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Full Opinion
Jesse BRANHAM, Jr., as Guardian ad Litem for Jesse Branham, III, and Jesse Branham, Jr., Respondent,
v.
FORD MOTOR COMPANY and Cheryl Jane Hale, Defendants,
Of Whom Ford Motor Company is the Appellant.
Supreme Court of South Carolina.
*208 C. Mitchell Brown, William C. Wood, Jr., Beth Burke Richardson, and A. Mattison Bogan, all of Nelson Mullins Riley & Scarborough, of Columbia, Elbert S. Dorn and Nicholas W. Gladd, both of Turner, Padgett, Graham & Laney, PA, of Columbia, for Appellant.
John R. Hetrick and Robert J. Bonds, both of Hetrick, Harvin & Bonds, of Walterboro, Ronnie L. Crosby, John E. Parker, Grahame E. Holmes, all of Peters, Murdaugh, Parker, Eltzroth & Detrick, PA, of Hampton, for Respondent.
Justice KITTREDGE.
This is a direct appeal in a product liability case tried to a jury in Hampton County. The jury awarded the plaintiff $16,000,000 in actual damages and $15,000,000 in punitive damages. We affirm in part, reverse in part and remand for a new trial.
I.
This product liability action involves a 1987 Ford Bronco II 4×2, manufactured in 1986. Cheryl Hale (or her husband) purchased the 1987 Ford Bronco in June of 1999 for a nominal sum.[1] At the time of sale, the Bronco had 137,500 miles on it.
On June 17, 2001, Hale was driving her Bronco along Cromwell Road in Colleton County. Hale was driving several children to her house. Hale's daughter was seated in the front passenger seat. Plaintiff Jesse Branham, III, was riding in the backseat. Hale recalled that the children were "all excited." No one was wearing a seatbelt.
The weather was clear and, according to Hale, she was not speeding. Hale admittedly took her eyes off the road and turned to the backseat to ask the children to quiet down. When she took her eyes off the road, the Bronco veered towards the shoulder of the road, and the rear right wheel left *209 the roadway. When Hale realized that her inattention resulted in the vehicle leaving the roadway, she responded by overcorrecting to the left. Hale's overcorrection led to the vehicle "shaking." The vehicle rolled over. Branham was thrown from the vehicle and was injured.
Branham filed this lawsuit against Ford Motor Company and Hale in Hampton County. At trial,[2] Branham did not seriously pursue the claim against Hale. The case against Ford was based on two product liability claims, one a defective seatbelt sleeve claim and the other, a "handling and stability" design defect claim related to the vehicle's tendency to rollover. Both of these claims were pursued in negligence and strict liability.[3] Ford denied liability and, among other things, asserted Hale's negligence caused the accident. The jury, in a general verdict,[4] found both Ford and Hale responsible and awarded Branham $16,000,000 in actual damages and $15,000,000 in punitive damages. Only Ford appeals. The direct appeal is before us pursuant to Rule 204(b), SCACR, certification.
II.
A.
The Seatbelt Sleeve Negligence Claim
Branham alleged Ford was negligent "[i]n selling the Bronco II with a defective rear occupant restraint system." The amended complaint contains no specifications of Ford's purported negligence. At trial, Branham claimed Ford was negligent in failing to adequately test the seatbelt sleeve, but he did not challenge the seatbelt sleeve design. Branham filed a companion strict liability claim concerning the seatbelt *210 sleeve. Ford successfully moved for a directed verdict on the strict liability seatbelt sleeve claim.
The trial court dismissed the strict liability claim on the ground that the seatbelt sleeve was not as a matter of law in a defective condition unreasonably dangerous to the user at the time of manufacture. Based on this premise, Ford contends the companion negligence claim must fail, for all products liability actions, regardless of the stated theory, have common elements. Madden v. Cox, 284 S.C. 574, 579, 328 S.E.2d 108, 112 (Ct.App.1985) ("In a products liability action the plaintiff must establish three things, regardless of the theory on which he seeks recovery: (1) that he was injured by the product; (2) that the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant; and (3) that the injury occurred because the product was in a defective condition unreasonably dangerous to the user."). Ford, therefore, concludes that the negligence claim (which required Branham to prove that the seatbelt sleeve was in a defective condition unreasonably dangerous to the user) should have been dismissed. We agree. When an element common to multiple claims is not established, all related claims must fail.
