Case Brief: Graves v. CAS Medical Systems, Inc.

On August 29, 2012, the Supreme Court of South Carolina issued its opinion in Graves v. CAS Medical Systems, Inc.  This case continues the trend of South Carolina’s appellate courts closely scrutinizing expert witness testimony.  I will be blogging more about this case later with regard to its impact on the necessity of expert testimony in a South Carolina products liability case.

FACTUAL BACKGROUND: Plaintiff-parents had a six-month-old girl who was monitored by Defendant-manufacturer’s baby monitor. The monitor was designed to sound an alarm if the patient experienced certain events, and it also included various back-up alarms and logging features to track vital signs and sounding of the alarm.  Plaintiffs awoke one morning and checked the infant only to find she was dead.  Neither Plaintiffs nor another family member heard the monitor sound an alarm.  The logging for the monitor reflected various apneic and bradycardic events, and it also indicated the alarm went off.

PROCEDURE: Plaintiffs filed claims for strict liability (design defect), negligence and breach of warranty against Defendant, claiming the monitor’s software design caused the alarm to fail.  Plaintiffs identified three software experts, none of whom did any real testing.  Instead, they used a “reasoning to the best inference analysis,” which the court likened to a differential diagnosis where other potential causes are excluded.  The experts evaluated three potential causes: complaint error (i.e., that the machine was misused or the alarm sounded but was not heard), hardware error (i.e., whether the machine functioned properly), and software error.  The experts excluded hardware error because the monitor was tested and functioned properly.  Therefore, the issue was whether complaint error or hardware error occurred. 

One of Plaintiff’s experts, Dr. Walter Daugherity, excluded complaint error purely on grounds that he did not believe anyone could sleep through the alarm.  He discounted the monitor’s log that the alarm sounded by pointing to the undisputed testimony of fact witnesses that it did not go off.  Therefore, he opined software error was the only cause.  Plaintiff’s second expert, Dr. William Lively, primarily relied on the conclusions of Dr. Daugherity to arrive at his opinion that software error was the cause.  He did no real analysis himself.  Plaintiff’s third expert, Frank Painter, concluded (similar to Daugherity) that complaint error could be excluded in spite of the monitor’s log.  He also admitted he did not really examine the software code.  Plaintiffs designated an additional expert, Dr. Donna Wilkins, to opine as to whether the infant could be revived.  She admitted she was not an expert in Sudden Infant Death Syndrome (“SIDS”), but she opined the infant likely could have been revived if the alarm sounded.

Defendants moved to exclude all experts based on lack of reliability, and also for summary judgment (on grounds that without expert testimony Plaintiffs had no evidence of design defect).  The circuit court granted both motions.

ISSUES: (1) Whether the circuit court erred in excluding opinions of Plaintiffs’ experts; and (2) whether the circuit court erred in granting summary judgment.

DISPOSITION: Affirmed with modifications (finding the medical expert’s opinions should not have been excluded on reliability grounds, but upholding summary judgment in spite of this modification).

RULES AND OPINION: The opinion is basically divided into two parts, as follows:

Exclusion of Experts

Expert testimony must meet the requirements of South Carolina Rule of Evidence 702 whether it is scientific, technical, or other expert testimony.  Therefore, it must (1) be beyond the ordinary knowledge of the jury, (2) the expert must be qualified, and (2) the substance of the testimony must be reliable.  The reliability prong is the central feature of the inquiry.  Defendants conceded Daugherity, Painter, and Lively satisfied the first two elements.  The only issue was whether the opinions were reliable.   

The court focused on whether these experts had grounds to exclude complaint error based on objective criteria.  For all three experts, the court found they simply assumed the alarm did not sound based on the assertions of the individuals alleging failure of the monitor.  They did not provide objective criteria for eliminating complaint error as a cause.  The court also found the experts improperly relied on reports of other failures to support their conclusions that software error was to blame.  A plaintiff bears the burden of proving that other incidents are “substantially similar to the accident at issue,” and the other incidents relied on by Plaintiffs’ experts did not suggest software error to be a cause.  (Citing Watson v. Ford Motor Co., 389 S.C. 434, 453, 699 S.E.2d 169, 179 (2010)).  The court agreed with the circuit court that the opinions were unreliable and that complaint error was a real possibility. 

Of great concern to us is that each of them began with the assumption that the monitor failed and then discounted evidence to the contrary based on the ipse dixit of the plaintiff who hired them, an analysis we find lacking in the indicia of reliability required for reasoning to the best inference.

Accordingly, there was no abuse of discretion in excluding Daugherity, Painter, and Lively.  (As a side note... BOOM Goes the Dynamite!  I love it when a court drops the “ipse dixit” bomb in review of an expert’s opinions…it is kind of like when someone quotes your brief back to you and drops in “[sic]” to telegraph that you made a grammatical error…but I digress).

With regard to Dr. Donna Wilkins, the court found the circuit abused its discretion in not finding her qualified based on her own testimony that she did not consider herself an expert in SIDS.  She had thirty years of experience and stayed current on SIDS literature.  Furthermore, the circuit court committed an error of law in finding her testimony unreliable.  “[A] doctor who merely applies his knowledge to everyday experiences does not need to satisfy the additional [reliability prong required by South Carolina law in State v. Council, 335 S.C. 1, 19, 515 S.E.2d 508, 517 (1999)].” 

Summary Judgment

Without expert testimony, Plaintiffs had no direct evidence of whether the monitor was unreasonably dangerous because there was no identification of a specific design flaw.  The court then turned to whether there was sufficient circumstantial evidence of defect to survive summary judgment.  The court clarified it had not foreclosed the use of circumstantial evidence for design defect claims.  “[W]e recognized in [Branham v. Ford Motor Co., 390 S.C. 203, 230, 701 S.E.2d 5, 20 (2010)] that other similar incidents can be used to show a design defect, which is classic circumstantial proof.”  It is up to the trier of fact to determine if it is worth as much merit as direct evidence. 

In this context, the court stated that one cannot draw an inference of defect from the mere fact a product failed.  (Citing Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 333, 391 S.E.2d 868, 870 (Ct. App. 1990)).  A plaintiff must offer evidence beyond the product’s failure to prove a product is unreasonably dangerous.  Testimony by Plaintiffs and other fact witnesses that the alarm did not sound is not sufficient.  “In some design defect cases, expert testimony is required to make this showing because to make this showing because the claims re too complex to be within the ken of the ordinary lay juror.”  Whether expert testimony is required is a matter of law.  In the instant case, the court found as a matter of law that Plaintiffs’ case required expert testimony; it involved design and structure of software.  Therefore, without it, Defendant was entitled to summary judgment.

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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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Case Brief: Campbell v. Robbins Tire and Rubber Company, Inc.

Today's "Case Brief" is Campbell v. Robbins Tire and Rubber Co., Inc., 256 S.C. 230, 182 S.E.2d 73 (1971) and involves a plaintiff who was injured while inflating at tire.  The guy in the video clip is not a plaintiff...he's actually trying to pop the tire tube.  I find his facial expressions of anticipation pretty funny.

