In South Carolina, when the plaintiff brings a negligence-based product liability claim, he or she brings comparative negligence into the picture because South Carolina is a modified comparative negligence state. For any negligence based claims, the jury will be required to apportion fault between the plaintiffs and any defendants in the case. If a Plaintiff is found to be more than 50 percent at fault, he or she will be barred from recovery. If a Plaintiff is found to be 50 percent or less at fault, then the Plaintiff’’s recovery will be reduced in proportion to his percentage of fault. If the jury hypothetically awards a Plaintiff $100,000.00 on a negligence based claim, and the Plaintiff is found to be 30 percent at fault, then the Plaintiff’s recovery will be reduced by 30 percent, resulting in a verdict for $70,000.00. At the same time, it should be noted that under current law in South Carolina, comparative negligence is probably not a defense to strict liability or breach of warranty claims.

Finally, any potential liability on the part of the product liability defendant may be reduced/apportioned pursuant to the South Carolina Contribution Among Tortfeasors Act (S.C. Code Ann. § 15-38-10, et. seq.). As a result of revisions to the Act in 2005, South Carolina is now a modified joint and several liability state. In South Carolina, if a defendant’s conduct is determined to constitute 50 percent or more of the total fault for the Plaintiff’s damages, then the defendant is jointly and severally liable for the full verdict returned in the case. When the defendant’s conduct constitutes 50 percent or more of the total fault, the defendant is not entitled to have its liability reduced or apportioned under the Act. However, if a defendant’s conduct is determined to be less than 50 percent of the total fault, then the defendant may only be liable for its proportionate share of any verdict that is returned. In the hypothetical provided above, in which the jury awards $100,000.00 and finds that the Plaintiff is 30 percent at fault, if the defendant is found to be 10 percent at fault, the defendant may only be responsible for paying $7,000.00. Significantly, the defendant’s ability to potentially have its liability, if any, “apportioned” or reduced pursuant to the Act clearly would exist as to any negligence based claims asserted by the Plaintiffs. South Carolina courts have not yet decided whether the theory of modified joint and several liability (i.e. apportionment of fault) will apply to strict liability and breach of warranty based claims. Other states that have considered this issue are split, with some states concluding that liability should be apportioned for strict liability and breach of warranty claims and other states concluding that pure joint and several liability (with no apportionment or reduction) should apply to those claims.

Some years ago, while I was in Nashville, Tennessee, I attended a show at the Grand Ole Opry. I remember Little Jimmy Dickens saying, “If you see a turtle on a fence post, it had help getting up there.” I wrote it down; saved it for later reference. While the quote has its roots in politics, it is a constant reminder to me that whatever I have done or will do, there are others there to help along the way.

As a young lawyer, our law firm had a policy that a partner would accompany any new lawyer on his or her first jury trial. My partner, Phil Reeves, watched me try a case for an armored car service. Another partner was with me when I defended a trucking company in an accident case. Howard Boyd was there when I did my best to defend a garbage truck driver who ran another truck off the road. Howard was also seated beside me when I took one of my first depositions. After each of these events, my colleague patiently debriefed me on my performance, including the good, the bad, and the ugly. (Have you ever watched someone else try a case? It is not easy to stay seated and refrain from yelling out, “Objection!”)

Howard Boyd has also been a mentor to lawyers outside our firm.  In fact, I was recently talking to another Greenville lawyer who told me how much he appreciated how helpful Howard had been to him when he was a young lawyer with little experience.

I am grateful for the support that I received as a young lawyer, even now, as an older, more experienced lawyer. It is one of the advantages of being in a law firm with a diverse group of lawyers, all with different styles and perspectives.

Who helped you along the way? Did you have a special mentor? We would all do well to remember what it was like to be a young, inexperienced lawyer. You were a turtle on a fence post, and you had help getting up there!

Take note, lawyers of South Carolina! Mandatory e-filing in the Court of Common Pleas will expand to include yet another county, this time Anderson County, on October 18.

One of our favorite podcasts, “Mystery Show,” now faces an uncertain future. If you’re note familiar with it, we’d highly encourage you to visit its archives (especially the compelling and emotionally affecting third episode).

Don’t forget that the Mecklenburg County Bar’s Small Firm Soiree is tomorrow night! Click here for details.

Our tweet of the week addresses music, not the law, but it is just as important (as it seeks to correct one of the day’s most pernicious malapropisms). Please, dear readers, take heed.