A negligence theory imposes the additional burden on a plaintiff "of demonstrating the defendant (seller or manufacturer) failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault." Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 539, 462 S.E.2d 321, 326 (Ct.App.1995). The fault-based element is of no moment where, as here, there is no showing in the first instance of a product in a defective condition unreasonably dangerous to the user.
In addition, Ford asserts there is no separate "failure to test claim" apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous. We agree, for if a product is not in a defective condition unreasonably dangerous to the user, an alleged failure to test cannot be the proximate cause of an injury. The failure to establish that the seatbelt sleeve was in a defective condition unreasonably dangerous to the user for purposes of the strict *211 liability claim requires the dismissal of the companion negligence claim.
Relying on Bragg, the trial court determined it appropriate to grant a directed verdict on the strict liability claim, while at the same time allowing the negligence claim to go forward. We find the trial court's reliance on Bragg misplaced.
In Bragg, the trial court directed a verdict in favor of the manufacturer with respect to the strict liability claim, but refused to grant a directed verdict on the negligence claims. 319 S.C. at 538, 462 S.E.2d at 325. Bragg alleged two negligence claims: negligence "in failing to place appropriate warnings" on the product and another negligence claim "in supplying [a product] that was defective[ly] [designed]." Id. at 537-38, 462 S.E.2d at 325. The jury returned a verdict against Bragg on the negligence claims.
Bragg appealed the dismissal of the strict liability claim, "contend[ing] the court's decision to grant the motion for directed verdict on strict liability, while denying the motion for directed verdict on negligence, was logically inconsistent and reversible error because those claims are virtually identical and require the same proof." Id. at 538, 462 S.E.2d at 325. The court of appeals in Bragg affirmed the trial court and noted that "[s]trict liability and negligence are not mutually exclusive theories of recovery; that is, an injury may give rise to claims that can be established either under principles of strict liability or negligence, and failure to prove one theory does not preclude proving the other." Id. at 539, 462 S.E.2d at 326.
While we agree that strict liability and negligence are not mutually exclusive theories of recovery, we caution against a broad reading of Bragg in this regard. An analytical framework that turns solely on whether strict liability and negligence are mutually exclusive theories of recovery may miss the mark. As noted, the negligence claim must have a fault-based element, which is not required for a strict liability claim. Where one claim is dismissed and a question arises as to the continuing viability of the companion claim, the critical inquiry is to ascertain the basis for the dismissal. If one claim is dismissed and the basis of the dismissal rests on a common *212 element shared by the companion claim, the companion claim must also be dismissed.
In the present case, because the strict liability claim was dismissed due to the absence of an element shared by the companion negligence claim, the negligence claim should have been dismissed as well.
The trial court determined as a matter of law that the seatbelt sleeve was not in a defective condition unreasonably dangerous to the user. Consequently, the absence of this common, shared element required the dismissal of the strict liability claim and the companion negligence claim.[5] The trial court erred in failing to direct a verdict as to the negligence seatbelt sleeve claim.[6]
B.
The "Handling and Stability" Design Defect Claim
The "handling and stability" design defect claim (strict liability and negligence) is the gravamen of Branham's case. Branham alleged a design defect related to the rollover propensity of the Bronco. Ford appeals from the denial of its motions to dismiss the strict liability and negligence design defect claims. Viewing the evidence in a light most favorable to Branham, we find no error in the submission of these design defect claims to the jury. Pye v. Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d 505, 509 (2006) (stating that on appeal from the denial of a directed verdict motion, the evidence must be viewed in a light most favorable to the nonmovant).
We begin with an overview of the technical information involved in the design defect claims. Ford uses the term "stability index" to describe the overall stability of a vehicle. The stability index is a comparison of the height and width of *213 the vehicle, expressed in a numerical term. A closely connected term is the center of gravity. A vehicle's center of gravity relates to what one usually thinks of as "top heavy" or "stable." The lower the center of gravity in a vehicle, the more stable it is. Conversely, the higher the center of gravity (top heavy), the less stable the vehicle is.
