SC Lawyer, November 2009, #5. Products Liability Claims in South Carolina: What Exactly Does "Essentially the Same Condition" Mean?.

• Author: By Brian A. Comer

South Carolina Lawyer

2009.

SC Lawyer, November 2009, #5.

Products Liability Claims in South Carolina: What Exactly Does "Essentially the Same Condition" Mean?

South Carolina LawyerNovember 2009Products Liability Claims in South Carolina: What Exactly Does "Essentially the Same Condition" Mean? By Brian A. ComerI. Introduction

A products liability case in South Carolina may be brought under several theories, including strict liability, negligence and/or breach of warranty. Regardless of the theory of recovery, the plaintiff must establish (1) that the product injured the plaintiff, (2) that the product was in essentially the same condition at the time of the accident as when it left the control of the defendant, and (3) that the injury occurred because the product was in a defective condition, unreasonably dangerous to the user. Rife v. Hitachi Constr. Mach. Co., 363 S.C. 209, 215, 609 S.E.2d 565, 568 (Ct. App. 2005). Medical records, expert testimony and presentation of the injured party can assist an attorney in evaluating the nature of a plaintiff's injury, and South Carolina has developed specific tests for determining whether a product is in a "defective condition, unreasonably dangerous" to the user. SeeBragg v. Hi-Ranger, Inc., 319 S.C. 531, 543, 462 S.E.2d 321, 328 (Ct. App. 1995) (setting forth that the first test is whether the product "is unreasonably dangerous to the ordinary consumer or user given the conditions and circumstances that foreseeably attend the use of the product," and the second test is whether "the danger associated with the use of the product outweighs the utility of the product").

However, what exactly does it mean for a product to be in "essentially the same condition" at the time of the accident as when it left the hands of the defendant? Does this analysis only include modifications to a product, or is normal "wear and tear" relevant to the analysis? What about maintenance? Does any change in a product's condition result in summary judgment for a defendant, or are there other considerations? This article seeks to answer these questions and provide some guidance concerning this requirement in a South Carolina products liability case.

II. Burden of proof and evidentiary issues

There is no presumption that a product is in "essentially the same condition" based solely on the absence of proof to the contrary. Such a presumption would impermissibly shift the burden of proof to the defendant. Ellison v. Rehab. Servs. of Columbus, No. 3:06-1053-CMC, 2007 U.S. Dist. LEXIS 10882, at *6 (D.S.C. Feb. 12, 2007) (stating that the plaintiff failed to provide a legal foundation for the court's adoption of a rebuttable presumption that the machine at issue was unchanged, and granting defendant's motion for summary judgment).

Rather, the plaintiff has the burden of proving that a product is in essentially the same condition, and failure to satisfy this burden is fatal to the plaintiff's case. See Oglesby v. Gen. Motors Corp., 190 F.3d 244, 251-52 (4th Cir. 1999) (holding that the plaintiff failed to carry the burden of proof to demonstrate that a radiator hose connector was in essentially the same condition at the time of a 1995 accident as when it left the manufacturer's control in 1988); Fernandez v. Spar Tek Indus., Inc., No. 0:06-3253-CMC, 2008 U.S. Dist. LEXIS 45393, at *29 (D.S.C. June 10, 2008) (holding that the plaintiff's failure to prove the machines at issue were in substantially the same condition was independently fatal to his case); Restatement (Second) of Torts § 402A cmt. g (1965) ("The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained."). Satisfying this burden may require that a plaintiff provide "affirmative evidence" that a product was in the same condition at the time of injury as when it left the control of the defendant. Fernandez, 2008 U.S. Dist. LEXIS 45393, at *29. A plaintiff may also need expert testimony to "fill the evidentiary gap" with regard to a product's history and usage. Ellison, 2007 U.S. Dist. LEXIS 10882, at *6.

With regard to the nature of this "affirmative evidence," a plaintiff's visual inspection of a product is not enough to establish the absence of modifications. Ellison, 2007 U.S. Dist. LEXIS 10882, at *6. Furthermore, the absence of modifications, by itself, does not prove that a product is in the same condition as when it left the control of the defendant. Id. Normal use of a product (i.e., "wear and tear") and the common need for maintenance (especially for machines with moving parts) may affect the product's condition. Id. Indeed, just one modification-even if to a part of the product not at issue-counters any presumption that a machine was in essentially the same condition as when it left the defendant's control. Id. at *7.

III. Meaning of "essentially the same condition"

Satisfying the burden of proof for this element appears to focus more on how a product is not in "essentially the same condition," as opposed to trying to define some sort of "pristine state" in which it rolls off the assembly line. South Carolina statutory law provides some guidance in the strict liability context, and South Carolina's federal and state courts have also interpreted the "essentially the same condition" element in various products liability cases.

