Dambacher by Dambacher v. Mallis

485 A.2d 408 DAMBACHER, By A Minor Joann Her Parents and Natural Guardians, Dambacher, William J. DAMBACHER and Joann Dambacher and William J. Joann Dambacher In Their Right, Own MALLIS, Jr., Sears, Company

Nicholas J. Roebuck & Pennsylvania Department and Commonwealth of Transportation. SEARS, Appeal of ROEBUCK & COMPANY. Superior Pennsylvania. Court of

Argued Oct. 1983.

Filed Nov. 1984. Petition Appeal for Allowance of July Granted 1985. Smolens, Bernard Philadelphia, appellant. J. for Pelagatti, Philadelphia, appellees. Gustine J. SPAETH, WICKERSHAM, Before President and Judge, BROSKY, ROWLEY, WIEAND, JOHNSON and HOFF- MAN, JJ.

SPAETH, President Judge: This is products case out of an arising automo- tire, bile accident. The question is a radial are allegations that the tire was defective because it was not embossed with a to mix warning it with tires, non-radial and that the accident occurred because the tire was mixed with non-radial tires.

Appellees, Joann Dambacher and her parents, were the plaintiffs, Sears, and appellant, Roebuck and Company, tire, supplier was one of the defendants. A jury returned a appellees. verdict favor of The trial court denied appellant’s motion for n.o.v. or in the judgment trial, granted alternative for new motion appellees’ for a trial new limited to There damages. principal are two court The first issue is whether the trial erred issues. qualified witnesses were appellees’ that certain of ruling in fact the accident did occur express opinion court did tires mixed. We hold that the because the were err, generally. order a new trial and we therefore instructions the trial court issue concerns what second hold that the at the new trial. We give jury should in accordance with Azzarello jury court should instruct Co., Inc., 480 Pa. 391 A.2d v. Black Brothers should not instruct the (1978). This means that the court radial tire was “un- appellant’s to determine whether it was not embossed with a reasonably dangerous” because mix Nor the warning not to it with non-radial tires. should court otherwise the terms. In- jury negligence instruct stead, the the jury appel- court should instruct terms of if guarantor, responsible lant’s as a the user of its liability radial tire —was as a result of a defect injured —the in the The court should that if the product. explain jury that appellant’s finds when the tire left control it lacked the use, warnings necessary to make it safe for its intended defective, appellant then the tire was and is liable for the harm caused the by defect.

Although legal presented require the issues will discussion,1 extended the facts underlying briefly Appellant 1. raises more issues than the two issues we have identified principal challenges Appellant as the issues. a number of the trial trial, evidentiary rulings. ordering we we court’s Since are a new do by rulings. not reach the issues raised these Appellant instructing also contends that the on how to apportion liability, stating Compara- the trial court erred in that the Act, Negligence applied. tive 42 Pa.C.S. to be The issue § was properly preserved appellate preserve has not been for review. To objection point charge party specifically object to a for must to the charge given. Dilliplaine Lehigh Valley Company, Trust 457 Pa. Here, appellant object 322 A.2d 114 while did to the trial Comparative Negligence charge, court’s reference to the Act in the see Concurring Dissenting and At 442 n. counsel did not state the basis objection. object greater specificity of the failure to Counsel’s might point charge have been cured had a for been submitted to the 227.1(b)(1) (grounds post-trial trial court. See Pa.R.Civ.P. for relief motion, pre-trial proceedings objection, point must be "raised in However, ....”). charge, point charge for on how was Mallis, a sixteen

stated. Nicholas On November student, the right front year-old high school discovered flat. He Plymouth Fury tire was grandfather’s of his flat a Sears radial tire. The other replaced the tire with next day tires the were non-radial tires. The Plymouth on a ride home from gave Nicholas seven fellow students of the students Joann Plymouth. school in the One was school, drizzling As it was left youngsters Dambacher. wet, with on surface. highway and was leaves Nicholas, hour, driving per 25 miles failed about He negotiate an S-curve. testified: I I went through right-hand As I turn braked. went turn, the left through right going hand started into turn, slid out. The slid hand and the car back back remember, quick. As best I right ... It happened lane, sideways car slid a little and towards the left embankment, a tree. and it went off the into R.R. 586a. spine,

Joann suffered a fractured dislocation of the cervical to a and rendered a who will be confined quadriplegic life. wheelchair for Dam- parents,

Joann’s William J. Dambacher Joann bacher, own sued right, on Joann’s behalf in their apportioned among than found to be the defendants if more one were Moreover, following liable was not submitted to trial court. charge appor appellant’s objection, the trial court clarified its on the referring liability, Comparative Negligence tionment of Act, without to the 79-81, appellant objection Vol. X at and made no further to N.T. preserved charge. properly up if to this the point, Even the issue had been not, post-trial appellant’s it was was to and motion insufficient appellant preserve only the issue. In the motion stated: "The Court leaving apportion liability Compa jury it to erred in the to under the Act, theory Negligence Again, appellant did not state its rative for may ...” (Indeed challenging the statement trial court's instruction. court, jury, argument rather read as an that trial than the liability). appellant apportioned did state "how should have the Neither grounds pre-trial proceedings were in or at trial." Pa.R. asserted 227.1(b)(2). Civ.P. unnecessary appellant's arguments that We it to address further find among have determined

contribution the defendants should been Act, Among Uniform Tortfeasors rather than under the under the in Contribution Act, Comparative Negligence erred and that the trial court ordering damages. a new to trial limited grandfather Nicholas and Sears, his in negligence and in joined strict liability. Sears Commonwealth of Pennsyl- vania, Department of Transportation, as an additional de- fendant on the theory that the was S-curve unsafe. Before trial, the Department of Transportation settled with the $87,500. for The jury, Dambachers trial was before a from 6 to 1980. After May May a non-suit was entered in grandfather, favor of Nicholas’s a returned verdict $800,000, in of Joann the amount of in favor and favor of $10,000, apportioning her in the amount of parents responsi- under the bility Pennsylvania Comparative Negligence Act Sears, Nicholas, to to and to the Department 45% 50% 5% Sears a for Transportation. judgment filed motion n.o.v. or trial, in the alternative a new and the filed Dambachers court, damages. motion for a new trial as to trial The banc, motions, en sitting granted denied Sears’s Dam- bachers’, and entered to judgment against Sears as liability, delay Sears then this damages.2 appeal, filed and only issue, its is Department for the of Transportation settled, mentioned, has Nicholas has as. appealed, propriety of the nonsuit favor of grandfa- Nicholas’s convenience, ther not questioned. For the discussion that follows we shall refer to as usually appellant Sears to the appellees, Dambachers distinguishing without as. bétween Joann and her parents. admissibility appellees’ opinion on

evidence causation Appellees’ theory recovery against appellant appellant was strictly liable because the radial supplied tire 2. To By May state trial court’s- action in more detail: order dated 20, 1981, judgment the court denied Sears’s motions for n.o.v. or new trial; granted damages; the Dambachers’ motion for new trial as denied Sears’s motion limit the verdict under the Uniform Contribu- Act; Among tion Tortfeasors and denied the Dambachers’ motion for delay damages. By order amended dated June the court judgment against liability. By entered Sears second amended court, DOTY, J., dissenting, order dated June assessed $44,240 delay damages of $553 for Joann Dambacher and for her parents. Judge ground delay damages DOTY on the dissented that premature light were of the court’s order of a new trial as to damages. grandfather warning was not with

to Nicholas’s embossed support mix it non-radial In of this to tires.3 the documentary introduced evidence and theory, appellees mixing that of two witnesses Nicholas’s testimony in turn Appellant the introduced tires caused accident. if it was so at mixing only that was dangerous, evidence hour, at speed to 25 miles per not at 20 high speeds, accident occurred. driving Nicholas when the was which case the products that in a It is settled the proxi a defective prove must that plaintiff Heddon, 498 Pa. Daisy Sherk v. injuries. mate cause his v. Rockwell Agostino (1982); A.2d Manufac Co., Appel 345 A.2d 735 turing Pa.Super. mixed that a fitment only testimony that argues lant “[t]he two of given by plain have the accident was could caused witnesses, court ... below [appellees’] tiffs’ whom were not ‘experts.’ to These witnesses permitted testify case, in this give on causation qualified opinions of their upheld cannot be on the basis therefore verdict Because the trial Appellant Brief for 36. opinions.” appellees’ error in that two witnesses were ruling court’s following accompa- warning was contained brochure 3. The in the the tire: nied IDEALLY, BE FOUR SHOULD OF THE ALL TIRES Selection— SAME CONSTRUCTION-TYPE bias-belted, (all ply, all or all bias series, (all series, radial) series, aspect ratio all 78 all 70 and of the same or all series). "Aspect to the ratio ratio” refers example, height section to width. For of the tire in cross its height of its cross section of a “78 series” tires is 78% section cross necessary construction-types aspect or it is mix tire width. If ratios, highest capabilities should be traction mount- those with the wheels, drive vehicles. ed on the rear even on front-wheel (best), general, capabilities are as follows: Radial bias- traction ratios, (next), (next). aspect respect With bias-ply belted lower the series number, greater example, For the traction. provide expected to better traction than a 78 70 series tire can be construction-type. mix Do not tires of series tire the same aspect construction-type same axle. ratio on the different Sizing SPECIFICA- VEHICLE MANUFACTURER’S —FOLLOW size, up-size one acceptable It is and often beneficial to but TIONS. specifications never be used. All tires smaller than vehicle should tires same size. four should be the R.R. 1055a. to an qualified express causation, opinion on appellant ar- it is gues, entitled not a simply to new trial to judgment but n.o.v.

-a- It will be convenient to with appellant’s start argument n.o.v., that it entitled judgment to for in considering that assume, argument we may without that deciding, appellees’ express witnesses were unqualified opinion on causa- tion.

When we review an denying order motion n.o.v., judgment must the regard light we evidence the most favorable to the verdict winner. Evidence supporting considered, the verdict is to be the rejected, with rest Glass Freeman, v. (1968), Pa. 240 A.2d 825 and “only when facts persons are such that two reasonable could agree not fail to that verdict improper,” Cummings v. 25-26, Nazareth 427 Pa. A.2d Borough, (1967), should judgment we enter n.o.v. See McKnight City Pa.Super. 327, Philadelphia, A.2d 778 of

Applying here, these we principles reject the testimony consider, appellant’s witnesses most light favor- able appellees, on testimony appellees’ witnesses causation. Both of these expressed opinion witnesses mixing that the of the radial with tire three non-radial tires was a cause the accident. Pruyn Walter VanNess testi- fied as follows:

Q. your opinion? What is A. It is my opinion precipitated by this accident was

a loss of of the by control vehicle the driver. THE precipitated? COURT: What do mean you Initiated, THE WITNESS: caused to occur because of a combination of triggered by mixing circumstances of a radial tire on the front in right with combination ply cross tire on left belted front the vehicle surface, which high- combination with the highway driver, a lack curvature, of the inexperience

way grade, for loss of knowledge potentialities of advanced on the left control, suddenly the vehicle oversteered was travel- the vehicle speed turn and at the which correct, to time in which to driver did not have ing the to take action solutions and react, possible to recognize him from the time time distance available in the the tree. impact occurred condition oversteer R.R. 630a-31a. right on the that with a radial P. testified Kelly

William front, of an the chance on the left a non-radial front and He called “ridiculous” R.R. 338a. increases. accident Bloor, that witness, Sidney expert of appellant’s statement not cause non-radial tires will fitment of radial and a mixed at 70 travelling is the automobile steering erratic unless R.R. 996a. more, ground. on wet hour or even per miles and the weather regarding testimony presented was Other tires, of the road, Plymouth of the the condition accident. the time of the argument appellant’s that This record demonstrates accepting For by has no merit. n.o.v. judgment witnesses, and that rejecting appellees’ testimony the mixed fitment could find that appellant’s, properly court therefore The trial caused the accident. n.o.v. judgment motion for appellant’s denied judgment cases in which cites several Appellant found, was testimony granted expert has when n.o.v. been Blair, v. Rennekamp incompetent. to have been appeal, on (1954); v. Bell Tele 620, 101 A.2d 669 Sinkovich 375 Pa. A. 629 286 Pa. 133 Pennsylvania, phone Company of Pa.Super. 205 Company, Motor (1926); v. Ford Moyer for the inapposite, are (1965). 43 These cases 209 A.2d found the not it n.o.v. because judgment granted court an because express opinion but unqualified witness insufficient. legally as to See equivocal so opinion Co., Pa.Super. 219 Sears, v. Roebuck Niggel also Rapid (1971); Philadelphia v. A.2d 718 McCrosson (1925). 492, 129 A. 568 When Co., 283 Pa. Transit witness unqualified, appellant appellees’ claims wit- trial, were, nesses is a proper remedy judgment new Supreme n.o.v. As our Court has said: unfair, it a party would be where has relied Manifestly him, on upon a favorable evidence ruling presented by enter him him judgment against affording final without the opportunity competent proof to furnish of which he might himself had the have evidence submitted availed him under rejected. only been such circum- remedy to grant stances is a new trial. v. Hershberger, Pa. 29 A.2d 95

