Upcoming DRI Products Liability Conference in April

I am happy to post information about legal conferences pertaining to products liability issues. I always try to provide products liability information that is useful to the defense bar, plaintiff's bar, manufacturers, and individuals. Therefore, if anyone has a seminar or conference (regardless of whether it is defense or plaintiff-oriented), please pass it along and I will be happy to post the pertinent information.

The Defense Research Institute is holding their Products Liability Conference at the Hilton New Orleans Riverside in New Orleans, Louisiana this year from Wednesday, April 6 through Friday, April 8, 2011. This is a great conference. I went to the one last year that was in Las Vegas. and I am attending this year's conference. In fact, I will be presenting on Thursday at one of the Specialized Litigation Group ("SLG") breakout sessions. I joined the "Agricultural/Construction/Mining/Industrial Equipment" ("ACMIE") SLG last year, and this year I am doing a presentation entitled "Who Needs Letterman? The Annual ACMIE Top 10 Cases." As the title suggests, the presentation is basically a survey of significant cases in 2010 that involved ACMIE products and equipment (and if you know of a case that I should consider for inclusion, please comment so that I can get in touch and discuss it with you).

All the details for the conference, including a brochure of the agenda, registration, etc., can be found here. I look forward to meeting anyone who plans to be there.

Open and Obvious Risk . . . or a/k/a "You Had a Bad Day"

You had a bad day. Like the song in the video, that phrase epitomizes an accident involving an open and obvious risk. The risk was right there, in front of you, and you ran headfirst into it in spite of yourself. You want to blame someone...someone should have told you about the danger. "That wheelbarrow should have warned about operating it near a trench!!!" But c'mon...you can't blame anyone. You knew better. You just had a bad day.

Admittedly, the accidents in the video are not directly on point as all of them do not necessarily involve a "product" per se. (Although any accident involving a ladder being placed near an obvious risk implicates Anderson v. Green Bull, Inc., 322 S.C. 268, 471 S.E.2d 708 (1996) discussed further below). However, the point remains the same. A seller is not required to warn of dangers or potential dangers that are generally known and recognized by users. Moore v. Barony House Restaurant, LLC, 382 S.C.35, 41, 674 S.E.2d 500, 504 (Ct. App. 2009); Anderson, 322 S.C. at 270, 471 S.E.2d at 710. This exception to the duty to warn includes dangers that are open, obvious, or matters that should be “common sense” to the user. Id; Dema v. Shore Enterprises, Ltd., 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993).

The rationale for this exception is that the product is not defective or unreasonably dangerous because these dangers are contemplated by the ultimate user. Anderson, 322 S.C. at 270, 471 S.E.3d at 710 (citing Restatement (Second) of Torts § 402A cmt. g. (1965) for the principle that “a product is defective only ‘where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”) (emphasis in original).

This exception applies where the obvious risk poses a danger to the user of the product or to others. For example, operating an unlighted golf cart on a public highway at night has been held to present an open and obvious risk. In Moore v. Barony House Restaurant, LLC, the plaintiff brought negligence and strict liability claims against a golf cart manufacturer and claimed that the manufacturer failed to provide an adequate warning about operation of the cart at night and on public roads. The South Carolina Court of Appeals affirmed the circuit court’s grant of summary judgment for both claims, finding that “operation of an unlighted golf car on a public highway at night presents an open and obvious risk.” Moore, 382 S.C. at 42, 674 S.E.2d at 504. Furthermore, the court stated that although questions of negligence are often for the jury, there is no duty to warn of an open and obvious risk as a matter of law. Id.