Campbell is relatively short case, and I like it because (one can argue) it supports the necessity of expert testimony in a products liability case in order to prove defect.  The mere fact that a product malfunctions does not demonstrate it was defective.  A plaintiff has to prove this critical element.  (Although not exactly the same, this also ties into the fact that South Carolina does not recognize the doctrine of res ipsa loquitor).

FACTUAL BACKGROUND:  Plaintiff purchased two tire tubes manufactured by Defendant.  256 S.C. at 231, 182 S.E.2d at 74.  He put one on his truck, and it exploded during inflation, causing him to be injured.  Id.

PROCEDURE: Plaintiff sued Defendant for negligence in failing to inspect the tube before putting it on the market, in manufacturing a defective tube with weak seams and rubber, and in failing to warn Plaintiff of the defect.  256 S.C. at 232, 182 S.E.2d at 74.  At trial, Plaintiff won a verdict for actual damages.  Id.  Defendant made the appropriate motions during trial for directed verdict and for judgment notwithstanding the verdict on grounds that there was no evidence of defect or actionable negligence.  Id.  These motions were denied, and Defendant appealed.  Id. 

ISSUE(S): Whether the trial court erred in denying Defendant's directed verdict and judgment notwithstanding the verdict motions. 

DISPOSITION: Yes, the trial court was in error.  256 S.C. at 234, 182 S.E.2d at 75.  Reversed and remanded.  Id.

RULES AND OPINION: The court noted that it "elementary" that for Plaintiff to recover, he has the burden of proving defect and that the defect proximately caused his injury.  256 S.C. at 232, 182 S.E.2d at 74. The record showed that Plaintiff testified he had been a service station operator for 15 years, and a large part of his job was repairing, servicing and mounting truck tires.  Id. at 233, 182 S.E.2d at 74.  He testified as to precisely how he went about inflating the tire, including an account of the amount of air pressure in the tire during inflation.  Id.  During this process, the tire exploded.  Id.

The court noted that although Plaintiff offered evidence of injury, there was no evidence going to the issue of defect.  Id. at 233-34, 182 S.E.2d at 75.  Conversely, Defendant had the tube examined and inspected by an independent expert who found no inclusions, cracks, holes, or thin spots.  Id.  The expert confirmed the tube's correct chemical composition and tensile strength, and he offered testimony that the tube was inspected prior to delivery to dealers.  Id.

After reviewing this evidence, the court stated that Plaintiff failed to establish that there was a defect in the tire.  Id. at 234, 182 S.E.2d at 75.  "The burden was on [Plaintiff] to show that the tube was defective and such resulted from the negligent manufacture thereof by the appellant.  The mere fact that the tube exploded does not demonstrate the manufacturer's negligence nor tend to establish that the tube was defective."  Id. (emphasis added).  Viewing the record in the light most favorable to Plaintiff, the court concluded that the only reasonable inference was that Defendant was not guilty of negligence, and the trial judge should have directed a verdict in Defendant's favor.  Id.  The court reversed the trial court and remanded the case for entry of judgment in favor of Defendant.  Id.

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New SC Products Liability Case: Holst v. KCI Konecranes International Corporation

Yesterday, the South Carolina Court of Appeals affirmed summary judgment in Holst v. KCI Konecranes International Corporation, Opinion Number 4736 (Sept. 9, 2010), which can be found here. I have not yet read it in its entirety, but the case involved a man's death when he was crushed under some containers that were being stacked by a crane. The plaintiff alleged that the crane was defective because of visibility limitations from the crane's cab.

At the circuit level, KCI filed a motion for summary judgment on grounds that there were no genuine issues of material facts as to the claimed defective and unreasonably dangerous condition of the crane. KCI asserted asserted additional grounds for summary judgment including comparative negligence and assumption of the risk. In addition to visibility limitations, Holst proposed mounting a closed-circuit video camera on the edge of the crane's trolley as a feasible design alternative to increase the operator's visibility. Holst also argued KCI failed to warn crane users about the crane's sight limitations. The circuit court granted summary judgment, and determined Holst's defective design and failure to warn claims failed as a matter of law.

The Court of Appeals affirmed the decision, and a quick reading indicates that the Court focused on the failure of plaintiff's experts to incorporate the risk-utility test into their analysis. There is also discussion of industry standards, the fault analysis in a negligence theory, and plaintiff's warnings claim. I will try an get a brief up in the next few days, but this looks like an interesting case.

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Ten Takeaways from Branham v. Ford Motor Co.

By Brian A. Comer

I'm sure many folks who have stumbled across my site as a result of the Branham v. Ford Motor Co. case are looking at the case "brief" below, and their eyes are glazing over at its sheer length. Trust me, it took awhile to digest the case and write it. So...what's the "meat of the coconut" as a former colleague of mine used to say? Here are my "Ten Takeaways from Branham v. Ford Motor Co."

(1) Where strict liability and negligence are asserted as product liability claims in South Carolina, failure to prove an element that is common to both results in a directed verdict of both. In other words, if you cannot prove the product was defective and unreasonably dangerous for one of the claims, then the other does not survive either. Although there may be circumstances where one of the claims survives, it depends on the basis of the dismissal of the other claim.

(2) There is no separate "failure to test" claim apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous. (This is significant to me, as "failure to test" has become a prevalent theory, especially in drug and medical device cases).

(3) As a sports talk radio host that I listen to says, "POWWWWWWWWW!!!!"....the consumer expectations test is GONE in a South Carolina design defect case. The risk-utility test is now the exclusive test, and it requires proof of feasible alternative design. Also, in supporting this holding, the Court cited extensively to the Restatement (Third) of Torts: Products Liability, which opens the door to its adoption in South Carolina.

(4) "The use of post-distribution evidence to evaluate a product's design through the lens of hindsight is improper." Admission of it is prejudicial.

(5) Although evidence of other incidents must be "substantially similar" and tend to prove or disprove some fact in dispute to be admissible, this issue is not even examined if the evidence is post-distribution evidence (see number 4). If it is pre-manufacture, then the Court will look at whether the data is relevant to an issue, even if the specific cause of the other incident is not known (e.g., comparative rollover data).

(6) You cannot inflame the passion and prejudice of the jury with inadmissible and prejudicial evidence in your closing argument. Period.

(7) If co-defendants are joint tortfeasors under the law, then it is improper to apportion fault on the jury form.

(8) The "harm to others" prohibition is alive and well in South Carolina when it comes to punitive damages. Trying to convince a jury that they should punish a manufacturer for all other injuries/deaths/etc. is forbidden by South Carolina and federal authority.

(9) When it comes to evidence for punitive damages, net worth is the safest harbor. Although admission of extrapolated financial data (down to hourly and daily income) has not been found to be abuse of discretion, the Court indicated there could be a limit to this kind of evidence. Furthermore, if you start getting into compensation of executives, stock options, etc., you are asking for reversal on the basis of prejudice.

(10) Courts have authority to re-align parties at any time and at their discretion.

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Case Brief: Branham v. Ford Motor Co.

