New SC Products Liability Decision: Keeter v. Alpine Towers, Int'l

This week, the South Carolina Court of Appeals released its opinion in Keeter v. Alpine Towers International, Inc.  You can find the decision here on page 72 and here.  As you may recall, I blogged about this jury verdict back on June 22, 2009.  (See this post for more information about the verdict).  There is some very important information in this case on how to properly structure a verdict form in a products liability case.

FACTUAL BACKGROUND: Plaintiff Larry Keeter (“Keeter”) fell more than twenty feet from a climbing tower to the ground.  He was seventeen at the time, broke a vertebra, and was rendered a permanent paraplegic.  Alpine Towers (“AT”) originally sold the climbing tower to an amusement park.  Keeter’s high school purchased the tower from the park and hired AT to move it, install it, and train high school faculty to safely use it.  The sale contract identified AT as the “seller.”  The tower’s central safety feature was a “belay system” which utilized four participants and system of pullies to control the ascent/descent of a climber.  As Keeter was climbing, the rope in the belay system became tight.  When someone assisting (the “belayer”) tried to free the rope, she lost the assistance of the belay device, could not control the rope, and Keeter fell. 

PROCEDURE: Keeter and his parents sued for (1) strict liability; (2) negligent design of the climbing tower, and (3) negligence in failing to properly train high school faculty.  (A copy of the Amended Complaint can be found here).  Plaintiffs also filed suit against the belayer for negligence.  Plaintiffs settled with the high school before filing suit and dismissed the belayer before trial.  The jury returned a verdict on each cause of action.  It awarded $500 for strict liability, $900,000 in actual damages and $160,000 in punitive damages for negligent design, and $2,500,000 in actual damages and $950,000 in punitive damages for AT’s negligence in training the high school’s faculty.  The jury also returned a verdict for Keeter’s parents for $240,000 in actual damages.  After hearing post-trial motions, the court required Keeter to elect between his causes of action and ordered that the high school’s settlement be set off against Keeter’s recovery.  Keeter filed a motion requesting the court to enter a cumulative amount rather than requiring him to elect, and the court denied the motion.  The court entered judgment for $2,500,000 in actual damages and $950,000 in punitive damages on the negligent training cause of action.  Both Plaintiffs and AT appealed.

ISSUES: (1) Whether the trial court was in error in denying AT’s directed verdict, post-trial, and new trial motions, including the sufficiency of evidence for all causes of action, whether the chain of causation was broken by intervening and superseding negligent acts, the sufficiency of evidence for punitive damages, and apportionment of fault; and (2) whether the trial court erred in treating Plaintiffs’ verdicts as “three awards” and requiring him to elect his remedy.

DISPOSITION: The South Carolina Court of Appeals (1) affirmed denial of AT’s motions, and (2) reversed the trial court’s interpretation of the jury verdict and remanded with instructions that it enter judgment in Keeter’s favor against AT for $3,400,500 in actual damages and $1,100,000 in punitive damages.

RULES AND OPINION: The first half of the opinion addresses AT’s appeal, which is summarized as follows:

• Strict Liability – There was sufficient evidence that a reasonable alternative design would have prevented Keeter’s fall.  The tower incorporated a device called “Trango Jaws” in the belay system, which relied on the absence of human error to safely belay a climber.  Plaintiff’s experts introduced evidence that a device called a “GriGri” would automatically stop the rope if the belayer lost control and not rely on the absence of human error. 

• Negligent Design – There was sufficient evidence to support a negligent design theory.  Plaintiffs relied on the failure to incorporate the GriGri for this theory, but Plaintiffs also introduced evidence that AT conducted a ten-year study that the majority of accidents on climbing towers resulted from human error and belayers dropping climbers.  Despite this information, AT did not design for human error by incorporating a locking device.  Plaintiff also introduced evidence of breach duty of reasonable care in designing warnings and instructions for the tower.  AT omitted an instruction to have someone within reaching distance of active belay ropes and beside the climber.  There also should have been end user warnings for first-time climbers and belayers.

