Remove Child Before Washing Can a Product Warning Cure a Dangerous Design?, 0521 SCBJ, SC Lawyer, May 2021, #50

• Author: By Chris Moore and Will Lewis
• Position: Vol. 32 Issue 6 Pg. 50

REMOVE CHILD BEFORE WASHING Can a Product Warning Cure a Dangerous Design?

No. Vol. 32 Issue 6 Pg. 50

South Carolina BAR Journal

May, 2021

By Chris Moore and Will Lewis

One of the more amusing aspects of handling claims involving consumer products is reading the warnings that accompany them. The warning the title borrows is found on children’s clothing. A food processor will caution “Never remove food from blades while the product is operating.” A propane tank-top heater cautions to never get within five feet of the device during use—a conundrum for a user seeking warmth or attempting to turn it off.

To be fair, most warnings are helpful. For example, every heating pad comes with warnings that advise against laying or sitting on the pad because doing so significantly increases the risk of burn—a use many wrongly assume safe with such a device. Despite this usefulness, studies show consumers tend to disregard warnings in product manuals.^[1] This is because there are often so many and some may be obvious, leading the reader to pay less attention to those that are not.^[2] Another reason is, over time, products have become safer as manufacturers take care to design out the risks anticipated with foreseeable uses or misuses of their products.

Basic principles of safety engineering support a preference for design over warning. When hazards associated with the use of a product are identified, the most effective solution is to design out the hazard. If a hazard cannot be designed out of a product without ruining its utility, the next best thing is to guard against the hazard. Only when a hazard cannot be eliminated by design or guarding should a manufacturer rely on a warning.

This stands to reason. Consider a circular saw. Saws are useful tools, but the hazards associated with them cannot be totally extinguished by design. So, most circular saws come with blade guards protecting all but the portion of the blade where the cutting is to take place. The manufacturer of such a saw would be unwise to substitute these guards for a warning sticker advising the user to KEEP HANDS / BODY AWAY FROM BLADE. But would such a warning shield the manufacturer of the unguarded saw from liability under South Carolina law? Does the existence of an adequate warning immunize an obvious design faw?

Hickerson v. Yamaha Motor Corporation^[3]

In Hickerson, the Fourth Circuit affirmed summary judgment in favor of a jet ski manufacturer on the plaintiff’s design and warning defect claims. Notably, the court found that, although the South Carolina Supreme Court had not weighed in, our intermediate appellate court decisions suggest an adequate warning precludes liability on a defective design claim.^[4] In short, adequate warnings trump design faws. Underlying this holding was the intermediate courts’ reliance on Comment j to Restatement (Second) of Torts § 402A, which in 1974 was incorporated as the legislative intent of our defective products statute.^[5] Comment j says: “Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in a defective condition, nor is it unreasonably dangerous.”^[6]

Despite Hickerson’s arguments regarding the historical misapplication of Comment j, its ambiguity, and its potential to “subordinat[e] design safety to warnings,”^[7] the Fourth Circuit Court of Appeals, af-frmed.^[8] Yet, absent from the Fourth Circuit’s analysis was recognition of, or reference to, our supreme court’s adoption of the Restatement (Third) of Torts: Products Liability § 2(b)’s risk-utility test for all design defect claims.

Branham v. Ford Motor Company^[9]

Prior to Branham, a design defect claim was analyzed under two tests: (1) the consumer expectations test^[10] and (2) the risk-utility test.^{[11] [12]} The Branham court noted that the basis for the consumer expectations test was § 402A and its comments.^[13] Despite § 402A’s status as the legislative intent of our defective products statute, the court highlighted the more recent publication of the Restatement (Third) of Torts: Products Liability § 2(b), which recommends a risk-utility analysis for design defect claims.^[14] In justifying its adoption of the Third Restatement’s approach, the supreme court expressed its belief that “the Legislature’s foresight in looking to the American Law Institute for guidance in this area is instructive.”^[15] The court’s belief proved clairvoyant – since 2010 there has been no change to § 15-73-10, et seq., or legislative effort to revive the consumer expectations test for defective design claims. As a result, the exclusive test for design defect claims in South Carolina is the Third Restatement’s risk-utility test and its requirement of a feasible alternative design.

Comment j v. Comment l

If we are to look to the Third Restatement for guidance in evaluating a product’s design, we cannot ignore Comment l to Restatement (Third) of Torts: Products Liability § 2: Reasonable design and instructions or warnings both play important roles in the production and distribution of reasonably safe products. In general, when a safer design can reasonably be implemented and risks can reasonably be designed out of a product, adoption of the safer design is required over a warning that leaves a significant residuum of such risks.

. . .

[W]hen an alternative design to avoid risks cannot reasonably be implemented, adequate instructions and warnings will normally be sufficient to render the product reasonably safe. Warnings are not, however, a substitute for the provision of a reasonably safe design.^[16]

An...