*1 оf a nection of the intentional act doing wrongful without Powell, Keels v. or excuse.” justification supra. a cause complaint of action for alleges the malicious
interference with to secure appellant’s right employment the demurrer should have been overruled.
I would reverse the and remand for trial. judgment J., concurs. Gregory, YOUNG,
Blanche C. Young, Executrix of the Estate of Novel Re spondent, CRAFT, INC., v. TIDE Dan Bell Bell’s Winter d/b/a Park, Center, and Henry Hegel, H. Berkeley Marine d/b/a Craft, which Tide Appellant. Inc. is
(242 (2d) 671) S. E. *3 McGee, Charleston, Ap- & Moore, Buist, Smythe for pellant, Smith, Charleston,
Solomon, Re- Kahn, Roberts & for spondent,
Ronald L. and Leonard Motley Jr., L. of South Long, Carolina Trial lawyers Association, curiae, amicus for *5 9, 1978.
March
Rhodes, Justice: death conscious and suffer- for wrongful pain Actions on Lake of a fatal accident Moultrie out boating ing, arising in resulted in verdicts favor jury in Berkeley County, the dеfendant- (Young) against plaintiff-respondent We reverse. Tide Craft appeals. Craft). (Tide appellant I of these actions is the which subject The tragic mishap after the respondent’s on March 1972 shortly occurred According his husband, had launched boat. Novel Young, in alone who was Young, to the only testifying eyewitness, on a boat, him and was proceeding had just passed The hour. per at 30-35 miles course straight approximately testified he had check witness that down to his fuel glanced looked and when he boat gauge Young’s was up circling could not be seen. closer to Young Upon drawing Young’s boat, he observed that was off the side of Young hanging water, the boat with his in the one of his head submerged motor, feet the lines of the and one of his tangled trolling hands the rail which the side of the runs grasping along boat. Before could be rescued he had drowned. Young
The boat in was a bottomed, foot, flat question sixteen 1972 “Deluxe bass boat manufactured Tide Bayou” by Craft, Minden, Inc. of Louisiana. The boat had been pur- chased by December of from Young Bell’s Danny Park Winter in Eutaw S. C. When the was Springs, boat Bell, seats, it contained two shipped swivel one located near the bow and the other near the stern. The boat was also with a stick” equipped “pop-up steering system, had been Tide stick” steer- Craft. patented “pop-up system differs from ing the conventional systems “stick” or lever attached to a wheel is substi- large pulley tuted for the conventional wheel and is mounted on the side of the boat to the left of the forward seat. Con- *6 mounted on thе side of the for the are boat to engine trols This enables of this the bass arrangement the seat. right boat from the to the forward seat and has fisherman operate him fish from the forward of to seat allowing the advantage of a The swivel without the interference wheel. seats steering him to fish in allow any direction.
As the remainder of patented, the was steering system to consist of what is referred commonly to in the in- boating as a “cable consists sim- dustry pulley” system. This system which, of inch on ply plastic-covered steel cable the 3/16 of in type boat stick question, was threaded the through wheel, led steering pulley aft a 'series of at- through pulleys boat, tached to the side of the the and connected with engine a series of hardware. through and other springs, pulleys On Tide Craft’s boаt, 1972 model cable the pulley system was only installed partially at the Installation factory. of the system on the boat was purchased Young completed by Bell at the time the boat was fitted the outboard motor with had Young model, selected. Prior to the 1972 Tide Craft had installed the completely cable steering system, including and the dealer pulleys, to connect the cable with leaving only the motor. Due complaints to from dealers that complete installation was when it came time to con- creating problems the nect the various sizes system to makes of motors and available, Tide Craft installed the only partially sys- steering on its boats. tem 1972 model
After his of the boat in December purchase Young the used boat for several months any without problems the Then in system. the latter steering February part he the began experience difficulty steer- manipulating 25th, stick. On he ing took the boat for February repairs R. the Henry owner Marine Hegel, operator Berkeley Center Moncks Corner. determined that the Hegel prob- with lem was that the cable had off steering slipped pulley system, because of slack in the and was steering between the As a result resting housing. pulley pulley friction, on the cable had become sheathing plastic difficult to move the it increasingly frayed making did not have sufficient cable to rewire the stick. Since Hegel which consisted of he made temporary repairs strip- system, of the re- sheathing, away frayed portion plastic ping tension to cable in the pulley, adjusting setting He system. Young excess out of the аdvised take the slack since, without would have to be rewired the system steel cable would the exposed portion plastic coating, However, from to the weather. corrode eventually exposure was boat as it safe to use the told him it was perfectly Hegel until it be rewired. could *7 9th,
