Anderson v. Green Bull, Inc.

• Decision Date: 13 September 1995
• Docket Number: No. 2491,2491
• Citation: 322 S.C. 268,471 S.E.2d 708
• Court: South Carolina Court of Appeals
• Parties: Melanie Bolt ANDERSON, as Personal Representative of the Estate of Joe Shawn McLees, Deceased, Respondent, v. GREEN BULL, INC., Appellant. . Heard

Page 708

471 S.E.2d 708

322 S.C. 268

Melanie Bolt ANDERSON, as Personal Representative of the Estate of Joe Shawn McLees, Deceased, Respondent, v. GREEN BULL, INC., Appellant.

No. 2491.

Court of Appeals of South Carolina.

Heard Sept. 13, 1995.

Decided April 8, 1996.

Rehearing Denied June 20, 1996.

Certiorari Denied Dec. 19, 1996.

Michael A. Farry and David A. Wilson, both of Horton, Drawdy, Ward & Johnson, of Greenville, for appellant.

Eugene C. Covington, Jr., of Covington & Patrick, of Greenville, for respondent.

GOOLSBY, Judge:

Melanie Bolt Anderson, as Personal Representative of the Estate of Joe Shawn McLees, Deceased, initiated this strict liability action against Green Bull, Inc. At the close of all evidence, Green Bull made a motion for a directed verdict, which the trial court denied. The jury returned a $50,000 verdict for Anderson. Green Bull then made a motion for judgment notwithstanding the verdict, which the trial court also denied. Green Bull appeals. We reverse.

We are required to view the facts in the light most favorable to the nonmoving party, here Anderson, to determine whether the trial court should have granted the motions for directed verdict and judgment notwithstanding the verdict. Crossley v. State Farm Mut. Auto. Ins. Co., 307 S.C. 354, 415 S.E.2d 393 (1992). Here, the evidence, when so viewed, suggested that on June 24, 1992, McLees and Racy Paugh, another employee of Tucker Roofing, were replacing a roof on a house over which ran two high-voltage power lines and while they were moving a twenty-six-foot aluminum conveyor ladder ¹ from one end of the house to the other, McLees was electrocuted and Paugh was injured.

Green Bull sold the ladder to Tucker Roofing in 1988. The ladder was sold in three eight-foot sections and assembled by Tucker Roofing. Tucker Roofing never made any modifications to the ladder. The ladder contained a red warning label that read,"KEEP ENTIRE UNIT CLEAR OF ALL UTILITY AND ELECTRICAL WIRING."

In a products liability case based solely on the theory of strict liability, the plaintiff must establish the following three things: (1) he was injured by the product; (2) the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant, who is engaged in the business of selling such a product; and (3) the injury occurred because the product was in an unreasonably dangerous, defective condition. Harris v. Rose's Stores, Inc., 315 S.C. 344, 433 S.E.2d 905 (Ct.App.1993).

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. RESTATEMENT (SECOND) OF TORTS § 402A cmt. j, at 353 (1965). ² 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. Id. Further, a seller is not required to warn of dangers or potential dangers that are generally known and recognized. Dema v. Shore Enters., Ltd., 312 S.C. 528, 435 S.E.2d 875 (Ct.App.1993); Koester v. Carolina Rental Ctr., 311 S.C. 115, 427 S.E.2d 708 (Ct.App.1993), rev'd on other grounds, 313 S.C. 490, 443 S.E.2d 392 (1994). It follows, then, that a product cannot be deemed either defective or unreasonably dangerous if a danger associated with the product is one that the product's users generally recognize. See RESTATEMENT (SECOND) OF TORTS § 402A cmt. g, at 351 (1965) (a product is defective only "where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him") (emphasis added); F. PATRICK HUBBARD & ROBERT L. FELIX, THE SOUTH CAROLINA LAW OF TORTS, 242 (1990) ("[T]he defendant is not held to an awareness of unforeseeable uses or misuses or the unreasonable assumption by the plaintiff of obvious hazards accompanying the product, whether these issues arise as matters of defense or of defining defect.") (emphasis added); see also Hunt v. Harley-Davidson Motor Co., Inc., 147 Ga.App. 44, 248 S.E.2d 15, 16 (1978) (the manufacturer is under no duty "to guard against injury from a patent peril or from a source manifestly dangerous").