A. Strict liability and "subsequent mishandling"

The strict liability statute provides the best source for initial guidance with regard to this element. S.C. Code § 15-73-10(1)(b) sets forth that a product must "reach the user or consumer without substantial change in the condition in which it is sold." S.C. Code. Ann. 15-73-10(1)(b) (1976) (emphasis added). In this context, "essentially the same condition" is equated to "without substantial change" in a product's condition.

South Carolina courts have not precisely defined what constitutes a "substantial change." However, other states that have adopted Restatement (Second) of Torts § 402A provide some guidance. Some jurisdictions have defined "substantial change" as "a change in the design, function or character of the product linked to the accident." See, e.g.,

Hiner v. Deere & Co., 161 F. Supp. 2d 1279, 1292 (D. Kan. 2001) (holding that the plaintiff had substantially changed bale forks (for lifting hay bales) where he had welded brackets onto the forks to allow him to lift round hay bales, rather than the square bales the forks were designed to lift); Glassey v. Cont'l Ins. Co., 500 N.W.2d 295, 301 (Wis. 1993) (holding a pressurized spray tank that exploded had undergone substantial changes where it was worn, deteriorated and the cap covering the filling hole had been replaced; thus the trial court had properly dismissed the strict liability claim). Others have defined "substantial change" as "any change which increases the likelihood of a malfunction, which is the proximate cause of the harm complained of, and which is independent of the expected and intended use to which the product is put." See, e.g., Kobza v. Gen. Motors Corp., 580 N.E.2d 47, 49 (Ohio Ct. App. 1989) (affirming trial court's directed verdict because there was a "substantial change" in an automobile due to removal of a safety mechanism that prevented it from starting unless the transmission was in "park" or "neutral"); E.Z. Gas, Inc. v. Hydrocarbon Transp., Inc., 471 N.E.2d 316, 319 (Ind. Ct. App. 1984) (holding that there was a genuine issue of material fact as to whether the commingling of gas from several suppliers constituted a "substantial change" in a gas explosion case). Finally, Texas has defined "substantial change or alteration" as meaning that "the configuration or operational characteristics of the product are changed or altered by affirmative conduct of some person in a manner that the defendant could not have reasonably foreseen would occur in the intended or foreseeable use of the product." USX Corp. v. Salinas, 818 S.W.2d 473, 489 n.16 (Tex. Ct. App. 1991) (quoting 3 State Bar of Texas, Texas Pattern Jury Charges PJC (1990)).

However, South Carolina's statutory guidance does not end with S.C. Code § 15-73-10(1)(b). Comment g. of the Restatement (Second) of Torts § 402A provides further interpretation of the strict liability statute, and S.C. Code § 15-73-30 has incorporated this comment by reference. 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 g. to the Restatement sets forth as follows:

g. Defective condition. The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate user, which will be unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition and subsequent mishandling or other causes make it harmful by the time it is consumed Restatement (Second) of Torts § 402A cmt. g (1965) (emphasis added). Therefore, at least in the strict liability context, a change in condition may also be due to "subsequent mishandling or other causes."

At least three South Carolina cases have addressed "subsequent mishandling" in a products liability action. In Jackson v. Bermuda Sands, Inc., No. 4530, 2009 WL 1037043, at *3 (S.C. Ct. App. Apr. 14, 2009), the S.C. Court of Appeals held that an alleged "crack" in a collapsed hotel pool chair would constitute subsequent mishandling of a product unless the plaintiff could prove that the chair was cracked at the time that it left the manufacturer. The court pointed out that there was evidence to support that chairs used at hotel pools are frequently subjected to "extreme conditions," including being thrown off balconies or into pools, all of which would constitute "subsequent mishandling." Id. On this basis and others, the court held that the plaintiff could not prove that the chair was in the same condition as when it left the manufacturer and affirmed the trial court's grant of summary judgment for all of the plaintiff's products liability claims. Id. at *4.

South Carolina's preeminent products liability case, Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995), also focused on this issue. In Bragg, the aerial bucket truck at issue had been in two accidents and had been refurbished and repainted prior to the accident. Id. at 536-37, 462 S.E.2d at 324-25. It was also undisputed that a field mechanic had erroneously installed a conductive hose on the aerial device a few months before the accident and six years after the manufacture and sale of the device. Id. at 545-46, 462 S.E.2d at 329. The court concluded that this replacement of hydraulic fluid hoses on the bucket truck just prior to the accident constituted "improper use by a third party" and was the cause of the injury. Id. at 545, 462 S.E.2d at 329. Therefore, the S.C. Court of Appeals affirmed the trial court's grant of a directed verdict on the strict liability claim. Id. at 545-46, 462 S.E.2d at 329-30.