On March returned to Young Marine Cen- Berkeley ter and left the boat with to the boat rewired. Hegel have The boat was to be on the 14th ready and returned Young However, on that date. told he had mistak- Hegel Young him the date and the boat would ingly given wrong pickup not be until the this time still ready day. At following Hegel did not have sufficient cable to rewire the and the system in cable to possibility of new splicing portion replace the frayed was discussed. to portion According Hegel, wаnted to use weekend the boat for the Young approaching and, boat, if he were have of the the alternatives only use Bell for Danny were to the cable or return the boat to splice the event, was discussed his attention. In and any splicing instruc- at Hegel’s was made. Accordingly, decision splice the tion, steering ten of cable into his mechanic feet spliced up When Young means of tiller clamps. picked system by admission, 16th, consid- his own the on the Hegel, boat but ered it and the “tem- “operable” “dangerous” repairs reveals it was testimony The common porary”. knowledge that is a industry in boating splicing dangerous practice. the boat weekend without incident. The used Young he met his death. weekend following reasonable inference from the evidenсe is that The only sudden, into of the boat its turn was sharp the cause going which resulted from loss steering disengage- a complete cable from one of tiller in- clamps ment mechanic. The had been fitted over stalled by Hegel’s clamp core of the cable. As a both steel and plastic sheathing result, sheath- stress was considerable placed upon plastic free and the cable pulled ing. Consequently, plastic gave of the clamp.
In respondent instituted a death ac- wrongful and a tion survival for conscious and action pain suffering. The suits were combined for trial. as defendants in Joined each of the two actions Craft; Bell, were Tide Danny d/b/a Bell’s Park; Winter and H. Henry Hegel, Berkeley d/b/a Marine' Center. Both actions were based on alternative thеo- ries of breach of negligence, and strict implied warranty, tort, all of liability which were submitted to the jury. in the for conscious jury, action returned pain suffering, a verdict Tide $30,000 Craft the amount of actual against action, In the re- damages. death a verdict was wrongful $160,000 turned Tide actual against Craft the amount $10,000 Bell and damages Hegel punitive damages. were absolved liability.
II There are two separate distinct of claimed aspects *8 in this case. The liability first contends Tide respondent that Craft is with the disen- chargeable splicing resulting is, of the cable from the tiller gagement steering clamp thus, Second, liable for the con- damages alleged. respondent that, if Tide tends even Craft cannot be with the charged cable, is, nevertheless, of the Tide Craft splicing steering liable because certain defects of the boat which be- alleged after the cable were contributing came operative parted, causes of death. Young’s proximate an essential common all Proximate cause is element in this advanced recovery by respondent three theories Prosser, Torts, 103, 671-2 Ed. Law of (4th case. pp. § 462 ; v. Black elements) Royal & Decker
1971) (common Man Co., 205 307 So. ufacturing (2d) (Fla. App. (com 1968) ; Brasea, Inc., mon and Williams v. denominators) 497 F. 906, 67 cert. den. 423 Cir. U. S. 96 S. (2d) (5th 1974) Ct. 207, 46 L. Ed. 136 of strict (2d) (1975) (elements liability case, With to the first of this we con aspect tort). regard that Tide Craft cannot be held liable since the inter clude constitute, law, as matter acts of a the sole vening Hegel cause of the of the cable. proximate disengagement As to the second with one aspect, exception be hereinafter of on other disрosed we conclude that the grounds, respon dent has failed to establish cause. proximate
Ill Under the first case the aspect respondent’s following are to constitute defects lack of care on alleged due and/or of Tide Craft: inherent part of and (1) improper design difficulties with the system; allowing pop-up steering (2) dealers, installation of the not steering system by and/or installation; instructions on fail- furnishing proper (3) ure to warn against methods of improper in the repair event of difficulties with the The system. respondent asserts that the actions of were Hegel foreseeable and that alleged defects lack of due care on the of Tide Craft part and/or were proximate causes of the of. injuries complained
A of any of the hоst of decisions in this reading State discloses clearly the touchstone of proximate cause South Carolina is “Foresee foreseeability. of some ability injury from an act or omission is to its prerequisite being proximate cause of in for which jury is recovery Carter, sought. v. Kennedy 168, S. C. 153 S. E. Bethea, 312.” Stone (2d) v. 251 C. S. 157, 161, 161 S. E. (2d) standard foreseeability determined is that of to the looking “natural and probable consequences” complained McQuillen act. E. Dobbs, g. 386, 262 S. C. 204 E.S. Lines, Inc., Childers v. (1974); Gas 248 S. C.
