2d at 188. In subsequent models, the manufacturer changed the color of the knobs to black, which made them highly resistant to ultraviolet rays. Id. at 235, 166 S.E.2d at 188. There was no evidence that the black knobs ever deteriorated with age or normal use. Id.
The court stated the applicable law as follows:

"If the chattel is in good condition when it is sold, the seller is not responsible when it undergoes subsequent changes, or wears out. There mere lapse of time since the sale by the defendant, during which there has been continued safe use of the product, is always relevant, as indicating that the seller was not responsible for the defect. There have been occasional cases in which, upon the particular facts, it has held to be conclusive. It is, however, quite certain that Neither [sic] long continued lapse of time nor changes in ownership will be sufficient in themselves to defeat recovery when there is clear evidence of an original defect in thing sold."

Id. at 237, 166 S.E.2d at 189 (emphasis added) (quoting Lynch v. Int'l Harvester Co. of America, 60 F.2d 223, 224 (10th Cir. 1932)). The court reviewed numerous other cases in which a plaintiff had been injured by an older product, and the focus of this inquiry was on whether the alleged "defect" at issue was due to wear and tear, or whether it was due to faulty manufacture or fabrication. Id. at 189-90, 166 S.E.2d at 237-40. After reviewing the case law, the court reached the following conclusion:

Here, as in the cases just referred to, there was evidence of an original weakness in the gearshift assembly which caused the collapse of the protective knob. The deterioration of the product and its consequent failure was the very risk created by the negligent choice of material, or the jury could so find. The rule relied upon, that manufacturer is not liable for the failure of a product due to deterioration from ordinary wear and tear or misuse, simply does not fit these facts.

Id. at 240, 166 S.E.2d at 190. The court conceded that the amount of time that had elapsed between the marketing of the product and the injury was a "formidable obstacle" to assigning liability to the manufacturer. Id. However, "[t]he important inquiry is not how long the knob lasted but what caused its failure." Id. In Mickle, the failure had less to do with "wear and tear" and the passage of time, and more to do with the manufacturer's choice of material.
From a reading of Mickle v. Blackmon, it is apparent that courts have applied the lapse of time factor in different ways, depending on the issues arising in the case. On one hand, the amount of time that has elapsed may be relevant to the degree to which a product has undergone normal "wear and tear" and, as a result, may not be in "essentially the same condition." On the other hand, the amount of time that has elapsed without injury may also be relevant to indicate that the seller was not responsible for the defect, e.g., where a product may have been altered or modified. Subsequent cases have also incorporated this analysis into their review of product modifications that have undergone wear and tear or that have been out of the control of the manufacturer for a significant period of time. See Fernandez v. Spar Tek Indus., Inc., No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *29 (D.S.C. June 10, 2008); Ellison v. Rehab. Servs. of Columbus, No. 3:06-1053-CMC, 2007 U.S. Dist. LEXIS 10882, at *6 (D.S.C. Feb. 12, 2007); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 545-46 462 S.E.2d 321, 329-30 (Ct. App. 1995).

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Drilling Down: "Essentially the Same Condition" (Part II)

By Brian A. Comer

This is the second installment of what I guess I can call a "series" based on some research I have been doing for an article. The first installment can be found here.

Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.

• Whether it has been "subsequently mishandled;"
• Whether it has been modified or altered;
• Whether a significant amount of time has elapsed between when the product left the
• manufacturer's control and the time of injury, which can be relevant to "wear and tear;"
  Maintenance.

