A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY AMENDING SECTION 15-73-10, RELATING TO THE LIABILITY OF A SELLER FOR SELLING A DEFECTIVE PRODUCT, SO AS TO DEFINE NECESSARY TERMS; AND BY AMENDING SECTION 15-73-30, RELATING TO THE INTENT OF CHAPTER 73 CONCERNING THE LIABILITY OF A SELLER FOR SELLING A DEFECTIVE PRODUCT, SO AS TO PROVIDE LIMITATIONS ON THE LIABILITY OF A DISTRIBUTOR, WHOLESALER, DEALER, RETAILER, OR SELLER OF A DEFECTIVE PRODUCT.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Sections 15-73-10 and 15-73-30 of the S.C. Code are amended to read:

 

    Section 15-73-10.  (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer, or to his property, ifFor the purposes of this chapter:

    (1)(a) "Product liability action" means any action brought by a claimant for personal injury, death, or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, or labeling of a manufactured product when the action is based upon:

           (a)(i) The seller is engaged in the business of selling such a product, andnegligence

           (b)(ii) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.innocent or negligent misrepresentation;

           (iii) strict product liability doctrine;

           (iv) the breach of any implied warranty; or

           (v) the breach of any oral express warranty.

       (b) A product liability action does not include an action for contribution or indemnity.

    (2) The rule stated in subsection (1) shall apply although"Distributor" means any distributor, wholesaler, dealer, retailer, or seller of a product, or an individual or business entity using a product in the production or delivery of its products or services.

       (a) The seller has exercised all possible care in the preparation and sale of his product, and

       (b) The user or consumer has not bought the product from or entered into any contractual relation with the seller.

 

    Section 15-73-30.  (A) Comments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.No product liability action may be asserted or may be provided a claim for relief against any distributor, wholesaler, dealer, retailer, or seller of a product, or an individual or business entity using a product in the production or delivery of its products or services unless:

       (1) the distributor, wholesaler, dealer, retailer, or seller of a product, or an individual or business entity using a product in the production or delivery of its products or services is also the manufacturer or assembler of the final product and the act of manufacturing or assembling the final product is causally related to the product's defective condition; or

       (2) the distributor, wholesaler, dealer, retailer, or seller of a product, or an individual or business entity using a product in the production or delivery of its products or services altered or modified the product, and the alteration or modification of the product was a substantial factor in causing the harm for which recovery of damages is sought.

    (B) Notwithstanding the provisions contained in subsection (A), if a claimant is unable to identify the manufacturer of an allegedly defective and unreasonably dangerous product following a good faith exercise of due diligence, then a product liability action may be brought against a distributor, wholesaler, dealer, retailer, or seller of a product, or an individual or business entity using a product in the production or delivery of its products or services. The claimant shall provide an affidavit certifying that the claimant, or his legal counsel, has in good faith exercised due diligence but has been unable to identify the manufacturer of the allegedly defective and unreasonably dangerous product.

    (C) In a product liability action brought pursuant to subsection (B) against a distributor, wholesaler, dealer, retailer, or seller of a product, or an individual or business entity using a product in the production or delivery of its products or services, the distributor, wholesaler, dealer, retailer, or seller of a product, or an individual or business entity using a product in the production or delivery of its products or services, upon answering the complaint or otherwise pleading, may file an affidavit certifying the correct identity of the manufacturer of the product that allegedly caused the claimant's injury. Once the claimant has received an affidavit, the claimant shall exercise due diligence to file an action and obtain jurisdiction over the manufacturer. Once the claimant has commenced an action against the manufacturer, and the manufacturer has or is required to have answered or otherwise pleaded, the claimant shall voluntarily dismiss all claims against the distributor, wholesaler, dealer, retailer, or seller of a product, or an individual or business entity using a product in the production or delivery of its products or services unless the claimant can identify prima facie evidence that the requirements of subsection (A) for maintaining an action against a distributor, wholesaler, dealer, retailer, or seller of a product, or an individual or business entity using a product in the production or delivery of its products or services are satisfied.

 

SECTION 2.  The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.  After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

 

SECTION 3.  If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

 

SECTION 4.  This act takes effect upon approval by the Governor.

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