August 21, 2013 South Carolina Court of Appeals published opinion

Lawing v Trinity Manufacturing, Inc.

Lawing suffered significant burns and other injuries from a fire at his workplace. He sued the suppliers of the sodium bromate which burned and caused his injuries. The trial court granted trinity and other supplier summary judgment on a strict liability count on the grounds Lawing was not a “user” of the sodium bromate. It also charged the jury on the “sophisticated user” doctrine. The jury returned a verdict for Lawing and the trial court entered judgment. Lawing appealed both the summary judgment order and the sophisticated user charge. The panel affirmed in part, reversed in part and remanded. It affirmed as to the sophisticated user charge holding that the doctrine has been recognized in South Carolina since at least 1995 and the doctrine is not preempted by federal regulations. The panel described the doctrine as a method for suppliers to prove that they satisfied their duty to warn by demonstrating that an intermediary, such as Lawing’s employer, was sophisticated in the use of the product and it is reasonable to rely on the intermediary to warn workers or others who ultimately come into contact with the product. Thus, because the doctrine does not interfere with the federally mandated duty to warn, it is nto preempted. Here, the panel held that there was sufficient evidence in the record including the employer’s expert team which analyzed the sodium bromate and its safety protocols to sustain the giving of the charge. The panel reversed as to summary judgment holding that Lawing was a user as he was a person who could foreseeably come into contact with the dangerous nature of the product. The panel based their holding on the broad definition of user found in the comments to Section 402A of the Second restatement of torts. Noting that there is little case law on the issue, the panel found persuasive the holding by the Montana Supreme Court that all participants in a baseball game are users of the equipment on the field as they are placed at risk by the equipment. The panel reasoned that defining user in Lawing’s situation to only include people actually using the sodium bromate was too narrow as it did not o cover all the persons who were at risk of harm from failure to adequately label or otherwise warn. The strict liability claim was remanded for trial.

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