What Can I Do If a Defective Product Hurt Me in Charleston, South Carolina?

If a defective product injured you, South Carolina law can hold the seller responsible even if the seller was careful. You generally must show the product was defective and unreasonably dangerous, that the defect caused your injury, and that it reached you without substantial change (S.C. Code Ann. 15-73-10). The usual deadline to sue is three years (15-3-530(5)).

By William Trojman, attorney at Leffew Law Firm, LLC, Charleston, SC. Mr. Trojman has a particular interest in products liability.

What Is a Products Liability Claim in South Carolina?

A products liability claim is a lawsuit for harm caused by a product that was defective or came without proper warnings. It can involve a vehicle part, a tool, a ladder, a child's product, a household appliance, a medical device, or anything else sold to the public. The claim can be brought for a physical injury, for damage to other property, or after a death.

South Carolina courts recognize that a products case may be brought under several theories, including strict liability, negligence, and breach of warranty (Small v. Pioneer Machinery, Inc., 329 S.C. 448 (Ct. App. 1997)). A lawyer often pleads more than one theory because each one asks you to prove something different.

What Is Strict Liability for a Defective Product?

Strict liability means the seller can be responsible for a dangerous defect without any proof that the seller was careless. Under S.C. Code Ann. 15-73-10, a person who sells a product in a defective condition that is unreasonably dangerous to the user or consumer is liable for physical harm to the ultimate user or consumer, or to their property, if two things are true: the seller is in the business of selling that kind of product, and the product reached the user without substantial change from the condition in which it was sold.

The same section says the rule applies even if the seller used all possible care and even if you did not buy the product directly from that seller. The legislature also adopted the comments to Section 402A of the Restatement (Second) of Torts as the intent of the chapter (S.C. Code Ann. 15-73-30).

Courts describe three things a plaintiff must prove under any theory: the product injured you, the injury happened because the product was defective and unreasonably dangerous, and the product was essentially in the same condition at the time of the accident as when it left the defendant's hands (Small, 329 S.C. 448). You must also show the defect was the proximate cause of your injury.

What Are the Main Types of Product Defects?

• Manufacturing defect. Something went wrong when this particular item was made, so it differs from the maker's own design. Think of a bolt that was cast with a crack.
• Design defect. Every unit is made as planned, but the plan itself is unreasonably dangerous.
• Warning or instruction defect. The product came without adequate warnings or instructions about how to use it safely.

Each type calls for different evidence, which is why the product itself matters so much (see the steps below).

How Do You Prove a Design Defect in South Carolina?

In a design defect case, the South Carolina Supreme Court has held that the exclusive test is the risk-utility test, and that the plaintiff must present evidence of a reasonable alternative design (Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010)). In plain terms, you point to a flaw in the design and show how a different, workable design would have prevented the danger. The alternative design must account for its cost, safety, and how well the product would still work. The Court rejected the older consumer expectations test for design cases.

Because of this rule, design defect cases often need an engineer or other qualified expert early. Firearms and ammunition have their own design defect rule under S.C. Code Ann. 15-73-40.

Can I Also Bring a Warranty or Negligence Claim?

Often, yes. Three examples:

• Implied warranty of merchantability. When a merchant sells goods, the law implies, unless the warranty is excluded or modified as the Commercial Code allows, that they are fit for the ordinary purposes for which such goods are used (S.C. Code Ann. 36-2-314).
• Who is covered. A seller's warranty extends to any natural person who may be expected to use, consume, or be affected by the goods and whose person or property is damaged. A seller may not exclude or limit that protection (S.C. Code Ann. 36-2-318). That can matter if you were hurt by a product someone else bought.
• Notice. A buyer generally must tell the seller about a breach within a reasonable time, but the statute says no notice of injury to the person is required for consumer goods (S.C. Code Ann. 36-2-607(3)(a)).

A negligence claim asks whether the maker, designer, or seller failed to use reasonable care. It follows the usual negligence rules, including defenses the company may raise.

Who Can Be Held Responsible?

More than one company may be involved: the manufacturer, a company that made a component part, a distributor, and the store that sold the product. Which of them can be sued depends on the facts and the theory. We look at the whole chain from factory to shelf.

What Defenses Do Product Companies Raise?

Expect the company to argue one or more of the following:

• Known danger. If a user discovers the defect, is aware of the danger, and still uses the product unreasonably and is injured, South Carolina bars recovery (S.C. Code Ann. 15-73-20).
• Changed product. The company may say the item was altered, damaged, or repaired after it left its hands. Liability can still apply when the change could have been anticipated or did not contribute to the injury, and whether it did is often a question for the jury (Small, 329 S.C. 448).
• Misuse or another cause. The company may blame how the product was used, or say that someone else's act caused the harm.
• Fault on your part. In negligence claims, South Carolina uses modified comparative negligence: you can recover only if your negligence is not greater than the defendant's, and your recovery is reduced by your share. If there is more than one defendant, your negligence is compared to the combined negligence of all defendants (Nelson v. Concrete Supply Co., 303 S.C. 243 (1991)).

