When a defective product injures someone in South Carolina, the law doesn't ask who was negligent — it asks whether the product itself was unreasonably dangerous. Dirk J. Derrick, Esq., joined by Pearl Carey, on the firm's professional staff, breaks down South Carolina's strict liability standard for these claims. Dirk explains the three types of defects and shares an early case that shows how a manufacturer's failure to address a known safety issue can have devastating consequences. He covers common defenses like assumption of risk and misuse, the damages available to injured victims, including punitive awards, and how long South Carolina law gives you to take action.
While past results do not guarantee future results, you are guaranteed our best efforts. Dirk J. Derrick, 901 Main St., Conway, SC, 29526.
Dirk Derrick (00:00):
Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers, and the legal process, and hopefully prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We will also discuss existing laws and proposed changes in the law and how they affect you. My name is Dirk Derrick. I'm the founder of the Derrick Law Firm, and I'm your host.
Voiceover (00:35):
Please see required ethics disclaimers in show notes.
Pearl Carey (00:41):
Hello everyone, and welcome back to the Legal Truth Podcast. Today, we're here to discuss the truth about products liability in South Carolina. I'm your host, Pearl Carey, and I'm here with my co-host, Dirk Derrick. Welcome, Dirk.
Dirk Derrick (00:53):
Hello. Glad to be here. How's it going in Ohio?
Pearl Carey (00:57):
It's going fabulous. How's the South Carolina weather?
Dirk Derrick (01:01):
It's warm, humid, but we love it. And for our guests, Pearl was one of eight people who have ever moved down south and moved back to Ohio. So I'm worried about her mental health. There's not many people move backwards, but-
Pearl Carey (01:18):
That's true. Hey, I have to be original, right?
Dirk Derrick (01:20):
That is why we're doing this podcast. She's not sitting across the table from me anymore. She's doing it from Ohio.
Pearl Carey (01:26):
Yeah, I'll be back. Don't worry.
Dirk Derrick (01:27):
All right.
Pearl Carey (01:28):
Let's start with the basics. So what is a products liability case and how is it different from an ordinary injury or negligence case?
Dirk Derrick (01:36):
Products liability case is not when someone's negligent conduct hurt you. It's when a product hurts you, it can be a defective tire on a car. It can be defective airbags. It can be a household product. So it is whole area of a law called products liability is when there's a defective product and that product caused someone injuries. The focus on those cases are largely on whether or not the product was defective and not so much on who did what negligently. In product liability cases, South Carolina, like most states, have made... They recognize strict liability when it comes to defective products. And what that means is when it's strict liability, if a product is defective, you're not having to prove someone did something negligent to make it defective. Whereas in a typical car wreck, you're trying to prove that the person driving that car did something negligent caused the incident to occur.
(02:40):
So it's a strict liability standard of proof, which is different than a negligent standard of proof. The only other strict liability case we see a lot in South Carolina are dog bites. If your dog bites somebody, you're strictly liable for that dog bite and products liability is strict liability.
Pearl Carey (02:57):
So what legal theories can an injured person actually bring in South Carolina for a products liability case?
Dirk Derrick (03:03):
They're going to bring the strict liability in tort that I'm talking about saying that it's a defective product strictly liable. A lot of times you also plead negligence. You throw that in and a breach of warranty allegation can be made also. Most attorneys will throw in every possible cause of action and see what... You plead it, you go in and try to determine why this thing injured somebody, what was defective about it, what was done negligently, was it unfit for its intended purposes, and then you try to gather all this evidence and see what causes of action you can prove after you get in and start digging through it good.
Pearl Carey (03:39):
Absolutely. And so regardless of the legal theories, what does the injured person have to prove?
Dirk Derrick (03:45):
The three things that a plaintiff has to prove that they were injured by a product and that the injury happened because the product was in a defective condition that was unreasonably dangerous, and the third thing you have to prove is that the product was in essentially the same condition as when it was sold, hadn't been altered, hadn't been changed, hadn't been modified by the owner, and that's what caused the injury. So there's an injury, it's a defective product that's unreasonably dangerous, and that it's essentially the same condition as when the product left was sold to the person who purchased it.