Hershberger (1942). also,

See v. Chernicky, Stewart Pa. A.2d 259 (1970); Smith, Weaverling Pa.Super. 124 A.2d

-b- In considering whether to order a trial new because of the trial ruling appellees’ court’s quali- witnesses were fied accident, on express opinion the cause we must bear in mind that within ruling was the sound discretion of the trial court. we will order Accordingly, not a new ruling trial unless the clear was such error as to constitute an abuse of discretion. Handfinger v. Philadel- Works, 130, phia (1970); Gas 439 769 Pa. 266 A.2d George Sons, Inc., 76, I. Reitz Pa.Super. & 319 465 A.2d 1060 (1983); Center, Grubb v. Albert Einstein Medical 255 Pa.Super. (1978); Aldrich, 387 A.2d 480 Flavin v. 420, 213 Pa.Super. (1968). 250 A.2d 185 When a witness is offered as expert, an the first question the trial court should ask is whether on subject which the opinion witness will express distinctively “so science, related to some profession, business or occupation as to be the ken beyond average layman.” McCor mick (3d 1984) (footnote on omitted). Evidence 33 ed. And see Leslie, Commonwealth v. 424 227 Pa. A.2d 900 (1967); L.D.B., Commonwealth ex rel. M.B. 295 v. Pa.Su per. 1, 11, 440 A.2d 1197 If the is of subject

36 should ask is whether sort, question this the next the court skill, knowledge, experience or the witness has “sufficient opinion it that his calling appear in that field or as to make in his search for aid the trier probably or inference will Evidence, (footnote 33 supra truth.” McCormick on Termination Involuntary In Re See also omitted). Pa., 543, (1972) 117 Parental Rights, (expert 297 A.2d knowledge very question upon show special witness must opinion); Kravinsky v. Glo promises express he which (1979) (no in ver, A.2d 1349 error Pa.Super. special as in expert psychology witness qualifying Erschen v. driving phobia plaintiffs); focus on similar Co., Oil Pennsylvania Independent Pa.Super. (1978) (witness had no formal instruction or A.2d 924 who training origin gas explosions qualified on-the-job marshall); fire notwithstanding qualifications as expert, Spencer Hospital, 292 A.2d 449 Taylor Pa.Super. (error handling nurse (1972) experienced not to allow for re about standards psychiatric patients testify straints); 702 of Rules of Evidence for United Rule (1979), Com Magistrates Advisory States Courts rule; 2 Wigmore, Note to the Evidence mittee’s § (Chadbourn 1979). rev. § doubt, in this called subject question Without case had to decide whether expert testimony. right a radial tire on the front wheel of a 1971 presence of could, the other three were when wheels Plymouth Fury tires, in non-radial some cause the driver way mounted with 20 and 25 miles driving per to lose control when between “so hour. See subject R.R. at 586a. This was distinctive- science, profession, occupa- related to some business ly average layman.” as to be the ken of the beyond tion McCormick, “science, pro- supra. Appellant identifies the fession, occupation” engineering, as “physics, business 39. Appellant road Brief for at dynamics.” vehicle formulation, however, is too in that it This broad suggesting only great understood as someone with on the qualified testify deal of formal education would be causes of the accident. It is nevertheless correct to say opinion that no on the cause of the accident could aid the in its search for truth unless by offered someone with knowledge, gained, however education, whether formal by both, experience, or of those principles physics and engineering pertinent determining how vehicle will behave the conditions in which the accident in which appellee was hurt occurred.

One witnesses offered by appellees expert, as an William P. had Kelly, worked for years several automobile mechanic and then as a service for an manager 241a, 244a, 246a, automobile dealer. R.R. 247a. these positions he sometimes road-tested for inspec- automobiles 248a, tion purposes, id. at including the kind of automobile accident, involved in this a 1971 Plymouth id. at 251a. Fury, The fact that Mr. Kelly expert was an mechanic was irrele- vant, however, for the subject question did not involve mechanics but vehicle-road dynamics, and Mr. Kelly had no qualifications in that He subject. specialize “didn’t in any things” mechanical school, 255a, whatever in high id. at did not 256a; attend college, id. at he “never studied engineering kind,” of any id., nor mathematics “[bjeyond id., trigonometry,” nor had he “taken any courses that tires,” involved the design id., or that “dealt with the subject under whatever name of vehicle as affect- dynamics id., ed by changes the types tires,” or conditions of 256a, 264a. He had never worked anyone “whose function was to test automobile performance as affected by change in the types or conditions of tires.” Id. at 265a. technical only literature Mr. had read Kelly on the subject comparative effects on vehicle performance of radial and non-radial tires were the State Inspection Manual and service manuals put out automobile makers such as Chrysler, the manufacturer of the Plymouth Fury. Id. at 268a-269a. He had “never read any technical pub- articles lished by a scientific or professional or engineering society or journal----” (Even if articles, Id. he had read such it is that neither his nor his

apparent background educational them.) him to experience equipped understand examination Mr. he On direct testified that would Kelly on its front inspection an automobile for that had “pass erratic a radial and a bias belted tire axle [because the] erratic that it can handling conditions or conditions steering of this support opinion R.R. at 285a-286a. produce.” read, from permitted objection, Mr. was without Kelly passing on Inspection Regulations State Pennsylvania stated that Regulations tires for inspection. “[r]adial on same axle or tires shall not be used with bias ply tires____ tires, Mixing type pro- size and can belted-bias steering including erratic dangerous performance duce and also Kelly and Id. at 288a. Mr. fishtailing.” wander read, objection, Chrysler from the permitted without The manual Plymouth Fury. service manual for the 1971 radial is not recommended stated that use of tires “[t]he speeds possible of their harsh ride at low and because characteristics____ stability [Intermixing unfamiliar tires] spins could cause on possibly will result oversteer and radial roads. The safest is never intermix icy policy wet tires or cross tires.” Id. at ply tires with bias belted bias however, anyone could have apparent, 289a-291a. It to read these statements from the manuals. taken the stand Company the Chrysler The manuals were evidence what thought possible authorities about the Pennsylvania tires, in no Mr. mixing they way qualified effects of but does not an thought. what he One become Kelly say capable on a one is not expert by reading subject manuals understanding. mechanic, Mr. other being Kelly’s Besides an automobile mixing effect of tires was being expert claim to on the testing in road “personal experience founded on his had a radial on one side of the Furys____that Plymouth front axle front axle and a ... belted tire on the other bias said that Kelly on R.R. 333a-334a. Mr. ground.” ... wet car, results, road test this of a type when we would [t]he erratic braking turning on would be sort of an situation, where there was no predictability any given braking time on or on turning might as to what car do. at 335a.

Id. however, test,A is meaningless person unless the conduct- ing the test knows what he is he must understand doing; involved, and principles design then and conduct a test its implicate depend upon such that results will and those if principles. example, person something For does to a blue, it liquid, enough turns he must know to exclude the principles possibility liquid involved that the turned blue not because of what he did but for some other reason, such as the temperature of the room he was work- ing in. Mr. Kelly designed conducted no such test. The “road tests would by ... be determine [he made] driving a car whether there is some problem mechanical with it that cannot seen by inspection.” visual Id. at 252a. The tests were not designed or conducted with the tires, idea of the effect testing mixing but rather were Thus, incidental to simply inspections. State Id. at 253a. whether, how, Mr. did not Kelly know or the tires on the cars he road-tested were mixed. He could not recall a single instance of a car that in “testpng] fact had tires not all of the same Furthermore, at 254a. category.” Id. when cars, he did road test he “drove them in a normal manner.” Id. at 255a. He “did not put through them unusual or any steering asked, other maneuvers.” you Id. When “Did ever undertake as an organized program investigation of an or an inquiry program which made a series of test you any given runs on one automobile under set of runs contain- ing all non-radial tires and under the other set of runs some non-radial,” combination of radial and he “Not answered: any conditions, under or set test laboratory up no.” Id. 267a. His testimony continued:

Q. And you’ve any never run series of tests with the

same running eight automobile it or ten or twelve times through a particular course with all non-radials and eight then or ten through or twelve times the same

course with some combination of radial and non-radial? that, You’ve never done have you?

A. I could have the course of doing business. Q. But do you remember any specific instance where did it

you purpose of making such a compari- son?

A. I Names and dates can’t I give you. made have

those comparisons, though. Q. You’ve never done it on a 1971 Fury, to knowl- your

edge, have you? A. I Again give you couldn’t names and dates and

places, but I that I believe have. added). at 267a (emphasis

Id. Given Mr. Kelly’s it is not testimony, surprising that he did not produce any records of sort. We are any unable escape conclusion that he was permitted testify an expert because he expert. said he was an Nothing, however, justified himself; his of opinion he had never learned, either by education or by experience, principles of vehicle And dynamics. nothing warrants the that belief what he said could have aided the its search for truth. Neither he nor anyone else knew either when or how many made; tests he had or what mixture of tires was tests; involved in the or what was done in the course of the tests to determine whether the mixture had any effect on automobile; the handling of the or what that effect was. It was therefore clear error an abuse of discretion to permit Mr. Kelly skill, to he did not have testify: “sufficient knowledge, or experience ... to ... aid the trier in his McCormick, search for truth.” supra.4 Kelly’s 4. Since the trial testimony court’s admission of Mr. was alone trial, requiring error a new we shall refrain from detailed comment witness, qualifications appellees’ expert Pruyn. on the other Walter say appear it any Suffice to that neither does it that he had relevant knowledge principles dynamics, any of vehicle that he had more experience road-testing automobiles with mixtures of radial and non- Kelly. radial tires than Mr. R.R. at See 516a-521a. The assessment of Inc., Pruyn’s qualifications Monfredo, Mr. F.Supp. in Flick v. James (E.D.Pa.), (3d Cir.1973), applies equally mem. 487 F.2d 1394 aff’d holding Pruyn here. In qualified expert that Mr. was not as an as to cited not to by appellees contrary The cases are but Kuisis v. Baldwin- support rather this conclusion. (1974), Corp., Lima-Hamilton 457 Pa. 319 A.2d 914 case, a struck a load of products liability person by was pipe brake-locking steel that fell when a mechanism on a excluded, The trial court as unqual- crane malfunctioned. ified, engineer safety of a as to the expert testimony safety of the mechanism. design brake-locking Reversing, Supreme safety engineer quali- Court held that was expert. fied as an Said the Court: points to the fact that Barbe was his own

Appellee “safety engineer” admission a rather than a mechanical engineer, registered practice and that he was not argued mechanical From this it is engineering. was not on matters qualified express opinion

Barbe But an need not design. engineer registered if testify expert such order to as an his education and County Lance Luzerne so him. experience qualify Association, 366 Pa. 77 A.2d 386 Manufacturers “If qualification The standard of is a liberal one: a witness ‘has any pretension specialized reasonable on knowledge investigation under he subject testify, weight given and the to be to his [testimony] ____’ McCullough v. for the jury: [citations omitted] Co., Holland Furnace 141 A. 293 Pa. Id., 338-39,

[(1928)].” (foot- 457 Pa. at 319 A.2d at 924 omitted). knew, crane, inspected and therefore when he a what he Rutter v. Northeastern Beaver County at. looking was District, School (1981) 496 Pa. 437 A.2d 1198 (plurality There, opinion), presented high a similar situation. a school said, speed motorcycle, "Something the of a the district court more self-serving required qualify than the statement of a witness is to him expert proven as an in the absence of a record of achievements in his chosen field.” Id. at 1149. when football” without injured playing “jungle was student and of equipment supervision while under protective against coaches. In an action the School two football coaches, the trial negligence of the football alleging District a coach to as testify court refused to allow former football Reversing, the Court said that expert. Supreme an “[i]t former coach have experienced clear than seems utilized safety the customs and standards knowledge of of the rules imposed [by of school teams and high coaches Id., minimum 496 Pa. at safety____” to insure authorities] Kuisis and Rutter Thus, show 437 A.2d at 1202. both he qualified, a witness should be held and when when Kuisis the witness was In qualified. should be held not education in the qualified by experience reason of both and Rutter, under in If— subject investigation; by experience. like Mr. Mr. neither Kelly Pruyn witness has —the nor in the under experience subject investigation, education he should found not qualified.

