A. Theories of Liability

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

A. Theories of Liability

A plaintiff in a products liability suit might use any or all of three different theories of recovery: negligence, strict liability in tort, and warranty. Strict products liability is not intended to provide an exclusive remedy and does not preclude liability based on the alternative ground of negligence.¹¹ The same may be said of liability based on breach of warranty. ¹² In many personal injury and property damage cases, the general practice is to plead all available causes of action.¹³ This practice may occasionally produce inconsistency or uncertainty, but a verdict supported by at least one theory will not be reversed.¹⁴ However, election of remedies may be required at some point in order to avoid double recovery.¹⁵

In any products liability action under South Carolina law, a plaintiff must establish three things: (1) he or she was injured by the product; (2) the product was in essentially the same condition at the time of the accident as it was when it left the hands of the defendant; and (3) the injury occurred because the product was in a defective condition unreasonably dangerous to the user.¹⁶ Additionally, under a negligence theory, the plaintiff bears the additional burden of "demonstrating the defendant . . . failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault."¹⁷

Under any theory, the cause of action must be based on injury caused by a product defect.¹⁸

1. Negligence

As discussed above, in a products liability action based on a negligent design theory, a plaintiff must establish (1) that he was injured by the product; (2) that the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant; (3) that the injury occurred because the product was in a defective condition unreasonably dangerous to the user; and (4) that the defendant failed to exercise due care in designing the product.¹⁹ Additionally, as part of proving that a product design is "unreasonably dangerous," a plaintiff has the burden of presenting evidence of a reasonable alternative design.²⁰

When addressing the element of due care in a negligence action, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault. The judgment and ultimate decision of the manufacturer must be evaluated based on what was known or "reasonably attainable" at the time of manufacture. In evaluating a negligence claim, the focus may be either on the presence of conduct or the absence of conduct. Unlike a negligence claim, the focus in a strict liability action is on the condition of the product, without regard to the action of the seller or manufacturer. Strict liability and negligence claims may co-exist.²¹

A plaintiff may establish a negligence claim through circumstantial evidence by showing that, through the exercise of reasonable diligence, the manufacturer should have known of a defect.²²

The defendant in a negligence action may assert the traditional defenses based on the plaintiff's own misconduct²³ —such as comparative negligence or assumption of the risks of the product—or other affirmative defenses such as the statute of limitations.²⁴ However, comparative negligence is not a defense to strict liability and warranty claims in a crashworthiness case,²⁵ although the plaintiff's conduct may be introduced in some cases as it relates to proximate cause.²⁶

Because of the difficulty of proof of negligence and the availability of the defense of comparative negligence, forms of strict liability in warranty and in tort have, in significant measure, displaced negligence as the basis of liability.²⁷ Negligence, however, remains important to plaintiffs because the distinctions among the three forms of liability are not always easily established and because proof of fault may make the defendant appear blameworthy, and therefore, the jury may more readily view the defendant as the party who should be liable.

A leading South Carolina products liability case based on negligence is Mickle v. Blackmon.²⁸ There, the plaintiff was thrown against the gear shift lever in an automobile in a collision with another car. The knob of the gear shift lever shattered upon impact, causing the plaintiff to be impaled upon the lever and thus seriously enhancing her injury. The plaintiff claimed that the defendant automobile manufacturer was negligent in the design and placement of the knob, which was made of plastic that became so brittle under sunlight that it was subject to shattering upon impact. The jury found the manufacturer was liable for negligence despite the passage of time—the car was thirteen years old at the time of the collision—and the intervening misconduct of other persons.²⁹

The Mickle court first noted that the ordinary principles of negligence apply in a product liability case:

Rapid development in the law of products liability following the celebrated decision in MacPherson v. Buick Motor Co.³⁰ has resulted in general agreement upon the rule that a manufacturer is liable, under ordinary negligence principles, for a dangerously defective product which, while being put to an intended use, causes an accident and resulting injury to its user or to some third party. Ford concedes this principle, which we adopted in Salladin v. Tellis³¹ and which has nigh universal support.³²

With regard to the seemingly more difficult issue of the duty of the manufacturer to exercise reasonable care with regard to automobile accidents in order to reduce the injury caused in such cases by design features, the Mickle court opted to follow the view that reasonable care includes the duty to design a "crashworthy," though not a "crash-proof," car:³³

It is a matter of common knowledge that a high incidence of injury-producing motor vehicle collisions is a dread concomitant of travel upon our streets and highways, and that a significant proportion of all automobiles produced are involved in such smashups at sometime during their use. Thus, an automobile manufacturer knows with certainty that many users of his product will be involved in collisions, and that the incidence and extent of injury to them will frequently be determined by the placement, design and construction of such interior components as shafts, levers, knobs, handles and others. By ordinary negligence standards, a known risk of harm raises a duty of commensurate care. We perceive no reason in logic or law why an automobile manufacturer should be exempt from this duty.³⁴

Having established the manufacturer's duty to exercise reasonable care in designing a crashworthy vehicle, the Mickle court turned to the sufficiency of evidence to support a finding of breach of that duty. In reviewing the verdict below to determine whether the product was actionably defective, the court stated:

It is implicit in the verdict that the gearshift lever presented an unreasonable risk of injury if not adequately guarded. At the time of plaintiff's injury the knob on the Hill car continued to serve its functional purpose as a handhold, but it had become useless as a protective guard. It is inferable that the condition of the knob did not arise from ordinary wear and tear, but from an inherent weakness in the material of which Ford was aware when the selection was made. In the light of the insidious effect on this material of exposure to sunlight in the normal use of an automobile, it could reasonably be concluded that Ford should have foreseen that many thousands of the one million vehicles produced by it in 1949 would, in the course of time, be operated millions of miles with gearshift lever balls which, while yet serving adequately as handholds, would furnish no protection to an occupant who might be thrown against the gearshift lever. The jury could reasonably conclude that Ford's conduct, in manufacturing a needed safety device of a material which could not tolerate a frequently encountered aspect of the environment in which it would be employed, exposed many users of its product to unreasonably great risk of harm. Therefore, the issue of Ford's negligence was submissible under elementary common law principles . . . .
We readily concede that the passage of thirteen years between the marketing of a product and its injury-producing failure is a formidable obstacle to fastening liability upon the manufacturer. 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. The important inquiry is not how long the knob lasted but what caused its failure. Mere passage of time should not excuse Ford if its negligence was the cause. Since this conclusion finds support in the evidence, the issue was for the jury.³⁵

2. Warranty Under the Uniform Commercial Code

To recover under a breach of warranty theory in a product liability case in South Carolina, a plaintiff must prove that the product failed to conform to the warranty and that (1) the product injured the plaintiff; (2) the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant; and (3) the injury occurred because the product was in a defective condition unreasonably dangerous to the user.³⁶

Warranty liability in South Carolina is usually based on the Uniform Commercial Code,³⁷ although there are possible common law warranty claims for improved realty and for services, both of which will be discussed later.³⁸ Liability based on warranty allows plaintiffs to establish liability for injury "proximately" caused by a breach, including consequential damages,³⁹ even if the breach did not result from any fault of the defendant.⁴⁰ Warranty theory is also advantageous when...