The Lawletter Vol 38 No 9
Jeremy Taylor, Senior Attorney, National Legal Research Group
The Court of Appeals of South Carolina recently considered whether a worker who was seriously burned when the chemical sodium bromate caught fire at his workplace could recover against the suppliers of the chemical even though the plaintiff was not "doing anything" with the product at the time of the incident. See Lawing v. Trinity Mfg., No. 5166, 2013 WL 4451075 (S.C. Ct. App. Aug. 21, 2013). The trial court granted summary judgment to the defendants on the plaintiff's strict liability cause of action and entered judgment for the defendants on the plaintiff's remaining claims. The trial court ruled that the worker could not recover, because he was not "using" the product at the time it caught fire. The court of appeals reversed.
The appellate court examined several of the official comments to the Restatement (Second) of Torts § 402A (1965), which is the genesis of strict products liability in numerous states, including South Carolina. Considering the comments together, the court concluded that the legislature intended that the term "user" include persons who foreseeably could come into contact with the dangerous nature of a product. Therefore, a person who examines a product for warnings and other safety information is one whom the seller intends to use that information to avoid the dangers associated with the product and is therefore a person who foreseeably could come into contact with such dangers. A person who reads a warning for this purpose is not a casual bystander. Rather, the person "uses" the product by reading the warning.
At the time he was injured, the plaintiff was examining bags of sodium bromate for information warning him that it would not be safe for him to work near them. The court held that in this respect, he used the product exactly as the suppliers intended. Because he was a "user" of the product, he was entitled to recover under the theory of strict liability, and the trial court erred in entering judgment for the suppliers.
Lawing provides yet another example of why it is unwise to make assumptions regarding the possible scope of relief under products liability theories. Although perhaps surprising, it turns out that a person can use a product merely by looking at it.
