Verdict Survey: Playground Equipment in Greenville County

Products liability verdicts are fairly infrequent in South Carolina, as our state seems to be following the unfortunate trend that fewer and fewer cases actually go to trial.  Therefore, in an effort to put some “meat” on the bones of the “Verdicts” portion of this site (and to provide greater frequency of content), I am going to periodically survey past verdicts in South Carolina products liability cases.  Similar to the Case Briefs, these posts will provide some basic case information that may be useful if you are evaluating a similar case of your own.  I am generally going to profile more recent verdicts first, and work my way backward.  In addition, this exercise will also add some content on experts utilized during the trials.

So without further I ado, I give you the first verdict survey.  

Capsule Summary: On March 20, 2008, a Greenville County jury returned a defense verdict in a playground equipment case involving alleged injuries to a fifty-five-year-old grandmother.  She was injured while helping her grandson on a “track ride” piece of equipment (general depiction above).

Case Information: Mascow v. Playland International, Inc., C/A No. 06-CP-23-0664R

Date of Verdict: March 20, 2008

Venue: Greenville County Court of Common Pleas

Judge: John C. Few

Factual Background:  The case involved a married, fifty-five-year-old grandmother who was a salon owner. She sustained injuries while playing with her grandson at a playground.  Plaintiff was assisting her grandson with the “track ride” equipment and claimed the horizontal bar on the ride came loose and fell on her. 

Allegations and Procedure: Plaintiff brought a products liability lawsuit against Playland International, Inc. She claimed Playland manufactured the equipment and that it was defectively designed because of detachment of the horizontal bar.  Playland contended it did not manufacture or sell the equipment at issue.  Playland also claimed that even if it manufactured the equipment, the equipment was safe; there were no other accidents involving the horizontal bar.   

Experts: Plaintiff named Archie Hardy as an expert witness in playground equipment.  Playland attacked the credibility of Plaintiff’s expert.

Alleged Damages: Plaintiff claimed she sustained soft tissue neck, back and arm injuries.  She claimed her low back injury was permanent.  She sought $13,000 in past medical expenses. Playland disputed the nature and extent of Plaintiff’s injuries. 

Disposition: After six hours of deliberation, the jury returned a defense verdict. 

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

NBI CLE De-Brief and What's On The Horizon

Edisto is my favorite South Carolina beach.  My law school roommate, Matthew Richardson, has a family home down there.  The Richardsons are great, great folks, and Matthew was always kind enough to have us all down to his house on many a law school weekend or during the summer.  As a result, I love Edisto, and I continue to take my family there from time to time.  The picture to the right seemed appropriate for a "what's on the horizon" post since it is an Edisto horizon.

First things first, on Wednesday I did a one-and-a-half hour teleseminar CLE for the National Business Institute, blogged about earlier here.  Whew...I am glad it is over.  Make no mistake, I enjoyed the opportunity to speak, and it involved subject matter that is (obviously) of high interest to me.  However, it is pretty challenging to speak non-stop for an hour and a half to an "audience" from your telephone.  I got about two-thirds of the way through my prepared material, and I still had 45 minutes to fill.  (Translated: enter the art of "ad lib.").  I hit my time limit on the nose, but the audience got a nice long account of the "trends and developments" in South Carolina's products liability law for the last half of the presentation.  Thanks to NBI for this opportunity.  My understanding is that the CLE was recorded so that it can be heard "on demand" if you need some CLE credit.  Try this link for more details.

Next week, I hope to get up a case brief of Graves v. CAS Medical Systems, which was issued by the South Carolina Supreme Court on August 29, 2012.  This case represents the third state appellate court products liability case this year, and it is pretty interesting.  Long story short, our state courts continue to scrutinize expert testimony in products liability cases, but there is some language in this case that makes me knit my brow a bit.  More on Graves next week.

I am scheduled to speak on November 9, 2012 at the South Carolina Defense Trial Attorneys Association Annual Meeting at the Sanctuary on Kiawah Island.  I am in my second year as the Products Liability Substantive Law Committee Co-Chair, and our committee is scheduled to do a 45 minute breakout session at 10:15 a.m.  I am planning to give an overall survey of South Carolina's products liability cases that have been issued in 2012.  Although there have only been three state appellate court cases, there have been quite a few cases in the district court.  Therefore, I hope to provide a good overview of the latest developments and case law.

Finally, I am talking with a friend from the Defense Research Institute about co-authoring an article that does a broad survey of national warnings law.  This is a larger project, and we have not undertaken it...yet.  However, it is in the planning stages.

