South Carolina BAR Journal
SC Lawyer, January 2011, #2.
Products Liability Claims in South Carolina: What Is South Carolina's Law On Warnings?
South Carolina LawyerJanuary 2011Products Liability Claims in South Carolina: What Is South Carolina's Law On Warnings? By Brian A. ComerI. INTRODUCTION
South Carolina products liability law recognizes that many products cannot be made completely safe for use. Claytor v. Gen. Motors Corp., 277 S.C. 259, 264, 286 S.E.2d 129, 132 (1982). However, these products may still be useful, desirable and serve a purpose. Id. In such cases, if the product is properly designed, manufactured and packaged with accompanying adequate warnings and instructions, then it is not defective and unreasonably dangerous. Id. Otherwise, manufacturers and sellers may be discouraged from marketing many products solely because some danger accompanies the use of the product. Id.
Therefore, a central focus in many South Carolina products liability cases is whether a defendant failed to adequately warn the user of the risk accompanying use of the product. This article seeks to answer questions about when the duty to warn arises and whether a warning is adequate under South Carolina law.
II. THE ANALYTICAL FRAMEWORK FOR A WARNINGS CASE
"In order to prevent a product from being unreasonably dangerous, the seller may be required to give a warning on the product concerning its use." Anderson v. Green Bull, Inc., 322 S.C. 268, 270, 471 S.E.2d 708, 710 (1996). If a product includes a warning that - if followed - makes it safe for use, then the product is not defective or unreasonably dangerous. Id.; Allen v. Long Mfg. NC, Inc., 332 S.C. 422, 427, 505 S.E.2d 354, 357 (Ct. App. 1998). Furthermore, "South Carolina law does not require that a manufacturer refine a product which is made safe for use by an adequate warning so that the product does not need a warning to be safe." Allen, 332 S.C. at 431, 505 S.E.2d at 359. An adequate warning is what renders the product safe. Id. When an adequate warning is provided, a manufacturer may assume that it will be heeded by the product user. Id. at 433, 505 S.E.2d at 360.
This foundation of South Carolina warnings law is discussed at length in comment j. to Restatement (Second) of Torts § 402A, and South Carolina has incorporated this comment by reference into its strict liability statute as the legislative intent of the chapter. S.C. Code Ann. § 15-73-30 (1976). A review of comment j. and interpretative case law reveals that a warnings analysis is based on a twofold inquiry: (1) whether there is a duty to warn to begin with, and (2) whether the warning provided is adequate so that - if followed - the product is safe for use. See, e.g., Allen, 332 S.C. at 427-28, 505 S.E.2d at 357 (separating warnings analysis into a determination of duty to warn and adequacy of the warning).
III. THE DUTY TO WARN
A. When the Duty Arises and Methods of Proof
No state court has explicitly set forth when the duty to warn arises in a products liability case. However, in Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir. 1971), the Fourth Circuit Court of Appeals provided guidance on the duty to warn in an appeal of a South Carolina products liability action arising in diversity, and the South Carolina Supreme Court cited to Gardner's rationale in its negligent failure to warn analysis in Livingston v. Noland Corp., 293 S.C. 521, 362 S.E.2d 16 (1987). Gardner supports that the duty to warn arises when (a) the reasonably foreseeable risks of a product - either from its intended use or from the environment in which it is used - pose a potential danger, and (b) the user may not realize the potential danger. In such cases, the manufacturer and supplier have a duty to warn the user. Gardner, 448 F.2d at 242-43; Livingston, 239 S.C. at 525, 362 S.E.2d at 18.
Gardner involved the ignition of hair rollers when the water in which they were heating boiled out of the pot. Id. at 240-41. After putting the rollers on the stove to heat, the user fell asleep in the bathtub. Id. at 241. The resulting fire substantially destroyed the apartment building, and the building owner sued the hair roller manufacturer to recover his losses. Id. at 240. One of his theories for recovery was that the manufacturer's warning about the flammability of the rollers was inadequate. Id. The warning at issue stated as follows: "Use plenty of water. Do not let water boil away. Cautionary note: Rollers may be inflammable only if left over flame in pan without water. Otherwise Q.H.S. Setting/Rollers are perfectly safe." Id. at 241. The district judge granted a directed verdict in favor of the manufacturer on grounds that the hair rollers were not "inherently dangerous." Id. at 240. Therefore, the manufacturer had no duty to provide a more extensive warning than the one provided. Id.
However, the Fourth Circuit Court of Appeals reversed the district court's decision...