463 ; Porter, Matthews 620, S. E. v. 239 S. C. (1966) (2d) 124 S. E. While it is not (2d) (1962). necessary actor have the must or could have contemplated anticipated occurred, McQuillen, the e. event which particular g., supra, rest on mere cannot The actor liability possibilities. cannot be with “that which is or that which charged unpredictable Stone, cоuld not be to 251 S. C. happen.” expected supra, 161-2, at 161 S. E. at 173. In whether a (2d) determining actor’s is one that is consequence natural and probable, be viewed “in the of the attendant cir conduct must light cumstances”, Stone, 161, 161 E. at 173. at S. supra, (2d)
Where there is no contention that the intervening actions of chain, a third broke causal person consists deter probable consequences test simply whether the mining actions were such that they wrongdoer’s someone,” “would cause probably to or injury something Childers, supra, 248 S. C. at 149 S. E. at 765. (2d) In words, other there be taken is one only consequence into consideration—the injury.
Where there is a contention that an intervening agency interrupts events, foreseeable chain of there are two to be consequences tested: the in (1) of, jury complained the acts (2) of the intervening If agency. the acts of the are intervening agency probable consequence actions, primary e., i. wrongdoer’s “fore seeable”, the Stone, primary is liable. wrongdoer supra. However, even foreseeable, if the acts are not intervening the primary is wrongdoer nevertheless liable his actions if alone “would have caused the loss in natural course.” Ben Co., Berkeley Heating 357, 365, S. C. 188 S. E. ford case, Turning instant we must determine: (1) whether the actions of were a Hegel probable consequence defects alleged negligence attributable to Tide and/or Craft; and “no”, if the answer (2), to the first question *10 in of would have followed the complained
whether injury actions. absent course Hegel’s natural In these determinations isit that making elementary the in the we view evidence most favorable to light Smith, e. v. 265 S. C. Legette the party, g. opposing 573, 220 It is elementary S. E. also that (1975). inference, one when the evidence but reasonable permits is for the court. Horne Atlantic of law question presented Co., Line Coast R. 177 S. C. 181 S. E. circumstances the present In of the attendant light from be drawn case, the reasonable inference to only not fore actions were the evidence is that Hegel’s was dangerous that splicing seeable. was aware Hegel me instructed his yet from practice far removed good he testimony, his own cable. By chanic to the steering splice “not “not accepted practice” that was admitted splicing on of business the boat left his advisable”. When place it “danger considered cable, he March 16 with the spliced and the He testi ous” but “operable” “temporary”. repair he “certain he was unsafe.” fied that was knew it [Young] The effect of this knowledge statement Young’s regarding that he was an on part admission danger Hegel’s the realized the involved [Hegel] fully splicing danger cable. The only evidence would tend to foresee- support on the of Tide ability Craft was part testimony by its wit- nesses that there were different levels of competence among However, the dealers. this condition is insufficient to charge Tide Craft with be that a method would foreseeing repair chosen in the face of that it was knowledge by repairman inherently dangerous.
