E. Defenses
1. Defenses Available for All Three Causes of Action
a. Statute of limitations
No specific statute of limitations is established for products liability and analogous provisions for personal injury, wrongful death, property damage and breach of contract actions must be used.95 The limitations of such actions is six years for causes of action arising before April 5, 1988.96 As a result ofthe South Carolina Tort Reform Act,97 the period is reduced to three years for actions arising on or after April 5, 1988.98 An unresolved issue in South Carolina is whether the limitations period for personal injuries based on a breach of implied warranty theory is governed by § 36-2-725(1) (still six years), by § 15-3-530(5), or some other statute.99
b. Industry custom and state of the art
In products liability, evidence of industry custom and state of the art designs may be admissible to prove a product is defective. In the overall balance of risk and utility of the product, evidence of industry custom is also relevant to the ordinary user's expectations.100 While conformity with industry practice is not conclusive of the product's safety, the cases where a member of industry will be held liable for "failing to do what no one in his position has ever done before" will be infrequent.101
Moreover, plaintiff must introduce evidence that an alternative design is feasible and cannot rely upon mere conceptual design theories.102 In strict liability and negligence, a product must be measured against a standard existing at the time of sale or against reasonable customer expectations held at the time of the sale; hindsight opinions by experts suggesting that more should have been done are insufficient to discredit the conclusion that the manufacturer met the standard of care.103 In warranty, however, the courts may hold a manufacturer liable based on current knowledge of state of the art technology.104
c. Sophisticated User Defense
The Sophisticated User Defense is generally permitted in cases involving an employer who was aware of the inherent dangers of a product that the employer purchased for use in his or her business.105 That employer has a duty to warn his employees of the dangers of the product.106 A manufacturer has no duty to warn of potential risks or dangers inherent in a product if the product is distributed to a learned intermediary107 or distributed to a sophisticated user who might be in a position to understand and assess the risks involved, and to inform the ultimate user of the risks, and to, thereby, warn the ultimate user of any alleged inherent dangers involved in the product.108 The South Carolina Supreme Court has not formally adopted the sophisticated user defense, but has said in dicta that when labeling is the underlying issue, the adequacy of it does not require a sophisticated user analysis as that would absolutely absolve suppliers of their responsibility to label dangerous products during shipment and on delivery.109 The fact that a sophisticated user of a particular dangerous product ultimately receives it, added the court, does not permit the supplier to decide whether or not to adequately label it.
d. Statutory preemption and compliance with statute or regulation
Statutory preemption may serve as a defense.110 While evidence of compliance with a statute or regulation may be considered as some evidence of whether the product was defective in terms of design or warning, this evidence of compliance is not conclusive.111
2. Defenses to Negligence Only
For all causes of action arising on or after July 1, 1991, a defendant may claim the defense of comparative negligence.112 For causes of action arising before July 1, 1991, a defendant may claim the defense of contributory negligence.113 The South Carolina Supreme Court has held that the defense of comparative negligence does not apply in crashworthiness cases brought under theories of strict liability and breach of warranty and that public policy does not bar a plaintiff, allegedly intoxicated at the time of an accident, from bringing a crashworthiness claim against the vehicle manufacturer.114
A defendant may also claim any of the defenses normally available in a negligence cause of action,115 including assumption of the risk,116 intervening acts of negligence,117 immunities, the Tort Claims Act,118 the economic loss rule,119 and statute of limitations.120 For a discussion of negligence defenses, see Neligence - Generally.
3. Defenses to Strict Liability121
Assumption of the risk and knowing misuse are defenses available to defendants which will bar a plaintiff's recovery in strict liability cases.122 State of the art/industry custom, statute of limitations and Sophisticated User defenses are described above.
4. Breach of Warranty
A victim's conduct may be so extraordinary that it supersedes a breach of warranty and becomes the proximate cause of the accident.123 If the victim's conduct was not so extraordinary as to become the proximate cause of the accident, then the victim's conduct is irrelevant under the warranty theory.124 See also the Sophisticated User defense and state of the art/industry custom defenses described above.
Where the U.C.C. is applicable, § 36-2-607(3)(a) requiring a buyer to notify the seller of a breach within a reasonable time after discovering it or after it should have been discovered may bar an action.
In what was evidently a case of first impression, the South Carolina...