By Brian A. Comer

Below is a case brief of the South Carolina Supreme Court's August 16, 2010 decision in Branham v. Ford Motor Co. (first posted about here). This is not that "brief," but bear in mind that the majority opinion alone is about 25 pages and will probably be the new authority on products liability law in South Carolina for years to come.

FACTUAL BACKGROUND: Cheryl Hale ("Hale") purchased a used 1987 Ford Bronco II 4x2 in June of 1999. The vehicle was manufactured in 1986 and had 137,500 miles on it. On June 17, 2001, Hale was driving with her child in the passenger seat and Plaintiff Jesse Branham, III ("Plaintiff") in the backseat. No one was wearing a seatbelt. Hale turned to the backseat to ask the children to quiet down. When doing this, she veered toward the shoulder of the road and the right wheel left the roadway. She responded by overcorrecting to the left. The overcorrection led to the vehicle rolling over, and Plaintiff was thrown from the vehicle and injured.

PROCEDURE: Plaintiff filed a lawsuit against Ford and Hale in Hampton County. Plaintiff did not seriously pursue the case against Hale. The case against Ford was based on two product liability claims (a defective seatbelt sleeve claim and a "handling and stablility" design defect claim relating to the rollover). Both claims were pursued in negligences and strict liability. The jury awarded the plaintiff $16 million in actual damages and $15 million in punitive damages. Ford appealed the verdict pursuant to Rule 204(b) of the South Carolina Appellate Court Rules.

ISSUES: Ford raised issues on appeal relating to (i) the design defect claim (including whether negligence could survive if the trial court granted a directed verdict on strict liability, as well as the proper test for determining if a product is defective and unreasonably dangerous in a design defect claim), (ii) the admission of post-distribution evidence, evidence of other similar incidents, and use of certain evidence during closing arguments, as well as the format of the verdict form, and (iii) the excessiveness of actual and punitive damages. The Court also addressed the issue of the alignment of the parties.

DISPOSITION: Affirmed in part, reversed in part, and remanded for a new trial.

RULES AND OPINION: Set forth below is a summary of the Court's opinion, providing headings concerning the subject matter and primary holdings in bold-faced type.

Design Defect Claims

First, the Court held that the trial court erred in directing a verdict on Plaintiff's strict liability seatbelt claim, but not on the same claim brought in negligence. At trial, Plaintiff claimed that Ford was negligent in failing to adequately test the seatbelt sleeve, but did not challenge the seatbelt sleeve design. Plaintiff had also brought a companion strict liability claim. The trial court directed a verdict on the strict liablity claim, but not on the negligence claim. Because the two claims have common elements (namely, the requirement that the product be in a defective and unreasonably dangerous condition), Ford argued that the negligence claim should have also been dismissed. The Court agreed: "When an element common to multiple claims is not established, all related claims must fail." Whether or not the manufacturer was at fault -- the additional element required for a products liability claim brought pursuant to a negligence theory -- is not even reached if a plaintiff cannot prove the predicate element of defective and unreasonably dangerous condition of the product. The Court distinguished the Court of Appeals decision in Bragg v. Hi-Ranger on this issue and emphasized that the critical inquiry as to whether one of the claims survives (where the other is dismissed) is the grounds for the dismissal. Significantly, the Court also agreed with Ford's argument that there is no separate "failure to test" claim apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous. If the product is not defective and unreasonably dangerous, then failure to test cannot be a proximate cause of an injury.

With regard to the "handling and stability" design defect claim, the Court did not find error in the trial court's submission of these design defect claims to the jury. In reaching this determination, the Court reviewed certain testimony by Plaintiff's expert Dr. Melvin Richardson, former Ford Vice President Thomas Feaheny, and certain internal Ford documents relied upon by Dr. Richardson. In short, the Court discussed the evolution of the Bronco II's suspension, including competing views by Ford engineers and Ford executives about the different suspension options, including the "MacPherson" suspension and the "Twin I-Beam" suspension. The testimony and evidence related to the stability of the vehicles while using alternative suspensions, how using the different suspension options would affect rollout of new models, how they would impact other features of the vehicle, and the procedures and motivations behind selecting certain suspension options. Dr. Richardson testified that from all of the evidence, the Bronco II was "dangerously unstable" when it was designed and built, and that no improvements were made to correct this defect. After reviewing the evidence that was presented, the Court agreed with the trial judge's determination that Plaintiff presented sufficient evidence of a design defect known to Ford at or prior to the date of manufacture to withstand a directed verdict motion.

Next, the Court disagreed with Ford's contention that Plaintiff failed to provide evidence of a reasonable alternative design pursuant to the risk-utility test, but agreed that South Carolina law requires a risk-utility test in design defect cases (to the exclusion of the consumer expectations test.) The Court reviewed the prior opinions summarizing the two tests in Claytor v. General Motors Corp., 277 S.C. 259, 262, 286 S.E.2d 129, 131 (1982) and Bragg v. Hi-Ranger, 319 S.C. 531, 543, 462 S.E.2d 321, 328 (Ct. App. 1995). [The two tests are summarized here, as stated in Bragg]. After reviewing the prior case law, the Court again reviewed the competing suspension options (summarized above) and believed that Plaintiff's focus on the Macpherson suspension was evidence of feasible alternative design. The Court stated that whether this alternative satisfied the risk-utility test was a jury question, but the evidence itself was sufficent to survive a directed verdict motion. The Court then held that "the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design." While the consumer expectations test fits well in manufacturing defect cases, the Court agreed with Ford that it is ill-suited in design defect cases. The Court noted that in 1974, South Carolina's Legislature adopted the Restatement (Second) of Torts section 402(A) (1965) and identified its comments as legislative intent in S.C. Code section 15-73-10 through 15-73-30. However, since this adoption, the Court noted that the American Law Institute has published the Restatement (Third) of Torts: Products Liability (1998), and that this edition moved away from the consumer expectations test for design defects, and toward the risk-utility test. The Court stated that it did not believe that the Legislature intended to foreclose court consideration of developments in products liability law. The Court noted that its approval of the risk-utility test in the Claytor case had not prompted a legislative response, and the overwhelming majority of jurisdictions now employ some form of the risk-utility test.

We believe that in design defect cases the risk-utility test provides the best means for analyzing whether a product is designed defectively. Unlike the consumer expectations test, the focus of a risk-utility test centers upon the alleged defectively designed product. The risk-utility test provides objective factors for a trier of fact to analyze when presented with a challenge to a manufacturer's design. Conversely, we find the consumer expectations test and its focus on the consumer ill suited to determine whether a product's design is unreasonably dangerous.

The court reviewed prior cases in which there was an emphasis on showing a feasible alternative design in the context of a risk-utility analysis, including Claytor, Bragg, Kennedy v. Custom Ice Equip. Co., 271 S.C. 171, 176, 246 S.E.2d176, 178 (1978), Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 334, 391 S.E.2d 868, 870 (Ct. App. 1990), and Gasque v. Heublein , Inc., 281 S.C. 278, 283, 315 S.E.2d 556, 559 (Ct. App. 1984). [A review of feasible alternative design law preceding Branham v. Ford Motor Co. can be found here]. The Court noted as follows:

The very nature of feasible alternative design evidence entails the manufacturer's decision to employ one design over another. This weighing of costs and benefits attendant to that decision is the essence of the risk-utility test.