Even disregarding danger, Hegel’s knowledge other circumstances that out the point high improbability would bе effected instead of The repair by splicing rewiring. inference is was reasonable from evidence that it only common the trade that was unsafe knowledge splicing and far removed from said this good practice. Hegel was he had ever authorized both only splice to and prior after the accident in mechanic testified other question. Hegel’s that than boat he had never heard of a tiller Young’s clamp being used in the midst of a reasonable steering system. only inference to be drawn is that the likelihood a steering cable remote. being spliced highly the remoteness of
Adding together possibility set would take under splicing any given place the dan circumstances with Hegel’s knowledge *11 involved, it ger can not be contended that seriously Hegel’s actiоns were a probable consequence any on wrongdoing the of Tide part Craft. “The actor’s conduct be held not may to be a cause of harm legal to another where after the event back from looking the harm to the actor’s con negligent duct, it to the appears court highly that it extraordinary should have about the brought harm.” Restatement (Sec of Torts ond) 435(2) § As was stated the case Cox, of Steward v. 857, 521, 55 Cal. (2d) Cal. Rptr. 362 P. (2d) : (1961) conduct with full “[Negligent realization of the be danger may considered properly highly extraordinary”. Cal. Rptr. at 362 P. at 349. We The agree. only reasonable inference from the evidence is that had full Hegel realization of the is danger. This not a case where on ignorance the part third intervening led to the party creation of а highly condition, dangerous but one where the risk was unleashed with full realization of the dangerous In consequences. event, back on looking we are at the appalled character highly extraordinary Hegel’s actions. the actions
Although of Hegel unforeseeable, were remains question whether the injury would have occurred in natural course absent the actitons of There is no Hegel. evidence which would reasonably an support inference that the cable would have or parted that there would have been a loss of absent the complete steering rea- splicing. only from the evidence presented
sonable inference care would and lack of due alleged by respondent defects most, in the have, resulted a cоnstriction only steering at stick. the steering manipulate system inability did that with binding expert testify The respondent’s a if far enough you’ll get it “eventually goes the system true, it is highly improbable this be Assuming parting.” of steel could that such cable occur without one parting been aware of the for considerable very having binding Indeed, and, of time. did discover binding period Young testified, as the expert binding] usually respondent’s “[with mean move the wheel but that doesn’t you can’t en- thrown out of the boat where can’t shut you’re you and, I rather in terms of would much have down gine safety, down and I shut the bind where could engine something up find out what the is.” problem above,
Given the the only reasonable inference that can be drawn from the evidence is that the damages here sustained would not have occurred in natural course absent unforeseeable Hegel’s actions.
IV *12 case, to the the re second of this Turning aspect that, asserts cannot be spondent even if Tide Craft held for the and responsible part splicing subsequent cable, of the ing certain steering features of the boat and its defects, constituted design or were manifestations aof care, lack of due which came into at the time the cable play and were parted causes of contributing proximate Young’s death. The which are the particulars to constitute alleged basis for under each of recovery the three theories advanced can be summarized as follows: of the a (1) propensity boat to an install a eject the failure to occupant, (2) switch, kill device which cuts to the motor if safety power the should be thrown from his hold that seat. We operator has failed to establish that the respondent propensity cause of the injuries complained- was a proximate to eject install a kill switch does not con- failure to of, and that the or strict warranty under either the stitute a defect implied on the theories, constitute nor does it negligence liability of Tide Craft. part to the boat of the alleged
With reference to propensity the outboard size of is that the theory eject, respondent’s seats, the absence boat, of the motor on the the height and the from swiveling the seats devices to prevent locking which, factors were stick location of the steering “pop-up” forces an because the dynamic operating upon occupant motion, in an enhanced risk of the boat while resulted This of ejection, respondent ejection. alleged propensity contends, cause of Young’s was a proximate contributing out, reason- the only thrown overboard. As being pointed that the precipitating able inference from the evidence is sudden, turn was cause of the boat into its sharp going tiller clamp. of the cable from disengagement steering this, to establish Because of in order for the respondent cause, as a it propensity eject contributing proximate was from which it could she evidence necessary present that, be inferred in the absence of the reasonably allegedly boat, defective features of the the forcеs generated alone not over- Young loss of would have thrown board. the alleged to establish causal sought respondent Frank Douglas
