Madden v. Cox

• Decision Date: 14 November 1984
• Docket Number: No. 0408,0408
• Citation: 284 S.C. 574,328 S.E.2d 108
• Court: South Carolina Court of Appeals
• Parties: Virginia B. MADDEN, as Executrix of the Estate of Frederick R. Madden, Respondent, v. Stacey E. COX, Roosevelt Cobb, and Long Manufacturing Company, Defendants, of whom Long Manufacturing Company is Appellant. Appeal of LONG MANUFACTURING COMPANY. . Heard

Page 108

328 S.E.2d 108

284 S.C. 574

Virginia B. MADDEN, as Executrix of the Estate of Frederick R. Madden, Respondent, v. Stacey E. COX, Roosevelt Cobb, and Long Manufacturing Company, Defendants of whom Long Manufacturing Company is Appellant Appeal of LONG MANUFACTURING COMPANY.

No. 0408.

Court of Appeals of South Carolina.

Heard Nov. 14, 1984.

Decided March 6, 1985.

John P. Linton, of Sinkler, Gibbs & Simons, Charleston, for appellant.

K. Douglas Thornton and Kenneth W. Thornton, Jr., both of Thornton & Mitchum, Georgetown, for respondent.

BELL, Judge:

This is a products liability action. Fred Madden, plaintiff's decedent, was seriously injured when a steel tobacco bin designed and manufactured by Long Manufacturing Company fell on him. He sued his employer, Stacey Cox, and a coworker, Roosevelt Cobb, for Cobb's alleged negligence and sued Long for an alleged design defect in the bin and breach of an alleged duty to warn. Madden subsequently died of causes unrelated to the accident; his executrix was substituted as plaintiff.

The negligence action against Cox and Cobb was dismissed at the close of Madden's case. The action against Long was submitted to the jury on negligence, breach of warranty, and strict tort theories of recovery. The jury returned a general verdict for Madden for $100,000 actual damages. From the denial of its motions for judgment non obstante veredicto and a new trial, Long appeals. We affirm.

On appeal from a jury verdict, our review is limited to determining if there is any evidence to support the verdict. Willis v. Floyd Brace Co., 279 S.C. 458, 309 S.E.2d 295 (S.C.App.1983). The evidence and all reasonable inferences arising therefrom must be viewed in the light most favorable to the respondent. Buzhardt v. Cromer, 272 S.C. 159, 249 S.E.2d 898 (1978); Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Bruce, 325 S.E.2d 77 (S.C.App.1985).

Long manufactures and markets a tobacco curing barn that contains eight bins. These bins are constructed of steel. They measure about nine and one half feet wide, three and one half feet deep, and six feet high. Each bin has wheels on the bottom. When loaded with "green" tobacco a bin weighs about 2000 pounds. With cured tobacco it weighs about 1200 pounds. Bins are loaded while resting on the ground. Once loaded, the bin is lifted with an electric hoist, lowered onto a pair of rails, and rolled into the barn by pushing. Pushing and pulling are done manually.

The hoist runs on a rail suspended from the rafters of the shed. A steel bar the same width as the bin is attached to the hoist cable. At each end of the bar, suspended by a short length of chain, is a metal plate with a bolt through the bottom. At the top of each bin, in the center on either side, is a plate with an opening shaped like an inverted keyhole. To raise the bin, each bolt is placed in its keyhole and the hoist is activated. The head of the bolt, if it is completely engaged, seats into the keyhole when tension is placed on the chains. The bin can then be lifted. If the chains are slack, the bolt disengages from the keyhole.

Once the tobacco is cured, a bin is removed from the barn by rolling it to the end of the rails, engaging the bolts on each side of the bin, raising the bin about a foot above the rails, pulling the bin several feet away from the barn, and lowering it to the ground.

When the accident occurred, Fred Madden and Roosevelt Cobb were removing a bin from the barn for unloading. Cobb was operating the hoist and the bolt and chain on the left side of the bin. Madden pulled the bin out on the rails and engaged the bolt and chain on the right side. He signalled "ready" and Cobb started the hoist. Madden then cried "stop" and the bin began to fall. He tried to get out of the way, but slipped on a piece of burlap lying on the floor. The bin fell on Madden and pinned him to the floor, causing severe multiple injuries.

