I am pleased to announce that my article entitled "Limits on the Duty to Warn in South Carolina Products Liability Law" was recently published in the Spring 2011 edition of The Defense Line, which is published by the South Carolina Defense Trial Attorneys' Association. You can find a .pdf of the article here.
As background, South Carolina Lawyer was kind enough to publish my article, "South Carolina Products Liability Law: What is South Carolina's Law on Warnings?" in its January 2011 edition. (See my post about this publication here). The original draft of the article was intended to be a comprehensive review of South Carolina warnings law, with the exception of the doctrine of preemption (which is a topic for an entirely different article by itself). The problem was that the article was extremely long and nearly double the word limitations requested by South Carolina Lawyer. To prepare it for publication, I had to cut a substantial amount of material from the section dealing with exceptions to and limitations on the duty to warn. My hope was that I could use this material to create a separate article and have it published in a different publication.
Fast forward to the Spring edition of The Defense Line, and there you have it: the "lost material" from the original article. This article has substantially more information on limitations/exceptions to the duty to warn in South Carolina than what was in the original South Carolina Lawyer article, with more case law and analysis. Enjoy.
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Showing posts with label Obvious Risk. Show all posts
Showing posts with label Obvious Risk. Show all posts
Wednesday, April 13, 2011
Wednesday, December 29, 2010
Open and Obvious Risk . . . or a/k/a "You Had a Bad Day"
You had a bad day. Like the song in the video, that phrase epitomizes an accident involving an open and obvious risk. The risk was right there, in front of you, and you ran headfirst into it in spite of yourself. You want to blame someone...someone should have told you about the danger. "That wheelbarrow should have warned about operating it near a trench!!!" But c'mon...you can't blame anyone. You knew better. You just had a bad day.
Admittedly, the accidents in the video are not directly on point as all of them do not necessarily involve a "product" per se. (Although any accident involving a ladder being placed near an obvious risk implicates Anderson v. Green Bull, Inc., 322 S.C. 268, 471 S.E.2d 708 (1996) discussed further below). However, the point remains the same. A seller is not required to warn of dangers or potential dangers that are generally known and recognized by users. Moore v. Barony House Restaurant, LLC, 382 S.C.35, 41, 674 S.E.2d 500, 504 (Ct. App. 2009); Anderson, 322 S.C. at 270, 471 S.E.2d at 710. This exception to the duty to warn includes dangers that are open, obvious, or matters that should be “common sense” to the user. Id; Dema v. Shore Enterprises, Ltd., 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993).
The rationale for this exception is that the product is not defective or unreasonably dangerous because these dangers are contemplated by the ultimate user. Anderson, 322 S.C. at 270, 471 S.E.3d at 710 (citing Restatement (Second) of Torts § 402A cmt. g. (1965) for the principle that “a product is defective only ‘where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”) (emphasis in original).
This exception applies where the obvious risk poses a danger to the user of the product or to others. For example, operating an unlighted golf cart on a public highway at night has been held to present an open and obvious risk. In Moore v. Barony House Restaurant, LLC, the plaintiff brought negligence and strict liability claims against a golf cart manufacturer and claimed that the manufacturer failed to provide an adequate warning about operation of the cart at night and on public roads. The South Carolina Court of Appeals affirmed the circuit court’s grant of summary judgment for both claims, finding that “operation of an unlighted golf car on a public highway at night presents an open and obvious risk.” Moore, 382 S.C. at 42, 674 S.E.2d at 504. Furthermore, the court stated that although questions of negligence are often for the jury, there is no duty to warn of an open and obvious risk as a matter of law. Id.
