I have been hearing for awhile that there is a chance that the South Carolina State Legislature may take action in response to the South Carolina Supreme Court's decision in Branham v. Ford, and these rumors (may have been) confirmed today.
Apparently Senator Brad Hutto has offered an amendment to repeal the holding in the case. I say "may have been" above because I have not obtained a copy of the amendment, but the South Carolina Chamber of Commerce Competitiveness Update talks about this particular issue, and proposed caps on punitive damages, in today's edition. A cut and paste of the article is below (click the hyperlink above for the actual article). I will try to obtain the amendment and determine the nature of the provision.
Trial Lawyers Take Tort Reform Hostage
Last week, a Senate Judiciary subcommittee passed a comprehensive tort reform bill supported by the business community. However, this week the full Senate Judiciary Committee watered down key pieces of tort reform, including a meaningful punitive damage cap. The subcommittee also set unreasonable monetary thresholds for the admissibility of the non-use of seat belts.
The amended bill could be debated on the Senate floor as early as next week, and the South Carolina Chamber of Commerce is asking senators to vote against the committee amendment. If the committee amendment is defeated, the bill will revert back to the House-passed version of tort reform, which is a much stronger, pro-business bill championed by Speaker Bobby Harrell (Charleston).
The South Carolina Chamber and the South Carolina Civil Justice Coalition are also asking senators to examine neighboring states’ punitive damage limits, specifically Virginia, North Carolina, Georgia and Florida, and pick a model. Currently, trial lawyers are picking and choosing words and phrases from the other states in an attempt to render any cap in South Carolina meaningless.
The Chamber is also very concerned with an amendment offered by Senator Brad Hutto (Orangeburg), which was adopted by the full committee and repeals the Branham v Ford decision. The decision places South Carolina in the minority compared with other states on product liability issues. It also weakens the state’s business climate. At a time when the South Carolina Department of Commerce is working to expand the automotive cluster, this amendment must be stripped out of the tort reform bill.
This post is subject to the DISCLAIMER AND TERMS OF USE of this website.
Friday, February 25, 2011
Thursday, February 24, 2011
Case Brief: Salladin v. Tellis
Today's case brief is Salladin v. Tellis, 247 S.C. 267, 146 S.E.2d 875 (1966). This an older, short opinion that reviews the landmark case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) and the concept of privity in tort law.
FACTUAL BACKGROUND: The decedent was electrocuted while working in the repair and renovation of a pharmacy in Charleston, South Carolina. 247 S.C. at 269, 146 S.E.2d at 876. As alleged in the Complaint, decedent "came into contact with a highly charged piece of metal." Id.
PROCEDURE: Plaintiff brought a wrongful death lawsuit on behalf of the decedent's estate against numerous defendants. 247 S.C. at 269, 146 S.E.2d at 876. Defendant Universal Manufacturing Corporation ("Defendant"), a manufacturer of electrical transformers and devices, demurred to the Complaint on grounds of lack of privity between Defendant and the decedent. Id. Defendant also argued that the decedent was not a vendee of Defendant's product and was not using the product at the time of his injury. Id. The circuit court overruled the demurrer. Id.
ISSUE(S): Defendant appealed the overruling of the demurrer by the circuit court.
DISPOSITION: The South Carolina Supreme Court affirmed the circuit court's decision.
RULES AND OPINION: The court reviewed the "celebrated decision" in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) which established that the manufacturer of a product which, when put to its intended use, is imminently dangerous if defective, is liable in tort for negligence in its manufacture. 247 S.C. at 269, 146 S.E.2d at 876. The court noted that the MacPherson case abolished the concept of privity in products liability cases and that a manufacturer's duty extends to anyone who may reasonably be expected to be in the vicinity of a products probable use and to be endangered if the product is defective. Id. at 269-70, 146 S.E.2d at 876-77. The court cited to the following rule as the applicable law for opposing the demurrer:
This post is subject to the DISCLAIMER AND TERMS OF USE of this website.