Pearl Carey (04:22):
Makes sense. And so in terms of the word defective, what are considered to be different types of defects that can occur in product liability cases?
Dirk Derrick (04:32):
There's three main defects. There's manufacturing defect, there's design defect, and then there's warning defect. Manufacturing defect is when the product was designed safely, but somewhere during the manufacturing process, something went wrong, and during that process, something wasn't manufactured the way it was designed to be safe. And it was a manufacturing problem that caused it to be defective when it got into the consumer's hand or caused the injury. The second one is the design defect is when the design itself is defective, that it is designed in such a way that is dangerous, unreasonably dangerous in and of itself.
(05:16):
One of the first cases I ever tried was a design defect. And we also alleged the third one, which is a warning defect. There's a situation where the warning is defective because it doesn't give the consumer the information it needs to use the product safely. That's the third kind of defect. But the case I tried back in, shoot, it was the late '80s... what were you doing in the late '80s, Pearl?
Pearl Carey (05:43):
I wasn't even a thought.
Dirk Derrick (05:45):
Well, one of the first cases I ever tried was a product liability case that involved a small stove-oven combination that a 15-month-old child had opened the door and put its weight on the door and the stove flipped over, landed on its neck and killed it. These were small stove oven combinations that were made for mobile homes or small condos, and the problem was because the entire center of it was empty, put things in the oven, that the door... I mean, you could put just a little bit of pressure on the door and the whole thing would flip, and in that case, we looked, did a deep dive, and found that the company who made it had actually received a patent that would've cost 69 cents to prevent this design defect, and the patent was these brackets you threw into the walls and the back legs of the stove would fit into them where it couldn't flip over.
(06:56):
And when we started looking into it, we saw they had that, they knew about the problem, and then we went to the Consumer Product Safety Commission and got this huge stack of incidents where people had been killed or burnt badly because these things were flipping over them. And they were flipping over when a child or anybody put some weight on it. Had some terrible cases and terrible fact patterns and injuries and deaths caused by women who took their turkey or took something out the oven and placed on the door and it would flip it over on them. So that was a design defect case. And when we dug into that case, they actually knew of it. Their safety director actually was a 30(b)(6) deponent who testified that he was a recipient of this letter from Consumer Product Safety Commission to him saying, "Hey, y'all got to fix this. All these things are happening." And he said, "Well, we're working on it from an industry standpoint," but they didn't fix it.
(07:56):
After being put on notice, they sold this stove for this unit that killed this child. And when I deposed him, his excuse was, "Well, it wasn't defective. If people didn't let their child open the door, it wouldn't happen. If they didn't set down turkeys on the door, it wouldn't happen." I said, "Yeah, but you could fix it for 69 cents." And he said, "Well, you got to take other things into consideration. If we included these clips in our product and these other manufacturers didn't, it would make our product look like it was defective," and I said, "Well, it was defective." But they didn't include the clips. They would rather the consumer not see, I guess, their product would flip over on people. It was the dang-est thing I've ever seen.
(08:42):
It came down to them making a risk-benefit analysis because it was so cheap to include it in the package, but they were also looking at loss of sales if they put it in there and people say, "Well, that thing flips over. They have to give you brackets to keep it from falling off the wall and flipping on people." That's one of the three manufacturing defects, design defect, warning defect. We probably alleged all three in that case, but we tried the case really on a design defect aspect.
Pearl Carey (09:11):
So tell me, how do you prove a design defect in South Carolina?
Dirk Derrick (09:16):
You show that there's a reasonable, feasible alternative design that would have prevented this, which means it's something you could have done to make this product safe that wouldn't cost a whole lot of money and would not have prevented this oven stove or this product from working the way it's supposed to work. The utility of it. You're basically looking to see is a reasonable, feasible, alternative design, and if there is, then that product is unreasonably dangerous because it could have been fixed so easily. Does that make sense?
Pearl Carey (09:52):
Makes sense.
