New SC Products Liability Decision: Courtney v. Nissan Motor Co., Ltd

Yesterday, the South Carolina Court of Appeals issued a new products liability decision, Courtney v. Nissan Motor Co., Ltd., Opinion Number 5106.  There were some real procedural issues in this case at the trial court level that prompted appeals by both the plaintiff and Nissan.

FACTUAL BACKGROUND: Minor plaintiff ("Plaintiff") was riding in the backseat of a 2000 Nissan Xterra.  As Plaintiff's father made a left turn, the automobile was struck by an oncoming vehicle on the right side.  Upon impact, a part of the automobile's frame punctured the fuel tank, resulting in a fire that injured Plaintiff and her mother.

PROCEDURE:  Plaintiff filed suit against Nissan alleging strict liability, negligence, and breach of warranty based on a design defect theory.  The case was tried over nine days.  At the conclusion of evidence, the court denied Nissan's request to charge the jury on the necessity of proving feasible alternative design as an element of Plaintiff's case.  The parties and the trial court agreed to submit seven special interrogatories to the jury, but the interrogatory concerning proof of feasible alternative design was to be shown to the jury after any verdict for damages.  Nissan objected and requested that this interrogatory be submitted with the others.  The trial court denied the request.   

The trial court did not differentiate between the consumer expectations test and risk utility test during its general charge to the jury on what Plaintiff had to prove in a design defect case.  Although it later charge the jury on both tests, it omitted that Plaintiff had to prove a feasible design alternative pursuant to the risk-utility test.  Prior to sending the jury to deliberate, the trial court told the jury it would be answering one additional interrogatory after the verdict was returned that was "irrelevant" to the deliberations.

The jury rendered a verdict against Nissan for $2,375,000.  The court then posed the seventh interrogatory to the jury (i.e., whether Plaintiff had proved a feasible alternative design that would have prevented the injury).  The jury responded, "no." 

Nissan filed a post-trial motion for judgment notwithstanding the verdict ("JNOV"), or in the alternative, for a new trial.  Plaintiff filed a post-trial motion requesting the court disregard the jury's response to the seventh interrogatory.  Initially, the trial court denied both parties' motions.  However, three days later, the South Carolina Supreme Court issued its decision in Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010) in which it held that the risk-utility test was the exclusive test in a design defect case and required proof of feasible alternative design.  The trial court had a second hearing, and it denied Nissan's JNOV motion but granted the motion for a new trial.  Recognizing Branham, the trial court issued an order in which it concluded its decision not to charge the jury on proof of a feasible alternative design was reversible error and required the grant of a new trial.

ISSUES: Nissan appealed denial of its post-trial motion for judgment notwithstanding the verdict based on Plaintiff's failure to prove feasible alternative design.  Plaintiff also appealed the circuit court's decision to grant a new trial.  Plaintiff also claimed the circuit court erred in denying her motion to invalidate a special interrogatory in which the jury found Plaintiff failed to prove a feasible alternative design in her case against Nissan.

DISPOSITION: Affirmed by the South Carolina Court of Appeals.

RULES AND OPINION: The appellate court first addressed whether Branham applied retroactively to the instant case.  It reviewed Branham's facts and law and concluded that the South Carolina Supreme Court intended for Branham to have retroactive application.   Branham recognized no new right or cause of action; it only affirmed that the risk-utility test would be the exclusive test for design defect cases.  

Next, the appellate court held that the jury's post-verdict finding that Plaintiff failed to prove feasible alternative design did not entitled Nissan to JNOV.  Nissan pointed out evidence in the record that Plaintiff agreed to craft the special interrogatory specifically to address feasible alternative design issues.  Although the appellate court agreed, it cited to Erickson v. Jones St. Publishers, LLC, 368 S.C. 444, 480, 629 S.E. 2d 653, 672 (2006) for the principle that it is improper to submit factual issues to the jury in the form of non-binding "advisory interrogatories."  Accordingly, the appellate court found that the trial court's denial of the JNOV motion indicated neither the parties nor the trial court intended for the answer to the interrogatory to be dispositive on the issue of liability.  It also pointed out portions of the record to support that Plaintiff did not intend for the seventh interrogatory to impact liability. 

With regard to Plaintiff's cross appeal that the trial court erred in granting a new trial because the consumer expectations test was permissible at the time of decision, the appellate court pointed out it had already addressed this argument (i.e., Branham's retroactive application).  The appellate court also re-reviewed portions of Branham to highlight that the both the majority and dissent agreed that the risk-utility test was the proper test in a design defect case, and the appellate court did not believe the the majority or dissent expressly condoned use of the consumer expectations test at the time of the instant trial. 

Finally, Plaintiff argued that because the trial court charged on both the consumer expectations and risk-utility test, and the jury did not specify which theory it applied to determine liability, then the "two-issue rule" and the law of the case doctrine required reinstatement of the jury's verdict.  The appellate court disagreed that these doctrines applied.  Furthermore, Branham's holding made clear that the jury's verdict could not be supported by the consumer expectations test.  Although Nissan did not challenge the trial court's decision to incorporate the consumer expectations test into its jury charge, Branham had not been decided at the time and Nissan would not have had grounds to object.  Therefore, Nissan's failure to object did not require reinstatement.  The trial court's failure to properly instruct the jury was prejudicial to Nissan and required a new trial.

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

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.

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