The conclusion that the trial court should not have admit- Pruyn ted the of Mr. and Mr. is further testimony Kelly supported by scope other cases which of a witness’s and education it experience upon was examined as bore under subject investigation. may appear scope

Sometimes it experience subject witness’s and education embraces the fundamental, a question logical, sense. such case, the even he has qualified testify though witness such; no for he particularized knowledge subject to reason from the he have. knowledge will be able does Rullo, Sportswear, Whistler Inc. Thus in Pa.Super. (1981), engineer qualified 433 A.2d 40 held civil was roof, on the causes of the of a even testify collapse though his area roof expertise specifically was de He investi sign. qualified “subject because under se, per gation” require “knowledge roofing did not but engineering rather ... of stress knowledge principles and an left in resiliency ability interpret evidence Id., physical collapse.” Pa.Superi- aftermath of the

43 238-39, or 433 A.2d at 44. And Ct. at see Jones v. Tree- Pa.Super. 482, (1968), 212 A.2d 161 243 rev’d. on goob, (1969) 433 Pa. 249 352 (plaintiff other A.2d grounds, out; windstorm injured during when store blew window expert who has B.S. industrial engineering, twenty-two engineer, as years experience safety and considerable effects, its knowledge pressure qualified). wind held Co., (1971) v. 331 753 Dorsey F.Supp. See also Yoder (witness metal particular who lacked slit- familiarity ting machine who engineer, industry, but as armed forces, and he University Pennsylvania where professor Engi- Chairman of Graduate Division of Civil neering, designed had and worked with that many machines operated by slitter, qualified same as the principles held to testify slitter). as to design hazards created

Other times it may scope that of the appear experience witness’s and education may embrace sub in a ject question general but the way, subject may be so specialized so, even qualified the witness will not to Thus, testify. every general knowledge doctor has human But an body. ophthalmologist, example, is not qualified testify to concerning the causes and treatment of Loose, (3rd heart disease. See Arnold 352 F.2d 959 v. Cir.1965) (striking that in testimony orthopedic surgeon opinion his defendant’s decedent had into lapsed diabetic coma, collision, which was cause of automobile-truck held not beyond trial court’s discretion where witness admitted he had never any comas, read text on diabetes or diabetic not did know was leading who on diabetes or authority treatise, was leading which special and revealed no other knowledge diabetes); Bradshaw, in field of Hunt v. 251 (4th Cir.1958) F.2d 103 not (radiologist qualified testify proper surgical procedure in chest operation); Wesley State, (1946) Ala.App. (toxicologist So.2d not qualified testify wound inflicted with screwdriver instrument); similar Campbell, Ariz.App. Harris v. (1965) 409 P.2d practi (discretionary general exclusion of tioner in malpractice against per- action who gynecologist vaginal

formed hysterectomy); v. Lindquist, Huffman (1951) Cal.2d 234 P.2d 34 (autopsy surgeon quali fied as to treatment Belt, brain injury); Moore v. 34 525, (1950) Cal.2d 212 P.2d 509 (autopsy surgeon not quali fied as to existing practice standards or urology); Pearce Linde, v. Cal.App.2d 627, 113 (1952) 248 P.2d 506 (specialist in internal medicine qualified not as to orthopedics); Dolan Galluzzo, 279, v. 77 Ill.2d 32 Ill.Dec. 396 N.E.2d 13 (1979) (physician unlicensed in not podiatry qualified to testify malpractice against action podiatrist); Swanson v. Chatterton, 281 Minn. 160 (1968) (internist N.W.2d 662 not qualified as to orthopedic surgery); Askin, State v. 90 Mont. 3 (1931) P.2d 654 (general practitioner quali not fied to testify as to brain injury); Boehm, Whitehurst v. 41 N.C.App. (1979) S.E.2d 761 (orthopedic surgeon unfamiliar practice of not podiatry qualified to testify as to standard of care of required podiatrist); v. Capan Divine Providence Hospital, 270 Pa.Super. 410 A.2d (1980) (anesthesiologist qualified as to autopsy report); Kosberg Washington Hospital Center, 394 Cf. F.2d (D.C.Cir.1968)(internist qualified held testify to effects of therapy, electroshock though even not a psy chiatrist or neurologist); Baerman v. Reisinger, 363 F.2d (D.C.Cir.1966) (general practitioner qualified to testify that cardiologist negligent in failing to diagnose hypo thyroidism in patient over six year period treatment); of State v. Staples, N.H. (1980) A.2d 320 (physi cian who had general been practitioner for over twenty years, had examined rape victims, several and had recently attended course covering psychological problems rape victims could give opinion that victim’s memory loss was due to mental block rather than intoxication).

Here, Mr. Kelly and Mr. Pruyn had no education on the subject of the effect of mixing radial and non-radial tires. While the scope of the experience they had had embraced the subject of tires in general way, it did not embrace the specialized subject tires, the effect of mixing and nothing in their or in such experience, they had, education as had to reason enabled them about what that effect would be. appellant’s The trial court’s instruction to the on strict for a defect in the tire new; concluded that a Having required trial is because of trial court’s error admitting testimony appel- experts accident, lees’ on the cause of the might we refrain from on the other ruling issues that have been argued to us. However, issues, one those in particular, the issue of how the trial court should instruct the jury appellant’s on strict liability, may very well arise at the new trial. Accordingly, some discussion of it is warranted.

The first requirement appellees will have to meet at the new trial will be to offer qualified expert testimony that the tire mixture was a proximate cause of the accident. If no offered, such testimony the trial court will have no occasion to instruct the jury regarding appel lant’s strict for in liability, the absence of proof of causa tion, appellant’s radial tire could not be found defective because it was not embossed a warning with not to mix it with non-radial tires. Suppose, for A example, that sells a B, bottled drink to Band the drink pours into a glass filled ice-cubes, ill, becomes and sues A for selling product defective because the bottle’s failed to label include a warn not mix ing the drink with B ice-cubes. will not make out a case for the jury unless he proves that mixing ice-cubes with the drink did in fact make him ill. If the mixing did ill, not make B there was no need to warn against the mixing, and therefore no in defect the label. As bottle’s suming, however, that appellees are to present compe able tent evidence of proximate trial, is, cause at a new that that they do offer the testimony qualified the experts, issue will then arise whether appellant’s radial tire was defective it because was not embossed with a warning not to mix it

with non-radial tires. In event, that what will be the trial court’s responsibility?

-a- Black Brothers on Azzarello v. Appellant, relying (1978), that it argues Pa. 391 A.2d 1020 Co., Inc., rule, a matter of responsibility trial court’s be the will Accordingly, tire was not defective. law, that the radial trial, we concludes, ordering a new instead appellant favor. We appellant’s n.o.v. judgment should enter Azzarello, to this extent: under the appellant agree with whether, law, the as a matter of court have to rule trial will However, we find the radial tire defective. jury could find court that the trial argument when appellant’s no merit the tire was not it must conclude that ruling, that makes defective. in a products was whether question

In Azzarello the instructed to determine should be jury case “unreasonably danger- in question whether recognized this the Court considering question, ous.” answered, the functions of respective it could that before be had to Said the trial court and be.defined. Court: words, “unreasonably that

It must understood merely independent significance no dangerous” have it is determined to be used where represent label It is placed upon supplier. the risk of loss should be does change terminology reason that a mere for this as to what question the answer to basic supply The answer to given jury. should be instructions rests the more funda- upon proceeding question the [sic] the risk the determination as to mental whether question fact or by to made the finder of of loss is a decision be obviously compe- fact is a finder of lay the court. While a as to the condition of resolving dispute in a tent where question presented different product, entirely placing justifies as to that condition a decision whether the liability upon supplier must be made. 480 Pa. at (footnotes omitted). 391 A.2d at 1025 judicial to hold that is a The Court then went on “[i]t whether, plaintiff’s under the averment function to decide facts, recovery justified; only of the would be after this determination is made is the cause to the judicial submitted to determine whether the facts of the case jury support Id., of the 480 Pa. complaint.” averments at 391 A.2d 1026. The illustrated its holding by examples Court the sort of a court is to questions ask: design

Should an ill-conceived which the user to exposes the risk of harm entitle one injured by adequate recover? Should of the warnings dangerous of an article propensities insulate one who suffers injuries those propensities? from When does the of a utility product outweigh the danger pose? unavoidable it may Id. questions, said,

These the Court are not for the jury but court, for they “questions are of law and their resolu- depends upon tion policy.” social Id. Azzarello Court did not do what appellant argues

the trial court should have done here—the Court did not explicitly formulate or resolve the question whether on the particular facts it recovery before for strict liability would proper. However, the Court did affirm the trial court’s trial, so, order granting new it doing decided what jury instruction should evident, be used on retrial. It is therefore, that the Court regarded the case before it as one which, instruction, on proper jury proof and on of the plaintiff’s facts, averment of the recovery justi- would be fied. The same said of may be this case.

In describing respective functions of court and jury products liability compared case as with some other sorts cases, Dean Wade has written:

In an negligence action for it is the function normally of the to determine whether the defendant was negligent, course, subject, to the authority judge to direct a defendant, verdict for the if he finds that the jury could not find for reasonably plaintiff. On the hand, other in an action based on strict Rylands type, for an abnormally dangerous activity, determination as to whether strict im- liability will be one for the not judge, is held to be activity for the

posed issues the that the decision involves reason jury the —for In the cases the courts policy. products social general of fashion. problem the this approached not to have seem that strict Instead, products seem to have assumed they so that a respect, plain- in this negligence is like that the tiff, recover, jury must convince the in order to or “unreasonably dangerous” “defective” or product was safe,” generally or whatever test is used. This duly “not the is whether question when quite satisfactorily works of an error in the manu- was unsafe because it in the condition in so that was not facturing process it The issue then seems more which was intended to be. factual, handling. the kind the is accustomed to jury of single The comes it is not article difficulty just when something is unsafe went which to be classed as because it, group a whole or class wrong making but of the which be unsafe because of the nature type design. policy very It is here that issues become It here the court —whether trial or important ... in deciding consider these issues whether appellate —does If jury. plaintiff to submit the case to the sues he cut his manufacturer of a butcher knife because sharp on sole that the knife was so finger, ground flesh, it to cut human the court would likely of the jury take the case out of the hands probably it the to find that the knife was give opportunity manufacturer, when an Similarly aspirin unsafe. stom- ordinary lining plaintiffs tablet'stuck to the hemorrhage, ach and caused a or the manufacturer rabies, Pasteur treatment for when there were untoward in these cases is to be problem likely reactions. the court. control called one of law and decided Court here than in the jury ordinary action is more extensive course, if the court de- negligence yet, action. And to find jury cides that it would be reasonable to allow safety for the the issue of lack of due will be plaintiff, to the submitted even these cases.

