Jackson v. Bermuda Sands, Inc., No. 4530.

• Court: Court of Appeals of South Carolina
• Writing for the Court: Hearn
• Citation: 383 S.C. 11,677 S.E.2d 612
• Parties: Eric JACKSON, Appellant, v. BERMUDA SANDS, INC., Custom Outdoor Furniture and Restrapping, Inc., and Grosfillex, Inc., Defendants, of whom Grosfillex, Inc. is the Respondent.
• Decision Date: 14 April 2009
• Docket Number: No. 4530.

677 S.E.2d 612 383 S.C. 11 Eric JACKSON, Appellant,
v.
BERMUDA SANDS, INC., Custom Outdoor Furniture and Restrapping, Inc., and Grosfillex, Inc., Defendants,
of whom Grosfillex, Inc. is the Respondent. No. 4530. Court of Appeals of South Carolina. Heard March 4, 2009. Decided April 14, 2009.

[677 S.E.2d 613]

Darrell Thomas Johnson, Jr., and Warren Paul Johnson, both of Hardeeville, for Appellant.

G. Michael Smith, of Conway, for Respondent.

HEARN, C.J.

Eric Jackson appeals the entry of summary judgment in favor of Grosfillex, Inc., regarding claims of products liability stemming from the collapse of a chair in which Jackson sat while he was staying at the Bermuda Sands Resort hotel (Bermuda Sands). We affirm.

FACTS

Jackson and his family were guests at Bermuda Sands in Myrtle Beach, South Carolina. During their stay, Jackson visited the indoor swimming pool located on the premises, and while there, attempted to sit in a white resin chair located by the pool. Upon partially sitting down, the chair collapsed underneath Jackson, breaking into several pieces and causing him to fall to the ground. As a result of the fall, Jackson claimed to

677 S.E.2d 614

have suffered injuries to his back and legs, causing physical pain, mental anguish and suffering, as well as alleging it caused and will cause Jackson to incur medical costs and loss of wages.

Shortly after the collapse, the broken chair was disposed of by a Bermuda Sands maintenance person, Hinson Sellers, and was therefore unavailable for introduction into evidence or for testing by the parties. As a result, the exact manufacturer of the broken chair was also not known to the parties with complete certainty.¹

Thereafter, Jackson brought an action for actual and punitive damages against Bermuda Sands for negligence in failing to maintain its premises in a reasonably safe condition, as well as against Grosfillex, as alleged manufacturer, and Custom Outdoor Furniture and Restrapping, Inc., as alleged distributor of the broken chair, for negligence, recklessness, strict liability, and breach of implied warranty. Bermuda Sands settled with Jackson via mediation and was dismissed as a defendant. Grosfillex and Custom Outdoor filed motions for summary judgment, which were ultimately granted by the circuit court. Jackson appeals the grant of summary judgment² in favor of Grosfillex.

LAW/ANALYSIS

Jackson asserts the circuit court erred in finding: the unsupervised use and abuse of chairs in hotels was not foreseeable to Grosfillex; degradation of resin chairs due to chemical exposure, eventually leading to the inevitable failure of the chairs, was not a foreseeable event that should have been anticipated; Jackson's failure to identify the cause of an alleged crack was fatal to the claim; and, expert testimony was insufficient, where Jackson's experts arrived at the scientific conclusion most probable given the inability to examine the broken chair. We disagree and affirm.

Products liability in South Carolina is governed by section 15-73-10 of the South Carolina Code (2005) which states:

(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.

(2) The rule stated in subsection (1) shall apply although

(a) The seller has exercised all possible care in the preparation and sale of his product, and

(b) The user or consumer has not bought the product from or entered into any contractual relation with the seller.

An action for products liability may be brought under several theories, including negligence, strict liability, and warranty. Rife v. Hitachi Const. Mach. Co., Ltd., 363 S.C. 209, 215, 609 S.E.2d 565, 568 (Ct.App. 2005). In a products liability action, regardless of the theory of recovery pursued, a plaintiff must establish three elements: (1) he was injured by the product; (2) the injury occurred because the product was in a defective condition, unreasonably dangerous to the user; and (3) the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant. Id. (citations omitted). In addition,

677 S.E.2d 615

liability for negligence also requires proof that the manufacturer breached its duty to exercise reasonable care to adopt a safe design. Id. at 215, 609 S.E.2d at 569 (citations omitted). Here, Jackson has failed to establish elements (2) and (3).

Section 15-73-30 of the...