Business & Litigation Insights

Take the Extra Step in Product Warnings to Protect Your Company from Liability

Posted On Mar 02, 2016

For years, the assumption in South Carolina law has been that a manufacturer doesn’t have to warn about something that is obviously dangerous, such as a power saw. Do you really need to tell users to keep their hands away from spinning blades? The more challenging concept is: how do you effectively warn about a product that is beneficial when used properly, but that may have dangerous or unintended outcomes if used improperly?

A basic principle of product liability warnings is the concept of the “sophisticated user.” A professional carpenter who uses power tools in his job should be aware of the inherent dangers of a powerful, spinning cutting blade. In comparison, a skilled worker may – or may not -- be expected to appreciate the dangerous qualities of flammable or toxic substances that sometimes are integral components of the job site or the task at hand. 

The principle becomes more complicated when it’s applied to an intermediary, a situation that frequently arises in product liability law.

For example, prescribed drugs may be dangerous if not used properly, and a patient relies on a physician – a sophisticated user and intermediary – to advise on the proper use. The same may hold true for toxins or other potentially dangerous products found on a commercial job site. 

South Carolina courts have long accepted the concept of the sophisticated user as a defense in product liability cases, but a recent state Supreme Court ruling suggests that in the future, it may not alleviate the need for a manufacturer to provide clear warnings to end users.

Recent state Supreme Court case may have changed requirements for warnings

The issue emerged in a case – Lawing v. Univar – where workers in an industrial plant were severely burned and disabled by a fire that erupted when they worked with cutting torches near a pallet of sodium bromate. Sodium bromate is an extremely flammable chemical that is an oxidizer, meaning that it releases oxygen and promotes combustion in other materials when heated.

The Chinese maker of the sodium bromate involved in this case provided warnings on each of the 25-kilogram bags of the material that were shipped to the plant on pallets after passing through several intermediary companies. The pallets, however, were shrink-wrapped to secure the bags during shipment, and that made the labels impossible to read. Thus, the pallets sat in the plant, still shrink-wrapped, with no visible warning to the maintenance workers who were burned.

There were several issues before the state Supreme Court in the complex case that produced a 10-page opinion, and we won’t attempt to give all of them justice here. But, one important question was whether the intermediaries – the companies that purchased the sodium bromate from China and sold it to the industrial end user – could claim the sophisticated user defense. Upending what many attorneys (including the dissenting justices) viewed as settled law, the court effectively questioned whether South Carolina had expressly adopted the sophisticated user doctrine as a defense in product liability cases.

Does the end user understand the product’s dangers?

The court noted that while the engineers at the end-user company clearly understood the dangers of sodium bromate, the maintenance workers did not. The workers testified that there was no visible warning on the shrink-wrapped pallet, and one worker said that he thought the white powder was baking soda. (The workers’ employer was not part of the litigation because the state’s workers’ compensation law shielded it from liability.)

The central issue in the case, the court ruled, was the lack of visible labels indicating that the material was dangerous. On that basis, the court remanded the case for a new trial. Two justices wrote vigorous dissents in the split opinion.

The lesson here is that a manufacturer can’t necessarily depend on an intermediary – a middle man, in business parlance – to educate an end user about the dangers of a product. In this particular case, the court may have been more sympathetic to the sophisticated user defense if the companies selling and shipping the product had placed prominent warning signs on the shrink-wrapped pallet, a relatively easy thing to do.

Every product is different, and other manufacturers will have to think through how to warn end users about the side effects of pharmaceuticals, the dangers of chemicals and machinery used in industrial plants, and anything where it’s assumed that an expert buyer will warn clients, patients or employees of dangers. In most situations, it doesn’t cost much to apply that extra warning, and it may prevent injuries and costly litigation.

Carmelo B. Sammataro is a shareholder at Turner Padget in Columbia, S.C. He has broad experience in protecting business clients in litigation, including product liability and professional negligence claims. He may be reached at (803) 227-4253 or by email at