Allen v. Long Mfg. NC, Inc., 2878.

• Decision Date: 10 August 1998
• Docket Number: No. 2878.,2878.
• Citation: 505 S.E.2d 354,332 S.C. 422
• Parties: Otis Lynn ALLEN, Jr., as Personal Representative of the Estate of Otis Lynn Allen, Sr., Appellant, v. LONG MFG. NC, INC., and Glen Kinard, Defendants, Of whom Long Mfg. NC, Inc., is Respondent.
• Court: South Carolina Court of Appeals

332 S.C. 422

505 S.E.2d 354

Otis Lynn ALLEN, Jr., as Personal Representative of the Estate of Otis Lynn Allen, Sr., Appellant, v. LONG MFG. NC, INC., and Glen Kinard, Defendants, Of whom Long Mfg. NC, Inc., is Respondent.

No. 2878.

Court of Appeals of South Carolina.

Heard May 7, 1998.

Decided August 10, 1998.

Rehearing Denied October 21, 1998.

Jeffrey S. Holcombe, Kenneth M. Suggs, and John S. Nichols, all of Suggs & Kelly, Columbia, for appellant.

Clarke W. Dubose, of Sinkler & Boyd, Columbia, for respondent.

HOWARD, Judge:

The personal representative of Otis Allen, Sr. (Allen) brought this products liability action against Long Manufacturing (Long) under the theories of strict liability and negligence. In deciding Long's motion for summary judgment, the trial judge found for Long as a matter of law on all of Allen's causes of action. Allen appeals. We reverse and remand.

FACTS

The facts surrounding Allen's death are not in dispute. Allen was using a portable grain auger that did not belong to him to load grain onto a grain drill. A grain auger is a metal chute which conveys grain from its lower end to the top end, where it can be discharged into a bin or other container. The auger at issue is portable, meaning it has wheels on it, and by lifting its lower end it can be moved. The center of gravity is such that the lower end remains on the ground if it is positioned on level ground and there is no material in the chute. However, the center of gravity can change as material such as grain is conveyed to the top end. The auger can become unstable at any time during operation if no new material is fed into the chute at the lower end because of the weight shift toward the discharge end of the chute. The discharge end of the auger was 23 feet in the air at the time of the accident. After several minutes of operation, Allen was standing directly beneath the discharge end of the auger when the auger upended and struck him on the head, fatally injuring him. He had not anchored the lower end or supported the discharge end before using the auger. Allen's estate brought a wrongful death and pain and suffering action against Long, the manufacturer of the auger, and Glen Kinard, the auger's owner.¹

The auger at issue displayed a warning label. This label is in two parts. On the upper label, the word "CAUTION" precedes eleven specific instructions, including:

1. Read and understand owners manual before operating.

4. Make certain everyone is clear before operating or moving the auger.

7. Support discharge and or anchor intake to prevent upending.

At the bottom of this portion, the label states: "FAILURE TO HEED MAY RESULT IN PERSONAL INJURY OR DEATH." On the lower label, the word "WARNING" is followed by:

YOU MUST NOT OPERATE THIS AUGER UNLESS:

1. You are trained in its safe operation

and

2. You know and follow manufacturer's safety and operating instructions, your employer's work rules and applicable regulations.

AN UNTRAINED OPERATOR SUBJECTS HIMSELF AND OTHERS TO SERIOUS INJURY OR DEATH.

Long moved for summary judgment on the ground that the auger was not unreasonably dangerous because of the warning labels, which were adequate as a matter of law. Long also asserted that if Allen had followed the warnings, the accident would not have happened. The trial court granted Long's motion.

LAW/ANALYSIS

The trial court granted summary judgment for Long on Allen's negligence and strict liability causes of action, holding 1) the auger's warnings were adequate as a matter of law, and, therefore the auger was not in an "unreasonably dangerous" condition; 2) the adequate warning fulfilled Long's duty of care to produce a safe auger; and 3) Allen's failure to follow the warning was the proximate cause of his death. Construing this court's decision in Bragg v. Hi-Ranger, 319 S.C. 531, 462 S.E.2d 321 (Ct.App.1996), to hold that a warning meeting recognized industry standards is adequate as a matter of law, the court ruled that Long's warning on the auger met this test. We disagree with this characterization of the decision in Bragg and reverse the grant of summary judgment because we find that the sufficiency of the auger's warnings was a question of fact for the jury.