The Court then cited to the Restatement (Third) of Torts: Products Liability section 2(b) (1998) and University of South Carolina Professor David Owen's article Toward a Proper Test for Design Defectiveness: "Micro-Balancing" Costs and Benefits, 75 Tex. L. Rev. 1661, 1687 (1997) to support the risk-utility test and reasonable alternative design (as a requirement of same). The Court stated that the core of the risk-utility balancing test is whether a product was made safe enough, but cautioned that it also adhered to its longstanding principle that just because a product can be made safer does not mean that the product is defective and unreasonably dangerous.

Evidentiary Issues Justifying

Reversal and Remand for New Trial

Notwithstanding the sufficiency of the evidence to withstand a directed verdict on the handling and stability design defect claim, the Court reversed and remanded the case for a new trial, citing three reasons.

First, Ford was prejudiced by Plaintiff's unrelenting pursuit of post-distribution evidence on the issue of liability. The Court reviewed South Carolina's requirement that a plaintiff must show the product was in a defective condition "'at the time that it left the hands of the particular seller.'" (quoting Claytor v. Gen. Motors Corp., 277 S.C. 259, 264, 286 S.E.2d 129, 131-32 (1982). Post-distribution evidence is "evidence of facts neither known nor available at the time of distribution." The Court again cited to Restatement (Third) of Torts: Products Liability section 2, cmt. a (1998) to support that assessing liability in a products liability claim requires evaluation of a manufacturer's decision based on what was known or "reasonably attainable" at the time of manufacture.

The use of post-distribution evidence to evaluate a product's design through the lens of hindsight is improper.

The Court reviewed numerous examples of post-distribution evidence emphasized by Plaintiff at trial and through Dr. Richardson to support a higher rollover tendency of the Bronco II t(evidence hat came to light after manufacture). The Court found this evidence to be prejudicial and stated that "the law should encourage manufacturers to continue to improve their products in terms of utility and safety free from prior design decisions judged through the lens of hindsight."

Second, the trial court agreed that admission of certain post-distribution "other incident" evidence was prejudicial to Ford, but also ruled against Ford on certain pre-manufacture "other incident" evidence. The Court surveyed South Carolina's law that similar accidents are admissible if the tend to prove or disprove some fact in dispute. However, the Court noted that it need not even address whether certain post-distribution evidence admitted into evidence was "substantially similar." "The post-manufacture evidence of purported similar incidents was error, even if the 'substantially similar' threshold was met." The Court reiterated that post-manufacture evidence of similar incidents is not admissible to provide liability. The Court then reviewed the pre-manufacture rollover data introduced by Plaintiff with regard to the Bronco II and other vehicles in the same class. The Court disagreed with Ford's contention that the pre-manufacture comparative evidence of rollover accidents violated the "substantially similar" test articulated in Whaley v. CSX Transportation, Inc., 362 S.C. 456, 483, 609 S.E.2d 286, 300 (2005) and revisited in Watson v. Ford Motor Co., Op. No. 26786 (S.C. Sup. Ct. filed Mar. 15, 2010) (Shearouse Adv. Sh. No. 10 at 37). Even though there was no showing that the cause of the other accidents was similar to the Plaintiff's rollover accident, the Court found that the rate of rollover of the Bronco II compared to other vehicles was relevant to whether the Bronco II had an unreasonably dangerous tendency to rollover. The Court was not persuaded by Ford's arguments that many accidents may be attributable to inexperienced or impaired drivers, or that Hale's inattention was the cause of the accident.

Third, Plaintiff's counsel's closing argument was designed to inflame and prejudice the jury. The Court provided six different examples of excerpts from the closing argument that served as examples of its inflammatory and prejudicial content. The Court also noted that much of the argument was based on inadmissible evidence.

Next, in light of the remand for a new trial, (and without addressing whether it was prejudicial to Ford) the Court held that the trial court's requirement that jthe ury apportion liability between Ford and Hale on the verdict form was error. Because the accident occurred in 2001, Ford and Hale were joint tortfeasors, meaning that they were jointly and severably responsible for all damages. Therefore, there could be no apportionment of fault. The Court noted that that it had reaffirmed the applicability of joint and several liability among joint tortfeasors since adopting the doctrine of comparative negligence. The Court further rejected the trial court's rationale that the apportionment was necessary to ensure that any punitive damages award was based on negligence, and not strict liability (for which punitive damages are not recoverable, discussed here).

Excessiveness of Damages Issues Raised by Ford

Next, the Court addressed the jury's award of $16 million in actual damages and $15 million in punitive damages. In light of the remand for a new trial, the Court found it unnecessary to resolve Ford's claim that the actual damages award was grossly excessive.

With regard to punitive damages, the Court found that the issue was properly submitted to the jury, but agreed that the award could not withstand constitutional scrutiny. Because of the new trial, the Court addressed Plaintiff's reliance on "harm to others" in the closing argument. A central theme of the closing argument was that the jury should punish Ford for harming all Bronco II rollover victims. The trial court charged the jury not to punish Ford for other "conduct." The Court found that this charge violated the "harm to others" prohibition because by focusing on conduct, as opposed to harm to Plaintiff, the charge invited the jury to punish Ford for all Bronco rollover deaths and injuries, which is forbidden by Durham v. Vinson, 360 S.C. 639, 653, 602 S.E.2d 760, 767 (2004) and Philip Morris USA v. Williams, 549 U.S. 346, 350, 353 (2007).

With regard to financial data, the Court stated that South Carolina upholds that the wealth of a defendant is a relevant factor in assessing punitive damages. The Court reviewed Plaintiff counsel's focus on extrapolating financial data in such a manner so as to break it down in terms of daily income, hourly income, etc. Although prior opinions have not found abuse of discretion in the admission of per day earnings of a defendant, the Court believed that evidence of "net worth" appears to be the safest harbor and directed that the retrial be confined to such evidence. The Court also found that the Plaintiff's introduction Ford's senior management compensation (including salaries, bonuses, stock options, etc.) to be error and highly prejudicial.

Alignment of Parties

Finally, the Court addressed Ford's claim that the trial court should have realigned Hale as a plaintiff. Although the Court did not find that this issue was preserved for review, it addressed it "in the hope that our speaking to the matter will aid the bench and the bar." The Court reviewed the evidence at trial to support that Hale sat on the plaintiff's side during the trial and only cross examined one witness for Plaintiff (and the sole question to Plaintiff's economic expert was, "How many millions are in a billion?"). The Court concluded that the only bona fide defendant in the case was Ford. The Court reviewed Rule 21 of the South Carolina Rules of Civil Procedure and its federal counterpart, as well as federal and state authority interpreting them. From this review, the Court adopted the rule that trial court's have the authority to realign parties "at any state of the action." It is within the sound discretion of the trial court and will not be disturbged on appeal absent a showing of an abuse of discretion and resulting prejudice.

