Case Brief: Barnwell v. Barber-Colman Co.

By Brian A. Comer

Today's brief is of Barnwell v. Barber-Colman Co., 301 S.C. 534, 393 S.E.2d 162 (1989). This case is most often cited for the rule that a plaintiff cannot recover punitive damages in a cause of action based solely on strict liability. Punitive damages are not available for strict liability claims in South Carolina.

FACTUAL BACKGROUND: Plaintiff's hand was badly mangled in a piece of textile machinery manufactured by Defendant Barber-Colman ("Defendant"). 301 S.C. at 536, 393 S.E.2d at 162.

PROCEDURE: Plaintiff sued Defendant and elected to proceed to trial solely under the theory of strict liability, alleging that the machinery was equipped with a defectively designed guard. 301 S.C. at 536, 393 S.E.2d at 162. The jury returned a verdict for Plaintiff in the amount of $1 million in actual damages and $2.8 million in punitive damages. Id.

ISSUE: The court accepted on certification from the United States District Court for the District of South Carolina the following question of law: "Under South Carolina law, are punitive damages recoverable in a cause of action based solely on the theory of strict liability?" 301 S.C. at 536, 393 S.E.2d at 162.

DISPOSITION: "We hold that punitive damages are not recoverable in a cause of action based solely upon the theory of strict liability." 301 S.C. at 536, 393 S.E.2d at 162.

RULES AND OPINION: South Carolina recognized strict liability in 1974 through Act Number 1184. 301 S.C. at 536, 393 S.E.2d at 163. The Act incorporated almost verbatim the definition of strict liability from Restatement (Second) of Torts section 402A. Id. "Where a cause of action is created by statute, the statute determines what damages may be recovered." Id. The Act does not specifiy that punitive damages are recoverable, and S.C. Code section 15-73-10(1) states that a seller of a defecive product "is subject to liability for physical harm caused . . . ." Id. at 536-37, 393 S.E.2d at 163 (emphasis in original). Punitive damages are not assessed to compensate a plaintiff for physical harm suffered. Id. at 537, 393 S.E.2d at 163. Their purpose is to punish the wrongdoer and deter him and others from similar future action. Id. Therefore, punitive damages are not recoverable under the Act. Id. The dissent's conclusion that the court's decision places South Carolina in the minority is deceiving because South Carolina is one of a small number of states that adopted strict liability by legislative enactment, as opposed to judicial decision. Id. "Where the legislature has, by statute, acted upon a subject, the judiciary is limited to interpretation and construction of that statute." Id. To read something into the statute that was not put there by the legislature would be to legislate, and not to interpret. Id. at 538, 393 S.E. 2d at 163-64. If punitive damages are to be permitted by the statute, then the legislature would have to amend it. Id. at 538, 393 S.E.2d at 164.

DISSENT: Justice Finney wrote a dissent in which he set forth his opinion that South Carolina law permits recovery of punitive damages in actions based solely on strict liaiblity. 301 S.C. at 538-43, 393 S.E.2d at 164-66. South Carolina allows punitive damages in numerous types of tort actions. Id. at 539, 393 S.E.2d at 164. The General Assembly, in adopting S.C. Code section 15-73-10, did not specify limits on the type of damages that are recoverable. Id. at 539-40, 393 S.E.2d at 164-65. They simply codified Restatement (Second) of Torts section 402A, and other jurisdictions that have interpreted it have found that strict liability and punitive damages are compatible. Id. The cases relied on by the majority are distinguishable by the fact that the statutes at issue in those cases were more explicit, and current public policy favors allowing punitive damages in almost every kind of tort action. Id. at 541, 393 S.E.2d at 165. From the language of the strict liability statute, "liability" was intended to be given a broader meaning than the one assigned by the majority. Id. at 541-42, 393 S.E.2d at 165-66. The General Assembly's intent was to permit the statute to operate under existing South Carolina law. Id. at 542, 393 S.E.2d at 166. Because South Carolina's law favors punitive damages awards in tort action, it is reasonable that punitive damages would extend to strict liability. Id. There is nothing in the Act to indicate any legislative intent to change the common law, and therefore the court may not extend the application of the statute to achieve that intent. Id. Though punitive damages are compatible with strict liability cases, they should only be awarded where the defendant had prior knowledge of the specific defect complained of by the plaintiff, but the defendant continued to market the product anyway. Id. Strict liability was not intended to be a shield for manufacturers to limit recovery to compensatory damages, and it does not make sense to allow punitive damages for certain products liability theories (e.g., negligence), but not for strict liability. Id. at 542-43, 393 S.E.2d at 166.

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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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