Anderson Ex Rel. Estate of McLees v. Green Bull, Inc.

Goolsby, Judge:

Melanie Bolt Anderson, as Personal Representative of the Estate of Joe Shawn McLees, Deceased, initiated this strict liability action against Green Bull, Inc. At the close of all evidence, Green Bull made a motion for a directed verdict, which the trial court denied. The jury returned a $50,000 verdict for Anderson. Green Bull then made a motion for judgment notwithstanding the verdict, which the trial court also denied. Green Bull appeals. We reverse.

We are required to view the facts in the light most favorable to the nonmoving party, here Anderson, to determine whether the trial court should have granted *270the motions for directed verdict and judgment notwithstanding the verdict. Crossley v. State Farm Mut. Auto Ins. Co., 307 S.C. 354, 415 S.E. (2d) 393 (1992). Here, the evidence, when so viewed, suggested that on June 24, 1992, McLees and Racy Paugh, another employee of Tucker Roofing, were replacing a roof on a house over which ran two high-voltage power lines and while they were moving a twenty-six-foot aluminum conveyor ladder1 from one end of the house to the other, McLees was electrocuted and Paugh was injured.

Green Bull sold the ladder to Tucker Roofing in 1988. The ladder was sold in three eight-foot sections and assembled by Tucker Roofing. Tucker Roofing never made any modifications to the ladder. The ladder contained a red warning label that read, “KEEP ENTIRE UNIT CLEAR OF ALL UTILITY AND ELECTRICAL WIRING.”

In a products liability case based solely on the theory of strict liability, the plaintiff must establish the following three things: (1) he was injured by the product; (2) the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant, who is engaged in the business of selling such a product; and (3) the injury occurred because the product was in an unreasonably dangerous, defective condition. Harris v. Rose’s Stores, Inc., 315 S.C. 344, 433 S.E. (2d) 905 (Ct. App. 1993).

In order to prevent a product from being unreasonably dangerous, the seller may be required to give a warning on the product concerning its use. RESTATEMENT (SECOND) OF TORTS § 402A cmt. j, at 353 (1965).2 A product bearing a warning that the product is safe for use if the user follows the warning is neither defective nor unreasonably dangerous; therefore, the seller is not hable for any injuries caused by the use of the product if the user ignores the warning. Id. Further, a seller is not required to warn of dangers or potential dangers that are generally known and recognized. Dema v. Shore Enters., Ltd., 312 S.C. 528, 435 S.E (2d) 875 (Ct. App. 1993); Koester v. Carolina Rental Ctr., 311 S.C. 115, 427 S.E. (2d) 708 (Ct. App. 1993), rev’d on other grounds, 313 S.C. 490, *271443 S.E (2d) 392 (1994). It follows, then, that a product cannot be deemed either defective or unreasonably dangerous if a danger associated with the product is one that the product’s users generally recognize. See RESTATEMENT (SECOND) OF TORTS § 402A cmt. g, at 351 (1965) (a product is defective only “where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him”) (emphasis added); F. PATRICK HUBBARD & ROBERT L. FELIX, THE SOUTH CAROLINA LAW OF TORTS, 242 (1990) (“[T]he defendant is not held to an awareness of unforeseeable uses or misuses or the unreasonable assumption by the plaintiff of obvious hazards accompanying the product, whether these issues arise as matters of defenses or of defining defect.”) (emphasis added); see also Hunt v. Harley-Davidson Motor Co., Inc., 147 Ga. App. 44, 248 S.E. (2d) 15, 16 (1978) (the manufacturer is under no duty “to guard against injury from a patent peril or from a source manifestly dangerous”).

Here, there was no evidence from which the jury could reasonably infer the roofers’ injuries were caused by a defect in the ladder itself. Any person or normal intelligence would know “the risk posed by an aluminum ladder in close proximity to an energized high-voltage line.” Stancill v. Potomac Elec. Power Co., 744 F. (2d) 861, 866 (D.C. Cir. 1984). Indeed, witnesses for both sides testified a person holding an aluminum ladder would know to stay away from overhead power lines. Even though the conductivity of the ladder caused it to be dangerous, the conductivity, then, did not cause the ladder to be either defective or unreasonably dangerous because the conductivity of an aluminum ladder is a condition commonly known and recognized.3

*272Anderson also contends the jury could have reasonably found that the accident was the result of arcing,4 and that the danger of arcing is not a subject of common knowledge. The record, however, contains no evidence from which the jury could reasonably conclude that arcing most probably took place. At most, the evidence shows it was “possible” that arcing occurred. See Harris v. Rose’s Stores, Inc., 315 S.C. 344, 433 S.E. (2d) 905 (1993) (causation based upon a possibility rather than a probability is not sufficient for a plaintiff to recover in a products liability case; where the cause of a plaintiffs injuries may be as reasonably attributed to an act for which the defendant is not liable as to one for which it is liable, the plaintiff has not met his burden of proof in establishing the defendant’s defective product proximately caused the plaintiffs injuries).

Because there was no evidence from which the jury could reasonably infer the ladder was either defective or unreasonably dangerous the trial court erred in denying Green Bull’s motion for directed verdict and judgment notwithstanding the verdict.5

Reversed.

Cureton, J., concurs in a separate opinion. Howell, C.J., dissents in a separate opinion.

A conveyor ladder has a ladder frame with a motorized conveyor or trolley that rides up and down the ladder’s rails to lift material.

S.C. Code Ann. § 15-73-30 (1977) incorporates by reference the comments in Restatement of Torts, Second § 402A.

Anderson suggests in her brief that the jury could have reasonably found the ladder was defective because Green Bull failed to warn users that the ladder should be adjusted, in this case shortened, whenever the ladder’s length would make it more dangerous because of surrounding conditions, in this case overhead high-voltage transmission lines.

But adjusting the ladder’s length by shortening it is merely a particular precaution a user might take to avoid a generally known dangerous condition (and, here, one expressly warned against, i.e., contact with electrical wiring). Because Green Bull was not required to warn users to stay clear of power lines, it follows that Green Bull was also not required to warn them to take specific measures to stay clear of power lines, whether it was by shortening the ladder, by not using the ladder and using another instead, by moving the ladder elsewhere, or by some other method.

Arcing occurs when an electrical current “jumps” into a conductive source without direct contact with the source.

Because we decide this case on this ground, we do not address Green Bull’s remaining arguments.