The threat of electrocution from placing a ladder in close proximity to power lines has also been held to be an open and obvious risk. Anderson v. Green Bull, Inc. involved a lawsuit by the personal representative of a roofer who was electrocuted when his aluminum ladder came in contact with overhead power lines. The ladder contained a red warning label that read, “KEEP ENTIRE UNIT CLEAR OF ALL UTILITY AND ELECTRICAL WIRING.” Anderson, 322 S.C. at 270, 471 S.E.2d at 710. The trial court denied the manufacturer’s motion for a directed verdict, the jury returned a $50,000 verdict in favor of the plaintiff, and the trial court denied the manufacturer’s motion for judgment notwithstanding the verdict. Id. at 269, 471 S.E.2d at 710. However, the South Carolina Court of Appeals reversed the trial court’s decisions. The court did not believe that there was any evidence from which the jury could have reasonably inferred that the ladder was defective because “the conductivity of an aluminum ladder is a condition commonly known and recognized.’” Id. at 271, 471 S.E.2d at 711. “Any person of normal intelligence would know ‘the risk posed by an aluminum ladder in close proximity to an energized high-voltage line.” Id., 471 S.E.2d at 710. The plaintiff also raised the issue of whether the ladder manufacturer should have provided a warning to users to shorten the length whenever the ladder’s length would make it more dangerous because of surrounding conditions, such as overhead high voltage transmission lines. Id. at 271 n.3, 471 S.E.2d at 711 n.3. Because the manufacturer was not required to warn users to stay clear of power lines in the first place, the manufacturer was not required to warn users to take specific measures to stay clear of the lines (i.e., by moving the ladder, shortening it, or actions). Id.

Moore and Anderson involved injuries to the users of the products at issue. However, this exception also applies where certain use of a product poses a risk to someone else. A manufacturer is not required to warn about certain uses that could pose a danger to someone else as a matter of common sense. For example, in Dema v. Shore Enterprises, Ltd., the South Carolina Court of Appeals held that an Aqua-Cycle water recreational vehicle was not defective for failure to include a warning label cautioning the user to “watch out for swimmers” and to “avoid strong current, wind, or waves.” 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993). In reaching its conclusion, the court stated as follows:

[U]sers of the Aqua-Cycle would be aware, as a matter of common sense, that they should be careful around swimmers in the surf. Because it is obvious that an Aqua-Cycle can cause injury to a swimmer, [the manufacturer] did not have a duty to warn Aqua-Cycle users of that risk.

Id. at 531-32, 435 S.E.2d at 876. South Carolina courts have used similar analysis to determine that there is no duty to warn about overtightening of lug nuts so as to avoid cracking them. Claytor v. General Motors, Corp., 277 S.C. 259, 286 S.E.2d 129 (1982).

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'Tis the Season for Good Food...And Warnings

During this time of year when we enjoy turkey, turkey ala king, turkey sandwiches, turkey soup, turkey casserole, and crazy delicious holiday food (see above classic example from National Lampoon's "Christmas Vacation"), it is a good time to reflect on...warnings. Yes, that's right, there is even a body of law concerning warnings about food.

You are probably saying to yourself right now, "I've always thought that the turkey packaging should warn about L-Tryptophan and the danger of driving after Christmas lunch." Whether sleepiness after excessive turkey consumption is an open and obvious risk (and therefore constitutes an exception to the duty to warn) is an issue that will be debated for eons among the most sophisticated jurists.

But I digress. The reality is that food warnings law is set forth fairly clearly in comment J. to section 402A of the Restatement (Second) of Torts. As you will recall, South Carolina has incorporated this comment by reference into its strict liability statute as the legislative intent of the chapter. See S.C. Code Ann. § 15-73-30 (1976) (“Comments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.”). Comment j. includes certain exceptions to the duty to warn, and it just so happens that two such exceptions deal with warnings about food.

(1) Common Allergies

The first exception to the duty to warn set forth in comment j. is that “the seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them.” Restatement (Second) of Torts § 402A cmt. j. Although this exception to the duty to warn may be straightforward when the consumer’s conduct relates to avoiding individual food products, it becomes more problematic when these food products are ingredients in other dishes. Comment j. therefore qualifies this exception with additional language.

Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge of the presence of the ingredient and the danger.

