South Carolina Lawyer
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...