South Carolina Adopts the Risk-Utility Test as the Exclusive Test in Products Liability Design Cases

In a recent landmark decision, the South Carolina Supreme Court brought some welcome clarifications its products liability jurisprudence. Branham v. Ford Motor Co., — S.E.2d —-, No. 26860, 2010 WL 3219499 (S.C. Aug. 16, 2010). That case centered around a 2001 accident involving a 1987 Ford Bronco. The driver was transporting several children, none of whom were wearing seat belts, to her house. The driver took her eyes off of the road at which time a tire left the roadway. The driver overcorrected, causing the vehicle to roll over, ejecting the Plaintiff’s young son. Plaintf filed his lawsuit against Ford and the driver on behalf of his son in the Hampton County, Carolina a venue previously ranked as a “judicial hellhole.”

Of particular note was the court’s decision to join the majority of States that employ the risk-utility test as the exclusive test to be used in a products liability design case. For a plaintiff to successfully advance a design defect claim, he must show that the design of the product caused it to be “unreasonably dangerous.” Under the risk-utility test, this is accomplished by considering numerous factors, including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger. It also comes with the attendant requirement that Plaintiff show a feasible alternative design. The court rejected Plaintiff’s position that he could prove a design defect by resort to either the risk-utility test or the consumer expectations test, the latter of which is met by showing that the product is unreasonably dangerous to the consumer or user given the conditions and circumstances that foreseeably attend use of the product. That test is more appropriately used for manufacturing defect cases. For design defects, on the other hand, the focus is properly on whether the product was made safe enough, or whether the manufacturer’s failure to adopt a particular design feature proposed by a plaintiff was, on balance, right or wrong, which is the core concern of the risk-utility balancing test.

The court was careful to point out that merely because a product can be made safer, does not mean that a design defect case should see the light of day in front of a jury. To the contrary, most any product can be made safer, and there is danger incident to the use of any product. Hence, a plaintiff must present evidence of a design flaw, show how plaintiff’s alternative design would have prevented the product from being unreasonably dangerous, and include considerations of cost, safety and functionality associated with the alternative design. Here, Plaintiff had actually met the standards set forth under the risk-utility analysis such that the case did not warrant reversal on this issue. However, there were other factors that led the court to reach its decision to reverse and remand for a new trial.

Two evidentiary rulings and the inflammatory nature of Plaintiff’s counsel’s closing argument led to the decision to reverse and remand. First, the court considered introduction of post-manufacture evidence. Whether a product is defective must be measured against information known at the time the product was placed into the stream of commerce. Hence, post-manufacture evidence, or evidence that was not known or available at the time of distribution, is generally inadmissible. Plaintiff was described by the court as “unrelenting” in the pursuit of post-distribution evidence to the point that the error of the lower court in admitting such evidence was not considered harmless. The court noted the policy benefits of such a rule to encourage the continued testing and evaluation of products after initial manufacture and not judge the manufacturer through the lens of hindsight.

Second, the court considered evidence of similar incidents. Such evidence is admissible where there is a substantial similarity between the other incidents and the accident in question, tending to prove or disprove some fact in controversy. Because this type of evidence may be “highly prejudicial,” there is a stringent standard for admissibility requiring a plaintiff to present a factual foundation for the court to determine that the other accidents were substantially similar to the accident at issue. Additionally, such similar incidents must pre-date the manufacture of the product. Here, introduction of Plaintiff’s voluminous evidence of post-manufacture rollover data was error even where the accidents were substantially similar.

Finally, as to Plaintiff’s closing argument, Plaintiff relied heavily on inadmissible evidence, inviting the jury to base its verdict on passion rather than reason. Plaintiff wanted Ford to be punished for harm to both Plaintiff and others, reciting numerous times the number of people killed or severely impaired each year in Ford rollover accidents and contending that Ford found the numbers to be acceptable. Inviting a jury to punish a defendant for other nonparties or strangers to the litigation is forbidden.

Another significant clarification is the court’s holding that, where one claim is dismissed and the dismissal rests on a common element shared by the companion claim, the companion claim must also be dismissed. Here, Plaintiff had alleged claims of both negligence and strict liability in tort. Regardless of the theory on which Plaintiff seeks recovery, he must prove (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. Over and above this, a negligence theory merely imposes the additional burden on a plaintiff of demonstrating that the defendant failed to exercise due care in some respect, placing the focus on the manufacturer’s conduct. Because the trial court dismissed the strict liability claim finding the seat belt sleeve was not in a defective condition unreasonably dangerous as a matter of law, it should have also dismissed the companion negligence claim. The fault-based component of negligence is simply of no consequence where there is no showing that the product was defective and unreasonably dangerous.

Not surprisingly, the decision is already the subject of blog commentary. Our friends at the South Carolina Products Liability Law Blog have authored a list of “Ten Takeaways from Branham v. Ford Motor Company“, with which we here at Abnormal Use agree.