For example, the Food Allergen Labeling and Consumer Act (“FALCA”) went into effect in 2006 to require that packaged foods containing milk, eggs, fish, crustacean shellfish, peanuts, tree nuts, wheat and soy must display them prominently in the ingredient list. See 21 U.S.C. § 201 et. seq. According to FALCA, these “Big Eight” food allergens account for 90 percent of all food-allergic reactions, and federal law requires their disclosure on packaged foods. Id. at § 201(2). Comment j. provides some of the rationale for this disclosure: a substantial number of the population is allergic to these ingredients, and the consumer may not know if one of the ingredients is in a food product without the disclosure.

Neither South Carolina state nor federal courts have interpreted this specific aspect of comment j. in the context of a food products failure to warn case. However, in Vaughn v. Nissan Motor Corp., 77 F.3d 736, 738 (4th Cir. 1996), the court stated in dicta that the “ordinary consumer” standard for determining if a product is unreasonably dangerous does not necessarily apply in the case of products associated with allergic reactions in an appreciable number of consumers.

(2) Products Consumed Over a Long Period of Time

Comment j. also carves out an exception to the duty to warn if the potential danger of a product relates to its use over a long period of time or in excessive quantities: “[A] seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized.” Restatement (Second) of Torts § 402A cmt. j. As examples, the comment cites to alcoholic beverages and foods containing substances such as saturated fats. A seller has no duty to warn about the risks associated with such products from extended or excessive consumption.

Neither South Carolina state nor federal courts have interpreted this exception in comment j. In Aldana v. R.J. Reynolds Tobacco Co., No. 2:06-3366-CWH, 2008 WL 1883404 (D.S.C. Apr. 25, 2008), the court cited to this portion of comment j. to support that the warnings for defendant’s cigarette products were not required to make the product itself “safe,” but the court did not otherwise apply it to excessive or extended use of cigarettes. Id. at *2.

From the South Carolina Products Liability Law Blog, here's wishing you and your friends/families a very Merry Christmas and happy holiday season.

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Drilling Down: Does SC Recognize a Post-Sale Duty to Warn?

From doing research on warnings and from my experience in litigation, a frequent question that comes up is whether a manufacturer has a post-sale duty to warn, i.e., after the product is sold in the marketplace.

South Carolina does not recognize a post-sale duty to warn. In Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995), the South Carolina Court of Appeals agreed with the trial court’s charge that a manufacturer “has no duty to notify previous purchasers of its products about later developed safety devices or to retrofit those products if the products were nondefective under standards existing at the time of the manufacture or sale.” Bragg, 319 S.C. at 548, 462 S.E.2d 331. Subsequent cases have also cited to Bragg’s language and have indicated that South Carolina does not recognize a post-sale duty to warn. Ervin v. Continental Conveyor & Equip. Co., Inc., 674 F. Supp.2d 709, 725 (D.S.C. 2009); Campbell v. Gala Indus., Inc., No. 6:04-2036-RBH, 2006 WL, at *4-5 1073796 (D.S.C. Apr. 20, 2006).

I have seen defendants try to argue that Bragg's language supports that a manufacturer-defendant has no post-sale duty to warn...period. For example, I was involved in a case where one of the issues at trial was whether a manufacturer's service representative had a duty to notify a customer that a guard on the machine at issue was missing (i.e., a guard that might have prevented the injury at issue). The issue was framed as more of a negligent maintenance and inspection issue, as opposed to a products liability issue. However, the manufacturer argued that Bragg's language supported that it had no post-sale duty to warn of the missing guard during its maintenance of the machine.

This is not how I interpret Bragg. From my reading (and I welcome your comments), it clearly applies to improvements made after the manufacture of the product. In such cases, the manufacturer has no duty to circulate a new warning about the consequences not having the improvement, and it certainly has no duty to recall all products to retrofit them. However, I do not believe that it -- carte blanche -- means that a manufacturer has no post-sale duty to warn of any kind. See also Hubband & Felix, The South Carolina Law of Torts 292 (1997) ("Moreover, Bragg does not appear to be applicable to situations where a seller discovers dangers or defects after the sale. In this situation, the weight of authority clearly imposes a duty of due care on the seller.). Rather, the manufacturer has no post-sale duty to warn about improvements.

