*1
BRANTLY HELICOPTER Appellant. Pennsylvania. Supreme Court May 19, Decided 1975. *7 McCracken,
Sidney Montgomery, Wickenhaver, L. appellant. Rhoads, Philadelphia, for Walker & appel- Cal., for Eldredge, Francisco, San Laurence H. lee. O’BRIEN, ROB- JONES, EAGEN, J., and
Before C. MANDERINO, JJ. ERTS, POMEROY, NIX and OPINION JONES, Justice. Chief grant The on of allocatur.1 us a
This case is before defendant-ap- Superior for the reversed verdict Court pellant in trial We affirm. court. appealed a ver- after
1. time and This case was tried1 for first Superior trial ordered a new The Court diet for the defendant. . because the judge charged that trial had on the basis that requirement regulations Agency’s established Federal Aviation second helicopters go autorotation in one all into be able more, pitch push in one stick” down failure to the “collective Superior Court held that The second was “abnormal use.” regulation “[c]ompliance relieves a law or with administrative se, as a negligence per it not the actor but does establish Cloyd July Berkebile was 9, killed when helicopter piloting he climbing crashed while flight. brought The wrongful executrix wife this death against Brantly Helicopter survival action Corpora- tion, the manufacturer of helicopter. plaintiff upon relied theory liability. of strict Restatement (Second) Torts, significant 402A.2 Several issues of importance in the growing liability area of strict re- covery presented are appeal. this multifaceted To avoid further clarify confusion necessary we find it concepts strict Pennsylvania under law.
Brantly small, two-person, manufactured the B-2 mod- helicopter Addressing el October of 1961. itself to general advertising market, aviation described helicopter “safe, dependable,” “tricky operate,” “beginners professional pilots and one that alike agree fly.” experi- easy Brantly ... had enced designing some difficulties its rotor blades and stage development autorotation in the and modified the system degree prior to some to its distribution. In Janu- ary, 1962, Berkebile, purchased businessman, Mr. Brantly matter of law that due care was exercised.” Berkebile v. Helicopter 479, 484, Corp., Pa.Super. 281 A.2d They also concluded that the issue of whether defendant had adequate precautions taken design in the of the autorotational system *8 helicopter gone its jury. should have to the for Verdict defendant was post-trial had at the second trial. Plaintiffs mo- plaintiff-appellee
tions appealed. were denied and 2. Special 402A Liability of Physical Seller of Products for Harm to User or Consumer. (1) any product One who sells in a defective condition unrea- sonably dangerous property to the user or consumer or to his subject liability physical for thereby harm property, to the caused consumer, ultimate user or or to his (a) the engaged selling seller is in the business of such product; and (b) expected it is to and does the reach user or consumer without change substantial in the condition in which it sold. (2) The (1) rule in applies although stated Subsection (a) the seller possible prepara- has exercised all care in the tion product, and sale of his and (b) the user or bought consumer has not the from any entered into contractual relation with seller. the
helicopter Mr. Berkebile from distributor. defendant’s flight climbing July 9, in flew alone and while on ro- main of the three seven-foot outboard section one helicopter separated. crashed on wood- tor blades The hillside, killing ed Mr. Berkebile. recovery grounds for at proposed
Plaintiff four system the (1) design of the rotor second trial: The pilot in- average had helicopter because defective in place helicopter in autorotation sufficient time to (2) climbing flight; The emergency power an in failure designed; defectively rotor manufactured blade was helicopter (3) defective The defendant rendered the possible warnings regarding inadequate result of the systems of risks of one and inherent limitations misrepresented helicopter; (4) defendant The advertising helicopter safety its brochures. in any defendant, denying defective the existence of helicopter’s product, condition its theorized abnormal use rotor due to an blade had. fractured resulting fuel ex- brought by power from about failure part push haustion, on followed a failure decedent’s go pitch down the collective in time to into autorotation emergency landing. proper effect a appeal erred Plaintiff the trial court contends these charging applied to law to be on' the rulings. A evidentiary facts and erred several of its charge particu- review the record and of the court’s confu- whole, lar, when