• Negligent Training – AT did not provide certain materials to high school faculty that it used in other training sessions (i.e., a syllabus).  AT also did not teach faculty supervisors to stand directly behind a belayer and to assist students in avoiding errors.  AT also did not teach the high school to test students’ competency before allowing them to belay a climber.  Therefore, there was sufficient evidence to support a negligent training theory.

• Intervening Causation – “’For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.’”  (Quoting McKnight v. S.C. Dep’t of Corr., 385 S.C. 380, 387, 684 S.E.2d 566, 569 (Ct. App. 2009)).  There was ample evidence to support that the actions of the high school and belayer were foreseeable, and therefore the chain of causation was not broken to insulate AT from liability.  AT knew the high school would be using students as belayers, and their ten-year study informed them of the human error risks.  The same human error that resulted in Keeter’s injury was not only foreseeable by AT, it was actually foreseen.

• Punitive Damages – With regard to Plaintiffs’ claim that AT recklessly designed the tower, there was evidence that AT knew the majority of falls were caused by human error, could have used an alternative design to account for human error, and the cost of the alternative design was inconsequential.  Therefore, this was evidence that AT was “conscious of the probability of resulting injury” from its negligence, and therefore reckless.  With regard to Plaintiffs’ claim that AT was reckless in failing to properly train high school faculty, there was sufficient evidence that AT knew the high school would use student belayers and that they were less attentive and more susceptible to error.  Nevertheless, AT still failed to properly train faculty, did not include certain materials in their training processes, removed certain instructions about where to stand in relation to a climber, failed to teach competency testing, and did not inform the high school of the option of using the GriGri.  This was sufficient evidence of recklessness.

• Apportionment of Fault – Because of the court’s ruling on punitive damages, it was unnecessary to address the issue of apportionment of fault because the apportionment statute “does not apply to a defendant whose conduct is determined to be . . . reckless.”  (Quoting S.C. Code § 15-38-15(F)).

The second half of the opinion addresses Plaintiffs’ appeal and election of remedies.  “’Election of remedies involves a choice between different forms of redress afforded by law for the same injury . . . . It is the act of choosing between inconsistent remedies allowed by law on the same set of facts.’” (Quoting Taylor v. Medenica, 324 S.C. 200, 218, 479 S.E.2d 35, 44-45 (1996)).  The court pointed out that Keeter asserted three causes of action, but sought only one remedy, i.e., “damages.”  “When a plaintiff seeks only one remedy, there is nothing to elect.”  Therefore, the court held the doctrine of election of remedies did not apply.  The doctrine applies to election of “remedies” and not election of “verdicts.”  The court cited to Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (Ct. App. 1998) as support (and you can see a short summary of that case in this post).

However, the court also cited to the importance of not allowing a double recovery.  To prevent a double recovery, the court must interpret the verdict to determine the jury’s intent.  The court concluded the trial court erred in its interpretation of the verdict to be “three awards” and therefore “inconsistent.”  The error arose with the jury form, which you can find here.  The verdict form was correct in that it required the jury to write its verdict for each cause of action.  However, because Keeter only sought one remedy – damages – and because that remedy could not vary from one cause of action to another, the trial court should have required the jury to write one amount for the damages (and not separate amounts for each cause of action).  “The use of three blanks for damages in the verdict form left the verdict ambiguous as to the amount of damages the jury intended to award.”  To determine the jury’s intent in an ambiguous verdict, the court should consider the entire proceedings to determine what the jury intended.  In reviewing the record, the jury appeared to intend to award a cumulative amount, and it is the duty of the court to sustain verdicts when a logical reason for reconciling them can be found.  Therefore the court found the jury intended the verdicts to be added together for a total verdict in Keeter’s favor of $3,400,500 actual damages and $1,100,000 in punitive damages. 

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

Upcoming Program for South Carolina Chapter of ACC

One of the things that has taken up some of my time over the last few months is preparing a Continuing Legal Education ("CLE") program that my firm is presenting to members of the South Carolina Chapter of the Association of Corporate Counsel.  This is a great group of attorneys who serve in-house with companies across South Carolina.