Today I'm going to profile the second factor, modification or alteration.
Modification or alteration of a product, including modification to its safety features and warnings, may also serve as evidence that a product is not in the same condition. Fernandez v. Spar Tek Indus., Inc., C.A. No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *28 (D.S.C. June 10, 2008). Unlike cases where a court characterizes subsequent changes as "mishandling," alteration or modification cases appear (from my research at least) to involve a situation where a party made an attempt to "fix" or adapt a product for continued use.
For example, Fernandez v. Spar Tek Industries., Inc. involved a plywood press, and the plaintiff's expert testified that "[an] interlocking chain had been added and certain warnings changed, further suggesting that changes relating to safety devices likely were made in the over twenty-two years between when the machines left [the manufacturer's] control and when [the plaintiff] was injured." The district court granted summary judgment for the entirety of the plaintiff's products liability claims (brought in strict liability and negligence) because the plaintiff could not provide affirmative evidence that the plywood press at issue was in "essentially the same condition," despite these changes. Id. at *31.
Although the South Carolina Supreme Court did not directly address the "essentially the same condition" requirement in Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E.2d 671 (1978), it is clear from a reading of the case (see the linked brief of the case) that subsequent alteration by a boat repairman was a key issue. The court held that "the only reasonable inference that can be drawn from the evidence is that the damages here sustained would not have occurred absent [the boat repairman's] unforeseeable actions." Id. at 468, 242 S.E.2d at 678.
It is also worth mentioning Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 536-37, 462 S.E.2d 321, 324-25 (Ct. App. 1995) on this point. Though it was not dispositive of the issue in the case, the court pointed out in Bragg that the majority of the safety decals that were on the boom of the aerial bucket truck at issue had been painted over or removed as a result of actions to refurbish it. Bragg is more significant for "subsequent mishandling" and "lapse of time" (the subject of a future post), but I thought this point was interesting as another basis for finding that the product was not in essentially the same condition.
I will profile the impact of the amount of time that has elapsed between the time a product left a manufacturer's control and the time of injury in the next installment of this series.
Comments are welcome!
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Drilling Down: "Essentially the Same Condition" (Part I)

By Brian A. Comer

A products liability case in South Carolina may be brought under several theories, including strict liability, negligence, and/or breach of warranty. A full discussion of the theories and elements can be found here. Regardless of the theory of recovery, the plaintiff must establish that the product was in essentially the same condition at the time of the accident as when it left the hands of the defendant. Rife v. Hitachi Constr. Mach. Co., Ltd., 363 S.C. 209, 215, 609 S.E.2d 565, 568 (Ct. App. 2005). What exactly does this requirement mean?

I am in the process of drafting an article for (hopeful) publication that explores this requirement in detail, but I thought I would provide a few brief "abstracts" that highlight the statutory and case law that I have found on this particular topic. Today I'm going to highlight the burden of proof and one of the factors relevant to whether a product is in "essentially the same condition."

Burden of Proof: First, the plaintiff has the burden of proving this element, and failure to do so is fatal to the plaintiff's case. See Oglesby v. General Motors Corp., 190 F.3d 244, 251-52 (4th Cir. 1999); Fernandez v. Spark Tek Indus., Inc., No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *29 (D.S.C. June 10, 2008); Restatement (Second) of Torts § 402A cmt. g. (1965). This may require that a plaintiff provide "affirmative evidence" -- including possibly expert testimony -- that a product was in the same condition at the time of injury as when it left the control of the defendant. Fernandez, 2008 U.S. Dist. LEXIS 45393, at *29; Ellison v. Rehab. Servs. of Columbus, No. 3:06-1053-CMC, 2007 U.S. Dist. LEXIS 10882, at *6 (Feb. 12, 2007 D.S.C.). There is no presumption that a product is in the same condition based solely on the absence of proof to the contrary. Such a presumption would impermissibly shift the burden of proof to the defendant. Ellison, 2007 U.S. Dist. LEXIS 10882, at *6 (stating that the plaintiff failed to provide a legal foundation for the court's adoption of a rebuttable presumption that the machine at issue was unchanged and granting defendant's motion for summary judgment based on evidence of changes in the machine's condition). A plaintiff's visual inspection of a product is not enough to establish the absence of any modification. Id. Furthermore, the absence of modifications, by itself, does not prove that a product is in the same condition as when it left the control of the defendant. Id. This is based on the normal effects of usage of a product (i.e., "wear and tear") and the common need for maintenance, especially for machines with moving parts. Id. Just one modification – even if to a part of the product not at issue – counters any presumption that a machine was in essentially the same condition as when it left the control of the defendant. Id. at *7.

Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.

1. Whether it has been "subsequently mishandled;"
2. Whether it has been modified or altered;
3. Whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury, which can be relevant to "wear and tear;"
4. Maintenance.

Today I'm going to profile the first factor, which has its roots in the strict liability statute.
Strict Liability and "Subsequent Mishandling": The strict liability statute provides the best source for initial guidance with regard to the "essentially the same condition" element. South Carolina Code section 15-73-10(1)(b) sets forth that a product must “reach the user or consumer without substantial change in the condition in which it is sold." S.C. Code. Ann 15-73-10(1)(b) (1976) (emphasis added). In this context, "essentially the same condition" is equated to "without substantial change" in a product's condition. Comment g. to Restatement (Second) of Torts section 402A has been adopted as the legislative intent of South Carolina's strict liability code, and it also provides guidance.

g. Defective condition. The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate user, which will be unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition and subsequent mishandling or other causes make it harmful by the time it is consumed. . . .