taken a basic as a demonstrates concerning principles liability in torts. sion of strict Despite judge diligent to conform of the trial efforts and, charge law, tried twice this case has been Although regretfully, be tried the third time. must our de- recognized recovery since we have strict Zern, 424, 220 A.2d cision in Pa. Webb clearly (1966), apparent articulated it is the lack misinterpretation. generated much standards has *9 products liability developed re The law of sponse changing to societal concerns over the relation ship product. between the consumer and the seller of a increasing complexity manufacturing The and dis process placed upon injured plaintiff tributional nearly impossible where, proving negligence burden of policy for reasons, it was that should re felt seller be sponsible injuries by products. for in his caused defects See (Second) comment, Restatement c. 402A, of Torts § We Zern, therefore supra, held in Webb v. product responsible injury
seller3 of a for would be by product caused his had exercised defective even he possible all design, care in its manufacture and distribu emphasized principle liability tion. We without recently by stating fault most “effec the seller tively guaranter product’s safety,” his Salvador Co., Atlantic 24, 32, Steel Boiler 457 Pa. A.2d
“Our courts have that a manufacturer determined by marketing advertising impliedly and represents that it is for safe its intended We use. have decided no current is served societal interest by permitting place the manufacturer to a defective article in the stream of commerce then to avoid re- sponsibility damages by caused the defect.” substance, requires, only
Strict two requisite proof: prove elements need that the defective, prove the need that the de- generically suppliers 3. The term “seller” used include all who, products selling they engaged because are in the business supplying product, or may be said to have and as- “undertaken special responsibility” consuming public sumed a toward the position spread products. who are in a risk of defective 402A, (Second) Torts Restatement comment c. actual sale, suppliers, form of the transactions of such lease whether bailment, obligations. sup- or should not alter their Occasional pliers selling supplying who are not the business of such products liability. subject are not “sellers” to strict *10 94 injuries.4 plaintiff’s proximate
feet was cause injury plaintiff proves he Thus, cannot recover developing product proof defect, absent of such as from a becoming eating sugar intoxicated from or diabetic shock by plaintiff whiskey. recover drinking Neither from can proof proving product causa- in absent a defect plaintiff eye injury while not tion, where sustains as plaintiff wearing safety glasses. Also, must defective prove causing injury at existed the defect hands; not product the seller is left the seller’s time the by subsequent if a is made unsafe liable safe Pittsburgh Co., changes. Brewing Pa. Bialek See (Sec- also, Restatement 176, 242 See A.2d correctly 402A(l)(b). trial ond) Torts, court The § liability pertinent in a as issues strict identified these case. liability strick
The crucial difference between negligence care, whether of due is the existence and part consumer, The sell of seller or is irrelevant. prod injury by responsible er his defective for caused possible in the care uct if he “has even exercised all (Sec product.” Restatement preparation sale of his and 402A(2)(a). ond) Torts, declared Salva As we § dor, supra, 907, at the seller Pa. 319 A.2d at by “may preclude injured plaintiff’s recovery not an manufacturing negligence forcing prove him process.” permitted directly, not the seller is to do What indirectly by negli injecting him we will allow to do gence concepts theory. attempting liability into strict In to articulate the definition of and “defective condition” proximate cause, define the issue of the trial court concept example, 4. entirely This is not new one. For state long recognized impo- drug and federal food and law we have part responsibility sition even criminal who han- on the of one products despite dles adulterated or all due care mislabelled liability good part. imposition of intention on his This criminal drug analogous in food and civil liabil- law fault to the without products ity imposed upon without fault the seller defective § under 402A. injected unnecessarily negligence improperly here principles liability strict case. into this liability recognizes without