FACTUAL BACKGROUND: The decedent was electrocuted while working in the repair and renovation of a pharmacy in Charleston, South Carolina. 247 S.C. at 269, 146 S.E.2d at 876. As alleged in the Complaint, decedent "came into contact with a highly charged piece of metal." Id.
PROCEDURE: Plaintiff brought a wrongful death lawsuit on behalf of the decedent's estate against numerous defendants. 247 S.C. at 269, 146 S.E.2d at 876. Defendant Universal Manufacturing Corporation ("Defendant"), a manufacturer of electrical transformers and devices, demurred to the Complaint on grounds of lack of privity between Defendant and the decedent. Id. Defendant also argued that the decedent was not a vendee of Defendant's product and was not using the product at the time of his injury. Id. The circuit court overruled the demurrer. Id.
ISSUE(S): Defendant appealed the overruling of the demurrer by the circuit court.
DISPOSITION: The South Carolina Supreme Court affirmed the circuit court's decision.
RULES AND OPINION: The court reviewed the "celebrated decision" in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) which established that the manufacturer of a product which, when put to its intended use, is imminently dangerous if defective, is liable in tort for negligence in its manufacture. 247 S.C. at 269, 146 S.E.2d at 876. The court noted that the MacPherson case abolished the concept of privity in products liability cases and that a manufacturer's duty extends to anyone who may reasonably be expected to be in the vicinity of a products probable use and to be endangered if the product is defective. Id. at 269-70, 146 S.E.2d at 876-77. The court cited to the following rule as the applicable law for opposing the demurrer:
A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm to those who use it for a purpose for which the manufacturer should expect it to be used and to those whom he should expect to be endangered by its probable use, is subject to liability for physical harm caused to them by its lawful use in a manner and for a purpose for which it is supplied.Id. at 271, 146 S.E.2d at 877. Therefore, in this case, it did not matter that the decedent lacked privity and/or was not a vendor of the product.
This post is subject to the DISCLAIMER AND TERMS OF USE of this website.
Wednesday, February 23, 2011
South Carolina Bar "Distance Learning" CLE Presentation on Warnings Law
I have been asked by the South Carolina Bar to do a one hour "Distance Learning" presentation on South Carolina warnings law based on the article I recently had published in South Carolina Lawyer. I guess I did not realize that the Bar offers these types of videotaped programs for CLE credit, but I was very happy to be offered the opportunity to do it.
We have tentatively scheduled the videotaping for April 19, 2011, but my hope is that we can do it sooner (depending on how some scheduling works out). I intend to cover much of the material written about in South Carolina Lawyer article. However, because of space constraints for that particular article, I had to cut out much of the text relating to limitations on the duty to warn in South Carolina (I hope to have the material that was cut published as a separate article in the near future). Therefore, this presentation will afford me the opportunity to cover that material, as well.
If there are any lawyers licensed in South Carolina who practice out of state, or any in-state lawyers who just need the convenience of a video CLE, I invite you to be on the lookout for this new addition. I assume you will be able to find it listed here, but will update this post once the presentation goes online.
We have tentatively scheduled the videotaping for April 19, 2011, but my hope is that we can do it sooner (depending on how some scheduling works out). I intend to cover much of the material written about in South Carolina Lawyer article. However, because of space constraints for that particular article, I had to cut out much of the text relating to limitations on the duty to warn in South Carolina (I hope to have the material that was cut published as a separate article in the near future). Therefore, this presentation will afford me the opportunity to cover that material, as well.
If there are any lawyers licensed in South Carolina who practice out of state, or any in-state lawyers who just need the convenience of a video CLE, I invite you to be on the lookout for this new addition. I assume you will be able to find it listed here, but will update this post once the presentation goes online.
Monday, February 21, 2011
Case Brief: Benford v. Berkeley Heating Co.
