Holiday Case Brief and Verdict Survey: Gasque v. Heublein, Inc.

I hope you have enjoyed the holidays and are ready for the new year.  This has been one of my busiest times around the holidays in awhile, but I could not miss the opportunity to do a holiday season "food" post.  Last year, I tried to do a comprehensive series about South Carolina's products liability law in the context of food cases.  However, I missed one of the more interesting cases, and I thought it would be blogworthy at this time of year (especially in light of the amount of wine and champagne that will be consumed this evening).  Gasque v. Heublein, Inc., 281 S.C. 278, 315 S.E.2d 556 (Ct. App. 1984) involves a cork that prematurely ejected and caused injury to a plaintiff's eye.  An Horry County jury returned a verdict for $750,000, and the South Carolina Court of Appeals affirmed the verdict.

FACTUAL BACKGROUND: Plaintiff sustained permanent loss of vision in his left eye when he was struck by the stopper and cork assembly of a bottle of Jacques Bonet Cold Duck sparkling wine.    281 S.C. at 281, 315 S.E.2d at 558.  The stopper allegedly ejected prematurely when Plaintiff's friend was twisting the wire retaining hood on the cork.  Id.

PROCEDURE: Plaintiff brought suit against the manufacturer-bottlers ("Defendants") of the sparkling wine, as well as three other defendants in the chain of distribution.  281 S.C. at 281, 315 S.E.2d at 558.  Plaintiff asserted causes of action for negligence, warranty, and strict liability, and he sought actual and punitive damages.  Id.  The case was submitted to the jury on the theories of negligence and strict liability.  Id.  The jury returned a general verdict for $750,000 in actual damages against Defendants.  Id.   

ISSUES: There were three issues on appeal: (1) whether the trial court erred in submitting the issues of negligent (a) design, (b) manufacture, (c) inspection, and (d) failure to warn; (2) whether the trial court erred in admitting into evidence a filmed experiment conducted by Plaintiff's expert; and (3) whether the trial court erred in failing to grant Defendants' motion for a new trial absolute on grounds that the verdict was actuated by passion, prejudice and caprice.  281 S.C. at 281, 315 S.E.2d at 558. 

DISPOSITION: The South Carolina Court of Appeals affirmed the trial court on all three issues.

OPINION: The appellate court addressed each of the issues in the order in which they were raised, as set forth below.

(1) Submission of Negligence Theories

With regard to negligent design, Plaintiff presented reports of studies commissioned by one of the Defendants concerning premature ejection of champagne stoppers.  281 S.C. at 282, 315 S.E.2d at 559.  The reports identified the problem of premature ejection and suggested design alternatives to correct it.  Id. at 282-83, 315 S.E.2d at 559.  Defendants' Quality Control Director also testified that before Defendants' switched from wood stoppers to polyethylene stoppers, they had no reports of injuries.  Id.  One of the reports also discussed the various problems with polyethylene stoppers versus wood stoppers.  Id.  In short, the evidence showed Defendants were aware of the problem of premature ejection, knew about feasible alternative designs, were aware that wood corks were safer, and elected to use an undrilled and uncoated polyethylene stopper to retain the festive "pop" of the cork.  Id. at 283, 315 S.E.2d at 559.  Plaintiff also presented expert testimony in support of his theory.  Id. at 284, 315 S.E.2d at 559.  The evidence was sufficient to submit the issue of negligent design to the jury.

With regard to negligent manufacture, Plaintiff presented the cork at issue and had his expert testify there was a groove on it that was distinguishable from other stoppers.  Id. at 284, 315 S.E.2d at 560.  Plaintiff's expert testified the groove was caused by improper attachment of the wire retainer to the stopper during manufacture, and this manufacturing defect contributed to premature ejection.  Id.  Based on this evidence, the court upheld submission of negligent manufacture to the jury.  Id.

With regard to negligent inspection, the court concluded that the testimony of Defendants' Quality Control Director supported submission of this issue to the jury.  Id. at 285, 315 S.E.2d at 560.  The director testified a pressure check was performed on only one out of every 30,000 to 40,000 bottles, and quality control personnel had only one or two seconds to ascertain whether or not the wire hood was properly attached to the stopper.  Id.

With regard to negligent failure to warn, the court concluded that the warning at issue was approximately 1/8 the size of the print used to advertise the product's name, and it did not mention premature ejection (just that the contents were under high pressure and that the bottle should be pointed away).  Id.  The court held the language of the warning, its placement, and print size created a jury question as to its adequacy.  Id.  The issue of negligent failure to wan was properly submitted to the jury.  Id.