The stability of a vehicle is related in part to its suspension. According to Branham's expert, Dr. Melvin Richardson, a vehicle with a stable suspension is able to make a turn in the road, and "as the vehicle goes around the curve, it leans over some and ... the tires stay the same distance apart where they touch the ground." A vehicle with an unstable suspension will cause the tires to "scrub" the ground during a turn, which "cuts down friction, [and] increases tire wear," causing the vehicle to handle poorly. When a vehicle is turning and the tires begin to scrub, "you lose some of [the tire's] capabilities to keep the vehicle going in the right direction and lose some of the ability to control the vehicle."
Ford primarily employed two engineering tests as a means of determining whether the Bronco II was ready for manufacturing. The first test is called a "J" turn. In this test, as described by Dr. Richardson, the vehicle is driven down a roadway, and "as quickly as possible the driver turns [the wheel to a] predetermined angle and just holds it there" for the remainder of the turn.
The second test is called an accident avoidance maneuver test. This is where the vehicle is turned in an abrupt fashion one way, like in the "J" turn, but with the added maneuver of an immediate turn back in the opposite direction. With these engineering concepts in mind, we turn to the design defect evidence presented.
Thomas Feaheny, a former vice president at Ford, testified for Branham. Feaheny described the marketing forces and engineering insights that led to the development of the Bronco II. The genesis of the Bronco II spawned from the YUMA Program, which came into being in the late 1970s. YUMA was Ford's code name for the study of small trucks, which eventually resulted in the Ford Ranger, and later the Bronco II. The YUMA prototypes initially had a MacPherson front suspension, which, according to Feaheny, is a "type of independent *214 front suspension that is used on a lot of small cars and trucks." Ford's engineers requested the MacPherson front suspension for the Bronco II when communicating with management on how best to address the Bronco II's handling and stability concerns raised during the prototype stage.
Feaheny opined that the MacPherson strut was the "best, most feasible suspension from a functional standpoint and also from a cost and weight standpoint." However, there was a divergence in viewpoints between corporate executives and engineers, as Ford's engineers advocated the use of the Mac-Pherson strut for the small truck program. Since the mid-1960s Ford had employed a Twin I-Beam suspension on its bigger trucks. Feaheny testified that "there was a belief that [Ford] should adapt [the] Twin I-Beam suspension to the new small trucks."
The engineers at Ford believed the MacPherson suspension the better choice and "opposed [the Twin I-Beam suspension] because it was directionally wrong from the standpoint of steering, handling and rollover propensity and other characteristics." Because the Twin I-Beam suspension was physically larger than the MacPherson suspension, using it required the entire vehicle to be lifted higher. This had a cascading effect on the composite makeup of the vehicle, which detrimentally moved the center of gravity higher off the ground. To make room for the Twin I-Beam suspension, the engine had to be raised "two to three" inches. With the engine raised a few inches, the transmission had to be raised, which caused the hood to be raised, which then caused the seating to be raised. The net effect of this was a higher center of gravity, "which add[ed] a rollover propensity."
Feaheny also noted that the Twin I-Beam had a tendency for "jacking." Feaheny stated that jacking is a term used to describe an occurrence when the "vehicle will slide out in a severe handling maneuver. The outboard wheel would tend to dig into ... the suspension arm, which was strong and stiff, [and it] would have to move with that wheel and the inner pivot would go up in the air." When a vehicle jacks, there is an instantaneous raising of the center of gravity, which further "increase[s] the propensity for rollover."
*215 Use of the Twin I-Beam and its attendant safety concerns came to a head in the late 1970s. A group of engineers approached Feaheny and recommended that Ford use either the MacPherson suspension or the SLA (short long arm) suspension for the YUMA prototypes. The engineers made it clear that they were "very concerned" with the Twin I-Beam. Feaheny directed the engineers to one of his colleagues, Jim Capalongo, and Feaheny later met with Capalongo to discuss the engineers' concerns. After this meeting, alternative suspension designs were discussed and tested for "about a year" but the Twin I-Beam was still selected.
The reason the Twin I-Beam was selected in the face of engineering concerns was that it served a "major marketing advantage," as Ford had promoted this form of suspension on its full size trucks since the mid-1960s. In the minds of the marketing executives, the Twin I-Beam was part and parcel of a tough truck, and it made business sense to carry that suspension into the smaller trucks.