Wade, Products, for Liability On the Nature Strict Tort 825, (1973) (footnotes omitted). 44 Miss.L.J. there are also being products,

In addition to there certain law, risks that as a matter of or social cannot policy, certain imposition of strict Lobianco v. support liability. Prop Protection, Inc., 346, 437 A.2d 417 Pa.Super. erty (1981),the sued a alarm her plaintiff burglar company when alarm failed to was system operate properly jewelry plaintiff taken from her home. The trial court held that the affirmed, in could not recover strict This court liability. MONTGOMERY, J., J., HESTER, joined by dissenting. BROSKY, J., CAVANAUGH,' J., judges, joined by Two affirmed on the ground that “the suffered injury [the plaintiff; jewelry] type loss of her is not of the for Id., strict liability ought-to imposed.” which be 292 Pa.Su SPAETH, perior Ct. at 437 A.2d at 426. Three judges, J., PRICE, J., CERCONE, P.J., joined by stating his “agree[ment] with the affirmed on the analysis,” ground that under go Azzarello the case should not to the jury “ because a matter of social adjustment’ [quoting Pros ‘[a]s ser, Law of Torts 495 ed. 1971], responsibility [4th protecting should, against loss of the so far as jewelry - concerned, the imposition of strict liability appellant’s plaintiff’s], not appellee’s burglar compa alarm [the [the ny’s].” 292 Pa.Super. at 437 A.2d at 425. This conclu sion followed from the fact that to strict impose liability less, more, represent “would not allocation of equitable Id., the risk.” Pa.Superior Ct. at 437 A.2d at 424. manufacturer, As between homeowner and the homeowner loss, the better position protect against for the homeowner sought knew the contents of the home to be protected by burglar alarm and so could insure against loss, their whereas the manufacturer could not know the contents and therefore could itself their protect against loss alarms, only by increasing price burglar its for its which as a matter of social adjustment would be undesirable because it would result of modest subsidizing means-... “[t]hose Id., the rich.” at 425. Pa.Superior Ct. at 437 A.2d unique holding Azzarello and Lobianco are not products against there are certain or risks which the law of user, products protect is not meant to and as to liability the trial court should therefore as a which rule matter of See, that strict does not liability apply. law Daberko v. e.g., Heil, Co., (5th Cir.1982) (Tex. law) (manufac 681 F.2d 445 strictly injuries turer not liable for as a matter of law when sale); redesigned truck after Dubin v. Michael Reese Hos (1981) 83 Ill.2d 47 Ill.Dec. 415 N.E.2d 350 pital, (strict applicable in action to recover from radiation); for overdose of hospital Feldman v. Lederle Laboratories, 429, (1984) 97 N.J. 479 A.2d 374 (collecting Jersey New cases: not hospitals injuries liable for from hepatitis-infected transfusion; blood dentist not liable for injuries hypodermic when needle in the jaw); breaks 169, 186, O’Brien v. Corp., Muskin 94 N.J. 463 A.2d (1983)(“If 307 the minds of men reasonable could not differ on whether the risks a posed by product outweigh its utility versa, or vice then court could make the appropriate law”); determination as a matter of Atkins v. Arlans Department Norman, Inc., (Okla. Store 522 P.2d 1020 1974) (“lawndart” not as a matter unreasonably dangerous of law since dangers readily apparent); Silverhart Mount Zion Hospital, Cal.App.3d Cal.Rptr. (1971) (doctrine of strict applicable injuries sustained hospital equipment when during surgery). breaks

Courts and commentators have identified various factors that a court should consider when making policy the social Lobianco,5 required Azzarello, decision and made in Supreme 5. following The California Court has identified the factors: gravity danger posed by challenged design; of the the likeli- occur; danger feasibility hood that such would of a mechanical design; design; safer the financial cost of a safer and the adverse consequences product to the and to the consumer that would result Co., Inc., design. Engineering from a safer Barker v. Lull 20 Cal.3d 225, 237, (1978). Cal.Rptr. 573 P.2d Dean Wade has formulated a similar list: (1) desirability product utility The usefulness and of the to the —its public user and to the as a whole. (2) safety product aspects The of the likelihood that it will —the injury, probable injury. cause and the seriousness of the doubt, Sometimes, for a court no it will be difficult to decide policy as a matter of social a should whether However, impose strict where inade- permitted liability. are the social quate warnings alleged, policy decision is said, As “In relatively simple. has been the case of an inadequate warning, imposing ... of a requirements seldom detract from the proper warning will utility Inc., Freund v. Properties, product.” N.J. Cellofilm 238 n. 432 A.2d 930 n. 1 At the same time, the of adding warning, cost or of an inade- making quate warning adequate, will at least in most cases be if outweighed by risk of harm there is no adequate warning. rule,

Accordingly, trial court was entitled to held, the trial that has been again will be entitled to rule, trial, at the new that as a matter of social this is policy case which a on instruction and jury, proper proof, can strict impose liability.6

-b- With the on foregoing conclusion social policy reached, it is order to consider trial how the court should (3) availability of a substitute which would meet the same need and not be as unsafe. (4) ability The manufacturer’s to eliminate the unsafe character of product impairing making without its usefulness or it too expensive (5) utility. to maintain its ability danger by The user’s to avoid the exercise of care in the product. use of the (6) anticipated dangers The user’s awareness of the inherent in the product avoidability, general public knowledge and their because of product, of the obvious condition of the or of the existence warnings suitable (7) or instructions. manufacturer, feasibility, part spreading on the of the setting price carrying liability loss of or insur- ance.

Wade, (footnote omitted). supra at 837-38 manufacturer, Nothing precludes supplier by appro- 6. in a Azzarello motion, priate asking explicit ruling from the trial court to make its policy requires. on the threshold determination of social that Azzarello motion, court, presumed absence of such a it will be that the permitting go jury, the case to to the resolved the threshold determina- against tion the defendant. jury appellant may instruct the to decide whether be found tire liable because the radial embossed with strictly not mix it non-radial tires. warning Appellant argues that in the trial court “failed to instructing develop guar- careful distinction between insurer and [the] in Brief for at 32. developed Appellant antor” Azzarello. we that the trial court should have agree explained While guarantor, the difference between an insurer and a its believe that instruction could have been fuller —a matter shall find the we discuss—nevertheless we instruction sub- in stantially accordance with Azzarello and therefore reject that the appellant’s argument given requires instruction as trial. persuaded new We are also not WIE- by Judge argument AND’s that a only, new trial is order not as we hold, because of the trial court’s error in ruling appel- that lees’ qualified witnesses were on express opinion causation, also but because the instruction was not negligence terms. Rejecting Azzarello favor of what it he characterizes as “the approach,” Judge better WIEAND maintains that the trial court should have instructed the jury that can no liability be for a failure to warn “[t]here without a showing supplier that the defendant failed to give warning reasonable of risks or hazards of which he knew or should have Concurring known.” at 437. It Dissenting is our Azzarello, view that we are not thus free reject further, were, not, but that if we we should for we believe distinction, that the Azzarello, so emphasized by between products liability negligence cases and cases should be maintained.

We start our point discussion of this by noting three sorts of cases should distinguished.

In what might be called the “traditional” strict cases, in engaged which defendant has in an safe, ultrahazardous activity that cannot be made the de fendant is held to be an “insurer” as to injuries that has activity point caused. The is not that there anything wrong with the but rather activity, that because of its dangerousness the defendant may be held liable for strictly Prosser, the injuries activity the caused. See supra 505-16; (Second) (1965). of Restatement Torts §§ case, case, products liability a such as this in contrast, the defendant —the manufacturer or supplier the not an “insurer” the product “effectively guar but —is product’s safety.” antor of his v. Atlantic Salvador Boiler Co., (1974). 457 Pa. 319 A.2d The plaintiff must therefore that prove product that caused his defective, or “unsafe for its injury intended use.” Id. If the defendant product, liability were insurer its follow a upon finding plaintiff would that the was injured while using product: injury fact occurred lead to the product would conclusion that the was unsafe in But way. some is not to find when the in product way; unsafe some liability may imposed on only proof product that the lacked an element necessary to make it for Supreme its intended use. As the Court safe said Berkebile Brantly Helicopter v. 462 Pa. Company, (1975): 337 A.2d 893 Thus, the plaintiff proves cannot recover if he from injury product defect, proof developing absent such as diabetic shock from eating sugar becoming intoxicated from drinking Neither can whiskey. plaintiff recover proving causation, a defect in the product proof absent as where the plaintiff eye sustains while not wear- injury ing defective safety glasses.

Id., 462 Pa. at 337 A.2d at 898.

Finally, case negligence plaintiff must prove, not that the only product was defective and that the defect addition, caused his but in injury, that manufactur ing or supplying defendant failed to exer cise due care. The defendant is liable neither as an insurer guarantor nor rather only failing but to act as a reasonable man would have acted. See South Morena Hills Health 501 Pa. System, (1983); 462 A.2d 680 McAdams, Macina v. Pa.Super. A.2d 432 distinctions in adoption The of these the law of Pennsyl- be dated Supreme vania from Court’s decision in Zern, (1966). 422 Pa. 220 A.2d Webbv. There the adopted (Second) Court Section 402A the Restatement Torts, provides: which

(1) who in any product One sells a defective condition to the user or unreasonably dangerous consumer to his is property subject liability to. for harm physical thereby to the consumer, caused ultimate user or or to his proper- if ty,

(a) seller in engaged the business of selling such and product, (b) it is expected to and does the user or reach consum- er change without substantial in the in condition which it is sold.

(2) (1) rule stated in Subsection applies although

(a) the seller has exercised all care in possible preparation product, sale of his (b) the user or has bought product consumer not from or entered into contractual any relation with the seller. (Second)

Restatement of Torts 402A § In Co., supra, Salvador Atlantic Steel Boiler the Court 402A, reaffirmed its adoption stating: of Section ... a Today, manufacturer section virtue of 402A is effectively the of his guarantor products’ safety. See Zern, supra; Webb v. Kassab v. Soya, supra Central (1968) Pa. 246 A.2d courts Our have [432 ]. determined that a by marketing manufacturer and adver- his tising impliedly represents that it is safe for its use. intended We have decided no current socie- tal interest is by permitting served the manufacturer place a defective in the article stream of commerce and then to avoid for responsibility damages caused by defect. He may preclude an injured plaintiff’s recov- him ery by forcing prove negligence the manufactur- ing process. Webb v. Zern. Pa. 319 A.2d at 907. Brantly Berkebile v. Helicopter Corporation,

supra, Court was Supreme required distinguish between case which defendant had sued—as been appellant here has sued—in having been strict provide adequate warnings, failed to and a negligence case. The trial court had failed to distinction, make the defining “defective condition” for the negligence terms. Re Justice, versing, (now the Chief joined by Justice Chief Justice) NIX, stated: seller responsible

The caused injury by is his defective if product even he “has all possible exercised care in the preparation (Sec- and sale of his product.” Restatement ond) Salvador, Torts, 402A(2)(a). As we in declared § supra, 907, 457 Pa. at 319 A.2d at the seller “may not preclude an injured plaintiff’s him recovery by forcing to prove negligence in the manufacturing process.” What the seller is not permitted to do we will not directly, allow him to by do indirectly injecting negligence concepts into strict liability theory.

462 Pa. at 337 A.2d at 899. Examining 402A, Section the Chief Justice noted that it appears “impose a in contradictory proof burden that product must be both defective also be ‘unreason- [the and] Id., ably dangerous.’” 462 Pa. at 337 A.2d at 899. However, citing Prosser, Dean explained Chief Justice that the term “unreasonably dangerous” was included in 402A Section “to foreclose any argument that the seller of a with possibilities inherent for harm would become ‘automatically responsible for all the harm that such things ” in Id. Prosser, do the world.’ (quoting Liability Strict California, the Consumer in (1966)). 18 Hast.L.J. In words, other the term as “unreasonably dangerous”, used 402A, in Section does not import negligence principles into a case, strict liability but rather in prevents supplier sued strict from liability being held as an insurer liable instead of as a guarantor. Following Supreme the California Court’s in Cronin v. J.B.E. analysis Corp., Olson Cal.3d (1972), 501 P.2d 1153 Cal.Rptr. the Chief Justice held man” the “reasonable standard has in a strict place no liability charge case ... To or pérmit argument concerning the reasonableness of a consumer’s seller’s knowledge, actions and even if merely define “defec- tive condition” undermines the considerations that policy have led us to hold in that the manufacturer Salvador guaranter effectively product’s safety. his [sic] 96-97, (JONES, C.J.) 462 Pa. at 337 A.2d at 900 precedential authority Berkebile was for a time uncertain, for, noted, NIX in only joined Justice had however, Chief opinion. uncertainty, Justice’s This removed in Supreme Court’s decision Azzarello. Court, in opinion NIX, There a unanimous by Justice cited approval adopted the Chief opinion Justice’s so, In doing Berkebile. the Court went one further step than it had Berkebile. In Berkebile Chief Justice had explained that the term “unreasonably dangerous”, as used 402A, does import negligence Section into a principles decided, strict case. Azzarello the further Court discussed, as already we have that what the term “unrea- do sonably dangerous” impose does is to on the trial court the responsibility deciding, as a matter of and by law resolving considerations of “social policy”, whether “the risk of loss should the placed upon supplier.” 480 Pa. at 556, 391 A.2d at Emphasizing previous 1025. its decisions that the supplier’s liability guarantor, is that of a not an insurer, the Court went on to outline a instruction for jury “in products Commonwealth,” id., use cases in this liability 480 Pa. at 391 A.2d at stating may that “the jury find product a defect where the left the supplier’s control lacking any element to make it safe for necessary its intended use or possessing any feature that renders it Id., unsafe for the intended use.” 480 Pa. at A.2d (footnote omitted). It that may well be as an intermediate court we appellate should point: end our discussion at this authority the line of Webb,Salvador, Berkebile, established is Azzarello Nevertheless, on us. out binding and therefore clear the line of position WIEAND’s Judge deference clear, it as explain why regard we shall we is not authority followed, from its quite apart to be deserving sound authority. precedential in first that there are difficulties