I. Standard of Review

A grant of summary judgment is proper only when it is clear there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Koester v. Carolina Rental Ctr., Inc., 313 S.C. 490, 443 S.E.2d 392 (1994) (citing Rule 56(c), SCRCP). In determining whether any triable issues of fact exist, the court should construe all ambiguities, conclusions, and inferences arising from the evidence most strongly against the moving party. Marchant v. Mitchell Distributing Co., 270 S.C. 29, 240 S.E.2d 511 (1977). "Even when there is no dispute as to the evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied." Koester v. Carolina Rental Ctr., Inc., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994). Summary judgment is dependent on the existence of plain, undisputable facts on which reasonable minds cannot differ. Priest v. Brown, 302 S.C. 405, 396 S.E.2d 638 (Ct.App. 1990).

II. Product Liability

In a product liability action under both negligence and strict liability theories, the 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; and (3) that the injury occurred because the product was in a defective condition unreasonably dangerous to the user." Madden v. Cox, 284 S.C. 574, 580, 328 S.E.2d 108, 112 (Ct.App.1985)(emphasis added). Further, "[l]iability for negligence requires, in addition to the above, proof that the manufacturer breached its duty to exercise reasonable care to adopt a safe design." Id. at 580, 328 S.E.2d at 112.

The parties agree that Allen was injured by the auger and the auger was not altered from the manufacturer's original design. Therefore, the only questions before this court are whether genuine issues of material fact exist regarding 1) whether the auger was in "a defective condition unreasonably dangerous" to Allen, 2) whether Long breached its duty of care by failing to provide an adequate warning, and 3) whether Allen's failure to follow the warning was the proximate cause of his injuries. Id. at 580, 328 S.E.2d at 112.

A. Unreasonably Dangerous Condition

South Carolina law recognizes the principles of strict liability in product liability actions and requires that "[o]ne who sells any product in a defective condition unreasonably dangerous to the user... is subject to liability for physical harm caused to the ... user." S.Code Ann. § 15-73-10 (1976). However, a seller may prevent a product from being "unreasonably dangerous" if the seller places an adequate warning on the product regarding its use. If a warning is given which, if followed, makes the product safe for use, the product cannot be deemed defective or unreasonably dangerous. RESTATMENT (SECOND) OF TORTS § 402A cmt. j (1965); see also, Anderson v. Green Bull, Inc., 322 S.C. 268, 471 S.E.2d 708 (Ct.App.1996)

.²

1. Warning adequacy as question of law or fact

In the case at bar, neither party disputes that the auger, as manufactured, requires a warning to be safe for consumer use. As Long stated in the memorandum filed in support of its motion for summary judgment,

[t]here is no question but that a grain auger is a potentially dangerous piece of equipment. The dangers in using grain augers are so well recognized that the ASAE has for many years recommended several design parameters and several warnings for augers.

Therefore, no determination need be made regarding the duty to place a warning on the auger in question.

Once it is established that a product must display a warning to be safe, the question of the adequacy of the warning is one of fact for the jury as long as evidence has been presented that the warning was inadequate. Our research shows that nearly every other jurisdiction faced with this question has held that the adequacy of a warning is a question for the jury once the plaintiff has presented evidence that the warning is inadequate.³

2. Evidence of warning inadequacy

Summary judgment is inappropriate when facts are presented on which reasonable minds could differ. Priest v. Brown, 302 S.C. 405, 396 S.E.2d 638 (Ct.App.1990). It is not enough that one create an inference which is not reasonable or an issue of fact that is not genuine. Id. Though "[t]he judge is not required to single out some one morsel of evidence and attach to it great significance when patently the evidence is introduced solely in a vain attempt to create an issue of fact," we conclude that Allen's expert testimony regarding the adequacy of the auger's warning in this case creates a genuine issue of material fact. Main v. Corley, 281 S.C. 525, 527, 316 S.E.2d 406, 406 (1984).

In his deposition testimony, Allen's expert opined:

If [Allen] read [the warning], he may have looked at this auger and believed it to be perfectly stable because it was stable when he started using it. And there is nothing in this to tell him how the center of gravity will change as the auger begins to get empty. So, nothing about this instruction tells him that this auger will get to be unsafe.

Additionally, he stated:

A: [The warning] did not fulfill the requirements of what is considered in engineering design as a warning. And for this reason a warning should be specific as to what the hazard is, and how to avoid the hazard, and what the consequences are, and this ... is not explicit about how to avoid or what the specific hazard itself is.

Q: So you're saying it should have said this auger if allowed to partially empty of grain will upend—if not—what should it have said?

A: Well, I have tried to design the wording, but you're talking about

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