The testimony of Dr. Richardson buttressed the evidence supplied by Feaheny and Ford's internal documents. Dr. Richardson opined that the use of the Twin I-Beam suspension led to the Bronco II being unreasonably dangerous. Dr. Richardson described three common suspension systems referenced above: (1) the SLA; (2) the MacPherson; and (3) the Twin I-Beam. It was through Dr. Richardson that Branham introduced many of Ford's internal documents showing the competing concerns and interests of the engineers and management over the proper suspension.
The Bronco II was designed from the existing "bones" of the Ford Ranger. Dr. Richardson opined that using the Ranger as the design platform was an appropriate engineering decision, and that it gave Ford the advantage of using components that had already been made.
Dr. Richardson testified to a Ford document dated February 5, 1981, and titled "Revised Stability Index for Utility." The stated objective of the document was to "review alternatives to increase stability index." Reading from the document, he stated that, "a study of methods to improve the stability index for the Bronco II has resulted in several design alternatives *216 to achieve an improvement ... from 1.85 to maximum achievable of 2.25 without a totally new concept vehicle."
The document made a general assessment about improving the stability index. "In order to improve stability index substantially, the following are required: widen track width, and lower center of gravity achieved by raising the wheel center lines with respect to body with trade-offs in ground clearance and vehicle package." The document also made five proposals to achieve a higher stability index. The first two proposals did not jeopardize the target release date for the Bronco II, but the latter three did. Only one of the proposals would have achieved a stability index of 2.25 for the Bronco II, but it was not selected.
Ford selected what is referred to as "proposal two," and it had a target stability index of 2.02. Dr. Richardson pointed out that proposal two saved Ford money. None of the proposals on this document argued for a change in the suspension system. But Dr. Richardson opined that had Ford opted to use an SLA or a MacPherson suspension system, then it could have achieved a stability index of 2.25. At that point, however, Ford had already decided to employ the Twin I-Beam suspension notwithstanding its engineers' criticisms.
Dr. Richardson testified to Plaintiff's exhibit 31, dated March 17, 1982, which discussed "J" turn testing for the Bronco II. In relevant part, the document stated the following:
Engineering sign-off for the Bronco II is scheduled for 7/9/82. Minimal development DVP&R[7] testing has been completed because the suspension and steering system designs have not been finalized for improved roll characteristics during the "J" turn maneuver.
A decision is required to solidify the steering and suspension designs. Development recommends pursuing items 1, 2, and 3 below if a small improvement in roll characteristics during a "J" turn maneuver is deemed acceptable, or pursuing item 4 below if a major improvement is required.
*217 Incorporation of item 4 would most likely cause a delay in Job # 1 [the release date of the Bronco II].
(emphasis in original). Dr. Richardson testified that to his knowledge none of the recommendations set out in the document were adopted.
Dr. Richardson testified to a Ford document dated May 4, 1982. The document identified the current stability index of the Bronco II at 2.03. Dr. Richardson noted that any change to the Bronco II after the date of this document "had to be very small if [Ford] w[as] going to still put [the Bronco II] on the market in the beginning of [1983]." He went on to testify that in the state the Bronco II was then in, with a stability index of 2.03 the vehicle would be "dangerously unstable."
Branham introduced a Ford document from September 14, 1982, with the following stated purpose: "To identify advanced engineering projects that will be undertaken to provide for continued improvement, Bronco II handling, during its cycle life." Dr. Richardson responded to the document as follows:
The vehicle should have been made reasonably safe when it was first designed and built. There was time to do that, the discussions in the engineering documents, to me as an engineer, show me that the engineers knew how to do that, could have done it, and that should have been done. To release it without it being reasonably safe then subjects those people who buy it to risk. Now, if it is released in that configuration, it certainly should be improved as time goes along because it shouldn't be left that way.
Following up on his expert's opinion, Branham asked whether improvements were ever made to correct the problems in the Bronco II when it was released. Dr. Richardson responded, "there were no improvements made that would correct this defect."
The rollover propensity in the Bronco II 4×4, as reflected in the stability index and elevated center of gravity, was increased in the Bronco II 4×2. The two-wheel drive Bronco was lighter than its four-wheel version, resulting in reduced stability and an even higher center of gravity. The Bronco II involved in this litigation is a 4×2.
