B. Defect

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

B. Defect

This section addresses defect largely from the viewpoint of tort law. Although there is necessarily some overlap with a defect constituting a breach of warranty,²⁰⁹ the discussion here focuses on the tort concept of defect as a condition involving unreasonable danger to the consumer's person or property.²¹⁰ In most products liability actions based on tort, the defective condition must create a safety hazard for a person or property rather than mere ineffectiveness of the product, which could constitute a breach of warranty.²¹¹ As a general matter, negligence and strict tort liability are not designed to address mere ineffectiveness or loss of a bargain.²¹²

1. Types of Defect

Defect or defective condition is conventionally viewed in terms of three categories: (1) manufacturing defects; (2) design defects; and (3) warning defects.

(1) Manufacturing defects are those aberrations in the manufacturing process that result in a particular, individual product that does not meet the manufacturer's standards or specifications.²¹³

(2) A design defect does not concern a particular instance of a single product's aberration from intended standards, but instead refers to the design of the entire "product line" that is unreasonably dangerous. Thus, a design defect is a characteristic that impugns all products of a given type.

(3) Warning defects exist when a product presents dangers that can only be safeguarded against by proper instruction or warning.²¹⁴ The failure to provide such instruction or warning may constitute a defect that renders a properly designed and manufactured product unreasonably dangerous. This is particularly true of "unavoidably unsafe" products, such as drugs, whose beneficial effects outweigh the known hazards of use.²¹⁵

A given case may present one, two, or all three types of defect.²¹⁶

Distinguishing among types of defect is sometimes difficult. The selection of materials may involve a design defect, but the failure of a particular unit of a product line under stress or pressure in an isolated instance may also involve a manufacturing defect. Moreover, the susceptibility of this same product to fracture or disintegrate in a foreseeable environment may call for warning or instruction regarding proper use or treatment of the product.

"Reasonableness" is often a focus not only in negligence claims, but also in warranty and strict liability cases. Given this common emphasis on "reasonable" design and warning, it may be that manufacturing defects are the only true instance of liability without respect to negligence. Design and warning defects, even when phrased in terms of warranty as strict liability, may be simply a version of negligence liability specially adapted to products liability cases.²¹⁷

a. Manufacturing or "Production Line" Defects

Manufacturing or "production line" defects result when the final product does not conform to design specifications. When the plaintiff can prove that the manufacturing defect results from negligence, then liability can be based on a negligence theory. The elements of negligent manufacture are (1) a defect in the product, (2) the product proximately caused the plaintiff's injuries, and (3) the defect could have been prevented through reasonable care in manufacture.²¹⁸

To recover under section 402A of the Restatement (Second) of Torts or under the Restatement (Third) of Torts: Products Liability, the plaintiff need only prove that the product is defective in that it does not conform to the manufacturer's own specifications; the plaintiff need not show that the failure to conform resulted from negligence in the manufacturing process,²¹⁹ and a mechanical defect is not required to prove a manufacturing defect.²²⁰ Adulterated or contaminated foods,²²¹ as well as exploding bottles,²²² represent obvious examples of manufacturing defects when accompanied by proof that the defective condition of the product is attributable to the manufacturer or seller. Evidence of faulty assembly may also show breach of warranty of merchantability—for example, when damage is caused by water infiltration by the improper design of joints in a sewer line.²²³

The product's failure to function properly may be evidence of a production line defect. Thus, the misalignment of the component parts of the locking mechanism of a leg brace has been held to support a finding of defective manufacture,²²⁴ although a design defect may also be involved. Faulty assembly, particularly in the light of the dangerous propensities of the product, is another example of production line defect that may indicate negligence as well as strict liability.²²⁵

Also, failure to complete work on the manufacture of a product can establish a manufacturing defect.²²⁶

b. Defective Design

Liability for a design defect may be based on negligence, strict tort, or warranty.²²⁷ In contrast to the manufacturing or assembly line defect, the design defect impugns an entire line of the product.