Dirk Derrick (09:53):
If that stove sold for $250 and it had taken a thousand dollars to make it completely safe, that wouldn't be a reasonable feasible alternative design. Then it comes down to them having to warn against this thing. It can be a design defect that they can fix, and if they can fix it with a reasonable, feasible alternative design, it needs to be fixed. If they can't, they need to warn against the danger of it. So that's the test and you'll need an expert. In that case, we hired an expert. When I hired the expert, I didn't know they had already got a patent for these brackets that would cost them 69 cents to put on these things. So when we started digging down deep, got an expert, started looking at the design. He came back and said, "Yeah," he goes, "Something they could have done that was feasible. In fact, they already had the patent for it." So you go on a deep dive, get an expert, see if it could have been designed differently, safer.
Pearl Carey (10:54):
So which parties can actually be sued in one of these product liability cases?
Dirk Derrick (11:00):
That's an interesting question and different than what's in the negligent cases. You can file suit against the chain of distribution all the way from the plant that made the defective component to the plant who made the entire component, the distributor, and then the retailer. So it comes all the way down the last person who sold it. I mean, if you end up buying it from a big box here in South Carolina, they're going to be named in a product liability case. And then you don't go up the line to everybody who had something to do with that product being defective and sold. That's beneficial because a lot of products come from China or made in China. If you had to go back to the plant that made that component, you may not ever be able to reach them or it'd be very, very difficult to reach the plant or the person or the company that actually was up the chain of distribution that contributed to this thing being defective. So in product liability cases, you can name all of them.
Pearl Carey (12:03):
So what kinds of products and cases does this area of law typically involve?
Dirk Derrick (12:08):
It can be anything. It's from cars, planes. It can be any kind of product you can think about. Household products recently has been a line of cases against, steam pots explode on people. It can be anything. It can be... I mean, it's just a very, very broad category. I will tell you that the cases are kind of... As far as bringing a case, they're limited a large part to those that lead to catastrophic injuries and to death or bad injuries because they're expensive to bring. When you start having to hire experts to go up the chain of distribution and prove design defects or manufacturing defects or warning defect, it's expensive. They're going to fight you on the other side. They're going to have their own experts. You have to depose them, you have to find out what their position is.
(13:04):
It's a lot like a medical negligence case as far as the expense of it, and because the expenses are so great, it eliminates your ability to handle smaller injuries just because if a case is worth $100,000, but it takes you $150,000 to build a product liability case, you can't bring that case. And so a lot of the smaller injuries, even though they can be a defective product, cause an injury, doesn't seem fair, but it's just the economic proof of this kind of law. We really look at the extent of injury to determine whether or not we can bring a product liability case.
Pearl Carey (13:41):
Makes sense. And so what are some of the common defenses used in these cases? And how does the injured person's own conduct factor in?
Dirk Derrick (13:50):
In a general tort claim, general negligence case, you're comparing the negligence of the parties. And if the plaintiff was more than 50% negligent, they can't recover. In product liability cases, it's different. You're looking at it differently. There's some product liability cases where what we call crash-worthy cases where somebody causes their own accident. They are killed instead of walking away from the accident because an airbag or a roof or something about the vehicle was defective and the person died when they should have walked away from the wreck, and the wreck was caused by the plaintiff, but the death was caused by the product defect. And so you look at it differently. A plaintiff not knowing that it's defective and not seeing that it's defective, it's not usually a defense.
(14:41):
There can be some defenses that are raised like assumption of the risk. If one defense is assumption of risk, if they can show that the plaintiff knew of the defect and then voluntarily moved forward using the product, knowing of it, and knowing how dangerous it was, they can use that as a defense. They can use as a defense product misuse or abnormal use. If you are misusing the product for what it was supposed to be used for and it hurts you, that can be a defense for them. The third thing is substantial alteration. If a product's made and then you altered the product and then got injured because your alteration, then that can be a defense. If you think of a product that may be made with some kind of safety bar or some kind of safety part of it, you don't like it because it slows you down, you take the safety part off of it and then you get hurt because of that, you have altered it to a point where you can't now say that the defect belongs to the manufacturer.
(15:43):
It takes something that removes the defectiveness of the product. If you just think about if there's a defective product, it's something to relieve the manufacturer of the causation of the injury, and that is misuse, abnormal use, substantial alteration, or you say, "This is defective. I'm going to use it anyway."