Today's case "brief" (I should call these "surveys" since they admittedly are never very "brief") is Benford v. Berkeley Heating Co., 258 S.C. 357, 188 S.E.2d 841 (Ct. App. 1972). The case involves a furnace and component blower switch that -- although found not to be defective in design -- combines with improper installation to cause a fire. There is some artful pleading and and election of remedies that influence the outcome of this case. It is not a case of "bad facts make bad law," as I do not disagree with the court's findings based on the theory of recovery. However, I am not sure that the outcome would be the same if this case was heard today or if the case asserted negligence or strict liability as a theory of recovery.
FACTUAL BACKGROUND: Berkeley Heating Company ("Berkeley") installed a furnace manufactured by The Trane Company ("Trane") in the crawlspace of a new home in August of 1977. 258 S.C. at 361, 188 S.E.3d at 842. The home burned on November 30, 1967. Id. As installed, the furnace's vent was only two and three-quarter inches from the pine joist where the fire originated. Id. Trane's manual required clearance of at least six inches between the heater's draft hood and the joist. Id. The manual also required that the flue pipe to be pitched upwards to facilitate escape of exhaust through a "short and direct route." Id. However, as installed by Berkeley, the flue pipe was ten feet long and made three ninety degree turns. Id. Two experts investigated the fire for Plaintiff Marvin Benford ("Plaintiff"). Id. The first expert did not find anything wrong with the furnace itself, but cited to three errors in the furnace's installation: (1) inadequate clearance between the draft hood and joist, (2) three ninety degree elbows in the vent connector, and (3) the down pitch of the vent connector to the chimney. Id. at 361-362, 188 S.E.2d at 842. Another expert investigated the case for Plaintiff in February of 1969. Id. at 362, 188 S.E.2d at 842. He concluded that the blower had not operated during the fire. Id.
PROCEDURE: After receiving the first expert's report, Plaintiff sued Berkeley alone in Charleston County. 258 S.C. at 362, 188 S.E.2d at 842. After the second expert's report, Plaintiff discontinued his Charleston County suit against Berkeley alone and commenced a lawsuit against Berkeley and Trane in Dorchester County. Id. Plaintiff sought recovery on several theories, including negligence and implied warranty. Id. Plaintiff alleged that the failure of the blower to operate caused the temperature to become higher than normal. Id. The higher temperature and faulty installation by Berkeley combined to cause the fire. Id. The trial court required Plaintiff to elect a remedy for recovery at the end of his testimony, and Plaintiff chose breach of implied warranty. Id. The jury found in favor Berkeley, but returned a verdict against Trane. Id. at 361, 188 S.E. 2d at 842. Trane appealed.
ISSUES: Whether the trial court erred in not granting Trane's motion for judgment notwithstanding the verdict or for a new trial. 258 S.C. at 361, 188 S.E.2d at 842.
DISPOSITION: Reversed. "For the reasons stated, the only reasonable inference from the evidence is that the intervening independent negligence of Berkeley was not reasonably foreseeable by Trane and that the destruction of plaintiff's house was not a natural and probable result of the failure of the blower switch. Trane's motion for judgment Non obstante verdicto should have been granted." 258 S.C. 368, 188 S.E.2d at 846.
RULES AND OPINION: The court set forth the applicable law for breach of implied warranty as follows:
FACTUAL BACKGROUND: Berkeley Heating Company ("Berkeley") installed a furnace manufactured by The Trane Company ("Trane") in the crawlspace of a new home in August of 1977. 258 S.C. at 361, 188 S.E.3d at 842. The home burned on November 30, 1967. Id. As installed, the furnace's vent was only two and three-quarter inches from the pine joist where the fire originated. Id. Trane's manual required clearance of at least six inches between the heater's draft hood and the joist. Id. The manual also required that the flue pipe to be pitched upwards to facilitate escape of exhaust through a "short and direct route." Id. However, as installed by Berkeley, the flue pipe was ten feet long and made three ninety degree turns. Id. Two experts investigated the fire for Plaintiff Marvin Benford ("Plaintiff"). Id. The first expert did not find anything wrong with the furnace itself, but cited to three errors in the furnace's installation: (1) inadequate clearance between the draft hood and joist, (2) three ninety degree elbows in the vent connector, and (3) the down pitch of the vent connector to the chimney. Id. at 361-362, 188 S.E.2d at 842. Another expert investigated the case for Plaintiff in February of 1969. Id. at 362, 188 S.E.2d at 842. He concluded that the blower had not operated during the fire. Id.