It be noted products case as a warnings of an thinking inadequate catego into cases fall two liability case. Products design cases and defective manufacturing defect ries: case, question the wheth manufacturing In a defect cases. the relatively simple. Since is defective is product er the in awry the manufactur something is that went allegation lacked a that, product the example, so ing process, had, fact need only the finder of component it should have other injury that caused the with compare product the according specifica manufactured that were products case, however, question design tions. In a defective safe designed should been more product have whether case has character inadequate warnings been ly. While case, design Incollingo Ewing, a kind of v. ized as defective does (1971), A.2d 206 the term “defective” 444 Pa. warnings For in a warnings. fit easily applied not when anything wrong that there was alleged case it is not Rather, sup a “defect” is such. product’s design as adequately instruct to exist because user was posed product designed. as the product ed on how to use misunder way possible to overcome inadequate warnings of the term in an standing “defective” do, not, to instruct Judge case is WIEAND would terms, to the that it is negligence explain jury but to was safe the absence to consider whether given. that were See wárnings light warnings Inc., 87 N.J. Properties, Freund Cellofilm 925, (1981) is that includes (“adequate warning A.2d 932 one communications, to directions, and information essential safe.”); of a Little v. P.P.G. product make the use cf. 911, Industries, Inc., 118, 122, 594 P.2d 92 Wash.2d 914 to (1979) (“The warning is: sufficient question Was to use persons expected catch the attention of who could be them of product, apprise its dangers and to advise to take them of the measures dangers.”); avoid those Sales, 338, 342, Cavers v. Cushman Motor 95 Cal.App.3d 142, (1979) Cal.Rptr. (approving instruction: “An article otherwise made appropriately and maintained is if the defective ... manufacturer fails ... to adequately of dangerous propensities warn of such article in which absence of an adequate warning renders the article substan- Thus, tially dangerous.”). there is no such necessity, as Judge suggests, WIEAND to depart from strict liability principles inadequate when are warnings alleged. The em- phasis need only slightly be altered to focus not so much on product itself as on the of the safety product light in of warnings that the seller gave, or failed to give.7 Keeton,

Judge quotes WIEAND that “[although this ground recovery [ie., in recovery strict liability failure to give adequate warnings] is sometimes referred to as strict it liability, really nothing is more ground than a negligence liability better described as the sale a product in a condition.” Concurring defective and Dissenting at Keeton, quoting in Meaning Defect Products Law—a Liability Review of Basic Principles, 45 Mo.L.Rev. (1980). 586-87 From this we in Judge understand that opinion, WIEAND’s it does not matter a case such as this one negligence whether or strict principles are applied. However, in matter, some cases it will for the differ proofs according will principles applied, which are suggested inadequate warnings It has been that in an case the seller’s 7. liability may by asking be decided not whether the seller exercised degree ordinary of care person that an reasonable would have circumstances, exercised through risk/utility in the analysis. but (1983). Corp., See O’Brien v. Muskin 94 N.J. A.2d How ever, risk/utility analysis inadequate warnings is not well suited to an case, case, warnings distinguished for in a design from a defective case, utility of a will remain constant whether or not a added, warning case, design but the risk will not. In a defective contrast, may expected change design may it that a detract from utility product. Inc., Properties, See Freund v. Cellofilm N.J. n. 432 A.2d risk/utility 930 n. 1 Use of a analysis case, moreover, inadequate warnings in an may well lead to liability. absolute Corp., supra See O’Brien v. Muskin at 463 A.2d (SCHRIEBER, J., concurring dissenting).

59 plaintiffs greater and the burden will if negligence rather than are liability principles applied. strict In Cronin 121, 8 1153, v. Cal.3d Corp., J.B.E. Olson 501 P.2d 104 (1972), 433 our Cal.Rptr. Supreme which Court cited with Azzarello, in approval it noted: fact, it has observed that the been Restatement formu- in practice lation strict liability rarely leads to differ- ent than conclusion would been have reached under laws negligence purpose ... Yet of our very pioneering efforts in plaintiff this field was to relieve the from problems of inherent in proof pursuing negligence and remedies, warranty thereby ... “to insure that the of injuries resulting costs products from defective are borne the manufacturers ...” 133, 1162,

8 Cal.3d 501 P.2d at 104 Cal.Rptr. at quoting Inc., Greenman v. Yuba Power Products Cal.Rptr. Cal.2d 377 P.2d (citation (1963) omitted).

And the Washington has Supreme Court said that objective of the rule of strict liability respect

dangerous products if a plaintiff required is defeated prove that the negligent, defendant was or the latter is to defend upon allowed he ground that was free of negligence. It is the adequacy warning which is given, of such a necessity warning which must jury’s attention, command the not the defendant’s con- duct. Industries, Inc.,

Little v. P.P.G. supra, Wash.2d at 121, 594 P.2d at 914.8

It was on the basis the distinction prod between ucts liability theory, under which the defendant as manufac- Court, Pennsylvania 8. Supreme While perhaps any "[t]he more than nation, appellate other emphatic state court has been in divorc- ing doctrine," negligence concepts product-liability from v. Conti Ford (E.D.Pa.1983), Company, Motor F.Supp. other courts liability adhere to the view that strict law remain . should distinct from See, negligence inadequate warnings. e.g., in the area of Anderson v. Co., Inc., Engineering (1979); Heron 198 Colo. 604 P.2d 674 Sullivan, (Alaska 1981); R. Patricia 631 P.2d 91 Freund v. Cellofilm negligence of its product, is guarantor or supplier turer standard of defendant is held to the under which theory, man, rejected the Court Azzarello reasonable dangerous” “unreasonably term negligence use from depart see no reason cases. We products sound, it is both as contrary, To the reasoning now. that consequences. in practical its legal theory of matter of authority precedential Thus, independently quite there, in did that hold, Supreme the Court Azzarello, we have no case, negligence of liability principles a strict place.9 reached, the trial we consider how may

This conclusion comply as to jury instruct so should on retrial court with Azzarello. 118, Inc., Industries, Inc., Wash.2d supra; v. P.P.G. 92

Properties, Little Sales, Inc., supra. (1979); Cushman Motor P.2d Cavers v. 594 911 however, adopted Section 402A and jurisdictions, have not Other products is called permit plaintiffs recover in what therefore See, warranty. negligence liability only upon proof or breach of 807, Service, Inc., A.2d 809 262 e.g., Cottom v. McGuire Funeral 461, 330, Codling Paglia, 345 N.Y.S.2d (D.C.App.1970); v. 32 N.Y.2d (1973). 402A states adhere to Section N.E.2d 622 Other 298 product his prove that caused plaintiff must that the formulation: A See, e.g., Rogers unreasonably dangerous. injuries was defective and others, 304, Inc., (1976). Co., In Ariz. 565 P.2d 181 v. Unimac 115 dangerous. unreasonably product was plaintiff prove that the must Co., See, 1 Ill.Dec. 356 e.g., & 64 Ill.2d Lawson v. G.D. Searle Inc., (1976); Chef, P.2d Magic 230 Kan. 641 Lester v. N.E.2d 779 Judge problems, WIEAND alludes may special which 9. It be noted that to, liability-failure products to warn case the may posed when in a be Concur- "state the art” defense. See raises the so-called defendant ring Jersey regard, Dissenting the New at 436-437. In this case, recently Supreme in a state of the art Feldman Court held Laboratories, (1984), "[wjhen the A.2d 374 that 97 N.J. Lederle design warning, improper defect consists of strict determining a factor in the defendant’s conduct is reasonableness of of course not a liability.” A.2d at This case is Id. at 385. case, need not now consider whether of the art and we therefore state alleges not have that at the time of the sale it could when a seller dangers product, reasonableness of its conduct of its known Corp., But see v. Ortho Pharmaceutical be considered. Leibowitz (1973) ("[a] warning Pa.Super. should 307 A.2d revelations.”) (Opinion subsequent improper because of not be held HOFFMAN, J.). Support of Affirmance find a defect jury may that “a stating Azzarello, after lacking any- control supplier’s left the where use or safe for its intended make it necessary element intend- it unsafe for its that renders feature any possessing omitted), (footnote 559, 391 A.2d at 1027 use,” Pa. at ed is the one charge” “adequate that an stated the Court 8.02 Instruction Jury Standard Pennsylvania contained 6, 1976). It this (June Draft (Civil) Subcommittee followed,10 have and as we court the trial charge instruction, least, error in its indicated, find no while we error, the instruction of reversible rising to level none should, improved. on retrial could, and therefore ap- the instruction criticized commentators have Some Azzarello, supportive appellant’s manner in a proved here had the effect instruction that the trial court’s view as follows: 10. The trial court instructed ques- Now, talking about the tire we’re defective condition—and design defects in or manufacture. not limited to tion here —is necessary every to product provide with the element must seller make it safe for may warnings be use. One such element product. concerning use of the instructions required warnings as are given and instructions such A seller must possible risks and inherent inform the user-or consumer to product. of its limitations care, said, And, is question as far as Sears the of due as I’ve concerned, Liability Doctrine the the Strict is irrelevant. Under danger poses public, if product it to the emphasis the and the is on emphasis is on the negligent conduct the any, under the while the defendant. of the conduct of reasonableness Where non-defective, product a warnings required to make or instructions are provide to such duty the manufacturer it is the of consumer and warnings which will reach the ultimate in a form product. of a risks and inherent limitations inform the guaran- only which will plaintiff’s that the form contention It is tee warnings imprint the reaching of a tire is to the ultimate consumer itself. on the tire Now, course, you to decide. questions that have this is one of the of there, all, you might under consider a condition that Was first of manufacturer, was, or in this case category? was the If there this Sears, warnings ultimate con- give any to the required to further so, warnings required to would it be if what sort of sumer? And show? R.R. 1023a. court, instruction, objections by response to giving this After instruction, counsel, shall discuss below. gave which we an additional rather of its guarantor an insurer than making appellant product: cannot in some

Is that be made safer any product there calls forth fantastic way? This instruction [Azzarello’s] simple complex, both images products, cartoon mechanism. atop laden mechanism fail-safe with fail-safe to Birnbaum, Negligence Warranty] Defect: From [to Negligence, to Vand.L.Rev. Liability Strict (1980). Henderson, also Controversy Judicial Over

See Renewed an Design: Defective Product Toward Preservation Consensus, 800-01 Minn.L.Rev. Emerging however, criticism, only to us to merit This seems have abstract, might something In the there be the abstract. that ... jury, product its claim that instructed “the make it every necessary must element provided use,” im- up “fantastic conjure safe its intended will imagi- some might ages” by of mechanisms stretch it safer. product nation added to the make have been matter, its believe, will make But as we practical it and the testimony decision in context of has heard criti- contentions. Whatever force the parties’ respective have the Azzarello cism of instruction in the abstract to the facts of the adapting can be met the instruction by Here, adaptation might be accom- particular case. such plished somewhat follows. Azzarello the Court in