Although this is the current status of South Carolina law, recent opinions issued by the South Carolina Supreme Court have cited to the Restatement (Third) of Torts: Products Liability (1998) to support adoption of the risk-utility test as the exclusive test for a design defect claim. See Branham v. Ford Motor Co., No. 26860, 2010 WL 3219499 (S.C. Sup. Ct. Aug. 16, 2010) (citing to Restatement (Third) of Torts: Products Liability § 2b (1998) in support of adoption of risk-utility test); Watson v. Ford Motor Co., No. 26786, 2010 WL 3543725 (S.C. Sup. Ct. Sept. 13, 2010) (reiterating in footnote four its adoption of the Restatement (Third) approach for the risk-utility test in Branham). These opinions have been the subjects of prior blog posts where I noted the citation to the Restatement (Third).

Although this citation does not change South Carolina’s lack of recognition of a post-sale duty to warn, it may have opened the door for plaintiffs to argue that South Carolina should adopt other sections of the Restatement (Third), and specifically section 10. Section 10 of the Restatement (Third) provides for “Liability Of Commercial Product Seller Or Distributor For Harm Caused By Post–Sale Failure To Warn,” or a post-sale duty to warn.

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Case Brief: Nelson v. Coleman Co.

Today's case brief is Nelson v. Coleman Co., Inc., 249 S.C. 652, 155 S.E.2d 917 (Ct. App. 1967). This case involves a floor furnace and outlines a manufacturer's duty to test and inspect components in its products. It also discusses circumstantial evidence in a negligence case and the consequences of a defendant's failure to present its own evidence in response to a plaintiff's case. Specifically, although the decision admits that South Carolina does not recognize the Res Ipsa Loquitor doctrine, if a plaintiff is injured and provides circumstantial evidence to explain the cause of the injury, then a defendant proceeds at his own peril by not responding.

FACTUAL BACKGROUND: Plaintiff Homeowner purchased an oil burning floor furnace from Defendant Manufacturer through Defendant's authorized dealer. 249 S.C. at 655, 155 S.E.2d at 919. The dealer installed the furnace, and sixteen hours later, it emitted sparks and flames and destroyed the house and its contents. Id.

PROCEDURE: Plaintiff sued Defendant on negligence grounds. 249 S.C. at 655, 155 S.E.2d at 919. At trial, Defendant moved for nonsuit and directed verdict at the conclusion of Plaintiff's case, and without offering testimony or evidence of its own. Id. at 656, 155 S.E.2d at 919. The motions were denied, and the jury returned a verdict for Plaintiff. Id. Defendant moved for a judgment notwithstanding the verdict or a new trial, and both motions were denied. Id. Defendant appealed the denial of its motions by the trial court.

ISSUES: Defendant raised various different evidentiary and legal rulings as the basis for the appeal, including whether there was sufficient evidence of negligence and damages.

DISPOSITION: The South Carolina Supreme Court affirmed the rulings of the trial court. 249 S.C. at 662, 155 S.E.2d at 922.

RULES AND OPINION: The furnace was delivered from Defendant and installed at Plaintiff's residence without any changes to its condition. 249 S.C. at 655, 155 S.E.2d at 919. Plaintiff offered expert testimony that the fire was caused by a malfunctioning of the fuel regulator, which allowed oil to go into the burner and overflow and burn outside the furnace. Id. at 656, 155 S.E.2d at 919. Plaintiff's expert further testified that the defect in the fuel regulator was not apparent and could only be detected by testing conducted before shipping of the product. Id. at 657, 155 S.E.2d at 920. Defendant contended that the fuel regulator was manufactured by a third-party. Id. Although it was a component to Defendant's product, Defendant contended that it had no duty to test and inspect the component. Id. Even if it had a duty, Defendant contended there was no evidence that it failed to fulfill this duty. Id. The court stated the applicable law as follows:

It is generally held that a manufacturer who incorporates into his product a component made by another has a responsibility to test and inspect such component, and that his negligent failure properly to perform such duty renders him liable for injuries proximately caused thereby.