Finally, in Claytor v. Gen. Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982), the court found that cracks in and subsequent breakdown of the lug bolts on a tire were the result of subsequent mishandling of the product at issue (i.e., due to over-tightening). On this basis, the court affirmed a directed verdict in favor of General Motors on all of the plaintiff's products liability claims. Id. at 265, 286 S.E.2d at 132.

B. Modification and alteration

Modification or alteration of a product, including modification to its safety features and warnings, may also serve as evidence that a product is not in the same condition. Fernandez, 2008 U.S. Dist. LEXIS 45393, at *28. Unlike cases where a court characterizes subsequent changes as "mishandling," alteration or modification cases appear to involve a situation where a party made an attempt to "fix" or adapt a product for continued use.

For example, Fernandez v. Spar Tek Industries., Inc. involved a plywood press, and the plaintiff's expert testified that "[an] interlocking chain had been added and certain warnings changed, further suggesting that changes relating to safety devices likely were made in the over twenty-two years between when the machines left [the manufacturer's] control and when [the plaintiff] was injured." Id. at *29. The district court granted summary judgment for the entirety of the plaintiff's products liability claims (brought in strict liability and negligence) because the plaintiff could not provide affirmative evidence that the plywood press at issue was in "essentially the same condition," despite these changes. Id. at *31.

Although the S.C. Supreme Court did not directly address the "essentially the same condition" requirement in Young v. Tide-Craft, Inc., 270 S.C. 453, 242 S.E.2d 671 (1978), it is clear from a reading of the case that subsequent alteration was a key issue. In Young, a boat repairman spliced a cable that was part of a boat's steering system, as opposed to re-wiring the system with new cable. Id. at 460, 242 S.E.2d at 674. He made these changes even though he considered them "temporary" and "dangerous." Id. The cable separated during the accident, resulting in a loss of steering and the ultimate death of the boat driver. Id. at 461, 242 S.E.2d at 675. The Court held that "the only reasonable inference that can be drawn from the evidence is that the damages here sustained would not have occurred absent [the boat repairman's] unforeseeable actions." Id. at 468, 242 S.E.2d at 678. Though the Court did not directly reference subsequent alteration, it is clear from the Court's analysis that the unforeseeable subsequent alteration of the product at issue was the proximate cause of the injury. See also Bragg, 319 S.C. at 536-37, 462 S.E.2d at 324-25 (where, though not dispositive of the issue in the case, the majority of the safety decals that were on the boom of an aerial bucket truck had been painted over or removed as a result of actions to refurbish it).

C. Lapse of time and change in condition

The amount of time that has elapsed between when a product left the manufacturer's control and when the plaintiff was injured is also relevant to whether a product is in "essentially the same condition." The most significant case to analyze this factor is Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969), an automotive collision case in which the plaintiff was impaled on the gearshift. Id. at 202, 166 S.E.2d at 173. The protective knob on the gearshift collapsed as the plaintiff was thrown against it during the accident. Id. at 217, 166 S.E.2d at 178-79. One of the issues in the case was whether the manufacturer could be liable for the collapse of the knob after 13 years of use prior to the accident. Id. at 236-37, 166 S.E.2d at 189.

The plastic material used to make the knob was available in a wide range of colors, including black. Id. at 234-35, 166 S.E.2d at 187-88. The manufacturer chose to use a white material in the model at issue, and exposure to ultraviolet rays of sunlight caused this material to deteriorate over time. Id. This deterioration included hairline cracks, which made the knob more susceptible to shattering on impact. Id. at 235, 166 S.E.2d at 188. In subsequent models, the manufacturer changed the color of the knobs to black, which made them highly resistant to ultraviolet rays. Id. at 235, 166 S.E.2d at 188. There was no evidence that the black knobs ever deteriorated with age or normal use. Id.