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New SC Products Liability Decision

The South Carolina Supreme Court handed down a massive products liability decision in yesterday's advance sheets, Branham v. Ford Motor Company, Opinion Number 26860 (Aug. 16, 2010). The case can be found here and beginning on page 52 here. This opinion is over 40 pages long in the Advance Sheets, and a quick skim indicates that it may be a tutorial for years to come on South Carolina products liability law.

I have only had time for a quick skim, but the case involves the rollover of a 1987 Ford Bronco II 4x2 manufactured in 1986. At trial, a minor passenger brought suit against the driver and Ford, and the jury awarded $16 million in actual damages and $15 million in punitive damages. In its opinion, the South Carolina Supreme Court reverses and remands the findings of liability and award of actual damages. The bases for this decision are (1) that whether a product is defective is measured on the basis of information available at the time of manufacture, and post-manufacture evidence is generally not admissible, (2) the plaintiff introduced evidence of other incidents that was not substantially similar to the accident in dispute, and (3) the closing argument was a direct appeal to the passion and prejudice of the jury.

Folks, this opinion has a TON of information relating to design defect theories, post-distribution evidence, admissibility of similar incidents, appropriateness of closing arguments, verdict forms, apportionment of fault among tortfeasors, actual and punitive damages, and "alignment of parties." And check out this language:

While 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. We hold today that the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design. In doing so, we recognize our Legislature's presence in the area of strict liability for products liability.

We now have clear direction from South Carolina's Supreme Court on the consumer expectations and risk-utility tests (summarized here), and we also have clear direction on whether feasible alternative design is a required element (the subject of this post).

This case will definitely will be the subject of a forthcoming brief, but clearly it is one that will be required reading.

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Very Nice Prose, Your Honor

By Brian A. Comer

I'm working on an article and came across the late Judge K.K. Hall's opinion in Vaughn v. Nissan Motor Corp., 77 F.3d 736 (4th Cir. 1996) (applying South Carolina law). As quick background, Vaughn is an automotive case in which the plaintiff filed a products liability action for injuries sustained due to an allegedly defective voltage regulator. The plaintiff claimed that the voltage regulator failed while she was driving, which caused excessive current, which caused the battery fluid to boil. She claimed that she inhaled the toxic fumes and suffered from vocal chord dysfunction and reactive airway dysfunction syndrome, a severe form of asthma.

I'll brief the case at a later date. For the time being, my only reason for doing a blog post on the case is that I liked how the judge described the concept of "defect" under South Carolina law. Aside from its entertainment value, I think it would go a long way toward explaining the concept to a jury.

Not every “defect,” as the term is commonly used, subjects a seller to strict liability. The “defect” must cause the product to be unreasonably dangerous. A car with a bad radio is not unreasonably dangerous; a car with bad brakes may be. Moreover, whether the defect causes the product to be “unreasonably dangerous” is measured by the “ordinary consumer” for whom the product is designed. A circular saw would be quite dangerous if used by a blind man, but a properly designed and manufactured saw is safe and useful to an ordinary person. Consequently, circular saws are not per se defective, notwithstanding a fingerless blind man here and there.

Very nice prose, Your Honor. The lesson? If you come across any fingerless blind men, it's best not to bring up the subject of power tools.

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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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Case Brief: Anderson v. Green Bull, Inc.

By Brian A. Comer

Today's case brief is Anderson v. Green Bull, Inc., 322 S.C. 268, 471 S.E.2d (Ct. App. 1996). This is a warnings case, and it stands for the principle that a seller is not liable for injuries caused by a product if there is an an adequate warning and the user fails to follow it. Furthermore, there is no duty to warn of common or obvious dangers.

FACTUAL BACKGROUND: Joe McLees ("Deceased") was working with another employee of Tucker Roofing ("Tucker") to replace a roof on a house. 322 S.C. at 270, 471 S.E.2d at 710. Two high-voltage power lines ran over the top of the house. Id. While they were moving an aluminum conveyor ladder, the Deceased was electrocuted and the other employee was injured. Id. Green Bull sold the ladder to Tucker, and Tucker assembled it, without modifications. Id. The ladder contained a red warning label that read, "KEEP ENTIRE UNIT CLEAR OF ALL UTILITY AND ELECTRICAL WIRING." Id.

PROCEDURE: The Deceased's personal representative ("Plaintiff") brought a strict liability action against Green Bull. 322 S.C. at 269, 471 S.E.2d at 709-10. At the close of evidence, Green Bull moved for directed verdict, which was denied. Id. at 269, 471 S.E.2d at 710. The jury returned a $50,000 verdict for the Plaintiff. Id. Green Bull moved for a judgment notwithstanding the verdict, which the trial court also denied. Id. Green Bull then appealed to the South Carolina Court of Appeals. Id.

ISSUES: Whether the trial court should have granted Green Bull's motions for directed verdict and judgment notwithstanding the verdict. 322 S.C. at 269-70, 471 S.E.2d at 710.

DISPOSITION: The South Carolina Court of Appeals reversed the decision of the trial court. 322 S.C. at 269, 471 S.E.2d at 710.

RULES AND OPINION: For any strict liability claim, a plaintiff must prove that the injury occurred because the product was in an unreasonably dangerous, defective condition. 322 S.C. at 270, 471 S.E.2d at 710. To prevent a product from being unreasonably dangerous, a seller may be required to provide a warning on the product concerning its use. Id. As stated by the court:

A product bearing a warning that the product is safe for use if the user follows the warning is neither defective nor unreasonably dangerous; therefore, the seller is not liable for any injuries caused by the use of the product if the user ignores the warning. Further, a seller is not required to warn of dangers or potential dangers that are generally known or recognized. It follows, then, that a product cannot be deemed either defective or unreasonably dangerous if a danger associated with the product is one that the product's users generally recognize.

Id. at 270-71, 471 S.E.2d at 710 (citations omitted). On this basis, there was no evidence to infer that the roofers' injuries were caused by a defect in the ladder. Id. at 271, 471 S.E.2d at 710. It is commonly known that aluminum ladders should be kept away from power lines. Id. at 271, 471 S.E.2d at 711. Plaintiff also argued that the jury could have reasonably found that the accident resulted from "arcing" (i.e., where an electrical current "jumps" into a conductive source without direct contact), and that arcing is not common knowledge. Id. at 272, 471 S.E.2d at 711. However, the court said that there was no evidence from which a jury could reasonably conclude that arcing most probably took place. Id. For these reasons, the trial court erred in denying Green Bull's motions for directed verdict and judgment notwithstanding the verdict. Id.

CONCURRING OPINION (Cureton, J.): Judge Cureton concurred with the majority, but stated that the question presented was "whether Green Bull, knowing the foreseeable use of the ladder, had a duty to warn its users against the hazard of bringing the ladder into contact with electrical lines, and if so, whether the warning it placed on the ladder was adequate." 322 S.C. at 273, 471 S.E.2d at 712. Judge Cureton agreed that Green Bull had a duty to warn, but found that the warning provided by Green Bull was adequate. Id. at 273-74. 471 S.E.2d at 712.