connection her witness expert through he termed what causation was Fowler. Fowler’s theory each the loss of steering “domino with theory” resulted in the defects allegedly propensity eject Fowler concluded that each of “dominoes”. constituting these dominoes causes of ejection were contributing Young’s that, removed, if one of had been would Young them any not have met his death. *13 a means of
Fowler’s conclusion was not elicited by forth Fowler set Neither did hypothetical question. Thus, factual basis for his conclusion. underlying 468 surmise, a simply lacking probative
his conclusion was connec- to establish the causal alleged and inadequate value tion. of an be testimony expert witness
“Opinion may based facts within his own or upon knowledge upon by facts hypothetical questions embracing supported matter the evidence and to the which relating particular upon 2d, is Am. ...” expert opinion sought. Expert Jur. The Evidence Opinion opinion (1967). § “must be based facts . . . sufficient to form expert upon if . is inadmissible basis for an . . Expert opinion. opinion Id.; accord, its factual foundation is nebulous.” Chapman Dairies, Inc., 438, Foremost 249 S. C. 154 S. E. (2d) The value of stands or probative expert testimony falls an of the facts upon evidentiary showing upon is, be, or must opinion Chapman, logically predicated. is, course, It the factual or under supra. that elementary out, basis for the be set otherwise lying expert’s opinion lаcks v. Berkeley value. opinion probative Benford Co., 258 S. E. Heating (1972); C. 188 S. see Chapman, supra.
The that an be estab requirement basis underlying lished no more than to the settled rules corollary of evidence for unless there is a that the showing expert’s has “been special to bear knowledge brought upon the facts of the case . would be tried . . being opinion] [his irrelevant,” Dreher, A Law in Guide Evidence South Carolina 10 value. and without (1967), probative of an requirement basis is no underlying by
means intended to be a requirement the expert set out his calculations or detail the scientific or professional to his knowledge leading conclusions. The facts, scientific calculations, or his methodology upon which is based be opinion so within “may exclusively the domain or scientific that their professional knowledge significance 2d, would not be understood 31 Am. jury.” Jur. *14 however, the should it be that 38. Neither supra, implied, § him of relieves of the area expert’s knowledge complexity the basis for his before the underlying of establishing, jury, the knowl- or esoteric specialized However opinion. complex in formulat- draws he must show that the expert upon, edge the his he has into consideration material taken opinion, ing to the tried was necessary facts of the case being of formation an intelligent opinion. stated, second
As under the theory respondent’s previously that, forces which were of her case was the aspect given motion, al- when the boat was in given operative resulted. boat, defects in of leged propensity ejection wеre that these defects the conclusion Fowler Implicit by that, conclusion of is the further causes contributing ejection not when would the tiller and cable clamp separated, ejection because, defects have occurred in the of these alleged absence otherwise, proximate would not constitute they contributing causes. into forces which came
It is that both the initial apparent enhancement as a result of the loss and any play steering material were these forces defects attributable to the alleged cause. as to proximate considerations an opinion forming own Fowler’s by of these forces is evidenced importance forces He testified “when what testimony. look at you act can human when there is loss of upon you in the boat. whether he’s out or predict stay going go follows, then, will ...” It that to whether a person predict isit be loss of steering, thrown out of a boat a sudden given him. Ascer- act to determine “what forces necessary upon” forces of the dynamic tainment of the nature and extent the boat and its was critical acting upon occupant especially boats in view of Fowler’s that different have dif- testimony them, very ferent forces view acting upon inference which arises from the circumstances strong force was itself that considerable centrifugal gen- mishap all of this loss of Despite erated solely steering. Fowler’s that he could have testimony .despite mathematically of the “dominoes” as to its rated each for potеntial danger, he no to ascertain the nature made and extent of attempt forces, nor did he to scien- dynamic operative, attempt contribution, determine the if individual tifically any, so, im- “dominoes” to Not done it was ejection. having for reasonable possible Fowler with say any degree that the forces to the accuracy dynamic alleged attributable *15 defects contributed to that to extent ejection Young’s would not have occurred in the ejection absence defects. alleged failed to establish an
