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From Products Liability Law Daily, December 3, 2015

Sophisticated user instruction detracted from real issue of unlabeled sodium bromate

By Pamela C. Maloney, J.D.

Based on the specific facts presented in a product liability action brought by a worker against the manufacturer and suppliers of shrink-wrapped sodium bromate which had no visible warning labels, a jury instruction on the sophisticated user doctrine was not proper, the South Carolina Supreme Court ruled in reversing the court of appeals decision affirming the trial court’s issuance of this instruction. The court did affirm the court of appeals’ holding that the worker was a “user” of the product for purposes of the state’s products liability statute, but found that the lower court’s definition of “user” was too broad and modified the intermediate court’s decision accordingly (Lawing v. Univar, USA, Inc., December 2, 2015, Toal, J.).

Background. The worker was part of a pipe removal team employed by Engelhard Corporation, a company that refined precious metal. The company’s refining process involved the use of sodium bromate, a highly flammable chemical used as an oxidizer. A number of pallets containing bags of the chemical had been moved to a staging area prior to the time the pipe removal team began its assignment to remove and replace old pipe. Although the bags were labeled “SODIUM BROMATE” and were marked with the oxidizer symbol, these labels were not visible to the inspector who cleared the work area. Hot molten bits of metal produced by the use of a blowtorch to remove the pipe created a flash on one of the pallets and an “inferno” ensued. The worker, who was standing on a pipe rack in order to lower cut sections of the pipe to another worker who was on a lift, was enveloped in flames and was burned over 42 percent of his body. He also fell from the lift, shattering his heels, knees and four vertebrae, and lacerating his head.

Prior to submitting the worker’s products liability negligence and breach of implied warranty of merchantability claims against the manufacturer, the supplier, the supplier’s subsidiary, and several other companies in the chain of distribution, the trial court issued an instruction on the sophisticated user doctrine. On appeal, the South Carolina Court of Appeals determined that the instruction was proper, but ruled that the trial court had too narrowly interpreted the term “user” for purposes of the state’s products liability statute and remanded the case for a new trial [see Products Liability Law Daily’s August 22, 2013 analysis of Lawing v. Trinity Mfg, Inc.]. Both sides appealed to the state supreme court.

Definition of user. In upholding the court of appeals’ determination that the worker was a “user” of the sodium bicarbonate for purposes for the state’s strict liability law, the state high court clarified that the state’s legislature expressly adopted the comments to section 402A of the Restatement of Torts (Second), including those that discuss the meaning of the word “user.” Agreeing with the worker’s argument that he was precisely the type of user for whom any warnings on the product should have been intended, the court found that the worker was not merely a “causal bystander” with regard to the sodium bromate.

However, the high court agreed with the defendants’ contention that the court of appeals had set forth too broad a definition of “user” for purposes of a strict liability analysis in South Carolina. The high court explained that the court of appeals' expansive definition which included as a "user" all "persons who could foreseeably come into contact with the dangerous nature of a product" could be interpreted as to allow a bystander employee to recover, which runs afoul of cases interpreting the term under the state’s products liability law. In addition, the inclusion of a foreseeability analysis in a determination of whether a plaintiff constituted a “user” under state law also was improper. The high court concluded that a case-by-case analysis was the more appropriate approach for determining who constituted a user under state law. Finding that the court of appeals erred in setting forth its broad definite of “user,” the high court affirmed, as modified, the lower court’s decision on this issue.

Sophisticated use defense jury instruction. The state supreme court agreed with the worker’s challenge that the court of appeals erred in affirming the trial court’s decision to charge the jury on the sophisticated user doctrine. However, because the facts of the case did not implicate the defense, the high court refused to address the issue raised by the worker who contended that the defense is not part of South Carolina law. The proper focus in this case was the labeling on the sodium bromate shipped to the worker’s employer, the “sophisticated user,” not on the use of sodium in the plant, according to the high court. In this case, the employer’s knowledge of the dangers of sodium bromate did not affect the suppliers’ duty to label sodium bromate properly as a hazardous and flammable product because that knowledge was useless to a person, like the worker, who came into contact with shrink wrapped pallets of the chemical which had no visible hazard label.

The case is Opinion No. 27594.

Attorneys: John S. Nichols (Bluestein, Nichols, Thompson & Delgado, LLC) for Scott F. Lawing. Christian Stegmaier (Collins and Lacy PC) for Trinity Manufacturing, Inc. and Matrix Outsourcing, LLC.

Companies: Univar, USA, Inc.

MainStory: TopStory DefensesLiabilityNews WarningsNews ChemicalNews SouthCarolinaNews

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