The threat of electrocution from placing a ladder in close proximity to power lines has also been held to be an open and obvious risk. Anderson v. Green Bull, Inc. involved a lawsuit by the personal representative of a roofer who was electrocuted when his aluminum ladder came in contact with overhead power lines. The ladder contained a red warning label that read, “KEEP ENTIRE UNIT CLEAR OF ALL UTILITY AND ELECTRICAL WIRING.” Anderson, 322 S.C. at 270, 471 S.E.2d at 710. The trial court denied the manufacturer’s motion for a directed verdict, the jury returned a $50,000 verdict in favor of the plaintiff, and the trial court denied the manufacturer’s motion for judgment notwithstanding the verdict. Id. at 269, 471 S.E.2d at 710. However, the South Carolina Court of Appeals reversed the trial court’s decisions. The court did not believe that there was any evidence from which the jury could have reasonably inferred that the ladder was defective because “the conductivity of an aluminum ladder is a condition commonly known and recognized.’” Id. at 271, 471 S.E.2d at 711. “Any person of normal intelligence would know ‘the risk posed by an aluminum ladder in close proximity to an energized high-voltage line.” Id., 471 S.E.2d at 710. The plaintiff also raised the issue of whether the ladder manufacturer should have provided a warning to users to shorten the length whenever the ladder’s length would make it more dangerous because of surrounding conditions, such as overhead high voltage transmission lines. Id. at 271 n.3, 471 S.E.2d at 711 n.3. Because the manufacturer was not required to warn users to stay clear of power lines in the first place, the manufacturer was not required to warn users to take specific measures to stay clear of the lines (i.e., by moving the ladder, shortening it, or actions). Id.
Moore and Anderson involved injuries to the users of the products at issue. However, this exception also applies where certain use of a product poses a risk to someone else. A manufacturer is not required to warn about certain uses that could pose a danger to someone else as a matter of common sense. For example, in Dema v. Shore Enterprises, Ltd., the South Carolina Court of Appeals held that an Aqua-Cycle water recreational vehicle was not defective for failure to include a warning label cautioning the user to “watch out for swimmers” and to “avoid strong current, wind, or waves.” 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993). In reaching its conclusion, the court stated as follows:
[U]sers of the Aqua-Cycle would be aware, as a matter of common sense, that they should be careful around swimmers in the surf. Because it is obvious that an Aqua-Cycle can cause injury to a swimmer, [the manufacturer] did not have a duty to warn Aqua-Cycle users of that risk.
Id. at 531-32, 435 S.E.2d at 876. South Carolina courts have used similar analysis to determine that there is no duty to warn about overtightening of lug nuts so as to avoid cracking them. Claytor v. General Motors, Corp., 277 S.C. 259, 286 S.E.2d 129 (1982).
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Thursday, March 11, 2010
Case Brief: Moore v. Barony House Restaurant
By Brian A. Comer
Today's case brief is Moore v. Barony House Restaurant, LLC, 382 S.C. 35, 674 S.E.2d 500 (Ct. App. 2009). This is (predominantly) a warnings case, and its significance relates to the concept that there is no duty to warn of open and obvious dangers associated with use of a product.
FACTUAL BACKGROUND: A doctor hosted a Christmas party in 2004 in which folks had socialized at one section of his property and then were transported to a different section across a public road for dinner. 382 S.C. at 38, 673 S.E.2d at 502. The deceased worked for the caterer and was in charge of transporting party-goers to the dinner section of the property via a golf cart. Id. Plaintiff attempted to cross the road in a golf cart that was not equipped with lights. Id. An SUV was approaching, did not see the golf cart in time, struck the cart, and killed the driver. Id. at 39, 673 S.E.2d at 502.
PROCEDURE: The deceased's estate ("Plaintiff") brought suit against the various parties responsible for the party (the doctor, caterer, golf cart manufacturer, etc.). 382 S.C. at 39, 674 S.E.2d at 502. Against the manufacturer, Plaintiff alleged causes of action for strict liability based on the manufacturer's used fleet golf cars being unreasonably dangerous in light of their foreseeable use and based on inadequate warnings. Id. Plaintiff also alleged negligence based on a failure to warn. Id. The trial court granted summary judgment in favor of the manufacturer on these claims, and Plaintiff appealed. 382 S.C. at 40, 674 S.E.2d at 503.