The instruction approved supplier starts with statement that “[t]he guarantor might expanded by of its This be safety.” the adding explanation of the distinction between a brief distinction to the “guarantor” and an “insurer” —a critical Thus the products liability, as we have discussed. law “A is not An might guarantor told: an insurer. jury be is if the insurer of a user product responsible [sometimes word, the depending upon be the “consumer” will better the product product injured by sort of of the is question] is way. guarantor product in some But a of a product if the user of the responsible product injured is as a only in the product.” result of a defect Next, might told, the be “You must jury therefore decide whether, product control, when the left the supplier’s there it,” was a defect the instruction then continuing as Azzarello, required by with the language approved Azza- being rello to this as a adapted warnings case case. For example: “A product properly otherwise made is defective if the supplier adequately dangers does warn of the the product. If you find that when the left the product control, supplier’s it lacked warnings necessary to make use, it safe for defective, its intended then the product was supplier by and the is harm liable for all caused the de- fect.” Finally, these abstract should principles be made concrete by specific reference to the in this testimony. Thus case the jury might told: “This means you that must decide whether, contend, plaintiffs as the supplied radial tire by the was defendant unsafe for its intended because use it lacked a warning that it should not be mixed with non-radial tires. If you find that because lacked warning, it such a explain guarantor, 11. The trial did court that the manufacturer is the insurer, product: not an itsof charge you I’ve been effectively asked that a manufacturer is guarantor product’s safety. of his Our Courts have determined that by marketing advertising product manufacturer impliedly his represents is that it safe for its use. intended And to that we’ll add that the caused In injuries, injuries manufacturer of a is not the insurer of all by product. plaintiffs order for defendant Sears to be liable for the minor injuries by those must have caused been a defective condi- product. tion of the And that means not that there was a defect in the tire but the tire was defective because it didn’t contain the legend mixing a about radial bias belted tires. That is the allegation plaintiffs. they alleging. of the That defect that are R.R. 1043a-1044a. explain manufacturer, responsibility While this did addition of the guarantor the distinction between a and insurer have would been clearer if the had court also term defined the ‘‘insurer." explanation 12. While the trial court’s that the must find that the plaintiffs injuries tire, were caused the defective condition adequate, supra, language suggest see note closely we more parallels that of the Azzarello instruction. use, intended then should find it you unsafe for its tire was defective.” last, the are not course, suggestions, especially these

Of they repeated the intent that be verbatim. offered with the depend upon used must words should be Exactly what as devel- respective and the contentions parties’ evidence oped at retrial. it that under such an instruction

Nor should be assumed necessarily, found liable— supplier always, will be concurring fear perhaps underlying which that either the or the may product It be dissenting opinion. strict policy, is such that as a matter of social risk involved imposed. See, plurality e.g., should be Protection, Inc., supra. Lobianco v. opinion Property plaintiff it that the did not lack what the may product Or be although it that claims it should have had. Or it should plaintiff did lack what the claims have had, still, the plaintiff’s that fact was not the cause of that to us to lie at possibility It is this last seems injury. said, no heart of this case. As we have we have this is deciding policy, that as a matter of social difficulty instruction, could proper impose a case in on jury, which question appellant’s And there is no that liability. strict lacked the claim it should have warning appellees radial tire appellees remains will be question had. But the whether did not at trial: that prove they prove at retrial what able the acci- the mixture of radial and non-radial tires caused discussed,13 no need for the already dent. As there will be tire, unaccompanied on retrial to consider whether jury unless it warning given, further than was was defective expert testimony that the proved through qualified is first caused the accident. mixture of radial and non-radial tires therefore, retrial, the trial court instructing on jury it if the answers this only should make clear that further question need it consider the question affirmatively defective, is, the radial whether the tire was whether lacked tire that on the car before the accident placed page supra, 46. 13. See text

the necessary directions and information to make it safe for its intended use. judgment is vacated and the case remanded for new

trial the trial to generally, be conducted consistent with this opinion. relinquished. is

Jurisdiction J., WIEAND, a concurring dissenting opinion files and in ROWLEY, J., joined. which

WIEAND, concurring Judge, dissenting: Sears, (Sears) A found jury that Roebuck & Company had defective, marketed a steel-belted, radial tire because it to imprint failed on the of tire warning against wall the it in using conjunction appeal with non-radial tires. On a judgment verdict, from entered on (1) the Sears contends that the of the adequacy warning jury was submitted the improperly inadequate instructions; (2) and on that the trial court erred in permitting opinion from witnesses testimony (3) who were properly qualified experts; not that the (4) trial court evidentiary erred several rulings; and that court erred requiring apportion fault among Sears, whose was liability predicated upon principles liability, strict other defendants whose de- pended upon principles negligence. agree I majority trial court received improperly expert opinion testimony qualified from witnesses who were not however, give such testimony. my judgment, a new trial required also because the trial court gave inadequate instructions to the jury regarding sufficiency warning given by the manufacturer. Mallis,

On November Nicholas Jr. observed that front, right grandfather’s tire on his 1971 Plymouth was flat. All tires then Fury were non-radial tires. Mallis used, steel-belted, the flat replaced tire with a radial tire he lying driveway which found grandfather’s his Sears, home. The tire had been originally by distributed imprinted and its name was thereon. There was evidence spare in the the vehicle as a been trunk of that the tire had in a the vehicle used purchased grandfather when the Administration, agency Services condition from General States of the Government. United took the following November Mallis day, theOn after service was available car to school. Because bus ride to of his Mallis offered a seven day, school that of his Archbishop High Carroll School. One classmates at Dambacher, in the rear classmates, position took Joann It time and drizzling Mallis vehicle. at the seat on the as Mallis drove toward wet leaves road there were Township, in Radnor on Matson Ford Road an S-curve of the County. negotiated part Mallis first Delaware lost of the m.p.h. of 20-25 but control speed curve at a part of right during it slid to the second vehicle when and The vehicle went embankment curve. over seriously injured. Dambacher was struck a tree. Joann and against filed suit Nicholas Mallis his parents Joann’s 17, as joined on 1977. Sears was a grandfather November 5, 1978, the Pennsylvania on and party defendant June on (PennDot) joined was Department Transportation 31, compulsory The court entered a non-suit October 1979. A grandfather trial. awarded jury in favor of $810,000.00 fault as follows: damages apportioned and 50%; 45%; and trial PennDot—5%.1 Mallis— Sears— a trial limited the new subsequently court awarded new but to to It caused be damages. judgment trial the issue of liability. the issue of against entered Sears on judgment In the denial of Sears’ motion for reviewing n.o.v., must before us. principles kept clearly several only

A in a clear case. n.o.v. be entered judgment motion, is re- considering reviewing such a court evidence, with all reason- quired together to consider the therefrom, in the most favorable to light able inferences Durham, Pa.Super. 273 Claytor the verdict winner. v. $87,500.00 prior trial taken 1. had settled to for and had PennDot joint tortfeasor's release.

67 571, 576, 1196, 417 A.2d (1980). judgment 1199 A n.o.v. proper only where the facts that are such no two reason- persons able could fail agree. v. Home Peair Associa- 751, 400, 409, tion Enola No. Legion Pa.Super. 287 665, 430 (1981); A.2d 670 Kiely v. Southeastern Pennsyl- 578, vania 264 Transportation Pa.Super. Authority, 580, (1979). 401 A.2d 367 Co.,

Sperrazza v. Mutual 313 Cambridge Fire Insurance Pa.Super. 64 n. A.2d n. 2 (1983). 411 See: Merriam, 414, 422, Feld Pa.Super. v. A.2d (1983); Shields, Spraggins Pa.Super.

A.2d The plaintiffs produced testified, witnesses who ob over jection, that mixing of Sears radial tire with three non-radial tires was dangerous a cause the accident. believed, testimony, This if was duty relevant Sears’ warn and also to the cause of the A could accident. have found that strictly Sears was for a tire liable defective adequate warning without its regarding use that its failure to give adequate was a warning substantial factor in causing the causes, accident. Other such possible experience, Mallis’ lack of driving overcrowding vehicle, tire poor treads, a wet and defectively constructed highway, were the jury’s consideration but did not compel a finding that the allegedly defective tire had not been a substantial factor. See generally: Gill v. McGraw Co., 368, (com Electric 264 Pa.Super. (1979) 399 A.2d 1095 pulsory nonsuit improperly entered in favor of of suppliers electric range alleging suit liability tort). strict Cf. Barth v. Co., 228, B.F. Goodrich Tire 71 Cal.App.2d 265 (1968) (a Cal.Rptr. 306 jury question is presented regarding a liability failing manufacturer’s strict for to give adequate warning dangerous of of propensity tires when on a used Annot., vehicle overloaded with passengers); Products Lia bility: Liability for Injury Death Allegedly by Caused Tire, 81 (1977). Defective A.L.R.3d 318 68 Torts2 was (Second) Restatement of 402A of the

Section of this of the substantive law part made a adopted and Zern, 422 v. Webb Court in Supreme Commonwealth law, rule of (1966). Pursuant to this 424, 220 A.2d 853 Pa. harm caused physical liable for strictly of is products seller unreasonably in a defective condition sold by a product Daisy-Heddon, v. 498 Sherk See: to the user. dangerous Co., Bros. Azzarello v. Black (1982); 594, Pa. 450 A.2d 615 Brantly Berkebile v. (1978); 547, A.2d 1020 480 Pa. 391 (1975) (plurality 337 A.2d 893 Corp., 462 Pa. Helicopter Corp., 457 Pa. v. Baldwin-Lima-Hamilton opinion); Kuisis Thomas, v. Evans (1974); Pa.Super. A.2d 914 Motors Chrysler v. (1982); Smialek 450 A.2d 710 (1981); 1 R. Hursh 496, 434 A.2d 1253 Corp., Pa.Super. Products 2d Liability American Law Bailey, and H. of however, tort, is not (1974). liability 4:10 Strict § are not products of liability. Suppliers same as absolute defect, showing harm. Absent against insurers 402A. no under liability of a has Section supplier product Co., 553- supra Black Bros. 480 Pa. at See: Azzarello v. Brantly Berkebile 5; n. A.2d 1024 & 554 & n. 898. Pa. at 337 A.2d at Helicopter Corp., supra, 402A, (Second) g; comment of Torts Accord: Restatement § Prosser, (1977); Tort Law 35.37 W. Modern Dooley, J. § Nature Wade, On the 1971); (4th ed. J. Law Torts § Products, 44 Miss.L.J. Liability Tort Strict for (Second) provides of Torts Restatement Section 402A of the 2. follows: unreasonably (1) any product in a defective condition sells One who property subject his dangerous user or consumer or to to the thereby user or caused to the ultimate physical harm consumer, property, if or to his selling product, (a) engaged such a in the business the seller is (b) without user or consumer expected to and does reach the it is change it is sold. in the condition in which substantial (1) although (2) applies stated in Subsection The rule preparation (a) possible in the all care the seller has exercised product, and sale of his bought (b) from or has not the user or consumer any relation with the seller. into contractual entered

69 Definition of the term “defective” Section 402A cases has had a turbulent history and has received less than uniform and consistent treatment. Courts and commenta tors alike have devoted substantial effort to achieving consistent, workable definition the term “defect.” See of. generally: Lesher, W. R. Kimble & Products Liability 53, (1979); 54 Keeton, W. The Meaning §§ of Defect Products Law — A Review Liability Basic 45 Principles, (1980); Mo.L.Rev. 579 R. Traynor, The Ways and Meanings Products and Strict 32 Liability, Tenn.L.R. of Defective 363 The requirement that a be defective implies that something must be wrong product. J. Wade, 44 supra, Miss.L.J. at 830. The prevailing interpre

tation of the term “defective” is that the product does not meet the expectations reasonable of the ordinary consumer Prosser, to its safety. W. 99. supra See: Burch v. § Sears, Co., 444, Roebuck & 320 Pa.Super. 463, 467 A.2d 615, (1983) (Dissenting Opinion by Wieand, J.), quoting Cornell Co., Co. v. Drilling 129, Ford Motor 241 Pa.Super. 136, 822, (1976); 359 A.2d 1 R. Hursh & H. Bailey, 4:12; supra Lesher, W. Kimble and 54; R. supra § W. § Keeton, supra, 45 Mo.L.Rev. at 588-595. In this Common wealth, “the jury may find a defect where the product left the supplier’s control lacking any element necessary make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” Azzarello v. Co., Black Bros. supra 559, Pa. at 391 A.2d at 1026 (footnote omitted). See also: Salvador v. Atlantic Steel Co., Boiler 457 Pa. 903, (1974); 319 A.2d Burch Sears, v. Co., Roebuck supra & 320 Pa.Super. at 618; A.2d at Meyer Heilman, v. 307 Pa.Super.

A.2d (1982), overruled on other grounds, 503 Pa. (1983); 469 A.2d 1037 Smialek Chrysler Motors Corp., supra 290 Pa.Super. 434 A.2d at 1256.