Section 402A fault products. properly limits such defective responsible harm is not seller of a whiskey inherently dangerous products caused such design despite perfection manufacture, or knives (Sec injury. distribution, can Restatement cause See ond) Torts, glance, how comment At first 402A, i. ever, appear impose con it would that the does section *11 tradictory proof of be “un burden in that the defect also reasonably dangerous.” i of An examination comment purpose of indicates that the of the drafters the clause products by towas differentiate those their which are very nature unsafe not but defective from those which truly Prosser, can be called defective.5 The late Dean reporter Torts, (Second) the of the has Restatement of suggested only purpose the to the clause was any argument foreclose of a with seller the possibilities inherent for harm “automati would become cally responsible for things all harm do in the that such Liability the world.” Strict Prosser, to the Consumer in California, 18 Hast.L.J. Commentators courts, attempting to define “defective condition” suggested upon have negligence-oriented tests based the liability “reasonable man” that have further diluted the strict ept.6 purpose The “unreasonably of the dan conc history The 5. of drafting § the particularly of the comments 402A reveals that the drafters products had in mind here are which ingested. An examination of the comment shows that it reads products “[m]any that sumption, entirely cannot be made safe for all con- any drug necessarily risk Of involves some food harm, only over-consumption.” from 6. The Restatement commentary objective looking suggests an test to the expectations reasonable “ordinary of consumer ., ordinary knowledge with the common commu- nity as to product’s] (Second) [the characteristics.” Restatement Torts, 402A, of suggest comment objective i. Others an test looking seller, instead to the submitting reasonable issue he, whether if he had product, known of the condition of the
gerous” appear clause by would in be best its served proximate clusion in the issue of cause. Those courts van-guard products law, doing away with distinction, adopted analysis. this have this Supreme California Court, reviewing purpose after of the “unreasonably dangerous” clause, said:
“The . not been result . has . the limitation becoming insurer merely an prevent seller from by generated products respect of his harm with to all plain- injured Rather, their use. it has burdened negli- rings of proof which tiff element with an fact, the trier of gence. result, if, in view As the defective expected have ‘ordinary would consumer’ liable, strictly product, seller of a the' condition plaintiff. injured expectations regardless of the danger- ‘unreasonably recognize that the words “We purpose of beneficial may . . . serve ous’ being treated as insurer from preventing seller protec- However, think that such products. of its we necessity proving end is attained tive design in the manufacture or a defect there was *12 proximate was that such defect a product, and cause of injuries.” Corp., Cronin J. B. E. Olson 8 121, Cal.3d 132-33, 104 Cal.Rptr. 433, 441, 501 1153, P.2d (1972); 1161 in ac- cord, Glass v. Ford Co., Motor N.J.Super. 599, 123 304 (1973). 562 A.2d
We hold today that man” “reasonable standard in any form place has liability no in strict a case. The salutary purpose “unreasonably dan gerous” qualification preclude is to liability the seller’s where it cannot be said product that defective; is purpose this can be bymet requiring proof of a defect. “would . . . acting plac- then reasonably have been on ing it Wade, on the market.” Liability Strict Tort of Manufactur- ers, 5, 19 (1965). Sw.L.J. 15 charge argument concerning the jury permit To or reasonableness of a or consumer’s seller’s actions knowledge, merely if even to define “defective condition” policy undermines the considerations have led us effectively hold in Salvador that the manufacturer is guaranter product’s plaintiff safety. must his The prove product still in the there was defect injury; this that the if sustains defect caused his but he burden, proved him he will have unreasonably dangerous. It unneces- is therefore sary improper charge on “reasona- Glass, supra. bleness.” Cronin, supra; The trial the stan court further confused liability charge proximate dards strict in cause. its charged that, court order for it to said that be plaintiff’s defect injury, consequence, caused “such a un surrounding case, der all must circumstances of the require have been the seller.” To foresee foreseeable ability require is to the manufacturer to use due care preparing product. liability, In strict manufac turer is Re liable even he has exercised all due care. (Second) 402(A)(2)(a). statement Torts, Fore seeability proximate cause; is a test of it test negligence. 451, 447, Sackett, Pa.Super. Hoover v. A.2d Because the seller is liable liability regardless strict any negligence, he whether could particular have in a injury foreseen a is irrelevant strict negligence In case. either strict liabili or ty, negligence once the shown, defective responsible actor is consequences for all the unforeseen thereof remote, no matter how which in a natural follow sequence Hoover, supra. of events. charging