ISSUES: Whether the trial court erred in granting summary judgment on Plaintiff's strict liability and negligence claims relating to the manufacturer's alleged failure to warn. 382 S.C. at 40, 674 S.E.2d at 503.
DISPOSITION: The South Carolina Court of Appeals affirmed the grant of summary judgment by the trial court. 382 S.C. at 43, 674 S.E.2d at 504.
RULES AND OPINION: The Court first addressed Plaintiff's strict liability claim. 382 S.C. 40, 674 S.E.2d at 503. Plaintiff contended that the golf car was defective and unreasonably dangerous because the manufacturer marketed the used fleet golf cars for operation on public roads without affixing lights and reflective devices or without providing warnings. Id. at 41, 674 S.E.2d at 503. The Court disagreed and stated that while lights and reflectors would make the carts more safe, the absence of such optional safety features did not make the cart defective. Id. "'Most any product can be made more safe . . . . [A] bicycle is more safe if equipped with lights and a bell, but the fact that one is not so equipped does not create the inference that the bicycle is defective and unreasonably dangerous." Id. (quoting Marchant v. Mitchell Distrib. Co., 270 S.C. 29, 35-36, 240 S.E.2d 511, 513 (1977)). The Court also disagreed with Plaintiff's contention that the golf cart was defective and unreasonably dangerous because the manufacturer failed to provide adequate warnings regarding operation at night and on public roads. Id. The Court acknowledged that a product may be defective and unreasonably dangerous if it is not accompanied by an adequate warning. Id. at 41, 674 S.E.2d at 503-04. However, the Court recognized that a seller is not required to warn of dangers or potential dangers that are generally known and recognized. Id. "[O]peration of an unlighted golf car on a public highway at night presents an open and obvious risk." Id. at 42, 675 S.E.2d at 504. Therefore, the golf cart was not defective and unreasonably dangerous for failure to include a warning about nighttime operation. Id.
With regard to Plaintiff's negligence claim, the Court reiterated that there is no duty to warn of dangers that are open and obvious. Id. at 42, 674 S.E.2d at 504. Furthermore, the Court stated that although questions of negligence are often for the jury, "when the risk complained of is open and obvious to consumers, there is no duty to warn of that risk as a matter of law." Id. The Court also believed that the deceased's negligence in operating the golf cart would prohibit a recovery under a negligence theory as a matter of law. Id. at 43, 674 S.E.2d at 504.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Today's case brief is Moore v. Barony House Restaurant, LLC, 382 S.C. 35, 674 S.E.2d 500 (Ct. App. 2009). This is (predominantly) a warnings case, and its significance relates to the concept that there is no duty to warn of open and obvious dangers associated with use of a product.
FACTUAL BACKGROUND: A doctor hosted a Christmas party in 2004 in which folks had socialized at one section of his property and then were transported to a different section across a public road for dinner. 382 S.C. at 38, 673 S.E.2d at 502. The deceased worked for the caterer and was in charge of transporting party-goers to the dinner section of the property via a golf cart. Id. Plaintiff attempted to cross the road in a golf cart that was not equipped with lights. Id. An SUV was approaching, did not see the golf cart in time, struck the cart, and killed the driver. Id. at 39, 673 S.E.2d at 502.
PROCEDURE: The deceased's estate ("Plaintiff") brought suit against the various parties responsible for the party (the doctor, caterer, golf cart manufacturer, etc.). 382 S.C. at 39, 674 S.E.2d at 502. Against the manufacturer, Plaintiff alleged causes of action for strict liability based on the manufacturer's used fleet golf cars being unreasonably dangerous in light of their foreseeable use and based on inadequate warnings. Id. Plaintiff also alleged negligence based on a failure to warn. Id. The trial court granted summary judgment in favor of the manufacturer on these claims, and Plaintiff appealed. 382 S.C. at 40, 674 S.E.2d at 503.
