High, J. v. Pennsy Supply, Inc. v. High, C., II.
154 A.3d 341
Pa. Super. Ct.2017Background
- Jeffrey High ordered concrete for a crawlspace pour believing he had ordered self-leveling "flowable fill" concrete; Pennsy Supply delivered regular ready-mix concrete.
- The High brothers worked in a confined space, used tools and their forearms to level wet concrete, and became saturated with it; both suffered severe chemical (alkali) burns requiring hospitalization and surgery.
- Delivery ticket signed by Jeffrey contained a short warning about skin and eye irritation and recommending rubber boots and gloves; Charles did not see the ticket and had prior minor experience with bagged concrete.
- Plaintiffs sued Pennsy Supply in strict products liability, alleging the wet concrete was defective/unreasonably dangerous (pH ~12.4) and/or that warnings were inadequate; the trial court granted summary judgment for Pennsy Supply.
- On appeal, the Superior Court reviewed whether the question of wet concrete being "unreasonably dangerous" under Tincher v. Omega Flex should have been left to the jury and whether failure-to-warn claims required further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether whether wet concrete is a "defective condition unreasonably dangerous" under Tincher's consumer-expectations test | Highs: average consumer would not expect the risk of severe chemical burns from wet concrete; warning was inadequate and representations misled them | Pennsy: caustic properties of concrete are common knowledge; short warning and inherent properties suffice; no design defect | Reversed summary judgment — whether concrete is unreasonably dangerous is a jury question; genuine factual dispute exists |
| Whether the trial court could decide consumer-expectations as a matter of law | Highs: Tincher assigns this factual/policy determination to factfinder except in obvious cases | Pennsy: prior cases (other jurisdictions) show concrete’s risks are common knowledge; court can rule as matter of law | Court held trial court erred to resolve issue on summary judgment and failed to apply Tincher factors; remand for factfinder |
| Whether failure-to-warn claim was properly disposed on summary judgment | Highs: warning was inadequate (only referenced "irritation") and Pennsy's agent misrepresented exposure risk | Pennsy: delivered a warning and consumer knowledge suffices; no separate failure-to-warn liability | Superior Court remanded; trial court did not analyze failure-to-warn fully and must address it on remand if properly raised |
| Whether out-of-state authority justified summary judgment | Highs: other jurisdictions conflict and some hold danger not common knowledge | Pennsy: trial court properly relied on out-of-state precedents that treat concrete’s causticity as common knowledge | Court found reliance on conflicting out-of-state cases insufficient to justify summary judgment given competing authority and Tincher framework |
Key Cases Cited
- Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014) (adopts composite design-defect standard: consumer-expectations or risk-utility; question of defect is ordinarily for factfinder)
- Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978) (former precedent limiting jury role in determining "unreasonably dangerous"—overruled by Tincher)
- Phillips v. A-Best Prod. Co., 665 A.2d 1167 (Pa. 1995) (product defective for failure-to-warn when warnings are insufficient to notify ultimate user of inherent dangers)
- Webb v. Zern, 220 A.2d 853 (Pa. 1966) (adopts Restatement (Second) of Torts §402A as basis for strict products liability)
- Allen-Myland, Inc. v. Garmin Int'l, Inc., 140 A.3d 677 (Pa. Super. 2016) (summary judgment standard and appellate review explained)