PROCEDURE: After receiving the first expert's report, Plaintiff sued Berkeley alone in Charleston County. 258 S.C. at 362, 188 S.E.2d at 842. After the second expert's report, Plaintiff discontinued his Charleston County suit against Berkeley alone and commenced a lawsuit against Berkeley and Trane in Dorchester County. Id. Plaintiff sought recovery on several theories, including negligence and implied warranty. Id. Plaintiff alleged that the failure of the blower to operate caused the temperature to become higher than normal. Id. The higher temperature and faulty installation by Berkeley combined to cause the fire. Id. The trial court required Plaintiff to elect a remedy for recovery at the end of his testimony, and Plaintiff chose breach of implied warranty. Id. The jury found in favor Berkeley, but returned a verdict against Trane. Id. at 361, 188 S.E. 2d at 842. Trane appealed.
ISSUES: Whether the trial court erred in not granting Trane's motion for judgment notwithstanding the verdict or for a new trial. 258 S.C. at 361, 188 S.E.2d at 842.
DISPOSITION: Reversed. "For the reasons stated, the only reasonable inference from the evidence is that the intervening independent negligence of Berkeley was not reasonably foreseeable by Trane and that the destruction of plaintiff's house was not a natural and probable result of the failure of the blower switch. Trane's motion for judgment Non obstante verdicto should have been granted." 258 S.C. 368, 188 S.E.2d at 846.
RULES AND OPINION: The court set forth the applicable law for breach of implied warranty as follows:
The vendor is answerable for breach of implied warranty incident to a sale, as for any breach of contract, "for whatever damages follow as a natural consequence and proximate result of his conduct, or which may be reasonably be supposed to have been within the contemplation of the parties at the time the contract was made as a probable result of a breach of it."
258 S.C. at 362, 188 S.E.2d at 843 (quoting Nat'l Tire & Rubb Co. v. Hoover, 128 S.C. 344, 347-48, 122 S.E. 858, 859 (1924)). Applying this law, liability only extends to consequences that would follow the breach in the usual course of events, i.e., events that are foreseeable. Id. The court found that there was sufficient evidence to support the verdict that the switch was defective when it left Trane's hands. Id. at 363, 188 S.E.2d at 843. The court therefore reviewed whether there was evidence to support that the fire was a natural and foreseeable consequence of Trane's breach of implied warranty. Id. In other words, the court reviewed whether Trane could have foreseen the fire as a probable and natural result of the failure of the blower switch. Id.
The court reviewed the normal function of the heater and determined that if the blower switch does not operate, the air inside the heat exchanger to the unit continues to to grow hotter instead of being expelled into the dust system. Id. at 364, 188 S.E.3d at 843. The unit can complete a cycle in this manner, but it is said to be "cycling on the limit switch" and the result is that the draft hood reaches a much higher peak temperature than it otherwise would during normal cycling. Id. at 364, 188 S.E.2d at 843-44. The limit switch's function is to prevent dangerous overheating. Id. at 364, 188 S.E.2d at 844. Be that as it may, the furnace is designed to run in this manner so that there is sufficient heat to prevent pipes from freezing if the blower fails while a family is away. Id.