ISSUES: Whether the trial court erred in granting summary judgment on Plaintiff's strict liability and negligence claims relating to the manufacturer's alleged failure to warn. 382 S.C. at 40, 674 S.E.2d at 503.
DISPOSITION: The South Carolina Court of Appeals affirmed the grant of summary judgment by the trial court. 382 S.C. at 43, 674 S.E.2d at 504.
RULES AND OPINION: The Court first addressed Plaintiff's strict liability claim. 382 S.C. 40, 674 S.E.2d at 503. Plaintiff contended that the golf car was defective and unreasonably dangerous because the manufacturer marketed the used fleet golf cars for operation on public roads without affixing lights and reflective devices or without providing warnings. Id. at 41, 674 S.E.2d at 503. The Court disagreed and stated that while lights and reflectors would make the carts more safe, the absence of such optional safety features did not make the cart defective. Id. "'Most any product can be made more safe . . . . [A] bicycle is more safe if equipped with lights and a bell, but the fact that one is not so equipped does not create the inference that the bicycle is defective and unreasonably dangerous." Id. (quoting Marchant v. Mitchell Distrib. Co., 270 S.C. 29, 35-36, 240 S.E.2d 511, 513 (1977)). The Court also disagreed with Plaintiff's contention that the golf cart was defective and unreasonably dangerous because the manufacturer failed to provide adequate warnings regarding operation at night and on public roads. Id. The Court acknowledged that a product may be defective and unreasonably dangerous if it is not accompanied by an adequate warning. Id. at 41, 674 S.E.2d at 503-04. However, the Court recognized that a seller is not required to warn of dangers or potential dangers that are generally known and recognized. Id. "[O]peration of an unlighted golf car on a public highway at night presents an open and obvious risk." Id. at 42, 675 S.E.2d at 504. Therefore, the golf cart was not defective and unreasonably dangerous for failure to include a warning about nighttime operation. Id.
With regard to Plaintiff's negligence claim, the Court reiterated that there is no duty to warn of dangers that are open and obvious. Id. at 42, 674 S.E.2d at 504. Furthermore, the Court stated that although questions of negligence are often for the jury, "when the risk complained of is open and obvious to consumers, there is no duty to warn of that risk as a matter of law." Id. The Court also believed that the deceased's negligence in operating the golf cart would prohibit a recovery under a negligence theory as a matter of law. Id. at 43, 674 S.E.2d at 504.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Wednesday, February 10, 2010
Drilling Down: The Duty to Warn and the "Obvious Risk" Associated With Cell Phone Use While Driving
By Brian A. Comer
There has been a great deal of press lately concerning cell phone use while driving, including a recent settlement in a South Carolina case involving a driver who was using her cell phone when she struck and killed two cyclists. The case and settlement prompted me to wonder one morning, "Will we ever see a warning on a cell phone advising not to use it while driving? Or to be careful using it while driving?" As ridiculous as the proposal may sound, I looked at the fast food coffee cup I was holding that said "Caution: Contents Are Extremely Hot" and began to wonder...
So what is the law?
South Carolina courts have held that seller is not required to warn of dangers or potential dangers that are generally known and recognized by users. Anderson v. Green Bull, Inc., 322 S.C. 268, 270, 471 S.E.3d 708, 710 (Ct. App. 1996). In such cases, the product is not defective or unreasonably dangerous because these dangers are contemplated by the ultimate user. Id. (citing Restatement (Second) of Torts § 402A cmt. g. (1965) for the principle that “a product is defective only ‘where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”) (emphasis in original). These dangers are frequently referred to as “obvious risks,” which include matters that should be common sense to the user.