Don’t make me say it again: an anthology consisting of CDs or LPs placed in a cardboard enclosure is a boxed set, not a “box set.”

— Andy Zax (@andyzax) September 28, 2016

Step 6 – Don’t Let Technology Control Your Life   

This week, we review Judge Carl Horn’s Step 6, Don’t Let Technology Control Your Life.  This follows the 12 steps that Judge Horn has set forth to help individual lawyers achieve balance and professional fulfillment.  Step 6 reminds us of the additional pressure caused by technology. Judge Horn encourages us to refuse to let technology invade and control every inch of our lives.

Our growing dependence on technology has led to lawyers feeling compelled to stay up on technology but yet they do not know where to turn.  Lawyers find it increasingly difficult to mentally disengage or escape from work when at home or on vacation.   The less personalized communication both diminishes lawyers’ ability to develop relationships with clients and can lead to miscommunication. Work itself has become more rushed and less considered. Our instantaneous access to information pushes performance standards higher. Our clients expect faster turnaround on research and documents. The courts and our clients expect legal work to reflect the most up to date decisions posted on the Internet.

Judge Horn also notes the negative impact technology-related pressures have had on professional satisfaction. For example, practicing law is often less personal and more mechanized. Younger lawyers often spend the bulk of their time in front of a computer screen, which is less stimulating and intrinsically satisfying. Finally, lawyers find it increasingly difficult to put their stamp of professionalism on their work.

So what do we do about it? Judge Horn suggests that we start with drawing a line. We must each decide how much of us is “for sale.” Once we have the courage to draw the line, two basic things can happen. Those who have been applying this kind of pervasive pressure might realize we can perform adequately without being at their “beck and call” 100 percent of the time. The other thing that can happen is that we might lose clients or even lose our jobs. However, Judge Horn is not advocating being lazy or shirking our duty. He is talking about working long and hard, but at some point realizing that we share every human being’s need for private space.

The boundaries are something each individual must work out. Perhaps you block off times during the day in which you need to focus on a particular task, and make sure the phone or email does not interrupt. Some of you may limit your email access when you are away from the office. Whatever your strategy, Judge Horn reminds us that the core objective is the same: To establish boundaries that prevent technology from controlling our lives.

Let us know how you have established boundaries in this area.

Next week, we will review Step 7 – Care about Character and Conduct Yourself Accordingly.

According to reports, a New York woman has been awarded $52,500 through arbitration after being burned by a cup of coffee purchased from a Wendy’s in Staten Island. The incident occurred in 2012 when the woman and her daughter went to the Wendy’s drive-thru to purchase some food and a cup of coffee. The daughter, who was driving the car, was handed the cup of coffee from the Wendy’s employee. While the testimony on the exact manner was apparently inconsistent, the daughter then passed the cup to her mother who was sitting in the passenger’s seat. It appears the lid from the coffee cup may have not been properly secured during the pass. As such, coffee spilled from the cup onto the woman’s left hand and left knee. Thereafter, the woman filed suit Rawson Food Services, a New Jersey based Wendy’s franchisee, Princeton Food Services, and Wendy’s International alleging that she was burned because the coffee was both “excessively hot” and “unsafely or improperly packaged.”

Over the years, we here at Abnormal Use have taken interest in hot coffee litigation. Most often, hot coffee cases can be divided into two classes, those that allege burns as a result of the excessive temperature of the coffee and those that allege injuries as a result of some conduct of the restaurant’s employees. Aside from the infamous Stella Liebeck case, the former often face the most scrutiny in the courts and among the public. The latter are often easier to digest as they don’t premise liability on serving a product on the way it is meant to be served. Rather, the latter allege the restaurant was liable because its employees did not act in the way a reasonable attorney should under the circumstances (i.e. the employee spilled coffee on a customer in the course of handing him the cup or the employee did not properly not secure the lid to the coffee cup). This particular case is interesting (but not unique) in that it alleges that the coffee was both excessively hot and that it was not properly packaged. The reports do not mention the alleged temperature of the Wendy’s coffee, nor do they state the theory on which the award was based. For the sake of hot coffee lovers around the world, let’s hope it was more so the latter than the former.

We should also note that the arbitrator assessed the damages as $75,000, but found the woman to be 30 percent at-fault. We presume that the comparative fault must have been the result of the manner in which the woman handled the coffee.