Pearl Carey (16:06):
Makes sense. And so if the injured person in a case like this does end up winning, what kinds of damages are on the table?
Dirk Derrick (16:13):
Same thing as a tort claim. I mean a tort action. If it's injured and not killed, you get your medical bills, lost wages, future medical bills, if you can prove them. If it's a forever injury, you get a life care plan, how much it's going to cost over your lifetime, how much pain and suffering you're going to have over your lifetime, how's it going to affect your life over time, pain and suffering, loss of enjoyment of life, all that stuff. There's punitive damages. If you can prove that the company knew of the defect and sold it anyway, the jury can award punitive damages. That can happen quite often.
(16:51):
You hear of cases on the news where... Think about tobacco cases and some of the car cases you'll hear. There's emails back and forth where the company's talking about the harm that this can cause somebody, and if you can find evidence where they knew it was defective, sold it anyway, did an analysis on how many people are going to get killed by this or hurt by this versus how much money they can make on it, anything like that, the jury can really cut loose on them and award punitive damages to punish them. You'll hear about that on some pharmaceutical cases. When you dig down into investigating the claim, if you can find out that the company knew they were going to hurt people and did not change the design or did not change the warning and sold it anyway, jury can get real upset and come up with big money.
Pearl Carey (17:44):
Absolutely. That makes sense. And so what is the statute of limitations for a case like this, and why does timing matter so much, particularly in product liability cases?
Dirk Derrick (17:55):
A statute of limitation in South Carolina is three years. Typically runs from when the person was injured or originally should have discovered the injury and its cause. I think of a statute being a lot less than that because you've got to really be on top of these cases from right when it happens. The most important piece of evidence in this case is the product itself, and if that product's destroyed, thrown away in a junkyard, the longer that period gets from when it happens to when your expert can look at it, he's got to be able to look at it. If you can't look at it... You don't want it to have changed from the time it caused the injury or death. So these cases really have to be investigated fast.
(18:41):
Letters of preservation, preserve the car. If it's a car, preserve the product, making sure it's in a secure location where it can be kept in the same condition. All is very, very important. So there's a three-year statute of limitation, but in reality, they need to be jumped on way earlier than that.
Pearl Carey (19:01):
And so, Dirk, do you have any last pieces of wisdom or knowledge for somebody who's perhaps been hurt by a product?
Dirk Derrick (19:08):
Yeah, my advice would be, A, take care of your health first. I mean, if you're hurt, your health is more important than anything. So do whatever you have to do from a medical standpoint to take care of your health. But if it's catastrophic injuries or death, somebody in the family needs to preserve the product. It's got to be preserved. And thirdly, if somehow the manufacturer or the person who sold it to you learns of this product defect and these damages, and they want to inspect the product and do that kind of stuff and start getting you to sign things, my recommendation is stop. Go talk to an attorney who does product liability law, and don't go any further until you've gotten some advice. The preservation of the evidence and the importance of not signing anything where you waive your claim is very, very important. That would be my advice to you. Take care of your health, preserve the product. Don't sign anything, and don't let the product get out of your hands until you've talked to an attorney.
Pearl Carey (20:09):
Absolutely. Well, thank you so much, Dirk, for joining me today on this episode of The Legal Truth regarding product liability in South Carolina. I'm Pearl Carey, and for more information, you can visit our website and we hope to see you in the next episode. Thank you.
Dirk Derrick (20:21):
Thank you.
Voiceover (20:28):
Thank you for joining us on the Legal Truth Podcast. If you have questions that you would like answered on a future episode, please send them to thelegaltruth@derricklawfirm.com. If you would like to speak to us directly, call us at 843-248-7486. If you find the podcast valuable, please leave us a five-star review and share The Legal Truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or workers' compensation claim. Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast located at 901 North Main Street, Conway, South Carolina.
(21:09):
Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick Law Firm Injury Lawyers and the user. While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney. Any prior results mentioned do not guarantee a similar outcome. The content reflects the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products.
(21:43):
This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up-to-date as laws continue to change. In this podcast, you'll hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.