The foregoing is not an exhaustive review of the evidence presented by Branham, but it serves to support the able trial *218 judge's determination that Branham presented sufficient evidence of a design defect known to Ford at or prior to the date of manufacture to withstand a directed verdict motion. We make this determination without having to rely on the further body of evidence of the Bronco II's rollover tendencies found in the substantial post-distribution evidence which the trial court allowed.[8]
C.
We next address Ford's two-fold argument that: (1) Branham failed to prove a reasonable alternative design pursuant to the risk-utility test; and (2) South Carolina law requires a risk-utility test in design defect cases to the exclusion of the consumer expectations test.
For a plaintiff to successfully advance a design defect claim, he must show that the design of the product caused it to be "unreasonably dangerous." Madden v. Cox, 284 S.C. 574, 579-80, 328 S.E.2d 108, 112 (Ct.App.1985). In South Carolina, we have traditionally employed two tests to determine whether a product was unreasonably dangerous as a result of a design defect: (1) the consumer expectations test and (2) the risk-utility test.
In Claytor v. General Motors Corp., this Court phrased the consumer expectations test as follows: "The test of whether a product is or is not defective is whether the product is unreasonably dangerous to the consumer or user given the conditions and circumstances that foreseeably attend use of the product." 277 S.C. 259, 262, 286 S.E.2d 129, 131 (1982).
The Claytor Court articulated the risk-utility test in the following manner: "[N]umerous factors must be considered [when determining whether a product is unreasonably dangerous], including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger." Id. at 265, 286 S.E.2d at 132.
Later, in Bragg v. Hi-Ranger, Inc., our court of appeals phrased the risk-utility test as follows: "[A] product is unreasonably dangerous and defective if the danger associated with *219 the use of the product outweighs the utility of the product." 319 S.C. 531, 543, 462 S.E.2d 321, 328 (Ct.App.1995). The Bragg court went on to list the above factors set forth in Claytor as the relevant inquiry when weighing the danger of the product versus its utility. Id. at 543-44, 462 S.E.2d at 328.
Ford contends Branham failed to present evidence of a feasible alternative design. Implicit in Ford's argument is the contention that a product may only be shown to be defective and unreasonably dangerous by way of a risk-utility test, for by its very nature, the risk-utility test requires a showing of a reasonable alternative design.[9] Branham counters, arguing that under Claytor he may prove a design defect by resort to the consumer expectations test or the risk-utility test. Branham also argues that regardless of which test is required, he has met both, including evidence of a feasible alternative design. We agree with Branham's contention that he produced evidence of a feasible alternative design. Branham additionally points out that the jury was charged on the consumer expectations test and the risk-utility test.
As discussed above, Branham challenged the design of the Ford Bronco II by pointing to the MacPherson suspension as a reasonable alternative design. A former Ford vice president, Thomas Feaheny, testified that the MacPherson suspension system would have significantly increased the handling and stability of the Bronco II, making it less prone to rollovers. Branham's expert, Dr. Richardson, also noted that the MacPherson suspension system would have enhanced vehicle stability by lowering the vehicle center of gravity. There was further evidence that the desired sport utility features of the Bronco II would not have been compromised by using the MacPherson suspension. Moreover, there is evidence that use of the MacPherson suspension would not have increased costs. Whether this evidence satisfies the risk-utility test is ultimately a jury question. But it is evidence of a feasible alternative design, sufficient to survive a directed verdict motion.
*220 While the consumer expectations test fits well in manufacturing defect cases, we do agree with Ford that the test is ill-suited in design defect cases. We hold today that the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design. In doing so, we recognize our Legislature's presence in the area of strict liability for products liability.
In 1974, our Legislature adopted the Restatement (Second) of Torts § 402A (1965), and identified its comments as legislative intent. S.C.Code Ann. §§ 15-73-10-30 (2005). The comments in section 402A are pointed to as the basis for the consumer expectations test.[10] Since the adoption of section 402A, the American Law Institute published the Restatement (Third) of Torts: Products Liability (1998). The third edition effectively moved away from the consumer expectations test for design defects, and towards a risk-utility test. We believe the Legislature's foresight in looking to the American Law Institute for guidance in this area is instructive.
The Legislature has expressed no intention to foreclose court consideration of developments in products liability law. For example, this Court's approval of the risk-utility test in Claytor yielded no legislative response. We thus believe the adoption of the risk-utility test in design defect cases in no manner infringes on the Legislature's presence in this area.