Here, there was no evidence from which the jury could reasonably infer the roofers' injuries were caused by a defect in the ladder itself. Any person of normal intelligence would know "the risk posed by an aluminum ladder in close proximity to an energized high-voltage line." Stancill v. Potomac Elec. Power Co., 744 F.2d 861, 866 (D.C.Cir.1984). Indeed, witnesses for both sides testified a person holding an aluminum ladder would know to stay away from overhead power lines. Even though the conductivity of the ladder caused it to be dangerous, the conductivity, then, did not cause the ladder to be either defective or unreasonably dangerous because the conductivity of an aluminum ladder is a condition commonly known and recognized. ³

Anderson also contends the jury could have reasonably found that the accident was the result of arcing ⁴, and that the danger of arcing is not a subject of common knowledge. The record, however, contains no evidence from which the jury could reasonably conclude that arcing most probably took place. At most, the evidence shows it was "possible" that arcing occurred. See Harris v. Rose's Stores, Inc., 315 S.C. 344, 433 S.E.2d 905 (1993) (causation based upon a possibility rather than a probability is not sufficient for a plaintiff to recover in a products liability case; where the cause of a plaintiff's injuries may be as reasonably attributed to an act for which the defendant is not liable as to one for which it is liable, the plaintiff has not met his burden of proof in establishing the defendant's defective product proximately caused the plaintiff's injuries).

Because there was no evidence from which the jury could reasonably infer the ladder was either defective or unreasonably dangerous, the trial court erred in denying Green Bull's motions for directed verdict and judgment notwithstanding the verdict. ⁵

REVERSED.

CURETON, J., concurs in a separate opinion.

HOWELL, C.J., dissents in a separate opinion.

CURETON, Judge: (Concurring).

I agree with Judge Goolsby that the trial court's refusal to direct a verdict for Green Bull should be reversed. In an action based on strict tort liability where a design defect is alleged, plaintiff's case is complete when he has proven the product, as designed, was in a defective condition unreasonably dangerous to the user when it left the control of the manufacturer and the defect caused his injuries. Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108 (Ct.App.1985); Schall v. Sturm, Ruger Co., 278 S.C. 646, 300 S.E.2d 735 (1983). The test for determining whether a product is defective is whether the product is unreasonably dangerous to the ultimate consumer given the conditions and circumstances that foreseeably attend the use of the product. Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982); Kennedy v. Custom Ice Equip. Co., 271 S.C. 171, 246 S.E.2d 176 (1978). While it is true that almost any product can be made safer, the pertinent inquiry is whether the product as supplied is unreasonably dangerous. Claytor, 277 S.C. 259, 286 S.E.2d 129. Both industry standards and the state of the art at time of manufacture are relevant to show the reasonableness of the product's design. Bragg v. Hi-Ranger, Inc., --- S.C. ----, 462 S.E.2d 321 (Ct.App.1995).

Experts for both parties testified the ladder's aluminum design did not violate any safety standard, and that a fiberglass designed ladder was not the industry standard at the time the ladder was manufactured. It is common knowledge that an aluminum ladder will conduct electricity. I would hold as a matter of law that there is nothing inherently unreasonably dangerous about a ladder made of aluminum. Nevertheless, Anderson's expert testified that the hazard presented by the use of aluminum ladders by persons in the roofing business was well known in the ladder industry at the time of the ladder's manufacture. Thus, he opined that as a minimum, the ladder was unreasonably dangerous to this class of consumer if placed in their hands without proper warning. This opinion is partly supported by the fact Green Bull placed a warning on the ladder. A product may be deemed defective, although faultlessly made, if it is unreasonably dangerous to place the product in the hands of the user without a suitable warning. Marchant v. Lorain Div. of Koehring, 272 S.C. 243, 251 S.E.2d 189 (1979). By the same token, a product is not defective for failure to warn of an obvious danger. Dema v. Shore Enter., 312 S.C. 528, 435 S.E.2d 875 (Ct.App.1993). The question here presented is whether Green Bull, knowing the foreseeable use of the ladder, had a duty to warn its users against the hazard of bringing the ladder into contact with electrical lines, and if so, whether the warning it placed on the ladder was adequate.

I agree with Anderson that the evidence gives rise to a reasonable inference that Green Bull had a duty to warn consumers of the hazard of injury accompanying use of the ladder around electricity. Livingston v. Noland Corp., 293 S.C. 521, 362 S.E.2d 16 (1987) (manufacturer of a product is liable for failing to warn if it has reason to know the product is likely to be dangerous for its intended use; it has no reason to believe the consumer will realize the potential danger; and it fails to exercise care to inform of facts which make it likely to be dangerous). Anderson's expert testified that the deficiency in Green Bull's warning was that it did not instruct users to shorten the ladder to the length necessary for each particular use. The ladder came in three eight foot sections and was assembled by McLees' employer. The...