South Carolina Product Liability (Defective Product) Claims

Who's to blame when you're injured by a defective product?

To recover damages in a product liability lawsuit, you need to prove that the product that injured you was defective. How you establish that the product was defective depends on the nature of the alleged defect and whether your lawsuit is based on negligence or strict liability.

As you read this article, you're almost certainly surrounded by multiple products. Look around and it shouldn't take long to find a smartphone, computer, lamp, toaster, and television set. When driving around, you're also likely to see brown packages on doorsteps filled with more products being delivered to American homes.

In fact, the online retailer Amazon (the world's largest online retailer) alone generates roughly 500 million pounds of plastic packaging every year.

In the modern world, it's a sad reality that we don't always expect our products to last or even to work well, but we generally count on them not to hurt us. Unfortunately, people are injured and even killed by defective products every year in the U.S.—including right here in South Carolina.

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What is a product liability claim?

A product liability claim is a civil lawsuit alleging that a defective product caused harm to the plaintiff. South Carolina law recognizes 3 types of product defects:

Type Definition Example
Manufacturing defect A defectively manufactured product is one that—though properly designed—left the manufacturer in a condition other than intended. A contact lens became tainted with silicone oil residue during the manufacturing process. As a result of the accidental contamination, users experienced severe eye pain and partial blindness.
Design defect A product is defectively designed if it failed to perform as safely as a reasonable person would expect, even when used as intended (or at least in a manner that was reasonably foreseeable). A toy was so sharp that most of the children who used the product seriously cut themselves on the product.
Marketing defect (failure to warn) Manufacturers have a duty to warn users of the dangers that can be reasonably anticipated and that are inherent in their products. The weed killer contained a carcinogen likely to cause cancer if handled without gloves, but the packaging failed to warn users.

A product liability claim is a type of personal injury claim.

Facing facts: According to the United States Department of Justice, approximately 5% of all personal injury lawsuits are product liability lawsuits.

How do I establish a product liability claim in South Carolina?

Product liability claims in South Carolina can be based on either negligence or strict liability:

Negligence vs. strict liability

In a product liability case based on negligence, the plaintiff must prove that:

  • The defendant owed the plaintiff a duty of care (manufacturers owe a duty of care to all potential users),
  • The defendant breached the duty of care, and
  • The defendant's breach caused the plaintiff's injuries.

In a product liability case based on strict liability, the plaintiff must prove that:

  • The product was sold in an "unreasonably dangerous" condition,
  • The unreasonably dangerous condition existed when the product left the defendant's control, and
  • The dangerous condition caused the plaintiff's injuries.

Strict liability is typically the easier of the 2 legal theories to prove because the plaintiff doesn't need to establish that the defendant acted carelessly. With that being said, not all products are sold in an "unreasonably dangerous" condition.

A product is considered "unreasonably dangerous" if it's dangerous beyond an ordinary consumer's expectation, or if the manufacturer could have produced a less dangerous alternative at a similar cost.
Enjuris tip: You don't need to worry too much about whether to base your claim on negligence or strict liability. Your lawyer will make this strategic decision based on the facts of your case.

Evidence typically used to establish a product liability claim includes:

  • The defective product (or a similar product if the actual product is no longer available)
  • The product manufacturing guidelines
  • Video footage from the manufacturing plant
  • Relevant internal communications (such as emails between designers discussing potential problems with the design)
  • Incident reports
  • Medical records
  • Testimony from designers, manufacturers, witnesses, and others who can speak about the defective product

Who's liable if I'm injured by a defective product?

A product liability lawsuit can be filed against:

  • Manufacturers. A manufacturer is an individual or entity that creates, assembles, constructs, or otherwise prepares a product or component before the sale to a customer.
  • Sellers. A seller is a person engaged in the business of selling or leasing a product for resale, use, or consumption.

What if your neighbor sells you a defective refrigerator at a garage sale? Can you sue your neighbor?

Let's take another look at the definition of "seller." A seller is a "person engaged in the business of selling or leasing a product." This definition does not include casual sellers who may sell an item (such as at a garage sale or on Facebook Marketplace, for example) every once in a while to make a few extra bucks.

Casual sellers cannot be sued in product liability lawsuits in South Carolina.