(2) Admission Into Evidence of Filmed Experiment

To be admissible at trial, an experiment or test must have been made under conditions and circumstances substantially similar to those prevailing at the time of the occurrence involved in the controversy.  Id. at 286, 315 S.E.2d at 560 (citing Weaks v. South Carolina State Highway Dep't, 250 S.C. 535, 159 S.E.2d 234 (1968)).  Plaintiff's expert introduced a filmed experiment conducted by his expert where a stopper in the product at issue spontaneously ejected when the expert began twisting the wire retaining hood.  Id.  The trial judge allowed the jury to view the experiment.  Id.  Defendants argued the admission was error because the experiment utilized champagne (instead of sparkling wine), involved a different size bottle, and had different temperatures.  Id. at 286, 315 S.E.2d 560-61.  Plaintiff's expert testified the properties the experimental bottle were substantially the same.  Id., 315 S.E.2d at 561. 

The court noted that admission of evidence is a matter for the trial judge's discretion and will not be disturbed absent abuse of discretion.  Id.  The court also noted that Defendants vigorously cross examined the expert on the distinctions between the experiment and and facts of the case.  Id. at 287, 315 S.E.2d at 561.  The court held the conditions of the filmed experiment were substantially similar to those existing at the time of injury.  Id.  However, even if they were not, this issue did not warrant reversal because the experiment was cumulative of other evidence introduced by Plaintiff (including testimony of the friend who opened the bottle, experts, and the information contained in Defendants' reports about premature ejection).  Id. (citing Beasley v. Kerr-McGee Chem. Corp., 273 S.C. 523, 257 S.E.2d 726 (1979)).

(3) Excessiveness of Verdict

The court noted it has limited power to interfere with verdict amounts, which are left almost entirely to the judge and jury.  Id. at 287, 315 S.E.2d at 561 (citing Charles v. Texas Co., 199 S.C. 156, 18 S.E.2d 719, 729 (1942)).  The court cannot reduce a verdict, and it will only strike a verdict down completely if the amount is so shockingly excessive as to indicate it is the result of passion, caprice, and prejudice.  Id.  In view of the severity and permanency of Plaintiff's injury, the court did not find the verdict of $750,000 to be excessive.  Id. at 288, 315 S.E.2d at 562.  In short, there was substantial evidence concerning Plaintiff's pain, multiple surgeries, impact on vision, and change in lifestyle.  Id. at 288-89, 315 S.E.2d at 562.  Based on the evidence, the court did not find the verdict to be excessive.  It also reviewed verdicts for loss of vision cases elsewhere that were also similar to the jury's verdict.  Id.

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Verdict Survey: Exploding Gun in Florence County

Capsule Summary: On May 1, 2004, a Florence county jury returned a Plaintiff’s verdict in a case involving explosion of a gun, which caused loss of three fingers on Plaintiff’s right hand, diminished vision, and bilateral hearing loss. 

Case Information: Matthews v. Olin Corporation, Case No. 01-CP-21-1729

Date of Verdict: May 1, 2004

Venue: Florence County Court of Common Pleas

Judge: James E. Brogdon, Jr.

Factual Background: Plaintiff was a seventy-year-old male who was married and a retired steel worker.  He went to a sporting goods store to purchase black powder for his black powder muzzle rifle.  The retailer recommended a new smokeless ball powder, which was manufactured Olin Corporation (“Defendant”).  Plaintiff purchased the smokeless ball powder and took it home to use it.  He tried twice to fire his gun, but was unsuccessful.  He returned to the retail store and was instructed to try and fire the gun one more time.  When he did, the gun exploded.

Plaintiff sued the retailer, distributor, and the manufacturer in a product liability case.  He alleged the label on the powder was misleading and the warning label was inadequate.  He claimed the label failed to properly warn of the hazards of substituting smokeless propellants for black powders.  He also alleged the warning was unclear and inconspicuous, and no warning was give with regard to the danger of using the product in a ball powder muzzle loading rifle.  He claimed Defendant was negligent in failing to provide sufficient information to distributors or retailers on the danger of using the product in the place of black powder. 

Defendant claimed the label was adequate and warned against substituting powders.  Defendant also argued the Plaintiff failed to read the warning and loaded his rifle with a double charge.  Defendant generally argued Plaintiff's misuse of the product caused the explosion. 

Plaintiff admitted he had not entirely read the label and conceded it said “Do not mix powders, do not substitute powders.”  However, he argued use of the powder was inferred by the title of “ball powder,” and there was no specific warning against using smokeless powder in a black powder muzzle rifle.  He also presented competitor warning labels displaying a warning against use of smokeless powders in black powder rifles. 

