The Lawletter Vol 41 No 1
The Supreme Court of South Carolina recently addressed the issue of who is a product "user" for purposes of holding the manufacturer liable for injuries under the theory of strict liability. See Lawing v. Univar, USA, Inc., No. 2013-002464, 2015 WL 7756860 (S.C. Dec. 2, 2015) (not yet released for publication). The plaintiff in Lawing was a maintenance mechanic in a factory that refined metals. The plaintiff was injured when some bags of sodium bromate, an oxidizer, caught fire when the plaintiff and other workers were using oxyacetylene torches near the bags. The plaintiff alleged that the manufacturer of the sodium bromate was strictly liable for failing to warn users of the dangers posed by the product. The manufacturer argued that it could not be held strictly liable to the plaintiff, because the plaintiff was not a "user" of the product.
The South Carolina Supreme Court, as a matter of first impression, held that the plaintiff was a "user" of the product, even though he did not actually handle the bags of sodium bromate. The court noted that South Carolina's strict liability statute, S.C. Code Ann. § 15-73-10, has adopted the Official Comments to section 402A of the Restatement (Second) of Torts, from which the statute was derived. Official Comment l to section 402A provides that a "user" includes those who are utilizing a product for purposes of doing work upon it. The court rejected as overbroad the court of appeals' definition of a "user" as anyone who could foreseeably come into contact with the dangerous nature of a product, in that such a definition would allow a mere bystander to recover in strict liability, a proposition that the South Carolina Supreme Court had previously rejected. Rather, according to the court, the determination of who constitutes a user requires a case-by-case analysis.
The court noted that the plaintiff noticed pallets of the chemical within his work area on the day of the fire but failed to request their removal, because he did not see a label indicating their dangerous nature. The court found that the plaintiff relied on the lack of labeling on the bags to evaluate the chemical's safety in the area where he was working. Under such circumstances, the plaintiff was a "user" of the product, and the manufacturer could be held strictly liable for the injuries suffered by the plaintiff.
Lawing thus stands for the principle that for purposes of recovery in strict liability, a product "user" includes more than the traditional consumer of a product and that each case should be evaluated to determine whether the plaintiff can properly be classified as a user of the product at issue.