For example, in Dema v. Shore Enterprises, Ltd., 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993), the South Carolina Court of Appeals held that an Aqua-Cycle water recreational vehicle was not defective for failure to include a warning label cautioning the user to “watch out for swimmers” and to “avoid strong current, wind, or waves.” In reaching its conclusion, the court stated as follows:
In this blogger's opinion, this is the area of law that is applicable to cell phones and whether there is a duty to warn about cell phone use while driving. It is pretty obvious (and a matter of common sense in my opinion) that there is a risk associated with looking at a cell phone, fumbling with it, holding it, trying to press those small numbers on it, or otherwise trying to use it while doing a dangerous activity, such as driving. Why? Because the user is devoting attention to the cell phone instead of the potentially dangerous activity in which they are engaged: driving a 4,000 pound vehicle at a rate of speed and on a road with other vehicles, cyclists, etc.
So, is there a duty to warn a cell phone user not to use their cell phone while driving, or to use caution? Though I am sure that someone may try and make this argument (if they have not already), this seems to be a classic case of "obvious risk."
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
There has been a great deal of press lately concerning cell phone use while driving, including a recent settlement in a South Carolina case involving a driver who was using her cell phone when she struck and killed two cyclists. The case and settlement prompted me to wonder one morning, "Will we ever see a warning on a cell phone advising not to use it while driving? Or to be careful using it while driving?" As ridiculous as the proposal may sound, I looked at the fast food coffee cup I was holding that said "Caution: Contents Are Extremely Hot" and began to wonder...
So what is the law?
South Carolina courts have held that seller is not required to warn of dangers or potential dangers that are generally known and recognized by users. Anderson v. Green Bull, Inc., 322 S.C. 268, 270, 471 S.E.3d 708, 710 (Ct. App. 1996). In such cases, the product is not defective or unreasonably dangerous because these dangers are contemplated by the ultimate user. Id. (citing Restatement (Second) of Torts § 402A cmt. g. (1965) for the principle that “a product is defective only ‘where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”) (emphasis in original). These dangers are frequently referred to as “obvious risks,” which include matters that should be common sense to the user.
For example, in Dema v. Shore Enterprises, Ltd., 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993), the South Carolina Court of Appeals held that an Aqua-Cycle water recreational vehicle was not defective for failure to include a warning label cautioning the user to “watch out for swimmers” and to “avoid strong current, wind, or waves.” In reaching its conclusion, the court stated as follows:
[U]sers of the Aqua-Cycle would be aware, as a matter of common sense, that they should be careful around swimmers in the surf. Because it is obvious that an Aqua-Cycle can cause injury to a swimmer, [the manufacturer] did not have a duty to warn Aqua-Cycle users of that risk.Id. at 531-32, 435 S.E.2d at 876. South Carolina courts have used similar analysis to determine that there is no duty to warn about overtightening of lug nuts so as to avoid cracking them. Claytor v. General Motors, Corp., 277 S.C. 259, 286 S.E.2d 129 (1982). The general notion is that a person should know-- from common sense -- that if you tighten something too much, you could break it.
In this blogger's opinion, this is the area of law that is applicable to cell phones and whether there is a duty to warn about cell phone use while driving. It is pretty obvious (and a matter of common sense in my opinion) that there is a risk associated with looking at a cell phone, fumbling with it, holding it, trying to press those small numbers on it, or otherwise trying to use it while doing a dangerous activity, such as driving. Why? Because the user is devoting attention to the cell phone instead of the potentially dangerous activity in which they are engaged: driving a 4,000 pound vehicle at a rate of speed and on a road with other vehicles, cyclists, etc.
So, is there a duty to warn a cell phone user not to use their cell phone while driving, or to use caution? Though I am sure that someone may try and make this argument (if they have not already), this seems to be a classic case of "obvious risk."
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Friday, June 26, 2009
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:
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.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
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.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
Wednesday, June 10, 2009
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:
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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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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Friday, June 5, 2009
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.
This post is subject to the DISCLAIMER & TERMS OF USE of this website.
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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