Significantly, Plaintiff did not claim defective manufacture and design of the heater by Trane, or that the installation manual was inadequate. Id. at 365, 188 S.E.2d at 844. Plaintiff's sole claim against Trane was with regard to the defective blower switch. Id. His installation claim was directed solely at Berkeley. Id. The court found that in the absence of proof to the contrary, Plaintiff's evidence supported that Berkeley's improper installation "interrupted the normally foreseeable train of events linking manufacture with use." Id. Berkeley's installation did not "usually and naturally" precede the use of a furnace. Id. Therefore, "[u]nless there was evidence reasonably pointing to the conclusion that the defective blower switch alone would have caused the loss in natural course, the judgment must fall." Id. The court reviewed the testimony of Plaintiff's experts, and it could not find any such evidence. Id. at 365-68, 188 S.E.2d at 844-46. Plaintiff's first expert said that the defective blower switch would not have caused the fire without the faulty installation. Id. at 365-66, 188 S.E.2d at 844. Plaintiff's second expert admitted during his testimony that the faulty installation made the difference in the fire's ignition. Id. at 366-68, 188 S.E.2d at 844-46.
The court recognized that Trane anticipated that its blower may not work all the time for a variety of different reasons (e.g., clogging, etc.), so it was designed to cycle safely on the limit switch when properly installed. Id. at 368, 188 S.E.2d at 846. "Any evidence that the furnace cycling on the limit switch would have caused the fire, even if it had been installed in the manner directed by the manual, would have pointed to a defect in design as the cause of the fire, which is not charged as a ground of recovery." Id. Based on Plaintiff's theory of recovery, the court reversed the verdict.
This post is subject to the DISCLAIMER AND TERMS OF USE of this website.Friday, February 4, 2011
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.
This post is subject to the DISCLAIMER AND TERMS OF USE of this website.
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.
This post is subject to the DISCLAIMER AND TERMS OF USE of this website.
Tuesday, January 4, 2011
Upcoming DRI Products Liability Conference in April
I am happy to post information about legal conferences pertaining to products liability issues. I always try to provide products liability information that is useful to the defense bar, plaintiff's bar, manufacturers, and individuals. Therefore, if anyone has a seminar or conference (regardless of whether it is defense or plaintiff-oriented), please pass it along and I will be happy to post the pertinent information.
The Defense Research Institute is holding their Products Liability Conference at the Hilton New Orleans Riverside in New Orleans, Louisiana this year from Wednesday, April 6 through Friday, April 8, 2011. This is a great conference. I went to the one last year that was in Las Vegas. and I am attending this year's conference. In fact, I will be presenting on Thursday at one of the Specialized Litigation Group ("SLG") breakout sessions. I joined the "Agricultural/Construction/Mining/Industrial Equipment" ("ACMIE") SLG last year, and this year I am doing a presentation entitled "Who Needs Letterman? The Annual ACMIE Top 10 Cases." As the title suggests, the presentation is basically a survey of significant cases in 2010 that involved ACMIE products and equipment (and if you know of a case that I should consider for inclusion, please comment so that I can get in touch and discuss it with you).
All the details for the conference, including a brochure of the agenda, registration, etc., can be found here. I look forward to meeting anyone who plans to be there.
The Defense Research Institute is holding their Products Liability Conference at the Hilton New Orleans Riverside in New Orleans, Louisiana this year from Wednesday, April 6 through Friday, April 8, 2011. This is a great conference. I went to the one last year that was in Las Vegas. and I am attending this year's conference. In fact, I will be presenting on Thursday at one of the Specialized Litigation Group ("SLG") breakout sessions. I joined the "Agricultural/Construction/Mining/Industrial Equipment" ("ACMIE") SLG last year, and this year I am doing a presentation entitled "Who Needs Letterman? The Annual ACMIE Top 10 Cases." As the title suggests, the presentation is basically a survey of significant cases in 2010 that involved ACMIE products and equipment (and if you know of a case that I should consider for inclusion, please comment so that I can get in touch and discuss it with you).