DISSENTING OPINION (Howell, C.J.): Chief Judge Howell framed the issue as "not whether the trial judge considers the product unreasonably dangerous, but what the evidence reflects may reasonably be regarded as unreasonably dangerous." 322 S.C. at 275, 471 S.E.2d at 713. He reviewed the evidence concerning the use of fiberglass, how it would change the composition, utility and weight of the ladder, and the state of the art. Id. at 276-77, 471 S.E.2d at 713-14. Based on the evidence, Chief Judge Howell dissented because he believed that "there was ample competent evidence in the record for the trial judge to submit the issue of whether the ladder was defective by design to the jury." Id. at 277, 471 S.E.2d at 714.

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Case Brief: Kennedy v. Custom Ice Equipment, Inc.

By Brian A. Comer

Today's brief is of Kennedy v. Custom Ice Equipment Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978). The is a product modification case, and it is significant because it discusses how a product may be defective if a third-party modification was foreseeable and should have been incorporated into the design. This is a pretty short case, and you can probably read it in its entirety in about the same amount of time that it takes to read this brief.

Factual Background: Plaintiff was employed at Georgetown Ice Company ("Georgetown"), which manufactured and distributed crushed ice. 271 S.C at 173, 246 S.E.2d at 177. Defendant Custom Ice Equipment, Inc. ("Defendant") designed and installed the machinery used by Georgetown. Plaintiff was instructed to empty the ice storage bins, which were supplied by an overhead conveyor that carried the ice from the ice-maker to the bins. Id. The ice was removed through an opening at the underside of the bin, through which the ice falls when a trap door is opened. Id. If the ice froze up and would not fall out, it had to be physically dislodged. Id. Georgetown had constructed a wooden "catwalk" beside the storage bins so that employees could reach in the bins and break up the frozen ice with a garden hoe. 271 S.C. at 173-74, 246 S.E.2d at 177. Plaintiff attempted to do this and was drawn into the overhead conveyor, ripping his arm off. 271 S.C. at 174, 246 S.E.2d at 177.

Procedure: Plaintiff alleged causes of action against defendant for negligent design of the overhead conveyor and for strict liability. 271 S.C. at 174, 246 S.E.2d at 177. Defendant moved for a directed verdict as to both causes of action, which were denied. Id. The case was submitted to the jury, and a verdict was returned for $208,000. Id.

Issues: Defendant appealed the denial of its motions for directed verdict as to both of Plaintiff's causes of action. 271 S.C. at 174, 246 S.E.2d at 177. The South Carolina Supreme Court reviewed the evidence for both causes of action.

Disposition: The court affirmed the decisions of the trial court. 271 S.C. at 175, 176, 246 S.E.2d at 178.

Rules and Opinion: With regard to the negligence action, Defendant alleged that the overhead conveyor was designed and installed without protective shields because its height rendered it unforeseeable that someone would come into close contact with the exposed portions of the rapidly-turning auger. 271 S.C. at 175, 246 S.E.2d at 177. Defendant compared the danger to that of a high tension power line (i.e., dangerous, but inaccessible). Id. Defendant also claimed that the risk from the conveyor was open and obvious; therefore, the Plaintiff was contributorily negligent by climbing up the conveyor. Id. Plaintiff presented evidence that ice "bridging" was a common problem in the industry and that Defendant was aware of the need to come into close contact with the conveyor to dislodge the ice. 271 S.C. at 175, 246 S.E.2d at 178. There was also evidence that Defendant knew that it was common to reach into the storage bins with garden hoes to dislodge the ice. Id. Because of the conflicting evidence , the trial judge did not err in submitting the negligence claim to the jury. Id. The court stated that questions of negligence, proximate cause, and contributory negligence are ordinarily questions of fact for the jury. Id.

With regard to the second cause of action, Defendant alleged that the screw conveyor was not defective when installed because of the insulation provided by the conveyor's height; therefore, Georgetown's modifications (i.e., constructing the catwalk) created the defect. 271 S.C. at 176, 246 S.E.2d at 178. Plaintiff admitted to the modification, but offered evidence that Defendant had actual knowledge of the construction and use of catwalks in other plants, and therefore Defendant should have foreseen the use of the catwalk. Id. Plaintiff argued that failure to anticipate the foreseeable use of the catwalk by placing protective shields on the conveyor rendered the design of the conveyor defective. Id. The court stated:

The test of whether a product is defective when sold is whether the product is unreasonably dangerous to the consumer or user given the conditions and circumstances that will foreseeably attend the use of the product. Under this test, the jury could have determined that the construction of the catwalk by Georgetown was a foreseeable circumstance that required the incorporation of protective shields in the design of the conveyor.

Id. (but see note below). Therefore, the court held that the evidence created a factual question of whether the Plaintiff's injuries were proximately caused by a defect in the product as designed, or by an unforeseeable modification by a third party. Id. The court contrasted its holding in Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E. 2d 671 (1978), where the only reasonable inference was that the product was not defective as designed. 271 S.C. at 176-77, 246 S.E.2d at 178.

Notes: This case preceded Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995, which also set forth a second test for determining whether a product is in a defective condition, unreasonably dangerous (i.e., the risk-utility test). See Bragg, 319 S.C at 543-44, 462 S.E.2d at 328.

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Case Brief: Dema v. Shore Enterprises, Ltd.

By Brian A. Comer

Today's case brief is of Dema v. Shore Enterprises, Ltd., 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993). The case is most often cited for for the principle that "a product is not defective for failure to warn of the obvious." Id. at 530, 435 S.E.2d at 876. This is a short case, and you can probably read it in its entirety in about as much time as it takes to read this brief.

Factual Background: Plaintiff Dema was body surfing on a public beach and collided with a recreational vehicle known as an Aqua-Cycle. 312 S.C. at 529, 435 S.E.2d at 875-76.

Procedure: Plaintiff and his wife brought a products liability action against various individuals and entities, including the Aqua-Cycle manufacturer. 312 S.C. at 529, 435 S.E.2d at 876-77. At trial, Plaintiffs claimed that the failure to place certain warnings on the watercraft (to "watch out for swimmers" and to "avoid strong current, wind or waves") made the craft defective and unreasonably dangerous. Id. at 530, 435 S.E.2d at 876. The trial court granted a directed verdict in favor of the manufacturer as to the Plaintiffs' claims for strict liability, breach of implied warranty, and negligence because it found that failure to place a warning on the watercraft was not the proximate cause of the injuries. Id. Plaintiffs also claimed at trial that the town was negligent in allowing Aqua-Cycles to be used on the beach in the vicinity of swimmers. Id. at 531, 435 S.E.2d at 876. The trial court granted a directed verdict on the ground that there was no evidence that the town had actual notice of a defective or dangerous condition as required under the South Carolina Tort Claims Act. Id. The jury found in favor of the remaining defendants on the remaining claims. Id. at 530, 435 S.E.2d at 875.

Issues: The Plaintiffs appealed from the directed verdicts in favor of the (1) manufacturer, and (2) the Town of Hilton Head. 312 SC. at 530, 435 S.E.2d at 875.