The trial court further erred in jury separately on the issue of “abnormal this use.” On charged part: issue the court
“The product defendant not in liable if the is used an manner, way abnormal or in a it not which was
designed you helicopter to be used. ... If take a abnormally improper it ., and use . . and such proximate accident, use the that does was cause of helicopter not make must ... It defective. normally properly be used in order for it be de- you push the dangerous. fective If ... go collective lever down and into autorotation within necessary you using normally, time, it but then are you normally.” you using if it do not it are not do then plaintiff’s helicopter designed theory On de- that the was fectively enough in that not time for there was average pilot question safely, effect autorotation of “necessary go time” into autorotation was plaintiff’s plaintiff theory, entire this case. Under agreed that the autorotation but decedent did achieve argued sys- in that this was because defect design. judge tem’s factual and the trial drew the When legal plaintiff’s conclusions for decedent place helicopter did not could be autorotation there directing no recovery, it a verdict was tantamount to his against plaintiff theory. charge error. was this Such the de evidence such as was introduced guise fense in this was under the “abnormal use” case purpose. admissible but for Plaintiff must a different prove existing defect at the time proxi prove left the seller’s hands and must he prove mate If cause. the seller can the defect arose from use after he sale would not be Plaintiff contended liable. that the in manufac blade fractured of a defect because ture; defendant’s contention that fractured the blade impact “stops” from contention of with the rebutted the system this defect. Plaintiff contended the autorotation gave pilot it time defective because insufficient system safety activate it. The autorotation is a device existing purpose preventing for sole a crash engine event any failure The reason reason. engine argument failed is irrelevant. Even defendant’s
99 flying gas,7 “ab- be no was without would that decedent system only into comes The autorotation normal use.” it engine failure for reason in the event whatever use may it that failure decedent be. can be said the Nor necessary re- go to the time” into autorotation “within system de- that autorotation buts the contention the allowing activation. for its fective not sufficient time key to issue “necessary time” is the What constitutes that an example, of the For if defendant showed defect. average pilot required to one second achieve autorotation one helicopter gave also decedent showed this climbing flight, he to second achieve autorotation dece- would rebut the contention of this defect. Whether to the is- dent actually attempted is relevant autorotation conclude, for jury If to exam- sue were causation. ple, two system seconds non-defective would a allow attempt for not autorotation and that decedent did seconds; if a defect was autorotation for three even shown, proximate it not cause of could have been conclusion, crash.8 In which be admissi- evidence would negligence prove use” ad- ble a case to “abnormal only purpose of liability missible in strict for case rebutting plaintiff’s proxi- contentions of defect jury properly mate It to the cause. submitted separate defense. charge