All the details for the conference, including a brochure of the agenda, registration, etc., can be found here. I look forward to meeting anyone who plans to be there.
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).
This post is subject to the DISCLAIMER AND TERMS OF USE of this website.
Thursday, December 9, 2010
'Tis the Season for Good Food...And Warnings
During this time of year when we enjoy turkey, turkey ala king, turkey sandwiches, turkey soup, turkey casserole, and crazy delicious holiday food (see above classic example from National Lampoon's "Christmas Vacation"), it is a good time to reflect on...warnings. Yes, that's right, there is even a body of law concerning warnings about food.
You are probably saying to yourself right now, "I've always thought that the turkey packaging should warn about L-Tryptophan and the danger of driving after Christmas lunch." Whether sleepiness after excessive turkey consumption is an open and obvious risk (and therefore constitutes an exception to the duty to warn) is an issue that will be debated for eons among the most sophisticated jurists.
But I digress. The reality is that food warnings law is set forth fairly clearly in comment J. to section 402A of the Restatement (Second) of Torts. As you will recall, South Carolina has incorporated this comment by reference into its strict liability statute as the legislative intent of the chapter. See S.C. Code Ann. § 15-73-30 (1976) (“Comments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.”). Comment j. includes certain exceptions to the duty to warn, and it just so happens that two such exceptions deal with warnings about food.
(1) Common Allergies
The first exception to the duty to warn set forth in comment j. is that “the seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them.” Restatement (Second) of Torts § 402A cmt. j. Although this exception to the duty to warn may be straightforward when the consumer’s conduct relates to avoiding individual food products, it becomes more problematic when these food products are ingredients in other dishes. Comment j. therefore qualifies this exception with additional language.
Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge of the presence of the ingredient and the danger.For example, the Food Allergen Labeling and Consumer Act (“FALCA”) went into effect in 2006 to require that packaged foods containing milk, eggs, fish, crustacean shellfish, peanuts, tree nuts, wheat and soy must display them prominently in the ingredient list. See 21 U.S.C. § 201 et. seq. According to FALCA, these “Big Eight” food allergens account for 90 percent of all food-allergic reactions, and federal law requires their disclosure on packaged foods. Id. at § 201(2). Comment j. provides some of the rationale for this disclosure: a substantial number of the population is allergic to these ingredients, and the consumer may not know if one of the ingredients is in a food product without the disclosure.
Neither South Carolina state nor federal courts have interpreted this specific aspect of comment j. in the context of a food products failure to warn case. However, in Vaughn v. Nissan Motor Corp., 77 F.3d 736, 738 (4th Cir. 1996), the court stated in dicta that the “ordinary consumer” standard for determining if a product is unreasonably dangerous does not necessarily apply in the case of products associated with allergic reactions in an appreciable number of consumers.
(2) Products Consumed Over a Long Period of Time
Comment j. also carves out an exception to the duty to warn if the potential danger of a product relates to its use over a long period of time or in excessive quantities: “[A] seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized.” Restatement (Second) of Torts § 402A cmt. j. As examples, the comment cites to alcoholic beverages and foods containing substances such as saturated fats. A seller has no duty to warn about the risks associated with such products from extended or excessive consumption.
Neither South Carolina state nor federal courts have interpreted this exception in comment j. In Aldana v. R.J. Reynolds Tobacco Co., No. 2:06-3366-CWH, 2008 WL 1883404 (D.S.C. Apr. 25, 2008), the court cited to this portion of comment j. to support that the warnings for defendant’s cigarette products were not required to make the product itself “safe,” but the court did not otherwise apply it to excessive or extended use of cigarettes. Id. at *2.
From the South Carolina Products Liability Law Blog, here's wishing you and your friends/families a very Merry Christmas and happy holiday season.
This post is subject to the DISCLAIMER AND TERMS OF USE of this website.
Subscribe to:
Posts (Atom)