Fleming v. Borden, Inc.

Citation316 S.C. 452,450 S.E.2d 589
Decision Date03 May 1994
Docket NumberNo. 24158,24158
CourtUnited States State Supreme Court of South Carolina
Parties, 129 Lab.Cas. P 57,856, 10 IER Cases 117 Kathy FLEMING, Appellant, v. BORDEN, INCORPORATED, Robert W. Owens, John W. Rogers; and The Woodman Company, now merged with Kliklok Corporation, Respondents. . Heard

C. Richard Kelly, Columbia, for appellant.

M. Lee Daniels, Jr., Greenville, for respondents Borden, Owens and Rogers.

Jesse A. McCall, Jr., Greenville, for respondent The Woodman Co. now merged with Kliklok Corp.

TOAL, Justice.

In this wrongful discharge action and products liability action, Kathy Fleming appeals the jury verdict for the employer and the circuit court's grant of summary judgment to her supervisors and to the manufacturer of the alleged unreasonably dangerous product. We affirm in part and reverse in part.

FACTS

The plaintiff, Kathy Fleming ("Fleming"), began employment with defendant Borden, Incorporated ("Borden") in January 1981. The Borden plant produced potato chips, corn chips, cheese doodles and other similar snack foods. Fleming worked in the maintenance group which was responsible for cleaning the plant. Fleming continued her employment with Borden until she was terminated on June 25, 1986 for excessive unexcused absences.

On January 30, 1986, Fleming sustained a work-related injury for which she received workers' compensation benefits. Fleming was cleaning a machine manufactured by The Woodman Company, Inc. ("Woodman") at the time she was injured.

On November 2, 1989, Fleming filed suit against Borden asserting numerous claims related to her discharge. The case was removed to federal court on the ground of diversity of citizenship. The federal district court later remanded to state court but retained jurisdiction of the ERISA claims.

After remand to South Carolina Circuit Court, the defendants moved for summary judgment. Fleming countered with a motion to amend her complaint. Judge Moore issued his order on March 25, 1991 dismissing Fleming's claims which contained ERISA damages and allowing her to file an amended complaint asserting causes of action which did not include ERISA damages.

Thereafter, Fleming motioned the court for permission to amend her complaint again to add Woodman as a defendant in order to assert products liability claims against Woodman. Judge Maring issued his order of September 7, 1991 allowing the amendment.

The defendants Borden, Owens and Rogers 1 again moved to dismiss the amended complaint. Judge Stephen issued his order on February 17, 1992 denying summary judgment on some causes of action, consolidating some, and granting summary judgment on some. The following causes of action were left for trial:

1. Breach of employment contract by fraudulent act against Borden,

2. Wrongful discharge against Borden,

3. Tortious interference with contract against Owens and Rogers,

4. Civil conspiracy against Owens and Rogers,

5. Products liability action against Woodman.

The case was tried before a jury on May 5, 1992. At the conclusion of plaintiff's case, Judge Burnett granted defendant Woodman's motion for a directed verdict finding: (a) Fleming failed to prove the product was defective, (b) the machine was substantially modified after delivery, and (c) Fleming was aware of the risks in cleaning the machine.

Judge Burnett also directed a verdict in favor of the defendants Rogers and Owens, Fleming's supervisors, on the claims of civil conspiracy and tortious interference with contract. Only Borden remained a defendant. The jury returned a verdict in Borden's favor.

LAW/ANALYSIS
A. Products Liability

In the products liability cause, the trial judge directed a verdict in favor of manufacturer and seller Woodman on two grounds: (1) Borden had materially altered the machine and (2) Kathy Fleming had assumed the risk. We disagree with each of these rulings.