The "reasonableness" of the design is often a central issue in defective design cases and is normally a jury question.²²⁸ Consequently, the line between strict liability and negligence may be difficult to perceive. The doctrinal distinction between the two theories can be expressed as follows: If the action is based on strict tort or warranty, the focus is on the product, and the plaintiff must prove that the product, as designed, was in a defective condition unreasonably dangerous to the consumer. On the other hand, liability for negligence focuses on the defendant's conduct and requires additional proof that the manufacturer breached its duty to exercise reasonable care in designing the product.²²⁹ In practice, this distinction between focusing on the product as opposed to the defendant's conduct may be immaterial, particularly if evidence of the "state of the art"—that is, evidence of such things as custom and general knowledge of risks and technical feasibility of reducing risks at the time of design and manufacture—and industry standards are offered and admitted on the issue of whether the product was defective.²³⁰

Although the definitions of defect under strict tort liability, negligence, and warranty may converge, the theories differ in terms of defenses. Comparative negligence is a defense to a negligence claim.²³¹ However, when strict liability is involved in South Carolina, defendants cannot assert the plaintiff's comparative negligence unless the plaintiff's unreasonable behavior constituted an assumption of risk, in which case the behavior would likely be a total bar rather than a partial bar as under comparative negligence.²³² Under warranty, contributory negligence may be a defense but comparative negligence may not be applicable.²³³

As noted above, section 15-73-10 of the South Carolina Code adopts section 402A of the Restatement (Second) of Torts and provides that the comments to section 402A indicate legislative intent.²³⁴ These comments contain language indicating that either the expectation or the risk-utility approach is applicable to defining "reasonableness."²³⁵ Until 2010, South Carolina cases applying the section had not articulated a specific test of "unreasonably dangerous." Instead, the cases contained reference to both the expectation test and the risk-utility test. However, in Branham v. Ford Motor Co.²³⁶ the South Carolina Supreme Court clarified that the risk-utility test exclusively applies in design defect cases:

In South Carolina, we have traditionally employed two tests to determine whether a product was unreasonably dangerous as a result of a design defect: (1) the consumer expectations test and (2) the risk-utility test. . . . While the consumer expectations test fits well in manufacturing defect cases, we do agree with Ford that the test is ill-suited in design defect cases. We hold today that the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design.²³⁷

The requirement for feasible alternative design is mandatory in a design defect case.²³⁸ Specifically:

The plaintiff will be required to point to a design flaw in the product and show how his alternative design would have prevented the product from being unreasonably dangerous. This presentation of an alternative design must include consideration of the costs, safety and functionality associated with the alternative design.²³⁹

As recognized by the South Carolina Supreme Court in Branham²⁴⁰ "[t]he very nature of feasible alternative design evidence entails the manufacturer's decision to employ one design over another. This weighing of costs and benefits attendant to that decision is the essence of the risk-utility test."²⁴¹

A conceptual design is not sufficient to establish a reasonable alternative design.²⁴² Evidence of a manufacturer's own alternative design may be sufficient evidence of feasible alternative design.²⁴³

Cases involving the "crashworthiness" of automobiles²⁴⁴ highlight the point that the defendant is held at least to a reasonable awareness of the foreseeable circumstances of use of the product, including situations involving foreseeable misuse. Comparably, in the case of workplace machinery the manufacturer may be held to foresee that employers or employees may alter the machinery from its design and create dangers unintended by the manufacturer.²⁴⁵ Conversely, the defendant is not held to an awareness of unforeseeable uses or misuses or the unreasonable assumption by the plaintiff of obvious hazards accompanying the product,²⁴⁶ whether these issues arise as matters of defense or of defining defect.

The mere fact that a product could be made stronger or even safer is not proof that lesser design specifications make the product defective.²⁴⁷

Most any product can be made more safe. Automobiles would be more safe with disc brakes and steel-belted radial tires than with ordinary brakes and ordinary tires, but this does not mean that an

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