The evolution of this program was quite a "process."  I began by just soliciting the thoughts of my colleagues.  However, the more I looked at other CLE programs, the more I wanted ours to have a global theme within which the various topics would "fit."  So...I took the topics we batted around here in the firm and tried to come up with a common thread.  The result? 

MANAGING YOUR RISKS: A 2012 PERSPECTIVE ON

BUSINESS, SOCIAL MEDIA, AND LITIGATION RISKS

The hyperlink above provides more information, but the nutshell is that we are doing a three-hour CLE presentation in which the first hour focuses on general risk management and coverage principles, risk management in employment law and social media, and finally a panel discussion of managing litigation risk.  I am presenting during the first hour on general business risk management, including some "war stories" from my practice and observations over the years.  My colleagues Christian Boesl and Charles Appleby are handling the employment piece, and the panel discussion arose from a conversation I had with Jon Ozmint at our law firm.  Jon used to be the head of the South Carolina Department of Corrections.  In this capacity, he was often named as a defendant in section 1983 lawsuits, and he has a unique perspective on litigation risk management. 

I am excited about this litigation risk management panel.  In addition to Jon, I have enlisted a litigation consultant to serve on the panel, as well as in-house representatives from Piggly Wiggly - South Carolina and South Carolina Electric and Gas.  My hope is to have a variety of perspectives from different types of entities that face a wide range of litigation exposure.  We will discuss how litigation risk management varies depending on the industry and company size, as well as develop some common tools for all businesses in litigation.

None of the above is "products" specific per se, although some of my presentation will incorporate some products liability case examples.  However, I like to keep my readers up on what I have been doing, so the above is the "latest."

Forthcoming Article in SCDTAA's "For the Defense"

This is my second year serving as Co-Chair of the South Carolina Defense Trial Attorneys Association's Products Liability Substantive Law Committee.  One of our responsibilities is to provide content for an issue of SCDTAA's publication, "The Defense Line" which comes out two or three times a year.  It is a great publication that is sent out to members, and I have provided some products liability content in the past.  (See past submissions here and here).

I have just completed my submission for the upcoming publication.  I basically did a review of South Carolina's general law concerning equitable (non-contractual) indemnification, and I surveyed its application in South Carolina's products liability cases.  Indemnification, in my experience, is not something that any party really wants to focus on in a case.  Plaintiffs do not really care about it one way or the other, and defendants typically want to defend the safety of their product before pointing fingers at someone else they believe may bear potential liability.  However, it is an important concept, and trying to make sense of the case law addressing it can be a little tiresome.  Therefore, I have attempted to provide an understandable and comprehensive summary for practitioners.

The article is entitled "Application of South Carolina's Equitable Indemnification Law in the Products Liability Case."  Once the publication comes out, I will try and provide a link or upload a copy of the article.  Look for it!

Primerus Convocation De-Brief

Last week, I attended the Primerus Defense Institute (PDI) Convocation at the Lodge at Torrey Pines in La Jolla, California.  As I have posted in the past, my firm is a member of the Primerus network of firms, and the Convocation is a yearly event held in the spring.  It is a unique event in that each law firm brings a client with them to join in the CLE presentations, networking, and social events.  It is a great dynamic.  The members of Primerus have the opportunity to meet Primerus attorneys in other states, and we also are able to introduce our clients to additional law firms that can potentially provide service if they ever have a need in our "neck of the woods."

I arrived late Wednesday evening, and I spent most of Thursday working since the practice group meetings did not begin until the middle of the afternoon.  I attended the Professional Liability and Insurance Bad Faith Practice Group meetings before attending the Products Liability Practice Group meeting later that afternoon.  Our practice group has been very active in the last year under the leadership of Rick Quinlivan, including the webinar we presented last year and a forthcoming state-by-state Compendium on indemnification and contribution law.  Later that evening, there was a nice reception to chat with all of the attorneys and clients in attendance.

On Friday morning, I attended various CLE presentations and breakout sessions.  The afternoon was reserved for free time, which I spent doing some work and also checking out Torrey Pines State Natural Reserve.  I was fairly wiped out Friday evening and turned in after dinner.  (That west coast time change always mixes me up).