Some form of a risk-utility test is employed by an overwhelming majority of the jurisdictions in this country.[11] Some *221 of these jurisdictions exclusively employ a risk-utility test,[12] while others do so with a hybrid of the risk-utility and the consumer expectations test, or an explicit either-or option.[13] States that exclusively employ the consumer expectations test *222 are a decided minority.[14]
We believe that in design defect cases the risk-utility test provides the best means for analyzing whether a product is designed defectively. Unlike the consumer expectations test, the focus of a risk-utility test centers upon the alleged defectively designed product. The risk-utility test provides objective factors for a trier of fact to analyze when presented with a challenge to a manufacturer's design. Conversely, we find the consumer expectations test and its focus on the consumer ill-suited to determine whether a product's design is unreasonably dangerous.[15]
We believe the rule we announce today in design defect cases adheres to the approach the trial and appellate courts in this state have been following. In reported design defect cases, our trial and appellate courts have placed their imprimatur on the importance of showing a feasible alternative design. See Claytor v. Gen. Motors Corp., 277 S.C. 259, 265, 286 S.E.2d 129, 132 (1982) (adopting the risk-utility test); Kennedy v. Custom Ice Equip. Co., 271 S.C. 171, 176, 246 S.E.2d 176, 178 (1978) (affirming verdict in favor of plaintiff by noting that plaintiff presented evidence of a design alternative); Mickle v. Blackmon, 252 S.C. 202, 234-35, 166 S.E.2d 173, 187-88 (1969) (discussing a manufacturer's decision to use *223 one type of inferior material as a component part one year, but a superior material the following yearthat is, a design alternative); Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 546, 462 S.E.2d 321, 330 (Ct.App.1995) (affirming defense verdict and noting that plaintiff failed to present evidence of a feasible alternative design); Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 334, 391 S.E.2d 868, 870 (Ct.App.1990) (affirming a defense directed verdict and noting that plaintiff's expert failed to discuss design alternatives); Gasque v. Heublein, Inc., 281 S.C. 278, 283, 315 S.E.2d 556, 559 (Ct.App. 1984) (affirming a plaintiff's verdict and noting in detail existence of alternative design evidence).
In Kennedy v. Custom Ice Equipment Co., this Court specifically pointed to evidence that the challenged industrial ice machine would have been safer had the manufacturer installed a protective cover. 271 S.C. at 176, 246 S.E.2d at 178. In Gasque v. Heublein, Inc., our court of appeals acknowledged the importance of a reasonable alternative design in a product liability design defect case wherein it noted evidence of alternative designs in an opinion affirming an award for the plaintiff. 281 S.C. at 283, 315 S.E.2d at 559. In like manner is the case of Sunvillas Homeowners Ass'n v. Square D Co., where the court of appeals upheld a directed verdict in favor of a manufacturer, noting that plaintiffs did not produce any evidence of design alternatives. 301 S.C. at 334, 391 S.E.2d at 870. And more recently, in Bragg, our court of appeals again noted the absence of alternative design evidence in affirming a defense verdict. 319 S.C. at 546, 462 S.E.2d at 330. The very nature of feasible alternative design evidence entails the manufacturer's decision to employ one design over another. This weighing of costs and benefits attendant to that decision is the essence of the risk-utility test.
This approach is in accord with the current edition of the Restatement of Torts:
A product ... is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.
*224 RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b) (1998). Concerning the framework for the risk-utility test, we agree with Professor David G. Owen, who observed:
[T]he basic liability test should be congruent with the basic issue that in most cases must be proved. In design defect litigation, that basic issue involves the following fundamental... question: whether the manufacturer's failure to adopt a particular design feature proposed by the plaintiff was, on balance, right or wrong. A congruence between this central issue and the liability test requires that the test focus squarely on the issue of what, in particular, allegedly was wrong with the manufacturer's design decision. More specifically, this inquiry asks whether the increased costs (lost dollars, lost utility, and lost safety) of altering the designin the particular manner the plaintiff claims was reasonably necessary to the product's safetywould have been worth the resulting safety benefits.