The trial on “abnormal use” court’s permitted alleged jury to on conclude an failure part gas decedent’s determine amount available defective, 7. Plaintiff also contended that the rotor blade was since, if it it fractured as contended when struck the defendant “stops,” designed have it should been or manufactured such impact. manner also as to withstand this this Because assumes failure, engine engine leading failure the circumstances to such are irrelevant. that, additionally 8. Plaintiff failed contended if the decedent system in con- activate to avoid loss of the autorotational time trol, by warnings a defect and in- failure was in the such caused accompanying If found structions the aircraft. such case, safety system be the the decedent’s failure activate the liability. would from not insulate defendant flight precluded any theory. plaintiff’s recovery plaintiff precluded recovery A cannot be from in a strict negligence. pre- case because his own He is recovery only specific from cluded if he knows de- eventually causing pro- fect injury voluntarily knowledge danger ceeds to use the with caused Co., defect. Ferraro v. Ford Motor 324, 327, (1966); Pa. A.2d Restatement *15 (Second) Torts, 402A, Furthermore, of comment n. § finding assumption of of risk must be based on indi- the subjective upon objec- own knowledge, vidual’s the knowledge tive Dorsey of v. a “reasonable man.” See Yoder, F.Supp. 753, (E.D.Pa., 1971); 331 765 Restate- (Second) ment Torts, 496D, of comment c. a de- Such § upon fense can by only be charged court the there by evidence introduced defendant knew the decedent specific of causing the appreciated defect his death and danger the using it involved the before aircraft. Re- See (Second) statement Torts, 496C and 496D. §§
A “defective condition” is not limited to de design fects in or provide manufacture. The seller must with every the necessary element it to make safe for may use. warnings One such element be in and/or concerning structions product. use of the A seller must give warning such required and instructions as to in are form the user or possible consumer of the risks in and herent product. limitations of (Second) Restatement 402A, Torts comment If h. the is defective absent such warnings, proximate and the defect is a cause plaintiff’s injury, strictly the seller is liable with proof negligence. out
“Comment h to the section it makes clear [402-A] product, as to which adequate warning of dan- ger involved in required, its use is sold without such ” warning is in a Incollingo ‘defective condition.’ Ewing, al., et 444 263, 287, Pa. A.2d dangers warnings and case, the In the instant Ro- in the flying B-2 contained for are instructions placard. cockpit in Flight torcraft Manual warning get specific as to the time needed There is no warning is no autorotation, into and there direction Flight.” Climbing respect “Engine with Failure pilot are, however, to lower There directions failure; pitch engine that auto- collective lever case implemented than rotor rotation should no less be at comply “may RPM; and, result in dam- that failure to age to the outer blades.” question jury concerning warnings for the warnings appearing flight whether
was man cockpit placard ual and Mr. were sufficient to make dangers power Berkebile aware of the failure de layed autorotation, warnings adequate and whether said ly conveyed urgency of the situation need react instantaneously. almost If determines helicopter a defective condition provide failure to warnings sufficient and directions *16 use, thereby. the seller is liable for all harm caused emphasized
It be must that the of the ne test cessity warnings governed of or instructions is not to be by man reasonable In standard. the strict reject upon context we standards based what the “rea expected know, sonable” consumer could be or what expected “reasonable” manufacturer be could “foresee” product. about who his consumers use Compare Refining Co., 51, Maize v. Atlantic 352 41 Pa. A.2d (1945); Co., 850 Thomas v. Avron Products 365, Pa. (1967) (negligence A.2d actions recognize where we duty the affirmative of a seller give warnings but it on base man stan the reasonable dard). Rather, question the sole whether the here is sell er accompanied product his with sufficient instructions warnings and product so as to make his This safe. is of jury necessity adequacy The and determine. warnings determining can in of defect existence a the evidence. and should with a view to all be considered danger jury degrees asso- The should view the relative of degree greater product ciated with use of since a g., danger requires greater degree protection. E. case, supra. Inc., Thomas v. In this Products, Avron plaintiff emergency in the argued that the most serious power climbing flight, event there in since failure w&s greatest decay would amount be the rotor and thus least system. activating of time available for the autorotation upon In flight, decay engine failure is cruise rotor greatest emergency gives least thus serious and In amount of in time which to achieve autorotation. hovering flight, decay rotor in intermediate an helicopter’s flight amount. for the Defendant’s manual operation warnings re- gives the maximum detailed gard emergency (cruise) to the the mini- minimum warnings (none) emergency