Id. In this context, the court believed that Plaintiff had provided sufficient circumstantial evidence to support that the fire was caused by the malfunctioning fuel regulator and that the defect could have been discovered by the Defendant with proper inspection and testing. Id. at 658, 155 S.E.2d at 920. Therefore, with regard to the sufficiency of evidence of negligence, there was no error in refusing the Defendant's motions. Id.

Defendant also contested whether Plaintiff had provided competent evidence to support a finding of money damages. Id. Plaintiff presented evidence that the reasonable value of items lost in the fire was $11,198.20, which included a list compiled by Plaintiff of the personal property lost in the fire. Id. at 659, 155 S.E.2d at 921. The court found that it was reasonable for Plaintiff to provide his own estimate of the value of the personal property, and there was no error in refusing Defendant's motions on grounds of insufficient evidence of damages. Id.

Defendant also contested that the trial judge erred in sustaining Plaintiff's objection to certain questions posed to Plaintiff's expert witness, i.e., "Is it customery in the trade for the manufacturers of these regulators to test them after they are manufactured." Id. at 660, 155 S.E.2d at 921. The court found that the trial judge's decision to sustain Plaintiff's objection to this question was not error because Defendant was able to pose a similar question to Plaintiff's expert and get his answer. Id. at 660-61, 155 S.E.2d at 921.

Defendant also asserted that Plaintiff's argument to the jury that Defendant had failed to produce witnesses or offer testimony was improper. Id. at 661, 155 S.E.2d at 922. The court disagreed, stating "We have held in a number of cases that it is proper for counsel to comment on the fact that the defendant has not taken the stand or offered testimony. It would be error in a criminal case so to do but not in a civil case. " Id. Therefore, the court held that this exception by Defendant was meritless. Id.

Finally, Defendant objected to the trial judge's charge that if a party fails to produce testimony of an available witness on a material issue, then the jury may infer that such testimony (if presented) would be adverse to the party failing to call the witness. Id. at 661-662, 155 S.E.2d at 922. Defendant's objection was that the trial judge left out the requirement that the witness be "available." Id. at 662, 155 S.E.2d at 922. However, the court found that Defendant had not properly preserved this objection at trial (i.e., Defendant did not request any clarification, amplification, or other curative measure by the trial judge). Id.

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Forthcoming Article on SC Warnings Law

I have been busy finalizing an article on South Carolina warnings law, and I'm pleased to announced that it is (tentatively) scheduled for publication in the January 2011 edition of South Carolina Lawyer. The article focuses on the theory behind warnings, when a duty to warn arises, and what makes a warning adequate (or inadequate). I have tried to exhaustively review any South Carolina authority I could dig up to study all of the nuances of South Carolina's warnings law. Once I hear final determination of publication, I will let any of my blog readers know of the month of publication, but it is currently scheduled for January. Look for it!

SC Supreme Court Issues Substitute Opinion in Watson v. Ford

Today, the South Carolina Supreme Court issued a substitute opinion in the Watson v. Ford Motor Co. case. The re-filed opinion can be found here (first opinion) and here.

I previously briefed this case at this post, so I plan to update it once I have had a chance to digest this re-filed opinion. The re-filed opinion appears to deal with the same issues that were in the first opinion (admission of testimony of two experts and admission of prior incidents). However, it also deals with Ford's motion for judgment notwithstanding the verdict and holds that the trial court erred in denying Ford's motion.

Be sure to check out footnote 4 where the court talks about its recent adoption of the Restatement (Third) approach to design defect cases. Informative footnote? Or more playing footsy with adopting the Restatement (Third) of Products Liability? You decide.

Check back for further analysis of this re-filed opinion.

Palmetto RIMS Speaking Engagement This Week

On Wednesday of this week, I had the opportunity to speak at the Palmetto Chapter of the Risk and Insurance Management Society, Inc. This is a great group of folks involved in insurance and risk management, and I appreciate them giving me the opportunity to meet them, eat lunch, and speak for about 30 minutes on "South Carolina Products Liability Law." I spoke about the nuts and bolts of South Carolina's products law, including the three elements common to all products claims, the economic loss doctrine, some case studies, and the future of this area of the law. Thanks folks for your hospitality!