(Emphasis added). Therefore, at least in the strict liability context, a change in condition may also be due to "subsequent mishandling or other causes." At least three South Carolina cases have addressed "subsequent mishandling" in a products liability action. See Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982) (holding that that cracks in and subsequent breakdown of the lug bolts on a tire were the result of subsequent mishandling of the product at issue (i.e., due to over-tightening) and affirming a directed verdict by the trial court); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 545, 462 S.E.2d 321, 329-330 (Ct. App. 1995) (holding that replacement of hydraulic fluid hoses on the bucket truck just prior to the accident constituted "improper use by a third party" and was the cause of the injury); and Jackson v. Bermuda Sands, Inc., No. 4530, 2009 WL 1037043, at *3 (S.C. Ct. App. Apr. 14, 2009) (holding that an alleged "crack" in a collapsed chair would constitute subsequent mishandling of a product unless the plaintiff could prove that the chair was cracked at the time that it left the manufacturer).
I'll address the other factors in some forthcoming posts. I didn't want this one to be too long or drawn out, and I also want to be sure I can continue to provide substantive updates.
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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).
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The Learned Intermediary Doctrine in South Carolina

By Brian A. Comer

I have done a significant amount of work on drug and medical device cases over the years, and one of the most important concepts in that products liability arena is whether or not a state has adopted the "learned intermediary" doctrine. In the prescription drug context, the learned intermediary doctrine provides that manufacturers of prescription drugs and medical devices discharge their duty of care to patients by providing warnings to the prescribing physicians. Restatement (Third) of Torts: Products Liability § 6 cmt. d, reporters’ note (1997). The justification in this particular context is that consumers cannot buy prescription drugs directly from a manufacturer. As stated by the Fourth Circuit Court of Appeals:

Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative. Pharmaceutical companies then, who must warn ultimate purchasers of dangers inherent in patent drugs sold over the counter, in selling prescription drugs are required to warn only the pre scribing physician, who acts as a "learned intermediary" between manufacturer and consumer.

Talley v. Danek Med., Inc., 179 F.3d 154, 163 (4th Cir. 1999).

South Carolina state courts have not explicitly adopted the learned intermediary doctrine in the drug and medical device context. Only two state court cases (that I have found) cite to the rule at all, Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995) and Madison v. American Home Prods. Corp., 358 S.C. 449, 595 S.E.2d 493 (1995). Madison only mentions the rule in dicta (i.e., "strict liability is inconsistent with the learned intermediary doctrine, which places the duty to warn on the prescribing physicians, and not pharmacists...."). Madison, 358 S.C. at 455, 595 S.E.2d at 496. In Bragg, one of the issues on appeal was whether or not the trial court had correctly charged the jury on the "sophisticated user defense." The charge at issue was as follows:

Now, ladies and gentlemen, under South Carolina law, a manufacturer has no duty to warn of potential risks or dangers inherent in a product if the product is distributed to what we call a learned intermediary or distributed to a sophisticated user who might be in a position to understand and assess the risks involved, and to inform the ultimate user of the risks, and to, thereby, warn the ultimate user of any alleged inherent dangers involved in the product. Simply stated, the sophisticated user defense is permitted in cases involving an employer who was aware of the inherent dangers of a product which the, the employer purchased for use in his business. Such an employer has a duty to warn his employees of the dangers of the product.

Bragg, 319 S.C. at 549, 462 S.E.2d at 331-32 (emphasis added). The South Carolina Court of Appeals concluded that the trial court properly charged the jury concerning the sophisticated user defense. Id.

Other practitioners have stated unequivocally that South Carolina has adopted the learned intermediary defense, sometimes citing Bragg or Madison as support. See, e.g., the July 2007 "Headcount: Who's Adopted the Learned Intermediary Rule" at Druganddevicelaw.blogspot.com (citing to Madison as support that South Carolina has adopted the rule in the non-prescription medical product case); Lynn H. Gorod, "The Evolving Duty of Pharmacists: To Warn or Not to Warn?" 16 S. Carolina Lawyer 14, 16 (July 2004) ("The basis for not extending this duty has widely been premised on the "learned intermediary doctrine." This doctrine, which has been accepted in many jurisdictions, including South Carolina, provides that manufacturers of prescription drugs have a duty to warn prescribing physicians of a drug's known dangerous propensities.") (Emphasis added).

