Young Ex Rel. Estate of Young v. Tide Craft, Inc.

Ness, Justice

(dissenting) :

Believing proximate cause was an issue for the jury, I dissent.

The majority concludes, as a matter of law, that the dealer’s splicing of the cable constituted an unforeseeable insulating act of intervening negligence. There is competent *473 evidence that the allowing of installation of the steering system by dealers and the failure to provide proper instructions violated accepted safety practices and constituted a defect. 1 However, this need not be discussed as the verdict is sustainable solely upon the evidence of design defects which proximately contributed to respondent’s decedent’s demise.

The majority correctly states the evidence must be viewed in the light most favorable to the opposing party and proximate cause is generally a jury issue but then proceeds to vitiate the expert testimony upon which respondent premised her claim, to wit: That design defects proximately contributed to the injuries and subsequent wrongful death of Mr. Young.

No phase of negligence law offers greater resistance to logical treatment than proximate cause. The basic concept of it is that recovery should be allowed for injuries which in fact resulted from the negligence.

The extent of liability should be left to the jury. It is the jury’s province to wrestle with issues of proximate cause. Intervening acts of subsequent tort feasors are jury questions and the burden is on the plaintiff to establish the subsequent injury was the result of the defendant’s acts. Skol-lingsberg v. Brookover, 26 Utah (2d) 45, 484 P. (2d) 1177 (1971).

Respondent’s contentions respecting design defects were that the boat in question, because of configuration and horsepower, had a propensity to eject an occupant and that the incorporation of certain safety features such as seat locks and deadman or kill switches would have prevented or reduced the likelihood of Young’s ejection and eventual death.

There is ample evidence in the record to support the inference the boat steering malfunctioned and precipitated a *474 spin-out. The eye-witness Leopold testified that one moment Young was in command of the boat and in the next instance the pilotless boat was turning in circles. Upon approaching, Leopold observed the deceased hanging from the boat.

Appellant in its brief challenges the competence of respondent’s expert to render an opinion, the factual basis for his opinion, and the failure of respondent to lay a proper foundation for the expert’s opinions.

Assuming Tide Craft’s contentions were properly preserved below, 2 they are without merit. Under present South Carolina practice, an expert’s opinion must either be based on facts within his knowledge or upon facts obtained from evidence presented or to be presented at trial which are tendered in the form of a hypothetical question. 3 Bailey v. MacDougall, 251 S. C. 290, 162 S. E. (2d) 177 (1968).

Here, respondent’s expert testified at length and in detail regarding his examination and testing of the boat in question. His findings with respect to the absence of seat locks and deadman switches, the positioning of the seat and the horsepower of the boat were unchallenged. Thus, the factual basis for his conclusions was predicated on his examination of the boat and the manufacturer’s specifications. His conclusion that the absence of these features contributed to the injuries cannot be attacked for failure to state the facts upon which they were based, as they were premised on physical evidence.

Appellant’s contention that Mr. Fowler was unqualified and incompetent to render an expert opinion is unavailing. This Court has consistently held “[t]he adequacy of a witness’s qualifications as an expert witness is largely a matter of discretion for the trial judge.” Redman v. Ford Motor *475 Co., Inc., 253 S. C. 266, 271, 170 S. E. (2d) 207, 210 (1969). Fowler possesses undergraduate and graduate degrees in psychology. He minored in engineering and had graduate courses in biomechanics and kinematics. The combination of psychology and engineering in his undergraduate and graduate curriculum prepared him in the field of “human factors engineering,” or the study of how a human being relates to the design of a particular product. Defense counsel was permitted below to vigorously cross-examine Fowler on his qualifications and make light of them. An examination of Fowler’s qualifications reveals no abuse of discretion in the trial court’s decision regarding his competence to offer an expert opinion.

Under negligence principles, a manufacturer must use reasonable care in designing its product in order to avoid creating an undue risk of harm to the consumer. It must perceive and guard against reasonably foreseeable risks of harm. “Foreseeability, of course, does not require that one must foresee the precise hazard or envisage the harm in the detailed manner in which it occurred; It is enough if some harm of a like general character is foreseeable.” Guffi v. Erie Strayer Co., 350 F. (2d) 378, 381 (3rd Cir. 1965). Foreseeability should not be confused with actual knowledge. Simpson Timber Company v. Parks, 369 F. (2d) 324 (9th Cir. 1967) and 390 F. (2d) 353 (9th Cir. 1968).

The majority concludes Fowler’s testimony fell short as a matter of law of establishing a causal connection between the alleged defect and Young’s injuries and death. Under South Carolina law, the manufacturer must test its product for possible defects prior to marketing it. Patterson v. Orangeburg Fertilizer Company, 117 S. C. 140, 108 S. E. 401 (1921). The consuming public is not the guinea pig upon which new products are tested after being placed in the stream of commerce. It is uncontroverted:

1. that Tide Craft performed no tests to determine the effect of a loss of steering from a frayed cable;

*476 2. that the likelihood of ejection from the boat because of the position of the seat was enhanced;

3. that the absence of seat locks or deadman switches increased the risk of ejection;

4. and that appellant failed to warn the consumer a loss of steering could cause ejection.

It is also incumbent upon a manufacturer to warn consumers of any foreseeable hazards associated with use of its product.

“A product may be deemed defective, although faultlessly made, if it is unreasonably dangerous to place the product in the hands of the user without a suitable warning, and the product is supplied and no warning is given . . .” 72 C. J. S. Supplemental Products Liability § 25, p. 38,

See also Restatement of Torts (2d) Section 402 A, Comments H and J. No warning was supplied by Tide Craft with respect to the boat’s propensity for ejection when it spun due to the design of the seat and absence of safety devices. Fowler testified that at a minimum, the manufacturer should have warned of the dangers of ejection which were compounded by the design of the seat. The witness explained the reasons for the enhancement of ejection by virtue of the boat’s design.

The majority found a total absence of evidence that the lack of incorporation of safety devices contributed to Mr. Young’s demise. Yet Mr. Fowler, on two separate occasions, related the failure to incorporate a seat lock to Mr. Young’s ejection.

“Q. Can you tell us, in your opinion, how that contributed to him being ejected from the boat?

“A. Well, it offered no resistance and in fact just kind of enhanced his being thrown out or it literally turned with him and guided him to the point where as his body went he went out and the seat was, of course, restrained at the bottom and it didn’t go. If the seat had not been bolted in *477 the seat would have gone too. If the locking device had been here then the forces would have been restrained by the arms of the seat.” Tr. p. 279.

Fowler’s concluding opinions in which he retrospectively viewed the tragedy and the design flaws which contributed thereto were competent and based on his examination of the boat and his general knowledge of safety engineering, both of which were tested on cross-examination.

I conclude sufficient evidence was adduced by respondent to establish the boat was negligently designed, defective and unreasonably dangerous. Appellant’s contention that strict tort liability was not available as a theory of recovery prior to enactment of the strict tort liability statute need not be addressed.

In 1965 the American Law Institute, adopted 402 A of the Restatement of Torts (2d).

This State adopted by statute in 1974 the theory of strict liability.

This legislative enactment was consonant with the clear draft of the common law of this State as reflected in the decisions of this Court. See Lane v. Trenholm Builders, 267 S. C. 497, 229 S. E. (2d) 728 (1976).

I would affirm.

With respect to the foreseeable consequences of negligent installation and repair — spin outs with resultant ejection.

The defendant’s objection at transcript page 249 can be broadly-construed as preserving this question.

See note, The New Federal Rules of Evidence and South Carolina Evidentiary Law; a comparison and critical analysis, 28 S.C.L. Rev. 481 (1977).