We are heading into my favorite time of year when it (finally) gets cooler in Columbia, college football season is in full swing, and the holidays are not far off.  Keep checking back, and thanks for following the blog.

Directed Verdict in Products Liability Trial!

On May 30, 2012, I tried a non-jury products liability case in the Lexington County Court of Common Pleas.  The case was smaller, but it had some interesting issues that are blogworthy.  I also received a directed verdict, which was a nice result for a good client.  Set forth below is a summary of the case.

FACTUAL BACKGROUND: The plaintiff was an individual who restored a 1950 Chevy Styleline Deluxe automobile.  (The car to the right is not the actual car, but looks pretty much the same).  After refurbishing the car himself, the plaintiff decided he wanted to paint it a “candy apple” red.  This is significant because “candy” jobs are not your typical automobile paint job.  They have multiple coats and steps, and the thickness of the paint is thicker than a regular paint job.  The plaintiff took the car to a body shop and spoke with someone about painting it.  Long story short, the painter painted the car once and found the paint was “lifting.”  This basically means the multiple layers of paint did not remain set.  The painter wiped all the paint off, started over, and saw the same thing happening again on the second paint job.  He spoke with the paint retailer about the problems with the paint, and the retailer recommended some additional steps.  After taking the additional steps, both the painter and the plaintiff were satisfied with the paint job.  The plaintiff took the car home and began to put the chrome back on himself.  While he was replacing the chrome, he found the paint was “soft” (as he described it); it began lifting again and curling around the chrome. 

PROCEDURE AND DISCOVERY: The plaintiff filed his lawsuit on November 23, 2010.  The Complaint alleged a products liability lawsuit against the paint manufacturer and retailer, including typical claims of strict liability, negligence, and breach of implied warranty of particular purpose.  The Complaint alleged every possible defect relating to the paint, but it was devoid of any allegation of negligence whatsoever against the painter.  The paint manufacturer was not properly served and was in default when I was retained to represent it.  I moved to set aside the default, and the court granted the motion based on the insufficiency of service of process. 

During discovery, we deposed the plaintiff, retailer, painter, and corporate representative for the manufacturer.  The plaintiff also named the painter as his expert witness, but he did not name any other expert with regard to paint manufacture or design.  If you follow this blog, you know I have blogged extensively about the necessity of expert witness testimony in a products liability case.  In a design defect case, South Carolina’s appellate courts have stated unequivocally that a plaintiff must provide expert testimony to sustain his burden of proof with regard to design defect.  

Recognizing the painter was not qualified to opine about paint chemistry or manufacturing process, I moved for summary judgment.  The basis of the motion was that if the court excluded the painter as an expert witness, then my client was entitled to summary judgment based on applicable South Carolina law.  The motion was denied, and the case was set for trial.  After attempting to resolve the case, we reached an impasse and decided to try the case. 

TRIAL: Plaintiff did not request a jury trial.  Therefore, on May 30, 2012 Judge Letitia Verdin presided over the one-day trial and heard testimony and argument.  The court heard testimony from the plaintiff and from his “expert,” the painter.  The court recognized the painter could not opine as to paint design or manufacture.  Therefore, the court limited his testimony to paint application and the steps he took to apply the paint at issue.  My cross examination of the plaintiff and his painter focused on the fact that this particular paint job requires certain steps, and discovery revealed that either (1) certain steps were not followed, or (2) they could not be accounted for by the painter or the plaintiff.  After testimony by the plaintiff and painter, the plaintiff rested his case.

At the directed verdict stage, I focused on the fact that res ipsa loquitor cannot serve as a basis for a products liability claim in South Carolina.  See, e.g., Watson v. Ford Motor Co., 389 S.C. 434, 452-53, 699 S.E.2d 169, 179 (2010) ("We also note that Respondents may not rely solely on the fact that an accident occurred to prove their products liability case under a negligence theory since South Carolina does not follow the doctrine of res ipsa loquitur.")).  In other words, there is substantial case law requiring that a plaintiff provide proof of defect (i.e., without speculating as to possible defects just because the product did not perform as intended). 

DISPOSITION:  After hearing the various motions, Judge Verdin granted a directed verdict for the paint manufacturer, but denied the retailer’s directed verdict motion.  The retailer opted not to present a defense, and Judge Verdin took his case under advisement.  She later decided in favor of the retailer, as well, and issued an Order on July 30, 2012 in which she rendered a defense verdict and dismissed the case in its entirety with prejudice.