There is no question that Bragg provides support that South Carolina has adopted the learned intermediary doctrine (perhaps relabeled as the sophisticated user defense). However, there is a dearth of South Carolina case law in comparison to other states on this issue, and any "adoption" of the doctrine at the state level is likely to be subject to greater argument than in other states, where adoption in the drug and medical device context is often more explicit. See, e.g. Stone v. Smith, Kline & French Laboratories, 447 So. 2d 1301 (Ala. 1984); Hawkins v. Richardson-Merrell, Inc., 249 S.E.2d 286 (Ga. Ct. App. 1978); Pittman v. Upjohn Co., 890 S.W.2d 425 (Tenn. 1994) (all explicitly adopted the learned intermediary doctrine in the prescription drug context).

South Carolina's federal courts, on the other hand, have been more explicit and have predicted that South Carolina state courts would apply the learned intermediary rule, and specifically in the drug and medical device context. In Brooks v. Medtronic, Inc., 750 F.2d 1227, 1232 (4th Cir. 1984), the Fourth Circuit Court of Appeals, hearing an appeal from the District of South Carolina, stated that "Although the South Carolina Supreme Court has not addressed the issue, we conclude it would adopt the [learned intermediary] rule, generally accepted and supported by sound policy, restricting the manufacturer's duty to warn to the prescribing physician." Id. at 1231. Brooks was a medical device case involving a pacemaker, and one of the issues on appeal was whether a pacemaker manufacturer has a duty to warn a consumer directly or whether warnings to the physician are sufficient. Id. at 1230. After reviewing South Carolina strict liability law, the court pointed out that other jurisdictions had adopted the learned intermediary rule, and it believed that South Carolina would as well. Id. at 1231. This rule was again cited as the law in Tarallo v. Searle Pharmaceutical, Inc., 704 F. Supp;. 653, 659 n.2 (D.S.C. 1988), Odom v. G.D. Searle Co., 979 F.2d 1001, 1003 (4th Cir. 1992) (involving an appeal from the District of South Carolina), and Pleasant v. Dow Corning Corp., 1993 U.S. Dist. LEXIS 21488 (Jan. 7, 1993, D.S.C.).

This is the case law that I have found that interprets this area of the law in South Carolina. If anyone knows of others, please comment and let me know.

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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.

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Drilling Down: Strict Liability

By Brian A. Comer
South Carolina has adopted the Restatement (Second) of Torts, section 402A (1965) in the"Defective Products Act," which is codified at Title 15, Chapter 73 of the South Carolina Code.
S.C. Code Ann. § 15-73-10 sets forth as follows:
§ 15-73-10. Liability of seller for defective product.
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer, or to his property, if
(a) The seller is engaged in the business of selling such a product, and
(b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in subsection (1) shall apply although
(a) The seller has exercised all possible care in the preparation and sale of his product, and
(b) The user or consumer has not bought the product from or entered into any contractual relation with the seller.
In addition, the comments to Section 402A have been incorporated by reference as the intent of the South Carolina General Assembly. See S.C. Code Ann 15-73-30 ("Comments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.").
Both the Defective Products Act and the South Carolina courts have imposed some restrictions on recovery in a strict liability action. For example, S.C. Code Ann. § 15-73-20 sets forth that "If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery." The South Carolina Supreme Court has also held that “a cause of action resting upon strict liability under Section 15-73-10… does not exist in South Carolina where a product entering the stream of commerce prior to July 9, 1974, is alleged to have caused injury thereafter.” Schall v. Sturm, Ruger Co., 278 S.C. 646, 650, 300 S.E.2d 735, 737 (1983) (answering a certified question from the United States District Court for the District of South Carolina); see also Bray v. Marathon Corp., 356 S.C. 111, 117 588 S.E.2d 93, 96 n.6 (2003) (confirming the holding in Schall).
Punitive damages are not recoverable under a strict liability action. S.C. Code Ann. §36-1-106 (“[N]either consequential or special nor penal damages may be had except as specifically provided in [the South Carolina Commercial Code] or by other rule of law.”); Barnwell v. Barber-Colman Co., 301 S.C. 534, 537, 393 S.E.2d 162, 163 (1989) (holding punitive damages are not recoverable under the strict liability statute).
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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.
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