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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Explanation of the "Basics" Topic Tag

By Brian A. Comer

As a lawyer, sometimes I am called on to provide "overviews" of certain areas of the law for a client. For this reason, I created "The 'Basics'" as a topic tag (see right side of blog).

Posts that are tagged with this label are designed to provide overviews of significant aspects of South Carolina products liability law (i.e., each of the elements, tests, learned intermediary doctrine, etc.). In other words, it is my attempt to give a "high level" summary about a significant part of South Carolina's products liability law. Some of these postings become more exhaustive than they probably should be (e.g., see the current series on what it means for a product to be in "essentially the same condition"). However, I am trying to make the topics narrow, and my intention is for the information to be substantive enough that a person could read it and get a general summary of the basic law.

So...if you ever need the "basics", click on that tag.

Drilling Down: "Essentially the Same Condition" (Part II)

By Brian A. Comer

This is the second installment of what I guess I can call a "series" based on some research I have been doing for an article. The first installment can be found here.

Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.

• Whether it has been "subsequently mishandled;"
• Whether it has been modified or altered;
• Whether a significant amount of time has elapsed between when the product left the
• manufacturer's control and the time of injury, which can be relevant to "wear and tear;"
  Maintenance.

Today I'm going to profile the second factor, modification or alteration.
Modification or alteration of a product, including modification to its safety features and warnings, may also serve as evidence that a product is not in the same condition. Fernandez v. Spar Tek Indus., Inc., C.A. No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *28 (D.S.C. June 10, 2008). Unlike cases where a court characterizes subsequent changes as "mishandling," alteration or modification cases appear (from my research at least) to involve a situation where a party made an attempt to "fix" or adapt a product for continued use.
For example, Fernandez v. Spar Tek Industries., Inc. involved a plywood press, and the plaintiff's expert testified that "[an] interlocking chain had been added and certain warnings changed, further suggesting that changes relating to safety devices likely were made in the over twenty-two years between when the machines left [the manufacturer's] control and when [the plaintiff] was injured." The district court granted summary judgment for the entirety of the plaintiff's products liability claims (brought in strict liability and negligence) because the plaintiff could not provide affirmative evidence that the plywood press at issue was in "essentially the same condition," despite these changes. Id. at *31.
Although the South Carolina Supreme Court did not directly address the "essentially the same condition" requirement in Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E.2d 671 (1978), it is clear from a reading of the case (see the linked brief of the case) that subsequent alteration by a boat repairman was a key issue. The court held that "the only reasonable inference that can be drawn from the evidence is that the damages here sustained would not have occurred absent [the boat repairman's] unforeseeable actions." Id. at 468, 242 S.E.2d at 678.
It is also worth mentioning Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 536-37, 462 S.E.2d 321, 324-25 (Ct. App. 1995) on this point. Though it was not dispositive of the issue in the case, the court pointed out in Bragg that the majority of the safety decals that were on the boom of the aerial bucket truck at issue had been painted over or removed as a result of actions to refurbish it. Bragg is more significant for "subsequent mishandling" and "lapse of time" (the subject of a future post), but I thought this point was interesting as another basis for finding that the product was not in essentially the same condition.
I will profile the impact of the amount of time that has elapsed between the time a product left a manufacturer's control and the time of injury in the next installment of this series.
Comments are welcome!
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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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Verdicts and Advance Sheets

By Brian A. Comer

I am on the lookout for new cases that come out in the Advance Sheets that deal with South Carolina products law, and they will go to the top of my "Case Brief" queue when they are released. I did not see any in the latest release from the appellate courts.

In addition, I am also on the lookout for any new products liability trial verdicts that come out, either for plaintiffs or defendants. I have not seen any in the last couple weeks, but also plan to profile those.

If anyone sees any that come out, or know of any that I may have missed, please comment! I would love to include it in my blog, and though I am on the lookout, would love for any readers to assist in being my "eyes and ears" on that kind of "breaking news."

Drilling Down: "Essentially the Same Condition" (Part I)

By Brian A. Comer

A products liability case in South Carolina may be brought under several theories, including strict liability, negligence, and/or breach of warranty. A full discussion of the theories and elements can be found here. Regardless of the theory of recovery, the plaintiff must establish that the product was in essentially the same condition at the time of the accident as when it left the hands of the defendant. Rife v. Hitachi Constr. Mach. Co., Ltd., 363 S.C. 209, 215, 609 S.E.2d 565, 568 (Ct. App. 2005). What exactly does this requirement mean?