Having factual basis underlying into consideration the taking material facts necessary to the formation of an Fowler’s intelligent opinion, on testimony causation is devoid value can probative not a support Otherwise, verdiсt. be the verdict “would allowed to rest on is conjecture speculation, prohibited.” 430, Horton v. 241 Greyhound S. C. Corp., 438, 776, 128 S. E. (2d) (1962). there is no
Although detail, need to consider them in we also note that the respondent has set out two other particu- lars which she bases upon under recovery this of her aspect case, these a failure to warn being to propensity eject and a failure to conduct tests to determine the maximum safe at which the speed boat could be before the operated comes into alleged ejection propensity Since the re- play. has spondent failed to show that the ejection propensity of, was a it cause of the proximate injuries complained follows that the failure to failure to warn cannot tеst and the be deemed causes of the injuries question. proximate
V Tide Craft’s failure to install a kill switch warrants se- consideration. A kill switch is parate a device which safety cuts electrical to a boat’s motor power whenever the operator is thrown from his seat and is no in a longer position disconnected, electrical power boat. With control the come to will and the boat cease functioning the motor will motor and ignition to the is attached This device a stop. Tide Craft. is manufactured of which neither system in this had responsibility Tide Craft that Even assuming not this device did the absence area, to us that it is clear unreasonably dangerous an of warranty, constitute a breach of Tide Craft. defect, of due care on the part or lack in tort liability To under the strict recovery warrant kill must constitute the absence of the switch theory, or con a defect user “unreasonably dangerous sumer,” As out 15-73-10 S. C. Code pointed § P. (2d) N. M. Skyhook Jasper, 90 Corp. incor “failure the test of whether or not the (1977), [to constitutes feature or device a safety product] porate device, or defect is such feature whether the absent product, or to the user consumer or to unreasonably dangerous his 560 P. at 938. property”, is whether the ab itself question presents kill se rendered the boat
sence of the switch per *16 would to extent that which an “dangerous beyond be the who contemplated purchases consumer by ordinary it, community with the the common to ordinary knowledge Torts, characteristics,” as its of to Restatement (Second) 402A, Com. i In this situation § test to a applying in which the manufacturer of a on boats winch used fishing failed winch, to include a brake on the the court Williams Brasea, Inc., F. Cir. cert. den. 1974), (2d) (5th 906, 423 U. S. 96 S. Ct. 46 L. Ed. (1975), stated: “The lack of a brake could the danger by posed knew be of crewmen who scarcely the beyond contemplation condition of its absence in that and worked with the winch that on a Id. is common knowledge basis.” at 79. It daily overboard. of is that of thrown normal risk boating being knowl one and set is objective While the test out above an Young, must be attributed common to the community edge can, nevertheless, there be no his awareness of question this risk. His wife testified that had fished almost Young weekend for the ten every He had often used past years. boats and his wife felt he was familiar with them. relatively aware of the normal risks of Young bеing boating, the obvious a kill danger posed by lack of switch could hardly be his beyond the lack of a kill contemplation. Accordingly, switch does not constitute a within defect meaning strict in tort liability statute.
Since the main thrust of the been parties’ arguments have directed the strict liability theory, we see no need to discuss in detail the theories of war- negligence implied as relate ranty they to the failure to install kill switch. case, Given the facts of this we feel it follows from the above discussion, hold, and so that kill the failure to install a switch does not constitute a breach of any warranty implied nor does it evidence a failure to exercise due care.
In view case, of our no need disposition this there is to reach the other issues raised parties.1
Reversed. Lewis, Littlejohn J.,C. Gregory, concur. JJ., Ness, J., dissents.
Ness, : (dissenting) Justice Believing proximate cause was an issue for the I jury, dissent.