The court stated the applicable law as follows: "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 [sic] 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 thing sold."Id. at 237, 166 S.E.2d at 189 (emphasis added) (quoting Lynch v. Int'l Harvester Co. of America, 60 F.2d 223, 224 (10th Cir. 1932)). The court reviewed numerous other cases in which a plaintiff had been injured by an older product, and the focus of this inquiry was on whether the alleged "defect" at issue was due to wear and tear, or whether it was due to faulty manufacture or fabrication. Id. at 189-90, 166 S.E.2d at 237-40 (citing Carney v. Sears, Roebuck & Co., 309 F.2d 300 (4th Cir. 1962); Pryor v. Lee C. Moore, Corp., 262 F.2d 673 (10th Cir. 1958); Fredericks v. Farrington, 227 F.2d 450 (2d Cir. 1955); Darling v. Caterpillar Tractor Co., 341 P.2d 23 (Cal. Ct. App. 1959)). Whether the defect involved a "moving part" and/or was subject to wear, tear and strain while the machine was in operation was a key part of this analysis.

After reviewing the case law, the court reached the following conclusion:

Here, as in the cases just referred to, there was evidence of an original weakness in the gearshift assembly which caused the collapse of the protective knob. The deterioration of the product and its consequent failure was the very risk created by the negligent choice of material, or the jury could so find. The rule relied upon, that manufacturer is not liable for the failure of a product due to deterioration from ordinary wear and tear or misuse, simply does not fit these facts. Id. at 240, 166 S.E.2d at 190. The court conceded that the amount of time that had elapsed between the marketing of the product and the injury was a "formidable obstacle" to assigning liability to the manufacturer. Id. However, "[t]he important inquiry is not how long the knob lasted but what caused its failure." Id. In Mickle, the failure had less to do with "wear and tear" and the passage of time and more to do with the manufacturer's choice of material.

From a reading of Mickle v. Blackmon, it is apparent that courts have applied the lapse of time factor in different ways, depending on the issues arising in the case. On one hand, the amount of time that has elapsed may be relevant to the degree to which a product has undergone normal "wear and tear" and, as a result, may not be in "essentially the same condition." On the other hand, the amount of time that has elapsed without injury may also be relevant to indicate that the seller was not responsible for the defect, e.g., where a product may have been altered or modified.

Subsequent courts have continued to analyze the amount of elapsed time according to these viewpoints when considering whether a product is in "essentially the same condition." For example, in Fernandez v. Spar Tek Industries, Inc., the district court found that a 22-year lapse of time between when the plywood machines at issue left the manufacturer's control and the time of plaintiff's injury was evidence suggesting that "the machines would not have been unchanged." Fernandez, 2008 U.S. Dist. LEXIS 45393, at *29. This fact, along with evidence of changes to the products' safety features and the plaintiff's general failure to meet his evidentiary burden, were fatal to the plaintiff's claim. Id. Similarly, in Ellison v. Rehab. Servs. of Columbus, the plaintiff was injured by a piece of fitness equipment (a "Versa Climber") approximately 10 years after its manufacture. Ellison, 2007 U.S. Dist. LEXIS 10882, at *6. The court held that this lapse of time and the commercial use of the equipment for part of the time "weigh against any presumption that there have been no changes to the product, whether through modification, normal wear and tear, or as a result of routine maintenance (e.g., the tightening of screws or bolts holding the pedal in place), any of which might have changed the condition of the machine." Id. at *7. In both of these cases, the court viewed the substantial amount of elapsed time as evidence of wear and tear or other changes to the product due to usage over a significant period of time.

Conversely, Bragg v. High-Ranger, Inc. viewed the amount of elapsed time as evidence of the safety of the product prior to its modification. In Bragg, the court discussed that six years had elapsed between the time the aerial bucket device at issue left the control of the manufacturer and its modification by a field mechanic who erroneously installed a conductive hose. Bragg, 319 S.C. at 545-46, 462 S.E.2d at 329-30. During this time period, and prior to the modification, there were no injuries. Id. The court viewed the amount of elapsed time without incident-in comparison to the injury shortly after alteration-as evidence that the aerial bucket truck was not unreasonably dangerous prior to its alteration. Id. at 546, 462 S.E.2d at 329-30. Unlike Fernandez and Ellison, the court in Bragg used lapse of time as evidence of safety prior to alteration, as opposed to evidence of wear and tear.

Therefore, lapse of time can be evidence that a product is not in "essentially the same condition" if the defect at issue was due to wear and tear. However, if the alleged defect was present at the time of manufacture and only became apparent after an extended period of time, then the lapse of time may only be "coincidental." Mickle, 252 S.C. at 240, 166 S.E.2d at 190 ("However, it may reasonably be inferred in this case that the advanced age of the ball was coincidental with its failure rather than the cause of it, and that the knob would have shattered upon a comparable impact had it occurred much earlier in the life of the car.") Finally, where a product is modified or altered, as in Bragg, the lapse of time prior to the injury may be evidence that the product was not unreasonably dangerous until it was modified, and the modification made the product both "unreasonably dangerous" and "not in essentially the same condition." Bragg, 319 S.C. at 545-46, 462 S.E.2d at 329-30.