Experts: Plaintiff retained Richard Moll of Madison, Wisconsin as an expert on product safety and Dean Harris of Columbia, South Carolina as an engineer/rifle expert. 

Alleged Damages: Plaintiff lost three fingers and a substantial amount of blood.  He developed a central retinal vein occlusion from the blood loss, which caused partial vision and partial hearing loss.  He also claimed medical expenses of  $50,000.

Disposition: Defendant assumed representation of the distributor from the onset of the case.  The retailer settled with Plaintiff prior to trial for $187,500, including loss of consortium.  The jury returned a verdict of $150,000 for strict liability and $160,000 for negligence ($150,000 in compensatory damages and $10,000 in punitive damages) against Defendant.  The jury found Plaintiff to be fifty percent at fault on the negligence claim.  Therefore, Plaintiff elected to recover on the strict liability claim.  A partial credit to the manufacturer for the previous settlement would have reduced the verdict to approximately $56,500.  The parties negotiated a post-verdict settlement for $95,000, which included Plaintiff’s wife’s consortium claim. 

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Case Brief: Holst v. KCI Konecranes Int'l Corp., 390 S.C. 29, 699 S.E.2d 715 (Ct. App. 2010)

It has been awhile since I posted a Case Brief, so I thought I would provide one for Holst v. KCI Konecranes Int'l Corp, 390 S.C. 29, 699 S.E.2d 715 (Ct. App. 2010).  I originally blogged about this case when it came out, and its opinion has now been published.  This is a crane accident case involving a "KCI rubber-tired gantry crane" at a terminal of the South Carolina State Ports Authority in Charleston, South Carolina.  I was not familiar with a "gantry crane" and how it differed from a regular crane, so I did the trusty google image search to see what came up.  I am glad that I did.  As you can see from one of the the pictures (below), it is different than your typical idea of a "crane."  (This picture is only intended to give you an idea of a "rubber-tired gantry crane" generally.  I have no idea if it is the make or model of the crane at issue).

The case has some good discussion about the necessity of alternative design in a design defect case.  There is also discussion of what the court looks at in terms of other manufacturers and industry standards when evaluating design, warnings, etc. 

FACTUAL BACKGROUND: Decedent was a checker at a terminal at the port in Charleston, South Carolina.  390 S.C. at 33, 699 S.E.2d at 718.  He was responsible for identifying containers needed for transport between the container yard and ships.  Id.  He would instruct crane operators to move and load the containers in the proper sequence.  Id. at 33-34, 699 S.E.2d at 718.  Decedent was killed when a crane operator lowered containers in an area where he was standing, crushing him.  Id. at 34, 699 S.E.2d at 718.

PROCEDURE: Plaintiff (decedent’s wife) filed suit alleging negligence, breach of warranty, and strict liability for defective design against the crane manufacturer.  390 S.C. at 34, 699 S.E.2d at 718.  The crane manufacturer moved for summary judgment, which was granted by the lower court.  Id. at 34-35, 699 S.E.2d at 718.  Plaintiff appealed.  Id.

ISSUE: Whether the circuit (trial) court erred in granting KCI's motion for summary judgment.

DISPOSITION: The South Carolina Court of Appeals affirmed the grant of summary judgment.  390 S.C. at 44, 699 S.E.2d at 723.

OPINION: Plaintiff’s first argument was that the lower court improperly weighed conflicting testimony concerning product defect, compliance with industry standards, and comparisons of the crane to others on the market.  390 S.C. at 35-36, 699 S.E.2d at 719.  Plaintiff cited to the testimony of two experts (Dr. George Pearsall and Richard Leonard) to support that the crane operator did not have obstruction-free visibility and that the crane should have been equipped with a camera.  Id. at 36, 699 S.E.2d at 719.  Even so, both experts for plaintiff conceded that a camera would not eliminate a blind spot, they did not know of other manufacturers who utilized a camera, and the crane met industry standards/regulations.  Id.  Mr. Leonard testified that he had never seen a comparable model crane with greater visibility than the one at issue.  Id.  Because of a lack of evidence of alternative design or that a risk-utility test was conducted with regard to the crane by plaintiff’s experts, the court held that plaintiff could not establish the crane was defective and unreasonably dangerous as a matter of law.  Id. at 37, 699 S.E.2d at 719-20. 