The majority concludes, as law, a matter of dealer’s splicing the cable constituted an unforeseeable act of insulating intervening negligence. There is competent 1 One of presented the issues is whether liability strict appli- in tort cable to the instant appellant points case. The out that South Carolina’s liability statue, strict in tort 15-73-10 (1976), § was enacted after *17 question accident in occurred. respondent The contends that 15-73-10 § or, is retroactive alternatively, liability part strict in tort of was the common law of prior this State to enactment of 15-73-10. Since § respondent’s advanced, case fails under all three of the theories we decide, intimate, dо not nor do liability any appli- we whether strict has cability prior to enactment of 15-73-10. § of steering of installation allowing that the evidence instruc- failure to provide proper and the dealers system a constituted and safety practices violated accepted tions as the verdict However, be discussed this need not defect.1 defects of design the evidence sustainable solely upon decedent’s to respondent’s contributed which proximately demise. states be viewed the evidence must correctly majority and proxi-
in the most favorable to the opposing party light issue but to mate cause is a then generally proceeds jury vitiate which testimony upon premised expert respondent con- claim, her to wit: That defects design prоximately of death tributed to the and injuries subsequent wrongful Mr. Young. to resistance offers
No law negligence greater phase The basic concept than cause. treatment logical proximate for be allowed injuries of it is that should recovery from fact resulted the negligence.
The extent should be left to It is liability the jury. to wrestle jury’s with issues of cause. province proximate acts of are tort feasors Intervening subsequent jury ques- tions and the burden is on the sub- to establish plaintiff was the result of the defendant’s acts. Skol- sequent injury Brookover, P. lingsberg Utah (2d) 1177 (1971).
Respondent’s contentions defects were respecting design that the boat because question, and horse- configuration had an power, and that the propensity occupant eject of certain locks incorporation features such as seat safety and deadman or kill switches or re- would have prevented death. duced the likelihood eventual Young’s ejection in- There is evidence the record support ample ference the boat malfunctioned precipitated negligent installation respect consequences of With to the foreseeable ejection. repair spin with resultant outs — *18 474 testified mo- eye-witness Leopold that one
spin-out. ment was in command of the boat and in the next Young instance the boat was in circles. pilotless turning Upon observed the deceased from approaching, Leopold hanging the boat. in its brief
Appellant challenges of re- competence spondent’s render an expert opinion, factual basis for his and the opinion, failure a respondent lay proper foundation for the expert’s opinions. Tide
Assuming Craft’s contentions were properly pre- below,2 served are they without merit. Under South present Carolina practice, an either be based expert’s must opinion on facts within his or facts obtained from knowledge upon evidence or to be presented at trial which are presented tendered in the form of a hypothetical question.3 Bailey MacDougall, 290, 251 S. C. 177 S. E. (1968). (2d)
Here, respondent’s expert testified at and in length detail his regarding examination and testing boat in ques- tion. His with findings to the respect absence of seat locks and deadman switches, the of the seat positioning and horsepower the boat were Thus, unchallenged. the factual basis for his conclusions was predicated on his examination of the boat and the manufacturer’s con- specifications. His clusion that the absence of these features contributed to the injuries cannot be attacked for failure to state the facts upon based, were they as were they on premised physical evidence.
