South Carolina

 

 

Statute of Limitations (SOUTH CAROLINA)

 

Personal Injury - 3 yrs. [S.C. Code Ann. § 15-3-530]; from the time Plaintiff knew or should have known that he had a cause of action [S.C. Code Ann. § 15-3-535]

Wrongful Death - 3 yrs. (from date of death) [S.C. Code Ann. § 15-3-530]

Property Damage - 3 yrs. [S.C. Code Ann. § 15-3-530]

Contracts (Written and Oral) - 3 yrs. [S.C. Code Ann. § 15-3-530]

Contracts for Sale (goods) and Breach of Warranty - 6 yrs. (discovery rule applies) [S.C. Code Ann. § 36-2-725]

 

 

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Statute of Repose (Products) (SOUTH CAROLINA)

 

None

 

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Admissibility of Expert Testimony (SOUTH CAROLINA)

 

The trial court must examine the substance of an expert’s testimony to determine if it is reliable, regardless of whether the expert evidence is scientific, technical, or other specialized knowledge.  There are several factors that the trial court should consider when determining whether scientific expert evidence is reliable: (1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures [Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010)].

 

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Causes of Action (SOUTH CAROLINA)

 

Strict Liability – South Carolina has codified Rest. (2nd) Torts, 402A.  One who sells any product in a defective condition unreasonably dangerous to the user (or to his property) is subject to liability for physical harm caused to the ultimate user (or to his property) if: (1) the seller is engaged in the business of selling such a product; and (2) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold [S.C. Code Ann. § 15-73-10].  Comments to § 402A are incorporated as the legislative intent of this statute [S.C. Code Ann. § 15-73-30].

 

Negligence – In a products liability action, the plaintiff must establish three things, regardless of the theory on which he seeks recovery: (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; and (3) that the injury occurred because the product was in a defective condition unreasonably dangerous to the user.  A negligence theory in a product liability action imposes the additional burden on a plaintiff 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 [Branham v. Ford Motor Co., 701 S.E.2d 5 (S.C. 2010)].

 

Breach of Warranty – South Carolina has adopted the standard UCC express warranty [S.C. Code Ann. § 36-2-313]; implied warranty of merchantability [S.C. Code Ann. § 36-2-314]; implied warranty of fitness for particular purpose [S.C. Code Ann. § 36-2-315].  A seller’s warranty (express or implied) extends to any natural person who may be expected to use, consume or be affected by the goods and whose person or property is damaged by breach of the warranty [S.C. Code Ann. § 36-2-318].

 

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Definition of “Defect” (SOUTH CAROLINA)

 

There are three defects a plaintiff in a products liability lawsuit can allege: (1) a manufacturing defect; (2) a warning defect; and (3) a design defect. When a manufacturing defect claim is made, a plaintiff alleges that a particular product was defectively manufactured. When a warning defect claim is made, a plaintiff alleges that he was not adequately warned of dangers inherent to a product. When a design defect claim is made, a plaintiff alleges that the product at issue was defectively designed, thus causing an entire line of products to be unreasonably dangerous [Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010)].

 

There are two tests to determine whether a product is in a defective condition unreasonably dangerous for its intended use.  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.  Under the second test, a product is unreasonably dangerous and defective if the danger associated with the use of the product outweighs the utility of the product [Bragg v. Hi-Ranger, Inc., 462 S.E.2d 321 (S.C. Ct. App. 1995)].

Also, see discussion below re: design defects.
 

 

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Liability of Sellers (SOUTH CAROLINA)

 

Sellers are strictly liable [Bragg v. Hi-Ranger, Inc., 462 S.E.2d 321 (S.C. Ct. App. 1995)].  For liability to apply, the seller must be engaged in the business of selling such products.

 

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Defenses (SOUTH CAROLINA)      

 

Comparative Negligence – South Carolina follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [Nelson v. Concrete Supply Co., 399 S.E.2d 783 (S.C. 1991)]. 

 

Assumption of Risk – If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery [S.C. Code Ann. § 15-73-20].  At the same time, South Carolina Supreme Court has held that a plaintiff is not barred from recovery by the doctrine of assumption of risk unless the degree of fault arising therefrom was greater than the negligence of the defendant [Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 508 S.E.2d 565 (S.C. 1998)].

 

Product Misuse – Normally, a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold; he is expected to reasonably foresee only injuries arising in the course of such use. However, he must also be expected to anticipate the environment which is normal for the use of his product [Gardner v. Q. H. S., Inc., 448 F.2d 238 (4th Cir. S.C. 1971)].