Disposition: The South Carolina Court of Appeals affirmed the trial court. 312 S.C. at 530, 435 S.E.2d at 875.

Rules and Opinion: With regard to the first issue, the South Carolina Court of Appeals first reviewed the three elements that a plaintiff must establish in any products liability claim. 312 S.C. at 530, 435 S.E.2d at 876. The only element in dispute was whether "the injury occurred because the product was in a defective condition unreasonably dangerous to the user." Id. The court reviewed the evidence to determine, in the light most favorable to the nonmoving party, whether the evidence was susceptible to the reasonable inference that the Aqua-Cycle was defective. Id. "A product is not defective for failure to warn of the obvious." Id. (citing Koester v. Carolina Rental Ctr., Inc., 311 S.C. 115, 427 S.E.2d 708 (Ct. App. 1993)). The evidence was indisputable that Aqua-Cycle users would be aware, based on common sense, that they should be careful around swimmers in the surf. Id. at 530-31, 435 S.E.2d at 876. Because of the obviousness of the risk, the manufacturer did not have a duty to warn users of the Aqua-Cycle of the risk. Id. It affirmed the trial court's directed verdict in favor of the manufacturer. Id.

With regard to the second issue, the South Carolina Court of Appeals stated that it did not need to determine whether the town had notice of a dangerous condition. 312 S.C. at 531, 435 S.E.2d at 876. Instead, because the jury found that the franchisee (Shore Enterprises) was not negligent in renting Aqua-Cycles, it could not have found the town liable for allowing the franchisee to rent the Aqua-Cycle that Plaintiff Dema collided with. Id. at 531, 435 S.E.2d at 877.

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Case Brief: Sunvillas Homeowners Ass'n, Inc. v. Square D Co.

By Brian A. Comer

Today's brief is of Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 391 S.E.2d 868 (Ct. App. 1990). The case is most often cited for for the principle that the mere fact that a product malfunctions does not establish the manufacturer's negligence or that the product was defective.

Factual Background: A fire occurred at a beachfront condominium project. Square D manufactured a circuit breaker utilized in the project. 301 S.C. at 332, 391 S.E.2d at 869.

Procedure: Sunvillas Homeowners Association ("Sunvillas") sued various defendants to recover damages resulting from the fire, and the only defendant involved in the appeal was Square D. 301 S.C. at 332, 391 S.E.2d at 869. Sunvillas claimed the circuit breaker was negligently designed or manufactured. Id. At the end of the plaintiff's case, Square D made a motion for directed verdict, which the trial judge granted. Id. "Square D then moved to amend the complaint to conform to the proof on the issue of warranty. The trial judge denied the motion the basis that he had already directed a verdict when the motion was made." Id. at 334, 391 S.E.2d at 870.

Issues: The two issues on appeal were (1) whether the trial judge erred in granting Square D's motion for a directed verdict at the end of the plaintiff's case, and (2) whether the trial judge erred in denying the motion to amend Sunvillas complaint to add a breach of warranty claim. 301 S.C. at 332, 391 S.E.2d at 869.

Disposition: The South Carolina Court of Appeals affirmed the decisions of the trial court.

Rules and Opinion: The court first addressed the granting of the directed verdict motion. 301 S.C. at 332-34, 391 S.E.2d at 869-70. Sunvillas employed the services of an expert qualified in electrical engineering and origin of electrical fires. Id. at 332, 391 S.E.2d at 870. The expert sent the circuit breaker to Square D for analysis, but he did not agree with their opinion that the cause of the malfunction was water and waterborne contaminants which had followed the top lead-in wires into the breaker. Id. He agreed that there was corrosion in the breaker, but denied that it was the cause of the failure. Id. Though he could not identify the defect, he based his opinion of product defect on the fact that the breaker malfunctioned. Id. In affirming the trial court's directed verdict for Square D, the court stated that "[t]he mere fact that a product malfunctions does not demonstrate the manufacturer's negligence nor tend to establish the product was defective." Id. at 333, 391 S.E.2d at 870. Though negligence may be proven by circumstantial evidence, "the plaintiff must show such circumstances as would justify the inference that the damages suffered were due to the negligent act of the defendant and the question may not be left to mere conjecture or speculation." Id. at 334, 391 S.E.2d at 870. Sunvillas' expert did not testify about design alternatives, and he did not identify a specific defect in the breaker that was the result of a manufacturing error. Id. The jury would have been left to speculate about the how Square D failed to exercise due care, so the trial court was correct in granting the directed verdict. Id.

With regard to the denial of plaintiff's motion to amend the complaint, this issue is somewhat confusing because the court's decision is not entirely clear on who moved for the amendment of the complaint. At the outset of the opinion, the court states that Sunvillas made the motion. 301 S.C. 332, 391 S.E.2d at 869. However, at the beginning of the discussion, the court states that "Square D moved to amend the complaint to conform to the proof on the issue of warranty." Id. at 334, 391 S.E.2d at 870. Later, the court again states that it was Sunvilla's motion. Id. at 335, 391 S.E.2d at 871. Regardless, the court stated that the motion was governed by S.C.R.C.P. 15(b) and that there was no evidence that the issue of implied warranty was tried by express or implied consent. Id. Sunvillas chose to plead only negligence, and "[i]t did not move to amend until after the trial judge had ruled against it on a directed verdict motion." Id. The court agreed with commentators that the opposing party may not be conscious of the relevance of certain evidence to issues not raised by the pleadings if that matter is not made clear. Id. "Since defect of the project was relevant to neglengence as well as warranty and we find no indication of implied consent to try a warranty claim, we affirm the trial court's decision to deny the motion." Id. The second portion of S.C.R.C.P. 15(b) (dealing with objection to the introduction of evidence as being not within the pleadings) was not applicable to the case. Id.

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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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Case Brief: Bragg v. Hi-Ranger

By Brian A. Comer and Felicia Sampson

Today's brief is of Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995). Along with Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E. 2d 671 (1978), Bragg is probably the most important products liability law case in South Carolina. Therefore, my apologies that this "brief" is not that short, but again...there's a lot to this case.

Special thanks to Felicia Sampson, a summer associate who just completed her first year of law school at the University of South Carolina School of Law, who took the lead on writing this case brief.

FACTUAL BACKGROUND: The decedent, a lineman employed by Y.C. Ballenger Electrical Contractor ("Ballenger"), died as a result of injuries sustained from jumping out of an aerial bucket manufactured by Hi-Ranger, Inc. ("Hi-Ranger") when the bucket caught on fire. Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 534, 462 S.E.2d 321, 323 (1995). The decedent had been using a hydraulically-driven wrench that was being fed hydraulic fluid under pressure by two hoses. Id. at 535, 462 S.E.2d at 324. The bucket caught fire when the conductive tool hose attached to the wrench came in contact with energized power lines. Id. "Quick disconnect couplings" used for connecting hydraulic tools were installed near the bucket. Id. at 536, 462 S.E.2d at 324. Once a tool is disconnected, the couplings prevented the hydraulic fluid from flowing. Id. at 535, 462 S.E.2d at 324. However, before the accident, a Ballenger mechanic had improperly installed a black conductive hose rather than the proper orange non-conductive hose. Id. Several linemen testified that they knew non-conductive hoses should be used on the aerial bucket, but that they did not know orange hoses were non-conductive and black hoses were conductive. Id. 535-36, 462 S.E.2d at 324.