On Saturday, I attended more CLE presentations, including one on social media that was led in large part Jim Adler, the Chief Privacy Officer at Intelius.  I will be the first to admit that I am a little tired of hearing about social media, but the presentation was awesome.  It really drilled into privacy issues and where technology may be headed in the future for this area of the law.  Also on Saturday, I presented my piece of our practice group's breakout session on "Indemnity Rights - Avoiding Surprises."  During the course of about 45 minutes to an hour, Rick Quinlivan, Ray Lyons, Jeremy Cook, myself, and one of our client representatives discussed various aspects of indemnification issues, strategy, and case examples.  The presentation was well-received, and I enjoyed being a part of it.

Saturday afternoon was free time, and I used it as an opportunity to visit one of my graduate school friends from my IMBA program who lives about 20 miles away in Carlsbad.  It was nice to catch up with him.  Later that evening, I ended the Convocation with a dinner at the automobile museum in San Diego known as "Evans Garage."  Lots of classic cars on display, a great meal, and a fun time. 

Unfortunately, all good things must come to an end, and I caught a taxi around 9:15 p.m. to the airport.  I took the "red eye" flight back, and was back home by 9 a.m. for a Sunday of chasing kids and grabbing cat naps when I could.  Always nice to get home.

I really enjoyed the Convocation, and I hope to make it a yearly event.  My only complaint?  It was overcast and cold!  I came to learn that this time of year is known as "May Gray" and "June Gloom" around the area because it tends to be overcast and cool.  It certainly was not beach weather, that is for sure.  I am told that next year's event will be at Amelia Island, so it will be nice to have it closer to home and within driving distance.

New Collins & Lacy Charleston Office

Last week, the "Four Corners of the Law" got a little bit bigger, as Collins & Lacy, P.C. announced the opening of its Charleston Office at 200 Meeting Street, Suite 403, Charleston, South Carolina, 29401. 

We have three new attorneys, Mikell Wyman, Tom Bacon, and Bennett Crites.  Mikell and Tom defend workers compensation claims.  Bennett is our newest member of the Products Liability Practice Group, and he also practices in premises liability, insurance and bad faith, and commercial transportation.

We are excited to expand our statewide business defense footprint to include Charleston, Columbia, Greenville and Myrtle Beach, and we welcome Mikell, Tom and Bennett to the Collins & Lacy Family!

DRI Products Liability Conference De-Brief

Yes, rumors of my demise have been greatly exaggerated.  It has been too long since my last post, so it is time to do some catching up.  Last week, I attended the 2012 DRI Products Liability Conference in Las Vegas.  As usual, this conference was an excellent event.  Below are some of the highlights of my trip.

Tuesday

I flew out on Tuesday, mid-morning, and I arrived about 2:30 p.m.   Now...I have done my share of flying, and I do not mind it.  However, this flight to Las Vegas was probably one of the top two or three most uncomfortable flights I have ever been on.  The flight was full, and the folks next to me were very nice...except for the fact that I felt like we were on top of each other.  By the end of it, I had a splitting headache and was looking for the...(er)..."bag" that the airline graciously makes available in the seat pocket.  But, I endured and was better once we arrived (much to the happiness of my seat neighbor).  I am not sure what model plane it was, but I will be looking out for it in the future.  Wayyyyyy too cramped.

I got settled in at the Palazzo (site of the conference) before going to the networking reception that evening.  It was nice to see some old friends, and I also spoke with many of the vendors who had set up booths in the registration room.  (I am a sucker for going by vendor booths...my kids love the little items they hand out...like rulers, spongy model brains, etc., and I always like grabbing a spare flash drive.  Many also provide some valuable services, so I enjoy meeting them).

At the reception, I met up with my friends Ed Murphy and John Noyes for dinner.  John is our culinary leader, as he always takes the lead on organizing a fun dinner with great people.  This year was no exception.  The three of us, along with Gavin Huntley-Fenner and Julianne Fox, went to the Eiffel Tower Restaurant and enjoyed a terrific view with fabulous food and conversation.  Gavin and Julianne are human factors scientists, and I really enjoyed meeting them.