 

Product Alteration/Modification – The manufacturer or seller is not liable if it can be shown that the product was: (1) materially altered before it reached the injured user; and (2) such alteration could not have been expected by the manufacturer or seller.  Foreseeability of the alteration must also be examined [Fleming v. Borden, 450 S.E.2d 589 (S.C. 1994)].

 

 

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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (SOUTH CAROLINA)

 

There is no tort liability for a product defect if the damage suffered by Plaintiff is only to the product itself [Sapp v. Ford Motor Co., 687 S.E.2d 47 (S.C. 2009)]. 

 

Where a buyer’s expectations in a sale are frustrated because the product does not work properly, the buyer’s remedies are limited to those prescribed by the law of contract.  However, the rule distinguishes between transactions involving the sale of goods, where contract law protects economic expectations, and transactions involving the sale of defective products to individual consumers, whose injuries are traditionally remedied by the law of torts [Palmetto Linen Service, Inc. v. U.N.X., Inc., 205 F.3d 126 (4th Cir. 2000)].

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (SOUTH CAROLINA)

 

Any fact in issue may be proved by circumstantial evidence as well as direct evidence, and circumstantial evidence is just as good as direct evidence if it is equally as convincing to the trier of the facts. Thus, the general rule is any fact can be shown through circumstantial evidence, and it is up to the trier of fact to determine whether it alone is worth as much merit as direct evidence. Other similar incidents can be used to show a design defect, which is classic circumstantial proof [Graves v. CAS Med. Sys., 735 S.E.2d 650 (S.C. 2012)].

 

 

 

 

 

 

 

 

 

Design Defects (SOUTH CAROLINA)                                                                                                

 

One of the defects a plaintiff in a products liability lawsuit can allege is a design defect. When a design defect claim is made, a plaintiff alleges that the product at issue was defectively designed, thus causing an entire line of products to be unreasonably dangerous [Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010)].

 

There are two tests to determine whether a product is in a defective condition unreasonably dangerous for its intended use.  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.  Under the second test, a product is unreasonably dangerous and defective if the danger associated with the use of the product outweighs the utility of the product.  The state of the art and industry standards are relevant to show both the reasonableness of the design and that the product is dangerous beyond the expectations of the ordinary consumer. In determining if a product is defective and unreasonably dangerous, numerous factors must be considered, including: (1) the usefulness and desirability of the product; (2) the cost involved for added safety; (3) the likelihood and potential seriousness of injury; and (4) the obviousness of danger.  South Carolina balances the utility of the risk inherent in the design of the product with the magnitude of the risk to determine the reasonableness of the manufacturer’s action in designing the product.  Conformity with industry practice is not conclusive of the product’s safety [Bragg v. Hi-Ranger, Inc., 462 S.E.2d 321 (S.C. Ct. App. 1995)].

 

Under the risk utility test for a design defect products liability claim, a plaintiff must prove an alternative feasible design. [Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010)].

 

The state of the art and industry standards are relevant to show both the reasonableness of the design and that the product is dangerous beyond the expectations of the ordinary consumer [Bragg v. Hi-Ranger, Inc., 462 S.E.2d 321 (S.C. Ct. App. 1995)].

 

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Failure to Warn (SOUTH CAROLINA)

 

One of the defects a plaintiff in a products liability lawsuit can allege is a warning defect.  When a warning defect claim is made, a plaintiff alleges that he was not adequately warned of dangers inherent to a product [Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010)].

 

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. A product bearing a warning that the product is safe for use if the user follows the warning is neither defective nor unreasonably dangerous; therefore, the seller is not liable for any injuries caused by the use of the product if the user ignores the warning. Further, a seller is not required to warn of dangers or potential dangers that are generally known and recognized [Anderson v. Green Bull, Inc., 471 S.E.2d 708 (S.C. Ct. App. 1996)].

 

According to a federal court decision, it is likely that South Dakota would adopt the heeding presumption (the presumption that a reasonable person would act according to an adequate warning) [Schilf v. Eli Lilly & Co., 687 F.3d 947 (8th Cir. S.D. 2012)].

 

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Independent Cause of Action for Evidence Spoliation (SOUTH CAROLINA)

 

South Carolina has not recognized a tort of first party negligent spoliation of evidence [Cole Vision Corp. v. Hobbs, 714 S.E.2d 537 (S.C. 2011)]