Actions under Section 402A fall into three basic catego- (1) products ries: allegedly unsafe because of a manufactur- defect; (2) ing products allegedly unsafe because of a in design; (3) defect products unsafe allegedly because

70 provide

of a failure to or adequate warnings instructions See: Voss v. Black & product. insure safe use of the Co., Decker 102, 107, 398, 401, Mfg. 59 N.Y.2d 463 N.Y.S.2d 204, (1983); 450 N.E.2d Goodyear Wiseman v. Tire 207 Co., and Rubber 883, 886, 976, 29 Wash.App. 631 P.2d 978 (1981); Friedman, 2 L. Frumer M.& Liability Products (rev. 1983); Keeton, supra, ed. W. 45 Mo.L. § 16A[4][f][i] Is There a Distinction Between 585-587; Comment, at Rev. Liability Negligence Strict in Failure to Ac- Warn tions? 983, (1981). 15 Suffolk 983 U.L.Rev. See also: W. Prosser, supra § 99.

The existence of a manufacturing defect can be most readily product, understood. Where a at the time it leaves hands, comport seller’s fails to with its intended design use, and is unsafe normal handling or it is defective. Phipps v. General Motors Corp., 337, 344, See: 278 Md. 955, (1976), 2 citing Friedman, 363 A.2d 959 L. Frumer M.& supra 16A[4][f][iii]; O’Brien v. Muskin Corp., 94 N.J. § 169, 180, 298, 463 A.2d 304 “The defective condition arise not may only ingredients, from harmful not character- istic of the itself product presence either as to or quantity, but also from foreign objects product, contained from sale, decay or deterioration way before or from the in which product is or packed.” Restatement [manufactured] (Second) 402A, comment h. See: Sochanski v. of Torts § Sears, Co., Roebuck and (3d Cir.1982) (defec- 689 F.2d 45 cart); Pittsburgh Bialek v. garden tive tire on Brewing Co., 176, (1968) 430 Pa. 242 bottle); A.2d 231 (explosion Thomas, Evans v. supra (explosion of odorless propane gas). Keeton, supra, generally: See W. 45 at Mo.L.Rev. 585-586. The proving burden of seller, course, defective at the time it left the upon Co., See: Vizzini v. Ford Motor plaintiff. 754, 569 F.2d Co., (3d Cir.1977); 758 Wright Federal Machine 535 v. Daisy-Heddon, (E.D.Pa.1982); Sherk F.Supp. supra Berkebile v. Brantly 617; 498 Pa. at 450 A.2d at Helicopter Corp. supra 898; 462 Pa. at 337 A.2d at Thomas, Evans v. supra Pa.Super. at 450 A.2d at 712; Co., Gill v. Pa.Super. McGraw Electric supra 1100-1101; 399 A.3d at Lenkiewicz v. Lange, Pa.Super. (1976) (plurality A.2d opinion). These have principles uniformly law been accepted. only remaining area dispute of substantial pertains issues, i.e., to evidentiary the circumstances under which a defect can be inferred at the time the product left manufacturer seller.

A product also deemed though defective even it respects in all comports design. to its intended It may be of because a defect in the design product. defective of the Co., Supreme Azzarello v. Black Bros. the supra, Court a supplier provide product held that must a “which is designed to make it safe the for intended use. Under this standard, the find defect jury may product a where the left the supplier’s control element lacking any necessary to make it for use possessing any safe its intended feature that renders it use.” unsafe its intended 480 Pa. at Id. 559, (footnote omitted). 391 A.2d at 1027 This standard alia, requires, inter that product against measured be the “state of art.” product must measured be against that which was feasible in of the light technology which product existed at the was designed. See: time Lesher, ask, W. & R. supra Kimble 228. One must § “What could reasonably have been done technologically economically to risk of reduce the harm?”

An additional and more perhaps meaningful standard design require defect cases would utility product of the against be balanced the risk use. inherent its See: Inc., 235, McKay Systems, Pa.Super. Sandmold 333 482 Friedman, A.2d 260 2 L. See also: Frumer & M. Keeton, supra 16A[4][f][iv]; W. 45 supra, Mo.L.Rev. at § Thus, 592-593. a knife cannot be found defective merely cuts; because it utility outweighs its risk involved in normal use. See generally: Brantly Berkebile v. Helicop- 95, ter Corp., supra 899; Pa. at 337 A.2d at Evans v. Thomas, 344, supra Pa.Super. 712; 450 A.2d at (Second) 402A, Restatement i; Torts comment W. § Prosser, hand, 99. a supra product may On other be § its dan- outweighed by defective because usefulness is Thus, gerous propensities design. pesti- inherent its may outweighed cide’s limited value be so its propensity manufacturer should held strictly for harm for the harm which it causes. a machine Similarly, liable posed by be found defective because the risk some outweighs its its aspect design utility. See: Barker v. 432, Co., 225, Cal.Rptr. Lull Cal.3d Engineering (1978) (“high-lift designed 573 P.2d loader” lift loads on terrains could be found defective heavy varying stabilizers, belt, bar, for lack of seat roll and properly mechanism); protected leveling Ontai v. Straub Clinic and (Hawaii Inc., 1983) P.2d Hospital, (x-ray 739-740 designed patient position lacking table to raise to vertical rest); mechanism for foot adequate locking Voss v. Black & Co., supra Decker 59 N.Y.2d at 463 N.Y.S.2d at Mfg. (blade 450 N.E.2d at 208 on circular guard saw which exposed). allowed excessive amount of blade to be aWhen test balancing applied, utility of the must “[t]he be evaluated from the as a point public view whole, design for defective finding because could result in the of an entire line from product removal Sears, Co., market.” 118 N.H. Thibault v. Roebuck & 802, 807, 843, (1978). A.2d The 395 846 resolution such an issue social depends upon policy. Azzarello v. Black 558, Co., 480 Pa. at 391 A.2d supra Bros. at 1026. Some products are so that a manufacturer must important be allowed to avoid if he has given adequate warnings regarding proper and/or instructions safe and use of the product. warning given, “Where is the seller reason- heeded; ably assume that it will read and and a product bearing such a which is if it is warning, safe use followed, condition, is not in nor is it unreasonably defective (Second) 402A, dangerous.” Restatement of Torts com- § 287, ment j. See: v. 444 Pa. at Incollingo Ewing, supra 219; 282 A.2d at v. 258 Pegg Corp., General Motors Pa.Su- per. 391 A.2d 1083

73 is true. A can converse also be found if it lacks adequate warnings defective or' instructions. See: Caterpillar Co., Brown v. 696 F.2d n. 20 Tractor Cir.1982); (3d Greiner Volkswagenwerk v. Aktiengeselles- chaft, (3d Cir.1976); 540 F.2d 92-93 Berkebile v. Brant- 902; ly Helicopter Corp., Pa. at 337 A.2d at supra 219; v. Pa. at Incollingo Ewing, supra A.2d at Pegg Corp., General Motors supra Pa.Super. at 391 A.2d 1083. case,

In the instant the evidence in fact showed Sears had issued instructions concerning the use its steel-belted radial tires. Those instructions were as follows: IDEALLY, ALL BE FOUR TIRES SHOULD

Selection— OF THE (all SAME CONSTRUCTION-TYPE bias all ply, bias-belted, radial) (all or all and of the aspect same ratio series, all series, series, series). all 70 or all 60 “Aspect ratio” refers to ratio of height of the tire in cross section to width. example, its For the cross height section of a “78 series” tire is of its cross 78% section If it necessary width. is to mix tire construction- types aspect ratios, those highest with the traction capabilities should be mounted wheels, on the rear even on front-wheel drive vehicles.

In general, capabilities traction are as follows: Radial (best), (next), bias-belted (next). bias-ply With respect ratios, aspect number, lower series greater the traction. For a 70 example, series tire can be expect- of; ed to provide better traction than a 78 series tire same Do construction-type. not mix tires of different construction-type or ratio on aspect the same axle.

Sizing VEHICLE MANUFACTURER’S —FOLLOW SPECIFICATIONS. It acceptable and often beneficial to up-size size, one but tires smaller than vehicle specifi- cations should never All be used. four tires should be same size.

These instructions had been in a pamphlet contained issued conjunction Sears in with the issued warranty each new tire sold. The plaintiffs contended that this warning

was inadequate. They argued that a more unequivocal have warning should been embossed on the side wall of the tire itself.

Despite decisions, to the language contrary some most authorities agreed are that a determination of the adequacy of warnings can be made only by borrowing using Thus, negligence concepts.3 Dean Keeton writes: product bemay defective as marketed because of a [A] warn, failure to adequately or a failure to proper use means to warn about a risk or hazard related to the way product designed. Although begins this to in- hazards, design volve liability imposed is on the ground that the seller or manufacturer failed adequately warn hazard, some risk about or failed adequately to in- struct about how to avoid risk or harm. Under this approach, product allegedly is defective as marketed because failure to it properly present purchasers and users. said, what some

Notwithstanding courts have in es- this tablishing ground recovery, plaintiff in most states must prove negligence in the to warn failure There properly. will be no these cases without a showing that the knew or should defendant have known the risk or hazard about which he failed Moreover, to warn. there will be no liability unless the seller or precautions to take the manufacturer failed person that a reasonable would take in presenting product public.

Although ground this recovery sometimes re- ferred to as strict it is liability, really nothing more than a ground of negligence liability better described as the sale of a in a defective condition. Keeton,

W. supra, (footnotes 45 Mo.L.Rev. at 586-587 omitted) (emphasis added). See also: W. R. Kimble & Lesher, supra 198. generally: See L. Frumer M. & § alleged design The defect Supreme was a defect. The Azzarello 3. holding preclude negligence Court’s in that case does not use principles alleged in cases where give defect is a failure to adequate warning.

75 Friedman, supra 16A[4][f][vi]; Beasley, J. Products Lia § bility 480 Dangerous Requirement Unreasonably (1981); Wade, J. Tort 19 Liability Manufacturers, Strict of (1965); Comment, 13 15 supra, Sw.L.J. Suffolk U.L.Rev. The failure recognize interplay to this strict between liability and in negligence principles failure to warn cases Thus, has caused considerable confusion. in Berkebile v. written Brantly Helicopter Corp., opinion supra, Court, representing Justices, but the views of two only suggested that man the reasonable standard for determin ing negligence place seeking had no in a case to impose liability strict under Section 402A for a failure to warn. Perhaps as a of purity, attempt matter academic an of eliminate standards from strict in reasonableness cases can products liability applauded. In actual prac tice, however, is not approach such feasible failure to particularly where, here, cases. This is so warn is not given issue whether notice whether was but given adequate. notice ask a was To to determine jury whether a tire of inadequate was “defective” because warn ings defining without giving “defective” without any standard jury objective by which to measure the ade quacy warning pure is to invite speculation. As observed, Dean Wade has use term “[t]o [the ‘defective’] it to the defining without is almost to they ensure Wade, be misled.” 44 will J. 832. supra, Miss.L.J. at See: Co., 428, Barker v. Lull 20 at Engineering supra, Cal.3d Cal.Rptr. 143 at 573 453. P.2d at Therefore, held, majority jurisdictions a has as did the court C., re Air Crash Disaster at D. 559 Washington, F.Supp. (D.D.C.1983), 333 that “the issue a failure governed is aby negligence warn standard.” Id.

citing Young Inc., v. F.2d Up-Right Scaffolds, 814 (D.C.Cir.1980)(if a defendant negligent labelling product unsafe). is not product, unreasonably Accord: Inc., (2nd Basko 416 F.2d Sterling Drug, Cir. 1969) (Restatement adopts the ordinary concept negligence duty warn); Hall v. Co., E.I. DuPont De Nemours & (E.D.N.Y.1972) (whether F.Supp. inadequate warnings depends

“defective” on the because seriousness, and “foreseeability, standards of negligence Corp., v. G.A.F. Russell preventing”); cost of A.2d (under and strict (D.C.App.1980) negligence theories of “is liability, duty provide warnings the manufacturer’s to Gutierrez, 119 Shell Oil Co. v. care”); ordinary the same: 426, 434, 271, (1978) (whether is product Ariz. 581 P.2d 279 depends upon defective of a failure to warn because seriousness, and foreseeability, standards of negligence v. Home Shopping Jonescue Jewel preventing); cost of Service, 339, 343, (1974) N.E.2d 315 Ill.App.3d 306 (in case, negligence failure to warn differences between Ciba-Geigy v. immaterial”); Mays strict “become liability 38, 57-58, (1983) Corp., 233 Kan. 661 P.2d 362-363 (standard negligence in failure to warn case under both care); ordinary theories is the same: liability strict Wolf Co., 72 A.D.2d Upjohn v. 423 N.Y.S.2d gruber mem., 52 N.Y.2d (1979), 436 N.Y.S.2d aff'd (failure (1980) plaintiff required to warn N.E.2d Holloway Systems, J.B. prove negligence). Contra: Ltd., 609 F.2d 1069 (3d Cir.1979). growing declines to this consensus. majority join