The modern products liability tort action is premised on the concept that the cost of injuries which flow from a "product defect" should be borne by the manufacturer or seller rather than the ultimate user. Beginning with MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), common law privity of contract as a predicate requirement for manufacturers' or sellers' tort liability for a defective product was abandoned. Although grounded in the theory of negligence, the MacPherson decision was the first step in moving towards strict liability in tort or warranty liability. In Salladin v. Tellis, 247 S.C. 267, 146 S.E.2d 875 (1966) and Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969), South Carolina judicially moved in the direction of the modern strict liability approach. 2 In 1974, the General Assembly signaled its agreement by legislatively adopting Restatement (Second) of Torts § 402A as §§ 15-73-10, -20 and -30, S.C.Code Ann. (1976), our Defective Products Act. 3 The rulings made by the trial judge were based on two provisions of this act.

In passing on motions for directed verdict, the trial court must view the evidence and all inferences which may reasonably be drawn therefrom in light most favorable to the non-moving party. If more than one reasonable inference can be drawn from the evidence, the case must be submitted to the jury. Crossley v. State Farm Mut. Auto., Ins., Co., 307 S.C. 354, 415 S.E.2d 393 (1992).

1. Material Alteration

The first section of South Carolina's Defective Product Act formulates manufacturers' and sellers' liability as follows:

§ 15-73-10 Liability of seller for defective product.

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer, or to his property, if

(a) The seller is engaged in the business of selling such a product, and

(b) It 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 (1976). This section imposes strict liability upon the manufacturer and seller for an injury to any user caused by its product, if the product is "expected to and does reach the user or consumer without substantial change." Id. 4 Thus, 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, then the manufacturer or seller is not liable. See generally Kennedy v. Custom Ice Equipment Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978). In the "no fault" "strict liability" setting of the modern products case, the defense of material alteration becomes very important. When an alteration to the product is shown, it is sometimes forgotten that the foreseeability of the alteration must also be examined.

Turning now to the pertinent facts, as part of her job, Fleming was required to clean the top of a machine manufactured by Woodman. Woodman also manufactured a platform to be used when cleaning the machine and installed the machine in the Borden plant. Sometime after installation of the machine, the Woodman platform was removed and ladders were substituted.

Fleming's expert witness testified that the nine-foot machine was designed in such a manner as to require cleaning the top. In order to clean the top of the machine, a platform was required. The platform Woodman originally supplied was removed because the Woodman machines were installed so close together that the top of the machine in question could not be reached with the Woodman platform. Although the Woodman platform complied with OSHA regulations, Fleming claimed that Woodman's machine was designed such that certain cleaning had to be performed at the top of the machine. Configuration of the machine requiring cleaning the top and the location at which Woodman installed the machine rendered the Woodman platform unusable for cleaning the top of the machine. Thus, Fleming claims it was foreseeable that the platform would have to be removed and other means utilized to reach the top of the Woodman machine.

The trial judge found that since it was undisputed that the machine was materially altered after delivery to Borden, he was required to grant summary judgment in favor of Woodman. This was error. While all parties agreed that the machine had been altered by removal of the Woodman platform, the parties vigorously dispute the foreseeability of this action and the relationship of the removal of the platform to the accident. "Liability [may] ... be imposed upon a manufacturer or seller notwithstanding subsequent alteration of the product ... [when] the alteration could have been anticipated by the manufacturer or seller, or did not causally contribute to the damages or injuries complained of." 1 ROBERT D. HERSH & HENRY J. BAILEY, AMERICAN LAW OF PRODUCTS LIABILITY 2d § 130 (1974); see Kennedy v. Custom Ice Equipment Co., Inc., 271 S.C. 171, 246 S.E.2d 176 (1978) (question as to whether injury caused by defect in design or whether defect created by subsequent unforeseeable modification by third party for the jury); see generally Alberg v. Hardin Marine Corp., 387 N.W.2d 779 (Iowa App.1986) (foreseeability of alteration for jury).

Woodman not only manufactured the machine and the platform but also installed the machine. Fleming's expert testified that the design of the machine coupled with the placement of the machine gave rise to a violation of OSHA standards. This testimony created a jury question as to whether the machine was unreasonably dangerous. In that connection, it was for the jury to decide whether the removal of the Woodman platform was a foreseeable alteration of the machine since there was evidence that Woodman installed the machine in such a manner as to prevent the use of the platform it supplied with the machine. If the jury believed this evidence, it could legitimately conclude that removal of...

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