With regard to compliance with industry standards, the court reviewed American Society of Mechanical Engineers standard B30.2-1.5.1(b) and International Organization for Standardization section 8566-1.  Id. at 37-38, 699 S.E.2d at 720.  The court affirmed that the manufacturer complied with these standards from the evidence and that the operator’s access to a telephone, intercom with a loudspeaker, and two-way radio also aided in his “view” of the load block so as to bring the crane into compliance with applicable standards.  Id.  Finally, the court affirmed that plaintiff’s experts failed to provide evidence that another crane was similar enough to the one at issue so as to provide proof that other cranes on the market had better visibility.  Id. at 38-39, 699 S.E.2d at 720. 

           

Plaintiffs also argued that the lower court applied an improper legal standard by basing its grant of summary judgment on the crane’s conformity with industry custom.  Id. at 39, 699 S.E.2d at 721.  The appellate court did not agree and noted that conformity with industry standards was only one factor considered by the trial court.  Id.

Plaintiff also argued that the lower court erred in applying inapplicable legal standards from certain Fourth Circuit Court of Appeals and South Carolina state court cases (i.e., Sexton By & Through Sexton v. Bell Helmets, Inc., 926 F.2d 331 (4th Cir. 1991), Marchant v. Mitchell Distributing Co., 270 S.C. 29, 240 S.E.2d 511 (1977), and Bragg v. Hi-Ranger, Inc., 319 S.C. 531 462 S.E.2d 321 (Ct. App. 1995)). Id. at 40-42, 699 S.E.2d at 721-22.  The court distinguished each cited case on legal or factual grounds and ruled that the lower court did not err in relying on them.  Id.

Finally, the court addressed summary judgment on each of plaintiff’s claims (strict liability, negligence – defective design, and negligence – failure to warn).  Id. at 42-44, 699 S.E.2d at 722-23.  The court cited to its prior discussion as also applying to support dismissal of the strict liability claim.  Id. at 42, 699 S.E.2d at 722.  On the negligent design claim, the court focused on the superiority of the design of the crane in comparison to others, its compliance with applicable standards, and the fact that the blind spot could not be eliminated to support its holding that there was no material issue of fact.  Id. at 42-43, 699 S.E.2d at 722-23.  The court also found that the crane included proper warnings both in the Operator’s Manual and on the crane itself so as to support summary judgment on plaintiff’s negligent failure to warn claim.  Id. at 43-44, 699 S.E.2d at 723.  Affirmed.

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SC Lawyer Article on Warnings Published

My apologies for the length of time since my last post. January was rough for the South Carolina Products Liability Law Blog, as your beloved author got sidetracked by one kid getting sick...for a week...then a second kid getting sick...for the entire next week....and then yours truly getting the flu this past week (most likely thanks to aforementioned kids). So basically, when I haven't been working, I've been helping tend to sick kids or trying to get myself healthy again. Fun stuff, people, fun stuff. But better days are ahead, as Punxsutawney Phil did NOT see his shadow this week, meaning spring is on the way!

But enough about all that. Let's talk about something that really gets the juices flowing...like South Carolina's law on warnings. South Carolina Lawyer was kind enough to publish my article entitled Products Liability Claims in South Carolina: What is South Carolina's Law on Warnings? in its January 2011 edition, and you can find a copy of it here (give it a couple seconds to load). This article started out as a very exhaustive look at South Carolina warnings law (with the exception of the doctrine of preemption...which is a big enough topic to be its own article). However, because of space constraints, I had to cut it down a fair amount for publication. The section on exceptions to the duty to warn was originally much longer and had a great deal of additional case law and information. Because much of this information had to be cut out, I plan to use it as the basis for a new article that focuses specifically on this area of South Carolina warnings law, and I hope to submit it for publication in the near future.

Hopefully you will find it to be of interest, and I welcome any comments or feedback.

A couple of other blog-worthy developments from the last month. The South Carolina Defense Trial Attorneys Association asked if I would co-chair the Products Liability Substantive Law Committee, which I was very happy to accept for this year. My co-chair is Nick Gladd, and we will be responsible for providing updates to the organization on developments in products liability law in South Carolina, as well as helping plan for certain breakout sessions at the SCDTAA's meetings this year. If any followers of the blog are members of the SCDTAA and have suggestions for breakout topics, then please let me know.

Finally, my firm has asked me to chair our Products Liability Practice Group. The outgoing chairperson is Gray Culbreath, who also happens to be the Managing Partner of Collins & Lacy, P.C. and serves as the current President of the SCDTAA. Needless to say, Gray is wearing many different hats these days, so I appreciated my firm asking me to take over this duty so as to free him up a bit. I look forward to serving in this role.

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

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

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

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

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

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

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

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

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

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