38 Products Liability

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

38 Products Liability

A. Definition - Three Theories

Products liability centers on liability for harm to persons or property caused by the use of or exposure to products.¹ A products liability case may be brought under one or a combination of several theories, including negligence, strict liability, and warranty.² For example, strict liability and negligence are not mutually exclusive theories of recovery, and an injury may give rise to claims that can be established under either.³ Therefore, failure to prove one theory does not preclude proving the other.⁴

In 2010, the South Carolina Supreme in Branham v. Ford Motor Co.⁵ handed down one of the most significant products liability decisions in decades. The substantive aspects of the case affecting the elements of an action are discussed in this chapter, however, practitioners who try these cases need to be aware that the Court also addressed significant evidentiary⁶and procedural⁷ issues that may have a significant bearing on the outcome of future actions.

B. Elements

Regardless of the theory upon which the plaintiff chooses to base his cause of action, he must always establish the following three elements:

(1) that he was injured by the product;
(2) the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant;⁸ and
(3) the injury occurred because the product was in a defective condition unreasonably dangerous to the user.⁹

C. Elements Defined

1. Injury by the Product

a. Injury

The first element in a product liability case requires the plaintiff to show an injury by the product.¹⁰ In South Carolina, an injury may be either physical or economic, depending upon which type of theory is applied. ¹¹ The "economic loss rule," which states that there is no liability for a product defect "if damage suffered by a plaintiff is only to the product itself," has been limited to those cases where duties are created solely by contract.¹² Thus, a cause of action in negligence would be available where a defendant has violated a legal duty, no matter the type of resulting damage.¹³

b. Causation

Moreover, the plaintiff must prove that the product caused the injury.¹⁴ Even where the alleged defect may not have caused the plaintiff's injury, a defendant may still be liable when the alleged defect increased the harm to the plaintiff.¹⁵ On the other hand, the mere fact that an accident has happened, standing alone, does not permit a jury to draw any inference that such an accident has been caused by anyone's negligence, fault, or breach of warranty. ¹⁶ Instead, the plaintiff must prove that the defect was the "direct and proximate cause" of the plaintiff's injury.¹⁷

To prove proximate cause, the plaintiff must present proof of both (1) causation-in-fact and (2) legal cause.¹⁸ Causation-in-fact is proved by establishing that the injury would not have occurred "but for" the defendant's negligence.¹⁹ Legal cause is proved by establishing foreseeability,²⁰ which is the touchstone of proximate cause in South Carolina.²¹

(1) Foreseeability

The standard by which foreseeability is determined is that of looking to the "natural and probable consequences" of the complained of act.²² In determining whether a consequence is one that is natural and probable, the actor's conduct must be viewed "in light of the attendant circumstances."²³ This standard is applicable to all three theories of products liability.²⁴

For example, under a theory of negligence, negligent conduct will be deemed to be a proximate cause of an injury "when, without such negligence, the injury would not have occurred or could have been avoided."²⁵ Similarly, under a theory of strict liability, the test of whether a product is or is not defective is whether the product is unreasonably dangerous to the consumer or user "given the conditions and circumstances that foreseeably attend the use of the product."²⁶ Likewise, under a warranty theory, liability is imposed for an injury "proximately" caused by a breach of warranty.²⁷

Foreseeability does not require that an actor must have contemplated or could have anticipated the particular event which occurred.²⁸ A seller or manufacturer is normally entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold; thus he is expected to reasonably foresee only injuries arising in the course of such use.²⁹ He cannot be charged with "that which is unpredictable or that which could not be expected to happen."³⁰ Causation must be based on probabilities, not mere possibilities.³¹

However, the actor must also anticipate the environment which is normal for the use of his product and must anticipate the reasonably foreseeable risks of the use of his product in such an environment.³² In Mickle, the Court stated that "a manufacturer is liable for a dangerously defective product which, while being put to an 'intended use' causes an injury."³³