GENERAL COMMENTS: I never understood why the painter was not named as a party in this case since he was the individual charged with actually applying the paint.  The application stage for this paint is critical because of the complexity of a candy paint job.  Be that as it may, the court recognized the evidentiary issues in this products liability case and issued a directed verdict because the plaintiff failed to sustain his burden of proof.

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

Upcoming NBI Seminar on South Carolina Products Liability Law

On October 11, 2012, from 11:00 a.m. to 12:30 p.m. (ET), I will presenting a teleseminar for the National Business Institute entitled “Products Liability Update: South Carolina.”  I originally agreed to do this CLE presentation when NBI contacted me in February of this year, and I recently completed the written materials for it.

During the one-and-a-half hour seminar, I will survey all of the South Carolina case decisions (both federal and state court) that have been issued in 2012.  I will also provide an update on legislative and regulatory trends at both the state and national level.  Finally, I will discuss the “trends” in South Carolina products liability law over the last few years and my impressions of how this law will continue to develop.

If you are interested in this seminar, you can find all of the information and registration here. I hope to make it an interesting and worthwhile update on South Carolina products liability law.

Case Brief of Weston v. Kim's Dollar Store

Per my earlier post, I have now briefed the South Carolina Supreme Court's decision in Weston v. Kim's Dollar Store, which it issued August 8, 2012.  You can find the case brief at this link directly under the brief of the South Carolina Court of Appeals decision, which it issued July 15, 2009.  Enjoy!

New South Carolina Products Liability Case

Like I said in my last post, I have been a bit behind on blogging as a result of taking a vacation and having a fairly busy August.  However, on August 8, 2012, the South Carolina Supreme Court issued its opinion in Weston v. Kim's Dollar Store, No. 27155 (S.C. filed Aug. 8, 2012).  You can find the decision here.

As you may recall, I briefed the South Carolina Court of Appeals decision in this case, Weston v. Kim's Dollar Store, 385 S.C. 520, 684 S.E.2d 769 (Ct. App. 2009).  My brief of the court of appeals case can be found here.  The South Carolina Supreme Court granted a writ of certiorari to review the court of appeals decision, and it affirmed the court's decision. 

This is a preemption case, so it is significant in the world of drug/medical device litigation.  I will try in the next couple of days to do a case brief that supplements the earlier brief of this case, and I will post a hyperlink to it once it is completed.

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

SCDTAA Products Liability CLE Was a Success

I am pleased to report that the South Carolina Defense Trial Attorneys Association Products Liability CLE was a success!  Last Friday, we had about 20 to 25 attorneys attend to hear speakers present about current issues in South Carolina products liability law.  I want to thank all of my speakers, who did a fantastic job.  I also would like to thank the people who attended the event.  For our first CLE devoted solely to products liability law, I was very pleased with the turnout.  (When you plan something like this for the first time, there is always a fear that no one will show up).    Finally, special thanks to AWR Court Reporting.  AWR's generosity allowed me to do plan this CLE at a fraction of what it otherwise would have cost, and they also did a great presentation about all of their services. 

I also received some very kind words from Michael Freeman and Dick Willis about this blog, and I greatly appreciate it.  Sometimes it is hard to keep up with blogging on a consistent basis, but it is nice to know there are folks who check in from time to time and enjoy the blog. 

Originally, I thought this CLE may be something that would be great to do on a yearly basis.  However, after planning this one, I am not sure this is a practical idea.  (Make no mistake, the topic is worthwhile and I enjoyed planning it).  South Carolina's products liability law does not change very quickly.  For example, our state appellate courts have only issued two products liability decisions this year.  That is not a criticism at all, but it means that having "new" material on a yearly basis is a bit of a challenge.  My fear is that the presentation would be pretty much the same every year, with only minor variations.  A good goal may be to do something like this every three to five years to evaluate any big changes in the law.  We will see, and I am open to suggestions. 

Again, thanks to all who presented and attended.  I am a bit behind on blogging, but I have some things to post in the coming days, so keep checking in. 

SCDTAA Products Liability CLE: There's Still Time to Register!

We are one week away from the South Carolina Defense Trial Attorneys Association Products Liability CLE!  As discussed in greater detail in this post, the CLE will be an all-day seminar of speakers and topics devoted to South Carolina's products liability law and defending these claims.  We have a fantastic group of speakers and topics, and this is a great way to get a block of CLE hours for a reasonable price.

This CLE is is available to members of SCDTAA, attorneys associated with an SCDTAA member firm, and individuals who work in claims management. If you would like to register for this seminar, visit the SCDTAA registration site.  I look forward to seeing you there!