David G. Owen, Toward a Proper Test for Design Defectiveness: "Micro-Balancing" Costs and Benefits, 75 TEX.L.REV. 1661, 1687 (1997).
In every design defect case the central recurring fact will be a product that failed causing damage to a person or his property. Consequently, the focus will be whether the product was made safe enough. This inquiry is the core of the risk-utility balancing test in design defect cases, yet we do not suggest a jury question is created merely because a product can be made safer. We adhere to our longstanding approval of the principle that a product is not in a defective condition unreasonably dangerous merely because it "can be made more safe." As we observed in Marchant v. Mitchell Distributing Co.:
Most any product can be made more safe. Automobiles would be more safe with disc brakes and steel-belted radial tires than with ordinary brakes and ordinary tires, but this does not mean that an automobile dealer would be held to have sold a defective product merely because the most safe equipment is not installed. By a like token, a bicycle is more safe if equipped with lights and a bell, but the fact that one is not so equipped does not create the inference that the bicycle is defective and unreasonably dangerous.
*225 ....
There is, of course, some danger incident to the use of any product.
270 S.C. 29, 35-36, 36, 240 S.E.2d 511, 513, 514 (1977).
In sum, in a product liability design defect action, the plaintiff must present evidence of a reasonable alternative design. The plaintiff will be required to point to a design flaw in the product and show how his alternative design would have prevented the product from being unreasonably dangerous. This presentation of an alternative design must include consideration of the costs, safety and functionality associated with the alternative design.[16] On retrial, Branham's design defect claim will proceed pursuant to the risk-utility test and not the consumer expectations test.
III.
Notwithstanding the existence of ample evidence to withstand a directed verdict motion on the handling and stability design defect claim, we reverse and remand for a new trial. There are three reasons we reverse and remand the finding of liability and award of actual damages. First, this case implicates two evidentiary rules related to products liability cases. The first rule provides that whether a product is defective must be measured against information known at the time the product was placed into the stream of commerce. When a claim is asserted against a manufacturer, post-manufacture evidence is generally not admissible. The second rule provides that evidence of similar incidents is admissible where there is a substantial similarity between the other incidents and the accident in dispute tending to prove or disprove some fact in controversy. Evidence was introduced that violated both of these rules. Third, Branham's closing argument was a *226 direct appeal to the passion and prejudice of the jury. And although not a standalone ground for reversal, we find that because Ford and Hale were joint tortfeasors, it was error to require the jury to apportion responsibility between the defendants.
A.
Post-distribution evidence
In order for a plaintiff to prove his case in a product liability action, he must show that the "product was in a defective condition at the time that it left the hands of the particular seller ... and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained." Claytor v. Gen. Motors Corp., 277 S.C. 259, 264, 286 S.E.2d 129, 131-32 (1982) (emphasis added) (quoting RESTATEMENT (SECOND) OF TORTS § 402A, cmt. g. (1965) adopted as legislative intent via S.C.Code Ann. § 15-73-30 (2005)); see also Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 548-49, 462 S.E.2d 321, 331 (Ct.App.1995) (recognizing that the "product must be `measured against a standard existing at the time of sale'" and that "`hindsight opinions by [...] experts suggesting that more should have been done ... are insufficient to discredit the conclusion that the manufacturer met the standard of care'") (quoting Sexton ex rel. Sexton v. Bell Helmets, Inc., 926 F.2d 331, 337 (4th Cir.1991) and Doe v. Miles Labs., Inc., Cutter Labs. Div., 927 F.2d 187, 193 (4th Cir.1991)); RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2, cmt. a. (1998) ("[F]or the liability system to be fair and efficient, the balancing of risks and benefits in judging product design ... must be done in light of the knowledge of risks and risk-avoidance techniques reasonably attainable at the time of distribution."). Because the claim here is against the manufacturer, the "time of distribution" is the time of manufacture.
While we find Branham presented sufficient evidence to create a jury question on his design defect claim, we further find Ford was prejudiced by Branham's unrelenting pursuit of post-distribution evidence on the issue of liability. Given the extent of the improper post-distribution evidence introduced, the error cannot be considered harmless.
*227 We first clarify what is post-distribution evidence. Simply defined, post-distribution evidence is evidence of facts neither known nor available at the time of distribution. When assessing liability in a design defect claim against a manufacturer, the judgment and ultimate decision of the ma