The Court quoted Judge Bell's persuasive opinion in Spruill v. Boyle-Midway, Inc.,³⁴equating "intended use" with "reasonable foreseeability."³⁵

When a manufacturer failed to equip its excavator with a seatbelt because it was designed and manufactured solely for distribution and use in Japan where a seatbelt was not required, any foreseeability link was severed when the product was imported into the United States, and, as a matter of law, the defendant was not liable for the plaintiff's injuries.³⁶

(2) Intervening actions

Intervening actions may affect the foreseeability of an event and the determination of causation. Initially, where there is no contention that the intervening actions of a third person broke the causal chain, the probable consequences test consists simply of determining whether the wrongdoer's actions were such that they "would probably cause injury to something or someone."³⁷ On the other hand, where there is a contention that an intervening agency interrupts the foreseeable chain of events, there are two consequences to be tested: (1) the injury complained of, and (2) the acts of the intervening agency.³⁸ If the acts of the intervening agency are a probable consequence of the primary wrongdoer's actions, i.e., "foreseeable," the primary wrongdoer is liable.³⁹ However, even if the intervening acts are not foreseeable, the primary wrongdoer is nevertheless liable if his actions alone "would have caused the loss in natural course."⁴⁰

2. No Material Alteration

To succeed in a products liability action, the plaintiff must prove that the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant.⁴¹ As explained above in the "intervening actions" discussion, a defendant will be released from liability under both negligence and warranty theories if an unforeseeable intervening force alters a product and creates the injury.⁴² Additionally, the defense of material alteration becomes extremely important in the "no-fault" setting of a strict liability case.⁴³ If it can be shown that the product was: (1) materially altered before it reached the injured user, and (2) such alteration could not have been expected by the manufacturer or seller, then the manufacturer or seller is not liable.⁴⁴

3. Unreasonably Dangerous Defect

a. Three types

The final element common to all three theories of products liability requires the plaintiff to prove that the injury occurred because the product was in a defective condition unreasonably dangerous to the user.⁴⁵ Specifically, there are three types of defects:⁴⁶ (1) manufacturing or production line defects⁴⁷ (when a product is manufactured in a way that was different than intended); (2) defective design⁴⁸ (when a failure or inadequacy is in a product's design or plan); or (3) warning or instruction defects⁴⁹ (when there is a failure to provide warnings or instructions that are adequate to safeguard against mishaps or injuries).⁵⁰ There is, however, no separate "failure to test claim" apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous.⁵¹

While any product can be made safer, the fact that it is not does not automatically mean the product is unreasonably dangerous.⁵² For example, in a strict liability claim, the defective condition must create a safety hazard for person and property, rather than a mere ineffectiveness of the product, which constitutes a breach of warranty.⁵³ Likewise, the mere fact that a product malfunctions does not demonstrate the manufacturer's negligence nor does it establish that the product was defective.⁵⁴

b. Effect of lapse of time

Moreover, a product's failure after a lapse of time does not automatically render a product defective.⁵⁵ There is no duty on a manufacturer to furnish a machine that will not wear out.⁵⁶ When considering whether a failure is attributable to normal wear and tear, the Mickle court subscribed to the following statement of the law:

If the chattel is in good condition when it is sold, the seller is not responsible when it undergoes subsequent changes, or wears out. The mere lapse of time since the sale by the defendant, during which there has been continued safe use of the product, is always relevant, as indicating that the seller was not responsible for the defect. There have been occasional cases in which, upon the particular facts, it has been held to be conclusive. It is, however, quite certain that neither long continued lapse of time nor changes in ownership will be sufficient in themselves to defeat recovery when there is clear evidence of an original defect in the thing sold.⁵⁷

c. Safety features

A duty to take reasonable precautions may require a manufacturer to provide a product with a safety device. A manufacturer's failure to install a safety device may result in liability.⁵⁸ The test of whether or not the failure to incorporate a safety feature or device in a product constitutes a defect is whether the product, absent such...