Wednesday

Wednesday was the first full day of the event, and there were some great presentations.  I enjoyed a presentation about discovery of plaintiff's experts and a presentation put on by representatives of TASER International, Inc. concerning media bias.  I also hosted a "lunch around" for members of the Agricultural, Construction, Mining and Industrial Equipment ("ACMIE") Specialized Litigation Group ("SLG").  We had a group of about eight members who enjoyed lunch at Postrio Bar and Grill.

I got a little work done during the late afternoon portion of the CLE, but I returned for another networking reception that evening.  Then, I joined my friends on the ACMIE SLG for our annual speaker's dinner, which was at Delmonico Steakhouse.  The food was very good, and we had a large group (all of whom were in some way involved with our SLG breakout session to be held Friday morning).

Thursday

Thursday was more of the same.  The first presentation was by Curtis Wilkie, the author of The Fall of the House of Zeus: The Rise and Ruin of America's Most Powerful Trial Lawyer.  He shared some anecdotes about the Dickie Scruggs' story.  I also went to the Manufacturer's Risk Prevention SLG breakout and I later enjoyed a presentation entitled, "The Best Defense is a Good Offense: The Pros and Cons of Product Manufacturers Going on the Offensive--Filing Lawsuits to Defend Their Products."  I went to lunch with Eric Junginger at Lagasse's Stadium.  Eric and I met a couple of years ago at this conference, and it is always nice to catch up with him.

That evening, I met up with friends from member firms in Primerus at Rao's Italian Restaurant.  It is always fun when circles "intersect," and when I showed up to meet my friends from Foliart Huff Ottaway & Bottom (who had organized the dinner), I found John Noyes, Julianne Fox, and Gavin Huntley-Fenner.  A nice surprise, and another terrific dinner.

Friday (Wrap-Up and "Home Sweet Home")

The last day of the conference was Friday, and the ACMIE SLG breakout session was held on this particular morning.  Friday sessions are sometimes sparsely attended, but we had around eighty attendees.  We had two panel discussions involving (1) expectations and management of outside counsel (by in-house counsel panel members) and (2) the challenges of litigating legacy (i.e., older) equipment.  Both presentations were very interesting.  Mike McWilliams and Kevin Owens are heavily involved in our SLG and did a great job moderating these two presentations.  Finally, Jennifer Johnson did our annual "Top 10" ACMIE cases.  I did this portion of the breakout last year, and it is always tough to whittle down all the ACMIE cases from the previous year to come up with the "Top 10."  Nice job, Jennifer.  Overall, we had a another great breakout session, and special thanks to our Chair, J.K. Leonard, for his hard work in doing most of the planning and organizing.

I attended the final session of the conference, and then was off to the airport.  My flight back was much, much better (thanks U.S. Airways), and I got home around midnight.  It is always good to get back to South Carolina and my family.

That's it for the conference.  Check in tomorrow for a (belated) announcement my firm made last week.

March 21, 2012 Presentation to South Carolina Association of Convenience Stores

This past Wednesday I had the opportunity to speak to the South Carolina Association of Convenience Stores about South Carolina products liability law.  There were about 30 to 40 attendees, and I appreciated their attention and interest in my presentation.  I was accompanied by Charles Appleby, one of my colleagues at Collins & Lacy, P.C., who also spoke to the group on the Americans with Disabilities Act.

Generally, I provided the group with an overview of South Carolina products liability law.  Because of the nature of their business, I explained the concept of strict liability and how a retailer can face liability even if it did not have a role in the design or manufacture of a product.  I also surveyed some of the food and beverage law from my recent holiday series (e.g., the exploding bottle cases, insect/animal in food cases) and explained the concept of a manufacturing defect.  Finally, we wrapped it up with some discussion of what to expect if a products liability claim is brought against a retailer and best practices for preventing them and dealing with them.  The audience had some great questions at the end of the presentation.

I appreciated the opportunity to speak to this group and hope to again in the future!

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.

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

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

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

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

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

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

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

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

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

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

This post is subject to the DISCLAIMER AND TERMS OF USE of this website.