Article Published in SCDTAA Publication "The Defense Line"

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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SC Lawyer Article on Warnings Published

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

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

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

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

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

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Drilling Down: Does SC Recognize a Post-Sale Duty to Warn?

From doing research on warnings and from my experience in litigation, a frequent question that comes up is whether a manufacturer has a post-sale duty to warn, i.e., after the product is sold in the marketplace.

South Carolina does not recognize a post-sale duty to warn. In Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995), the South Carolina Court of Appeals agreed with the trial court’s charge that a manufacturer “has no duty to notify previous purchasers of its products about later developed safety devices or to retrofit those products if the products were nondefective under standards existing at the time of the manufacture or sale.” Bragg, 319 S.C. at 548, 462 S.E.2d 331. Subsequent cases have also cited to Bragg’s language and have indicated that South Carolina does not recognize a post-sale duty to warn. Ervin v. Continental Conveyor & Equip. Co., Inc., 674 F. Supp.2d 709, 725 (D.S.C. 2009); Campbell v. Gala Indus., Inc., No. 6:04-2036-RBH, 2006 WL, at *4-5 1073796 (D.S.C. Apr. 20, 2006).

I have seen defendants try to argue that Bragg's language supports that a manufacturer-defendant has no post-sale duty to warn...period. For example, I was involved in a case where one of the issues at trial was whether a manufacturer's service representative had a duty to notify a customer that a guard on the machine at issue was missing (i.e., a guard that might have prevented the injury at issue). The issue was framed as more of a negligent maintenance and inspection issue, as opposed to a products liability issue. However, the manufacturer argued that Bragg's language supported that it had no post-sale duty to warn of the missing guard during its maintenance of the machine.

This is not how I interpret Bragg. From my reading (and I welcome your comments), it clearly applies to improvements made after the manufacture of the product. In such cases, the manufacturer has no duty to circulate a new warning about the consequences not having the improvement, and it certainly has no duty to recall all products to retrofit them. However, I do not believe that it -- carte blanche -- means that a manufacturer has no post-sale duty to warn of any kind. See also Hubband & Felix, The South Carolina Law of Torts 292 (1997) ("Moreover, Bragg does not appear to be applicable to situations where a seller discovers dangers or defects after the sale. In this situation, the weight of authority clearly imposes a duty of due care on the seller.). Rather, the manufacturer has no post-sale duty to warn about improvements.

Although this is the current status of South Carolina law, recent opinions issued by the South Carolina Supreme Court have cited to the Restatement (Third) of Torts: Products Liability (1998) to support adoption of the risk-utility test as the exclusive test for a design defect claim. See Branham v. Ford Motor Co., No. 26860, 2010 WL 3219499 (S.C. Sup. Ct. Aug. 16, 2010) (citing to Restatement (Third) of Torts: Products Liability § 2b (1998) in support of adoption of risk-utility test); Watson v. Ford Motor Co., No. 26786, 2010 WL 3543725 (S.C. Sup. Ct. Sept. 13, 2010) (reiterating in footnote four its adoption of the Restatement (Third) approach for the risk-utility test in Branham). These opinions have been the subjects of prior blog posts where I noted the citation to the Restatement (Third).

Although this citation does not change South Carolina’s lack of recognition of a post-sale duty to warn, it may have opened the door for plaintiffs to argue that South Carolina should adopt other sections of the Restatement (Third), and specifically section 10. Section 10 of the Restatement (Third) provides for “Liability Of Commercial Product Seller Or Distributor For Harm Caused By Post–Sale Failure To Warn,” or a post-sale duty to warn.

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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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