I am in the process of drafting an article for (hopeful) publication that explores this requirement in detail, but I thought I would provide a few brief "abstracts" that highlight the statutory and case law that I have found on this particular topic. Today I'm going to highlight the burden of proof and one of the factors relevant to whether a product is in "essentially the same condition."

Burden of Proof: First, the plaintiff has the burden of proving this element, and failure to do so is fatal to the plaintiff's case. See Oglesby v. General Motors Corp., 190 F.3d 244, 251-52 (4th Cir. 1999); Fernandez v. Spark Tek Indus., Inc., No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *29 (D.S.C. June 10, 2008); Restatement (Second) of Torts § 402A cmt. g. (1965). This may require that a plaintiff provide "affirmative evidence" -- including possibly expert testimony -- that a product was in the same condition at the time of injury as when it left the control of the defendant. Fernandez, 2008 U.S. Dist. LEXIS 45393, at *29; Ellison v. Rehab. Servs. of Columbus, No. 3:06-1053-CMC, 2007 U.S. Dist. LEXIS 10882, at *6 (Feb. 12, 2007 D.S.C.). There is no presumption that a product is in the same condition based solely on the absence of proof to the contrary. Such a presumption would impermissibly shift the burden of proof to the defendant. Ellison, 2007 U.S. Dist. LEXIS 10882, at *6 (stating that the plaintiff failed to provide a legal foundation for the court's adoption of a rebuttable presumption that the machine at issue was unchanged and granting defendant's motion for summary judgment based on evidence of changes in the machine's condition). A plaintiff's visual inspection of a product is not enough to establish the absence of any modification. Id. Furthermore, the absence of modifications, by itself, does not prove that a product is in the same condition as when it left the control of the defendant. Id. This is based on the normal effects of usage of a product (i.e., "wear and tear") and the common need for maintenance, especially for machines with moving parts. Id. Just one modification – even if to a part of the product not at issue – counters any presumption that a machine was in essentially the same condition as when it left the control of the defendant. Id. at *7.

Meaning of "Essentially the Same Condition": South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases. From my research, the following factors are relevant to whether a product is in "essentially the same condition.

1. Whether it has been "subsequently mishandled;"
2. Whether it has been modified or altered;
3. Whether a significant amount of time has elapsed between when the product left the manufacturer's control and the time of injury, which can be relevant to "wear and tear;"
4. Maintenance.

Today I'm going to profile the first factor, which has its roots in the strict liability statute.
Strict Liability and "Subsequent Mishandling": The strict liability statute provides the best source for initial guidance with regard to the "essentially the same condition" element. South Carolina Code section 15-73-10(1)(b) sets forth that a product must “reach the user or consumer without substantial change in the condition in which it is sold." S.C. Code. Ann 15-73-10(1)(b) (1976) (emphasis added). In this context, "essentially the same condition" is equated to "without substantial change" in a product's condition. Comment g. to Restatement (Second) of Torts section 402A has been adopted as the legislative intent of South Carolina's strict liability code, and it also provides guidance.

g. Defective condition. The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate user, which will be unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition and subsequent mishandling or other causes make it harmful by the time it is consumed. . . .

(Emphasis added). Therefore, at least in the strict liability context, a change in condition may also be due to "subsequent mishandling or other causes." At least three South Carolina cases have addressed "subsequent mishandling" in a products liability action. See Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982) (holding that that cracks in and subsequent breakdown of the lug bolts on a tire were the result of subsequent mishandling of the product at issue (i.e., due to over-tightening) and affirming a directed verdict by the trial court); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 545, 462 S.E.2d 321, 329-330 (Ct. App. 1995) (holding that replacement of hydraulic fluid hoses on the bucket truck just prior to the accident constituted "improper use by a third party" and was the cause of the injury); and Jackson v. Bermuda Sands, Inc., No. 4530, 2009 WL 1037043, at *3 (S.C. Ct. App. Apr. 14, 2009) (holding that an alleged "crack" in a collapsed chair would constitute subsequent mishandling of a product unless the plaintiff could prove that the chair was cracked at the time that it left the manufacturer).
I'll address the other factors in some forthcoming posts. I didn't want this one to be too long or drawn out, and I also want to be sure I can continue to provide substantive updates.
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I am on twitter!

I have always been fairly resistant to the whole social networking phenomenon, but I have broken down and started a twitter profile. I figured that it would be a good way to notify of new blog posts, and I am working on setting up the rss feed from this site to my twitter account so that new posts will be announced over there. This post is a "test" for that purpose. Check out twitter.com/bacomer for my profile (and I will be checking it out to see if this post was announced over there).

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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