For the purposes of this appeal, both Long and Madden agree the cause in fact of the accident was the disengagement of one or both of the bolts from the side of the bin. ¹ Madden maintains the proximate cause of the disengagement was the negligent or defective design of the bolt and keyhole mechanism which rendered the bin unreasonably dangerous and unfit for ordinary use. He also argues the design of the bolt and keyhole mechanism created a propensity for partial engagement and constituted a dangerous condition Long should have warned against. Long, on the other hand, claims Madden consciously or negligently failed to engage his bolt properly and that this failure amounted to contributory negligence, product misuse, and assumption of the risk. Furthermore, Long alleges that since Madden knew of the danger of a partial engagement, it was not obliged to warn him of an obvious risk.

I.

In a products liability action the plaintiff must establish three things, regardless of the theory on which he seeks recovery: (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. W. Prosser, Law of Torts 671-72 (4th ed. 1970); cf. Sections 15-73-10, 36-2-318, 36-2-715, Code of Laws of South Carolina, 1976; Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982); Logan v. Montgomery Ward & Co., Inc., 216 Va. 425, 219 S.E.2d 685 (1975). In this case, neither of the first two elements is disputed. Rather, Long maintains that even if a defect were proved, which it denies, Madden's own conduct proximately caused the accident.

A.

A product can be defective because of a flaw in its design. Liability for a design defect may be based on negligence, strict tort, or warranty. See Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173, 42 A.L.R.3d 525 (1969); Kennedy v. Custom Ice Equipment Co., 271 S.C. 171, 246 S.E.2d 176 (1978); Elsasser v. American Motors Corp., 81 Mich.App. 379, 265 N.W.2d 339 (1978). In an action based on strict tort or warranty, plaintiff's case is complete when he has proved the product, as designed, was in a defective condition unreasonably dangerous to the user when it left the control of the defendant, and the defect caused his injuries. See Code Section 15-73-10; Logan v. Montgomery Ward & Co., Inc., supra. Liability for negligence requires, in addition to the above, proof that the manufacturer breached its duty to exercise reasonable care to adopt a safe design. See Restatement (2d) Torts, Section 398 (1965). This burden may be met by showing that the manufacturer was aware of the danger and failed to take reasonable steps to correct it. See Marchant v. Lorain Division of Koehring, 272 S.C. 243, 251 S.E.2d 189 (1979) (Marchant II ).

Madden presented evidence at trial that the bolt and keyhole device used to connect the hoist bar to the bin was defective in its design. Dr. Melvin Richardson, Madden's expert witness, testified that Long's design had no safeguard against partial engagement. He also testified that a simple latching device could guard against partial engagement. Vance Long, Long's vice president, testified that field testing had disclosed the bin could be lifted even when the bolt was only partially engaged. Dr. Harold Hawkins, Long's expert, testified that an unsafe condition would exist if a bin could be lifted when the bolt was only partially engaged.

Viewing this evidence in the light most favorable to Madden, the jury could have found the lifting mechanism was defectively designed and unreasonably dangerous in ordinary use. The evidence of Long's awareness of the risk, and its failure to take precautions against it, was also sufficient for the jury to find negligence.

B.

Long claims the trial judge erred in refusing at the close of the evidence to strike portions of the complaint dealing with failure to warn. To support its argument, Long points out that each witness testified he knew if the bolts were only partially engaged the bin could fall. From this testimony, Long argues the dangerous condition was obvious to the user of the bins.

The crucial question regarding duty to warn was not whether it was obvious the bin could fall if the bolts were not engaged, but whether the risk of partial engagement of the bolts was so obvious as to require no warning. No witness testified he was aware of the risk of partial engagement created by Long's design of the bolt and keyhole mechanism. Whether the general knowledge Fred Madden and his coworkers had gained from their experience was sufficient to overcome Long's duty to warn them of the danger was a question for the jury. Marchant II, supra.

Long also asserts the trial judge erred when he refused Long's request to charge a manufacturer has no duty to warn of a danger that is open and obvious. There was no testimony that the particular danger posed by the bolt and keyhole mechanism was open and obvious. An instruction which tenders an issue not supported by the evidence is properly refused. Quality Concrete Products v. Thomason, 253 S.C. 579, 172 S.E.2d 297 (1970). Furthermore, none of the cases Long cites to support the requested charge is apposite to this case. Marchant v. Mitchell Distributing Co., 270 S.C. 29, 240 S.E.2d 511 (1977) (Marchant I ), treats the liability of a distributor for negligently failing to warn; the issue of a manufacturer's similar liability was held to be a jury question in Marchant II, supra. Both Young v. Tide Craft, Inc., 270 S.C. 453, 242 S.E.2d 671, 1 A.L.R.4th 394 (1978), and Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982), involve the intervening negligence of third parties as the sole proximate cause of the injuries sustained by the plaintiffs. We find no error in the refusal to charge Long's request.

C.

Long argues it should have been granted a directed verdict or judgment non...