Appellant’s contention that Mr. Fowler was unqualified and incompetent to render an expert opinion unavailing. This Court has consistently held of wit- adequacy “[t]he ness’s as an qualifications expert witness is a matter largely of discretion for the trial Redman v. judge.” Ford Motor 2 The objection defendant’s at transcript page broadly- 249 can be construed preserving as question. this note, See The New Federal Rules of Evidence and South Carolina Law; Evidеntiary comparison analysis, and critical Rev. 481 S.C.L. (1977). 207, 210 271, E. 170 S. Co., Inc., 253 S. C. undergraduate graduate Fowler possesses and had minored engineering He in psychology. degrees The com- kinematics. in biomechanics and courses graduate his undergraduate bination of engineering psychology “human field of him in the curriculum prepared graduate being a human of how or the study factors engineering,” *19 counsel Defense of product. relates to a design particular Fowler cross-examine below to was vigorously permitted An examina- them. of on his and make light qualifications no of discretion Fowler’s reveals abuse tion of qualifications his decision competence the trial court’s regarding an offer opinion. expert must use manufacturer
Under a negligence principles, in order to avoid its reasonable care designing product It must risk of harm to the consumer. an undue creating risks of foreseeable reasonably and against perceive guard one course, does not require of “Foreseeability, harm. in the the harm envisage hazard or must foresee the precise if some occurred; is enough It in which it detailed manner v. is foreseeable.” of a like character harm general Guffi 378, 1965). Cir. Co., 381 (3rd F. Erie 350 (2d) Strayer knowledge. with actual not confused should be Foreseeability 324 Parks, (9th (2d) 369 F. Timber Company Simpson 1968). 353 Cir. F. (9th and (2d) Cir. 1967) short as fell testimony Fowler’s concludes The majority between connection causal of a establishing of law a matter Under and death. injuries and Young’s defect the alleged test its product must law, manufacturer South Carolina Patterson v. it. to marketing for defects prior possible 140, 108 E. S. C. S. Company, Fertilizer Orangeburg is not the pig guinea The consuming public 401 (1921). in the placed are tested after being new products upon It is uncontroverted: of commerce. stream tests to determine no Tide Craft performed 1. that cable; a from frayed of a loss of steering effect of that the likelihood from the of 2. boat because ejection enhanced; seat was position 3. absence of locks or in- that the seat deadman switches ejection; creased the risk of
4. and failed to warn the consumer a loss that appellant cause could ejection. It is also incumbent manufacturer to warn con- upon its with sumers foreseeable hazards associated use any product. defective, faultlessly
“A be deemed although product may made, if it is unreasonably place dangerous product the hands of the user without suitable warning, S. is . . .” C. product no supplied given warning J. 38, Supplemental p. Products Liability § See also Restatement of Torts A, Section 402 Com- ments H No was warning supplied Tide Craft J. with to the boat’s respect for ejection it propensity when spun due to the design the seat and absence of safety *20 devices. Fowler testified minimum, that at a the manufac- turer should have warned of the of dangers ejection were compounded by of seat. The witness design explained the reasons for the enhancement of by ejection virtue of the boat’s design. found a majority total absence of evidence that the
lack of of incorporation safety devices contributed to Mr. Young’s demise. Yet Mr. Fowler, on two occa- separate sions, related the failure to incorporate seat lock to Mr. Young’s ejection.
“Q. us, Can you tell in your how opinion, that contri- buted to him ejected being from the boat?
“A. Well, it offered no resistance and in fact kind just of enhanced his thrown being out or it turned with literally him and him to the guided as point where his went body he went was, out course, and seat of restrained at the bottom If it didn’t the seat had not been bolted go.
477 If the device had have too. locking would gone seat been restrained forces would have been here then the the seat.” Tr. 279. arms of p. in which he retrospectively
Fowler’s concluding opinions flaws which contributed and the viewed the design tragedy his and based on examination thеreto were competent both of safety engineering, boat and his general knowledge cross-examination. which were tested on I conclude sufficient evidence was adduced by respondent to establish the boat was defective negligently designed, that strict unreasonably contention dangerous. Appellant’s tort was not available as liability recovery a theory prior to enactment of the strict need not be tort statute liability addressed.
In A of Institute, 1965 the American Law adopted the Restatement of Torts (2d).
This strict State theory statute adopted by liability.
This enactment was consonant legislative with the clear draft the common law of this State as reflected in the Builders, decisions of this Court. Lane v. Trenholm See 267 S. C. E. 229 S.
I would affirm. NIX, Jr., A. Hawkins, J. as Administrator of the Estate of Winifred Respondent, EXPRESS, INC., MERCURY MOTOR Jack Edwards, Appellants. HAWKINS, EXPRESS, Roy H. Respondent, v. MERCURY MOTOR *21 Edwards, cases). Appellants (two INC. and Jack
(242 (2d) 683) S. E.