D. Maintenance

Another factor that may be relevant to whether a product is in "essentially the same condition" is the degree to which it may have undergone maintenance. This factor may overlap to some degree with "subsequent mishandling," depending on the nature of the maintenance involved.

For example, Oglesby v. Gen. Motors Corp., 190 F.3d 244 (4th Cir. 1999), involved a truck's radiator hose that detached and sprayed hot coolant on the plaintiff mechanic. Id. at 247. The truck at issue was purchased in 1991 and had 156,000 miles on it at the time of the plaintiff's injury in 1995. Id. at 252. The record did not include any information concerning the prior owner's repair or maintenance records. Id. After the 1991 purchase, the truck's owner removed the radiator on at least two occasions and had removed and repaired its hoses. Id. The court believed that the inlet connector at issue could have been damaged during either of those repairs due to improper removal, handling or installation. Id. In addition to pointing out the potential impact of this maintenance, the court also stated that the inlet connector may have been damaged due to engine overheating. Id. "Without evidence demonstrating the condition of the inlet connector when it was sold by General Motors and left its custody, [the plaintiff] cannot carry his burden under South Carolina law for proving strict liability and breach of warranty." Id. The court also found that the plaintiff had not offered any evidence of negligence by General Motors. Id.

IV. Imposition of liability despite change in product condition

Even if a product is not in "essentially the same condition," a defendant may still be liable under South Carolina law. "Liability [may] be imposed upon a manufacturer or seller notwithstanding subsequent alteration of the product [when] the alteration could have been anticipated by the manufacturer or seller, or did not causally contribute to the damages or injuries complained of." Fleming v. Borden, 316 S.C. 452, 458, 450 S.E.2d 589, 593 (1994) (quoting Robert D. Hersh & Henry J. Bailey, American Law of Products Liability 2d § 130 (1974)).

Therefore, determining a product's condition is only one part of the equation.

With regard to whether an alteration is "foreseeable," this aspect of the analysis correlates directly with one of South Carolina's tests for whether a product is in a defective condition, unreasonably dangerous for its intended use. As set forth in Bragg v. Hi-Ranger, Inc., "[t]he first test is whether the product is unreasonably dangerous to the ordinary consumer or user given the conditions and circumstances that foreseeably attend the use of the product." Bragg, 319 S.C. at 543, 462 S.E.2d at 328 (emphasis added). Therefore, if a jury can determine that an alteration was a foreseeable circumstance based on the design of the product, then a defendant may be liable even if a product is not in "essentially the same condition." See, e.g., Kennedy v. Custom Ice Equip. Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978) (holding that there was evidence from which a jury could have determined that modifications to an ice-making machine were a foreseeable circumstance that required the incorporation of protective shields in the machine's design, and affirming submission of the case to the jury); Fleming v. Borden, 316 S.C. 452, 450 S.E.2d 589 (1994) (holding that expert testimony concerning a manufacturer's design and placement of a machine created a jury question as to whether removal of a platform for cleaning it was a foreseeable alteration, and reversing the trial court's decision to grant a directed verdict for the manufacturer).

Whether a modification causally contributed to a party's injuries does not appear to have been the focus of many South Carolina cases. Small v. Pioneer Mach., Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997), is the best example and involved a plaintiff who worked in the timber industry and was injured by a falling limb. The plaintiff claimed that the cause of the accident was a design defect in a log skidder. Id. at 455-60, 494 S.E.2d at 838-41. There was evidence that a log skidder was missing its driver's side door and its hand throttle. Id. at 466, 494 S.E.2d at 844. There was also testimony that neither the hand brake nor the foot brake on the log skidder were operable at the time of the accident. Id. Nevertheless, the jury found that the alterations did not causally contribute to the accident, and the South Carolina Court of Appeals held that the trial court did not err in submitting the case to the jury. Id.

V. Conclusion

Whether a product is in "essentially the same condition" or is "without substantial change" in its condition is not as straightforward as one might think. Based on the strict liability statute and the South Carolina case law interpreting this question, the burden of proof appears to be much higher than merely visually examining the product and reaching a conclusion. Among other things, the product's maintenance history, age, amount of time it has been used safely, and whether it has "worn out" or been modified are all factors that must be examined. Plaintiffs and defendants can use all of these relevant factors to determine the viability of a products liability claim and the ability to satisfy this required element in any South Carolina products liability action.

Brian A. Comer is a litigation attorney with Collins & Lacy, PC in Columbia. He practices in general products liability, business, pharmaceutical and securities litigation.