mum situa- the maximum (climb). specifi- tion study by One defendant and done cally excluded trial court showed concern part pilot regarding rotor rapid defendant’s chief test decay climbing flight.9 jury this If the determined was an insufficient defec- warning, the be would designed perfectly tive even had been go manufactured. The would have to on to conclude required, 9. Since a new trial we note several of trial rulings court’s on evidence. judge trial excluded memorandum of defendant’s chief 1960, pilot president January test to the defendant’s as dated hearsay. The by Captain memorandum Erickson was written agent while he was an of his duties defendant course scope authority, and within the admissible thus is *17 Also, against any substantive evidence letters defendant. FAA, trial, from defendant to the if ad- relevant at the new are proper missible as if admissions foundation for admis- their Any copies sion is laid. certified of FAA records and documents directives, relevant, such as airworthiness are not inadmissible P.L.E., on Evidence, hearsay the basis of if a foundation is also laid. See 191; Jarka, 148, § (1934). Paxos v. 171 A. Pa. of cause proximate the defective was condition recovery. anAs there be decedent’s death before would ordinary example, of knives of seller the failure dangerous propensities of can not be considered warn cutting finger proximate since cause of a consumer’s rec- danger generally known potentiality is its of ognized. necessary to consider whether It is sometimes was any warnings only issue required. Here the are warnings regulations the de- adequacy of since FAA regard to warnings own inclusion of some fendant’s necessity of system demonstrated the autorotation adequacy of warnings. necessity warn- of The issue ings considered must also be and instructions use light on any contradictory promotional activities part Incollingo, supra. of the seller. required warnings are or instructions
Where
duty
nondefective,
it
to make a
warnings
form that
provide
in a
manufacturer
such
risks
will reach the ultimate consumer and inform
provide
duty to
product.
and inherent
of the
limits
v.
non-delegable. Davis
a non-defective
Wyeth
(9th
Laboratories,
Cir.
Inc.,
399 F.2d
Co.,
Pittsburgh-Des
1968); see,
g.,
Moines
Foley
e.
1, 26-27,
363 Pa.
The trial refused to rately misrepresentation Restate the issue of under stating (Second) ment adver Torts, 402B, tising warning part under Sec issue claims were separate tion under Section 402A rather than a issue stating that 402B. Plaintiff contended that brochures “you dependable helicopter” and safe, are assured of a misrep helicopter operate” “easy that the were a concerning the character resentation material facts quality Misrepresentation dis of a must be chattel. tinguished “puffing.” find these state from mere We misrepresentations material do ments not constitute *18 104 456, 12 Baxter Ford Motor 168 Wash.
fact. See v. Co., 409, 15 (1934). P.2d P.2d 1118 Superior affirmed. is The order of the Court concurring opinion. ROBERTS, J., filed a concurring opinion. POMEROY, J., filed a MANDERINO, JJ., in EAGEN, concur O’BRIEN and the result.
ROBERTS, (concurring). Justice pilot jury if the The trial court instructed the helicopter helicopter place in autorota- failed to helicopter in prevent crash, he used the tion in time to would be barred an manner and his estate abnormal improperly recovery. instruction Because this from appel- jury’s from the consideration one withdrew helicopter de- recovery was lant’s theories —that pi- designed impossible for the fectively to make it so place helicopter concur lot in autorotation —I affirming Superior Court’s decision majority’s grant of a new trial. (concurring).
POMEROY, Justice
perfectly
It
settled that a
which
now
dangerous” if
“unreasonably
may
made
nonetheless be
dangers
use of
adequate warnings
involved in the
of the
given by the seller.
required
are
and are
h; In
(Second)
Torts,
402A,
comment
Restatement
§
206, 209
colling
Ewing,
287,
o v.
444
282 A.2d
Pa.
(Stanley
Stanley
Patch
Works
See also
1971);
(2nd
Pros
Div.),
Cir.
Chemical Co.
view, require trial. a new serious requested by appellee 1. charge substantially A this effect was but refused the trial court. testimony pre- 2. expert Defendant that a introduced effect autorotation could cise statement time within which to achieve given required depended not be variables, on a number because time weight (which is in turn related such as aircraft board), power pitch setting to the amount of fuel on of the and the failed, power angle and the blades when of ascent “average” pilot. reaction time of an