United States District Court, D. South Carolina, Beaufort Division
MATT COOK, as personal representative of the estate of David Slagle, III, Plaintiff,
BLUELINX CORPORATION, Defendant.
C. NORTON UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant BlueLinx
Corporation's (“BlueLinx”) motion to dismiss,
ECF No. 5. For the reasons set forth below, the court denies
the motion and orders Cook to amend his negligence cause of
action by July 1, 2019.
is a manufacturer and seller of products and sent a shipment
of plywood to Blackmon Warehouse Systems, Inc.
(“Blackmon”). The plywood was shipped in a steel
container. While the complaint does not describe in detail
how the plywood was packed, it alleges that plywood
“was in such a configuration as to be a crush danger to
anyone in proximity.” Compl. ¶ 20. David Slagle
III (“Slagle”) was employed by Blackmon, and on
March 6, 2016, Slagle was assisting a forklift operator in
unloading the plywood shipment. The complaint alleges that
BlueLinx defectively designed, manufactured, and packed the
steel container of plywood, and as a result, Slagle was
killed while unloading the shipment.
Matt Cook (“Cook”), the personal representative
of the estate of Slagle, instituted this action in the Court
of Common Pleas for the County of Hampton, South Carolina,
bringing claims for products liability, negligence, and
breach of implied warranty. BlueLinx removed the action to
federal court on April 10, 2019 and filed a motion to dismiss
on April 17, 2019, ECF No. 5. Cook responded on May 1, 2019,
ECF No. 7, and BlueLinx replied on May 8, 2019, ECF No. 10.
The motion is fully briefed and ripe for review.
12(b)(6) motion for failure to state a claim upon which
relief can be granted “challenges the legal sufficiency
of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see
also Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (“A motion to dismiss under Rule
12(b)(6) . . . does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.”). To be legally sufficient, a pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A Rule 12(b)(6) motion should not be
granted unless it appears certain that the plaintiff can
prove no set of facts that would support his claim and would
entitle him to relief. Mylan Labs., Inc. v. Matkari,
7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule
12(b)(6) motion, the court should accept all well-pleaded
allegations as true and should view the complaint in a light
most favorable to the plaintiff. Ostrzenski v.
Seigel, 177 F.3d 245, 251 (4th Cir.1999); Mylan
Labs., Inc., 7 F.3d at 1134. “To survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
argues that Cook's claims must be dismissed because his
claims are based on theories of products liability but the
container together with the plywood that filled it is not a
“product” as defined by South Carolina law. The
South Carolina Code provides that “[o]ne who sells any
product in a defective condition unreasonably dangerous to
the user or consumer . . . is subject to liability for
physical harm caused to the ultimate user or consumer . . .
.” S.C. Code Ann. § 15-73-10. This liability may
be based upon theories of strict liability, negligence,
and/or warranty. Bragg v. Hi-Ranger, Inc., 462
S.E.2d 321, 325 (S.C. Ct. App. 1995).
South Carolina General Assembly has not defined the word
“product, ” but it did explicitly incorporate the
comments to § 402A of the Restatement (Second) of Torts
into the legislative intent of the statute. S.C. Code Ann.
§ 15-73-30. Comment h, the comment on which the parties
here rely, provides guidance on how an item and its container
together may give rise to liability based on a defective
product. It states that:
The defective condition may arise not only from harmful
ingredients, not characteristic of the product itself either
as to presence or quantity, but also from foreign objects
contained in the product, from decay or deterioration before
sale, or from the way in which the product is prepared or
packed. No reason is apparent for distinguishing between
the product itself and the container in which it is supplied;
and the two are purchased by the user or consumer as an
integrated whole. Where the container is itself
dangerous, the product is sold in a defective condition. Thus
a carbonated beverage in a bottle which is so weak, or
cracked, or jagged at the edges, or bottled under such
excessive pressure that it may explode or otherwise cause
harm to the person who handles it, is in a defective and
dangerous condition. The container cannot logically be
separated from the contents when the two are sold as a unit,
and the liability stated in this Section arises not only
when the consumer drinks the beverage and is
poisoned by it, but also when he is injured by the bottle
while he is handling it preparatory to consumption.
Comment h to Restatement (Second) of Torts § 402A
Cook does not allege that the plywood itself was dangerous,
nor does he allege that the container was dangerous. Instead,
the “product” that forms the basis of his claims
is the combination of the plywood and container. Cook alleges
that these items together meet the definition of
“product” under South Carolina law, citing
language from § 402A that states that “no reason
is apparent for distinguishing between the product itself and
the container in which it is supplied . . . . The container
cannot logically be separated from the contents . . .
.” Compl. ¶ 7. However, Cook omits crucial
language from these quotes. The full sentence of the first
part of the quote is “[n]o reason is apparent for
distinguishing between the product itself and the container
in which it is supplied; and the two are purchased by the
user or consumer as an integrated whole.” Comment
h to Restatement (Second) of Torts § 402A (emphasis
added). Therefore, the plywood and its container would have
to have been purchased as “an integrated whole”
in order to qualify as a “product” under South
Carolina products liability law. Similarly, the full sentence
of the second part of Cook's quote is “[t]he
container cannot logically be separated from the contents
when the two are sold as a unit . . . .”
Id. (emphasis added). Therefore, reading these
portions of comment h in context, a product and its container
together are considered a “product” for the
purposes of products liability when the two are purchased as
“an integrated whole” and “sold as a
unit.” The example provided in comment h is
illustrative-a carbonated beverage and its container, a
bottle, are considered together to be a product because the
bottled beverage is sold together as an integrated whole.
it is unclear from the complaint as to the role that the
container played. If the container was just a container that
was used to ship the plywood and was subsequently returned to
BlueLinx or discarded, then the container and the plywood
were not sold as a unit and clearly cannot be considered
together as a “product.” However, if Blackmon
purchased, as an integrated unit, the container and the
plywood, then the unit is a product. Because the complaint
does not contain these details, the court ...