PROCEDURE: The Plaintiff, personal representative of the decedent’s estate, brought an action against Hi-Ranger alleging claims based on strict liability, implied warranties, and negligence. Bragg, 319 S.C. at 534, 462 S.E.2d at 323. At trial, the Plaintiff presented expert evidence regarding design and warning defects. Id. at 535-36, 462 S.E.2d at 324. Hi-Ranger asserted defenses of contributory negligence, assumption of risk, intervening negligence, substantial change in the product after sale, open and obvious danger, and misuse of the product under S.C. Code Ann. § 15-73-20 (1976). Id. at 534, 462 S.E.2d at 323. Hi-Ranger moved for a directed verdict on each cause of action. Id. The trial court granted Hi-Ranger a directed verdict on the strict liability and warranty claims, and the jury returned a verdict in favor of Hi-Ranger on the negligence claim. Id. The Plaintiff appealed, arguing that the court’s decision to grant the motion for directed verdict on the strict liability claim—while denying the motion for directed verdict on the negligence claim—was illogical. Id. at 538, 462 S.E.2d at 325. The Plaintiff also appealed several portions of the trial court's jury charge. Id. at 534, 462 S.E.2d at 323.

ISSUES: The court analyzed whether strict liability and negligence are mutually exclusive theories of recovery such that failure to prove one theory would preclude proving the other. Bragg, 319 S.C. at 538-39, 462 S.E.2d at 325-26. The court also addressed the sufficiency of certain jury charges, including (1) whether a manufacturer has a duty to warn previous-purchasers about safety devices developed after the time of sale, or (2) whether a manufacturer has a duty to retrofit products with later-developed safety devices if the products were not defective based on the standards existing at the time of manufacture or time of sale. Id. at 547-49, 462 S.E.2d at 330-31. Finally, the court addressed whether the sophisticated user defense is appropriate where the manufacturer, regardless of the intermediary's actual knowledge, reasonably assumed that the intermediary would know the danger involved in using the product and take steps to protect its employees. Id. at 549-51, 462 S.E.2d at 331-32.

DISPOSITION: The court affirmed the judgment in favor of Hi-Ranger. Bragg, 319 S.C. at 551, 462 S.E.2d at 332.

RULES AND OPINION: The theory of strict liability and the theory of negligence are not mutually exclusive, and failure to prove one does not preclude proving the other. Bragg, 319 S.C. at 539, 462 S.E.2d at 326. In order to prove any products liability theory, the plaintiff must prove (1) the product injured him, (2) the injury was a result of the product's defective condition which rendered the product unreasonably dangerous to the user, and (3) at the time of the accident, the product was in the same condition as it was when it left the defendant's control. Id. Under a negligence theory, the plaintiff must also prove that the defendant failed to exercise due care. Id. The conduct of the seller or manufacturer is at issue in a negligence theory, whereas a strict liability theory focuses on a product's condition. Id. at 539-40, 462 S.E.2d at 326. It is possible for a manufacturer to be liable under a negligence theory without being liable under a strict liability theory because under strict liability, the manufacturer is not responsible for all losses caused by the product, but only for losses caused by the product's failure to perform to a standard of reasonable safety within its normal environment. Id. at 541, 462 S.E.2d at 327. Therefore, it is not inconsistent to grant a directed verdict on a strict liability claim while allowing a negligence claim to go to the jury. Id.

The fact that a product can be made safer does not mean that it is unreasonably dangerous and subject to a strict liability claim. Id. at 543, 462 S.E.2d at 328. Similarly, the fact that a product malfunctions does not demonstrate a manufacturer's negligence or that a product was defective. Id. There are two tests that determine whether a product is unreasonably dangerous for its intended use. Id. The first test asks "whether the product is unreasonably dangerous to the ordinary consumer or user given the conditions and circumstances that foreseeably attend the use of the product." Id. Under the second test, the product is unreasonably dangerous "if the danger associated with the use of the product outweighs the utility of the product." Id. To determine whether a product is unreasonably dangerous under one of these tests, the court balances "the utility of the risk inherent in the design of the product with the magnitude of the risk," thus establishing the reasonableness of the manufacturer in designing the product. Id. at 544, 462 S.E.2d at 328. Relevant factors include the usefulness and desirability of the product, the cost for added safety, likelihood and potential seriousness of injury, and the obviousness of the danger. Id.

The court found that the testimony of the Plaintiff's expert was insufficient to prove that the aerial device, as designed and manufactured in 1984, was defective and unreasonably dangerous at the time of sale. Id. at 544, 462 S.E.2d at 329. At the time of sale, the aerial device was "merchantable and fit for the purpose for which it was sold, but caused injury due to its improper use by a third party" (i.e., due to the incorrect installation by the Ballenger mechanic of the conductive hose). Id. at 545-46, 462 S.E.2d at 329. The fact that there had been no mishaps for six years after the time of sale was additional evidence that the aerial device was not unreasonably dangerous. Id. The court found that "considering the aerial device's characteristics, risks, dangers and uses, together with the knowledge, training, and experience possessed by the intended user," and because the Plaintiff did not introduce evidence that there was a feasible design alternative for the couplings that would be useful beyond demonstration purposes, failure to use different "quick disconnect couplings" did not make the device defective and unreasonably dangerous for the intended user; therefore, Hi-Ranger was not liable for a design defect based on a strict liability claim. Id. at 546-47, 462 S.E.2d at 330. The court also found that because the evidence established that the aerial device met warning standards at the time of manufacture and sale, Hi-Ranger was not liable for a warning defect based on a strict liability claim. Id.

Plaintiff also contended that there were four jury instructions that were erroneously excluded and two charges that were erroneously given. The court also disagreed with this contention. Id. at 547, 462 S.E.2d at 330. The court found that it had accurately and completely charged the jury on assumption of risk, contributory negligence, and intervening or superseding negligence. Id. With regard to a charge concerning a manufacturer's post-sale duties, the court found that a product must be measured against the standards of care that exist at the time of sale or against the reasonable consumer expectations at the time of sale. Id. at 548-49, 462 S.E.2d at 331. The court found that because the evidence suggested that the aerial device met all appropriate standards at the time of manufacture, the trial court properly charged the jury with the law regarding the manufacturer's duty to retrofit or recall its products. Id. With regard to the sophisticated user defense, the court found that the defense applies where the manufacturer reasonably assumes that the employer knows of the danger of the product and will take measures to protect its employees, regardless of the specific knowledge of the employer. Id. at 549-51, 462 S.E.2d at 331-32. Because there was substantial evidence that Ballenger was a large electric contractor, was very familiar with bucket trucks and aerial devices, and was aware that conductive hoses should not be used in aerial buckets, the trial court properly charged the jury regarding the sophisticated user defense. Id.

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