What Compensation Is Available?

Depending on the case, damages can include medical bills, lost income, pain and suffering, and property damage. If a person dies, the executor or administrator of the estate can bring a wrongful death claim for the benefit of the spouse and children, or, if there are none, the parents, and then the heirs (S.C. Code Ann. 15-51-10, 15-51-20); see our page on wrongful death in South Carolina.

Punitive damages are possible only if you prove by clear and convincing evidence that the harm resulted from the defendant's wilful, wanton, or reckless conduct (S.C. Code Ann. 15-32-520(D)). Statutory limits on punitive awards apply, with exceptions (S.C. Code Ann. 15-32-530). Every case is different, and nothing here predicts what any claim is worth.

How Long Do I Have to File a Products Liability Claim?

For most injury claims, South Carolina's general rule is three years (S.C. Code Ann. 15-3-530(5)), and the clock generally runs from when you knew or reasonably should have known you had a claim (S.C. Code Ann. 15-3-535). Warranty claims also have their own timing rule in the Commercial Code (S.C. Code Ann. 36-2-725). Claims against a state or local government body under the Tort Claims Act generally must be filed within two years after the loss was or should have been discovered (S.C. Code Ann. 15-78-110). Because the right deadline depends on the facts, and some deadlines are shorter than three years, talk to a lawyer as soon as you can.

What Should I Do After a Product Injures Me?

1. Get medical care and tell the provider exactly what happened.
2. Keep the product. Do not throw it away, repair it, or return it for a refund. Store it as it is, with its packaging, manual, and receipt.
3. Photograph everything: the product, the label, the place of the injury, and your injuries.
4. Write down the brand, model, serial or lot number, where and when you bought it, and what happened.
5. Do not let anyone test or take apart the product without a plan. Testing can change the evidence.
6. Do not give a recorded statement to the company or its insurer, and do not sign a release, before you talk to a lawyer.
7. Report the injury where it applies, for example to the store or the manufacturer, and keep a copy of what you send.

Where Are Products Liability Cases Filed Near Charleston?

A products case in state court is filed in a county Court of Common Pleas, such as the Charleston, Berkeley, or Dorchester County Court of Common Pleas. South Carolina's venue statute decides which county. Under S.C. Code Ann. 15-7-30, that is usually a county tied to a defendant's residence or principal place of business, or the county where the most substantial part of the act or omission behind the claim happened. For some out-of-state companies, the county where you lived when the claim arose can also qualify. Owning property and doing business in a county is not enough on its own to make it a company's principal place of business (15-7-30(H)).

A case against an out-of-state manufacturer can also end up in federal court when the parties are citizens of different states and more than $75,000 is in controversy (28 U.S.C. 1332). For the Charleston area, that is the United States District Court for the District of South Carolina.

Frequently Asked Questions

Do I have to prove the company was careless?

Not for a strict liability claim under S.C. Code Ann. 15-73-10. The section applies even if the seller exercised all possible care. A negligence claim does require proof of carelessness.

What if I did not buy the product myself?

You may still have a claim. Section 15-73-10 protects a user or consumer even if that person did not buy from the seller, and the warranty statute reaches people who may be expected to use or be affected by the goods (S.C. Code Ann. 36-2-318).

Should I keep the product?

Yes. The product is usually the most important evidence. Keep it unchanged and tell your lawyer where it is.

Is there a time limit?

Generally three years for personal injury (S.C. Code Ann. 15-3-530(5)). Other rules can apply, so ask a lawyer as early as you can.

Does it cost anything to talk to the firm?

Please contact us to ask about how we handle fees for these cases.

Talk to a Charleston Products Liability Lawyer

If a product injured you or someone in your family, we can review what happened and explain your options. See our personal injury practice page, or contact Leffew Law Firm to talk about your situation. Every case is different, and past results do not guarantee a similar outcome.

This page is general information, not legal advice, and reading it does not create an attorney-client relationship.

Sources

• S.C. Code Ann. 15-73-10, 15-73-20, 15-73-30, 15-73-40; 15-3-530(5); 15-3-535; 15-7-30; 15-32-520; 15-32-530; 15-51-10; 15-51-20; 15-78-110; 36-2-314; 36-2-318; 36-2-607; 36-2-725.
• 28 U.S.C. 1332 (federal diversity jurisdiction).
• Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010).
• Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997).
• Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991).