Real-life example: Almost 2,000 veterans from South Carolina have filed product liability lawsuits against the manufacturer of 3M Combat Arms earplugs. The lawsuits allege that 3M Combat Arms earplugs, which were intended to protect military members from loud noises (such as explosions), had a design defect that caused the seal to loosen in the wearer's ear. As a result, plaintiffs were not protected from loud noises and in many cases suffered Tinnitus as a result.

Although the lawsuits are still pending, the U.S. Department of Justice reached a $9.1 million settlement with the 3M Company to resolve allegations brought under the False Claims Act that 3M "knowingly sold the dual-ended Combat Arms Earplugs to the United States military without disclosing defects that hampered the effectiveness of the hearing protection device."

Learn more about the 3M Combat Arms earplug lawsuits.

What are the common defenses to product liability claims?

In addition to alleging that the plaintiff was not actually injured by the product, a defendant may be able to raise a number of defenses in a product liability lawsuit:

  • Substantial modification. This defense argues that the real cause of the harm was a substantial modification of the product (for example, the plaintiff replaced the engine on their go-kart with a more powerful engine).
  • Misuse of the product. This defense claims that the real cause of the harm was an unforeseeable misuse of the product (for example, the plaintiff used Tannerite to blow up a refrigerator).
  • Common knowledge. The defendant may try to argue that the plaintiff's injury resulted from a danger that is commonly known by the public.
  • Federal preemption. A defendant who complies with federal laws and regulations when manufacturing its product cannot be liable under a South Carolina law that conflicts or interferes with those federal mandates.
  • Statute of limitations. The plaintiff's claim may be barred if the claim is filed after the expiration of the statute of limitations.
Real-life example: James Small was a skilled sawyer in the timber industry. While working in a forest in South Carolina, his chainsaw became stuck in a tree. James asked his co-worker, Sylvester Harris, to help him free his chainsaw by pushing against the tree with a skidder until James could remove the chainsaw.

Sylvester put the blade of the skidder against the tree. He then pushed the tree and James removed his chainsaw. However, the skidder's throttle stuck, causing the skidder to "surge forward out of control and to push over the tree." The tree struck and injured James.

James sued the manufacturer of the skidder, arguing that the skidder had a defect that caused the throttle to stick.

The manufacturer of the skidder argued that it should not be held liable because the skidder was misused at the time of the accident. However, the jury concluded that the manufacturer was liable because using a skidder to help remove a chainsaw stuck in a tree was common practice in the logging industry and, therefore, was foreseeable.

How long do I have to file a product liability claim?

Under South Carolina law, you must file your product liability lawsuit within 3 years from the date of your injury. If you fail to do so, your claim will be forever barred.

Enjuris tip: Learn more about the statute of limitations in South Carolina.

There are a couple of narrow exceptions to the statute of limitations. Because of these exceptions, it's a good idea to meet with an attorney as soon as possible to determine when you need to file your lawsuit.

How much compensation can I receive?

Though the exact settlement or award amount you may be eligible for depends on the unique factors and circumstances of your case, plaintiffs in South Carolina product liability lawsuits may receive the following types of damages:

  • Economic damages include the monetary losses caused by the defective product (medical expenses, lost wages, property damage)
  • Non-economic damages include the non-monetary losses caused by the defective product (pain and suffering, emotional distress, loss of consortium)
  • Punitive damages are meant to punish the defendant and are only available in cases where the defendant acted willfully or recklessly

South Carolina adopted the modified comparative fault rule. Under this rule, the amount of damages a plaintiff can recover is reduced by their percentage of fault (if any). What's more, if the plaintiff is determined to be 50% or more at fault, the plaintiff is barred from recovering any damages.

Don't be fooled by online settlement calculators because the truth is it's impossible to know exactly how much compensation you will receive for your injury. Damage awards may be affected by a number of factors, including:

  • Severity of the injury
  • Strength of the evidence
  • Credibility of the parties
  • Likeability of the parties
  • Age of the plaintiff
  • Jurisdiction (some counties historically award more damages than others)

Do I need a product liability attorney?

Product liability cases can be complex. An attorney who specializes in defective product litigation can help negotiate a desirable settlement with sellers, manufacturers, and insurance companies, or take your case to trial if necessary. An attorney can also help defend you from claims of misuse or modification.

Most personal injury attorneys handle product liability cases. With that being said, it's important to ask the attorney you're considering hiring whether they have experience litigating cases like yours.

Personal Injury Attorney Interview Sheet
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