The Instead, give that if a has failed to warn- supplier it holds safe, product ings adequate product to make its (At 426). concept. may This is an It explosive defective. backup recovery a all plaintiff’s theory well become test, products majority’s cases. Under the neither is for the considera- jury’s nor reasonableness foreseeability tion; negligence concepts these traditional never enter Rather, equation, supplier not even close cases. will users of its duty product any have an to warn absolute from such use. this stan- injury may which result Under dard, a of knives fails to warn that a manufacturer who product. knife cut manufacture a defective And may will charged manufacturer well automobile on the market if he placing a defective automobile fails inherent in excessive danger speed. major- warn prove and its rule will moreover, recognize has failed to ity, manu- dangers about which respect unworkable with has been product the first time after its facturer learns for manufactured. stan- negligence

I persuaded application am Thus, in cases where approach.4 dards a better presents negligence adopted the Modern Uniform 4. A has been standard (1979) 104[c], Fed.Reg. Liability Act. Section Products provides: Adequate (C) Unreasonably Unsafe Because The Product Was Warnings Provided. or Instructions Were Not unreasonably (1) product was unsafe to determine that the order .In provided warnings were not about adequate or instructions because use, danger proper the trier of fact with the or its connected manufacture, that, the likelihood that at the time of must find or similar harms and the product would cause the claimant’s harm instructions harms rendered the manufacturer’s seriousness of those inadequate provid- could have the manufacturer should and and that alleges warnings would have which claimant ed the instructions or been adequate. making (2) probative Examples especially this of evidence that is include: evaluation manufacture, (a) ability, to be at the time of The manufacturer’s harm; potential danger product’s and the nature of aware of the likely product (b) ability anticipate that The manufacturer’s product’s danger and the nature of user would be aware of the harm; potential (c) feasibility providing adequate technological practical The and instructions; warnings and (d) warnings clarity conspicuousness or instructions and of the The provided; that were (e) warnings provid- adequacy or instructions that were of the ed. Subsection, (3) prove by any the claimant must claim under this warnings adequate preponderance that if or instruc- of the evidence provided, they effective because a tions had been would have been reasonably prudent product would have either declined to use user product manner as to have product or would have used the in a so avoided the harm. (4) failure to warn or A manufacturer shall not be liable for its obvious; dangers “product are misuse” as instruct about defined in Subsection that 112(C)(1); alterations or modifications of or for "reasonably anticipated product which do conduct” the under Subsection not constitute 102(G). (5) obligation provide adequate A manufacturer under warnings product user the manu- or instructions to the actual unless may reasonably warnings person provided such to a who be facturer harm, expected that action is taken to avoid the or that the to assure explained actual user. risk of the harm is to the 78

failure to give adequate warning or alleged, instruction is the duty to warn must be measured against foreseeability and reasonableness. There can be no liability for a failure to warn a showing without that supplier defendant failed to give reasonable warning of risks or hazards of which he knew or should have known. See: Hardy v. Johns-Manville Sales Corp., 334, (5th 681 F.2d 344 Cir. 1982) (Texas law), citing Borel v. Fiberboard Paper Prod Corp., ucts 1076, denied, (5th Cir.1973), 493 F.2d 1088 cert. 869, 127, 419 U.S. (1974); 95 S.Ct. 42 L.Ed.2d 107 Karjala v. Johns-Manville Products Corp., 155, (8th 523 F.2d 158 Cir.1975) (Minnesota law); Garrison v. Rohm and Haas Co., 346, (6th 492 Cir.1974) F.2d law); (Kentucky Hoff Inc., man v. Sterling Drug, 132, (3d 485 F.2d 140 n. 26 Cir.1973) (Pennsylvania law); Co., Giordano v. Ford Motor 644, 645, 165 Ga.App. 897, Woodill v. (1983); S.E.2d Co., Parke Davis & 26, 35-36, 79 Ill.2d 304, 37 Ill.Dec. 308-309, 402 N.E.2d Nissen Trampo (1980); 198-199 line Co. v. Terre Bank, Haute First National 332 N.E.2d 820, 825 (Ind.App.1975), rev’d on other grounds, 265 Ind. (1976); 358 N.E.2d 974 O’Brien v. Muskin Corp., supra, 94 N.J. at Richards Upjohn 303; 463 A.2d at Co., 675, 679, 95 N.M. 625 P.2d 1196 (N.M.Ct.App. 1980); Transit, Inc., White v. Dealers Ohio App.3d Moore, (1980); N.E.2d McKee v. 648 P.2d products may legally For only by be supervi- used or under the experts, warnings sion of a class of the may provided or instructions be using supervisory expert. or products tangible For goods that are only sold or handled in bulk or workplace products, warnings other provided instructions employer employee-claimant to the practical if there is no transmitting feasible means of employee-claimant. them to the (6) Duty Post-Manufacture to Warn. (C)(1), In provided addition to the claim in Subsection may a claim arise under should reasonably prudent this Subsection where a manufacturer danger have learned about product a connected with the after case, it was manufactured. In a such the manufacturer is under an obligation regard danger to act reasonably to the prudent as a manufacturer in the same obligation or similar circumstances. This is satisfied if the manufacturer makes reasonable efforts to inform

product person reasonably users or a expected who be to assure harm, that action is taken to avoid the or that the risk of harm is explained product to the actual user.

79 (Okla.1982); Gonzales, 801, v. 561 Bristol-Myers S.W.2d (Tex.1978). Sullivan, 804 But see: Patricia 631 P.2d R. v. (Alaska 1981); Industries, Inc., Little v. PPG 19 Wash. 812, App. (1978), 579 P.2d modified, aff'd (1979). Wash.2d 594 P.2d 911 proof Because of knowl edge by a defendant manufacturer or distributor regarding the risks inherent in the use of his is not readily however, available to the plaintiff, the defendant’s knowl edge of the dangerous propensities inherent his product should be and the presumed, burden of coming forward with evidence to the contrary may placed upon the defendant manufacturer or Wade, distributor. See: J. su 44 Miss.L.J. at pra, 838-839. See also: Phillips v. Kim Co., 485, 490, wood Machine 269 Or. 525 P.2d (1974). Co., Cf. Voss v. Black & Decker Mfg. supra, N.Y.2d at 401-402, 463 N.Y.S.2d at 450 N.E.2d at case). 207-208 (design case, the instant warning given. was fact

issue for the jury was whether that warning adequate whether, appellees contended, should warning have been embossed on the side of the tire. Under absolute duty to warn rule adopted by the majority, compelled will be to find the radial tire defective because the user was not in fact danger warned of mixing it with nonradial tires. rule, The better I suggest, would require the supplier to exert efforts reasonable to warn users of radial tires of dangers known to the supplier or of which he Thus, should have been aware. in the instant case, the jury should have been instructed to determine whether the warning given by Sears was reasonable. This requirement of preserve “reasonableness” will “the use of familiar terms and thought processes courts, with which lawyers, jurors customarily deal.” McKay Sand Inc., Systems, mold supra Pa.Super. at 482 A.2d quoting Phillips v. Co., Kimwood Machine 269 Or. 525 P.2d It will enable the law in this Commonwealth to retain concepts of strict liability envisioned by (Second) Restatement of Torts 402A and §

will avoid the in flaw Azzarello which “encourages juries impose liability merely plaintiffs because have somehow injured products.” been using while defendant’s J. Hender- son, Renewed Judicial over Prod- Controversy Defective uct Design: Emerging Toward the Preservation an Consensus, 63 Minn.L.Rev.

The evidence in this conflicting. case was Plaintiff’s experts testified that it was to mix dangerous tire types, expressed and one of them opinion the that a to be warning, adequate, should have been on the embossed side wall (1) the tire. Appellant’s evidence that mixing showed radial and non-radial tires rendered a vehicle difficult to control only violent, when the was engaged high speed vehicle (2) practical maneuvers and that it was not emboss warning, size, adequate with letters of on the side of other, tire. To do require so would the elimination of equally important instructions carried on the sides its tires.

The trial court submitted jury it to the to determine whether Sears’ radial tire was “defective” because of “inad- equate” warnings regarding its use with non-radial on tires so, however, the same vehicle. When it did it gave jury no standard by which determine whether the was tire of inadequate defective because warnings. Without such guidance intelligent could not make an It decision. had no standard which to by determine adequacy of warnings which had given Sears its tire presenting radial determine, to the public. It could not because it instructed, whether Sears had the precautions taken which a reasonable manufacturer would taken instructing have public concerning placed limitations to be upon the use of its radial tires. my this failure opinion, trial court that a requires granted. new trial be

William Walter Kelly Pruyn and were called by appellees to testify as witnesses. expert They were permitted to express opinions, over objection, that the use of Sears’ radial tire in with non-radial conjunction tires had caused the vehicle to steer erratically thereby contributed to Mallis’ loss of control of the also Pruyn expressed vehicle. opinion, over that radial tires should bear an objection, embossed warning against mixing radial non-radial This warning, said, tires. he should on the side of appear radial tires in white letters one and one-half inches to two high.5 inches Sears on that these matters argues appeal required knowledge experience possessed that beyond therefore, court, witnesses and that the erred by appellees’ experts. them to permitting testify majority agreed argument. I are that there is merit this opinion testimony expert may Before the of an be re- ceived, subject “must be so inquiry distinctively science, related to some business or profession, occupation average [Also], as to be the ken of the beyond layman____ skill, must sufficient knowledge experi- witness have in that field or as to make it calling appear ence his or inference aid the trier opinion probably will [of fact] his search for truth.” McCormick on Evidence 29-30 (2nd 1972) (footnotes omitted). Rutter v. ed. generally: See District, Northeastern Beaver School 590, County 496 Pa. v. Baldwin- (1981) (plurality opinion); Kuisis 437 A.2d 1198 Meehan, 424 Corp., Lima-Hamilton Reardon v. supra; 460, Shepperd, Steele v. (1967); Pa. 227 A.2d 667 411 Pa. 481, (1963); Kirkpatrick, Walheim v. 192 A.2d 397 305 590, (1982); v. Emerald 451 A.2d 1033 Hughes Pa.Super. 426, Corp., Mines Kravin- (1982); 303 450 A.2d 1 Pa.Super. Glover, v. 8, (1979); sky Lebes- 263 396 A.2d 1349 Pa.Super. co v. Author- Pennsylvania Transportation Southeastern Densler v. 415, (1977); ity, Pa.Super. 251 380 A.2d 848 Co., 235 585, Metropolitan Edison 345 A.2d 758 Pa.Super. Jones on Evidence (1975); (6th 1972). 2 14:12 ed. § “An has defined as a expert person witness been who possesses knowledge ordinary not within the reach and who, of this knowledge specially qualified because particular subject.” Erschen v. Pennsylva- speak upon Co., Independent nia Oil Pa.Super. 259 393 A.2d explain why warning appear only 5. did not He should on radial tires and not also on non-radial tires. 82

924, (1978). “The Pennsylvania qualifica 926 standard of tion is a Tf has for an witness liberal one. a witness expert specialized any pretension knowledge reasonable on subject under he investigation may testify, weight and the Kuisis v. Bald to be is for the given jury.’ his evidence Corp., [supra, win-Lima-Hamilton Pa. at A.2d at County Rutter v. Northeastern Beaver 924].” District, School 597-598, supra 496 Pa. at 437 A.2d Rentals, Inc., Truck 1201. v. See also: Griffith Clearfield Meehan, v. (1967); 427 Pa. Reardon 233 A.2d 896 supra; Philadelphia, v. McKnight City of Pa.Super. Stein, v. (1982); Pratt 445 A.2d 778 298 Pa.Super. , Rullo, Inc. v. (1982); 444 A.2d Sportswear Whistler 289 Pa.Super. 433 A.2d 40 But see: Burch Sears, Co., Roebuck & supra, at 471 n. Pa.Super. Wieand, J.); A.2d at n. 4 (Dissenting Ragan Opinion Steen, v. 515, 528, 724, Pa.Super. (1974) 229 331 A.2d 736 J.). (Concurring Opinion by Spaeth, While the standard for one, qualifying expert a witness as an is a liberal it remains a well rule that spe established witness must show “[t]he knowledge question cial which he very upon promises 543, Appeal, Jones express opinion.” to an 449 Pa. 551 n. 5, 117, (1972) 121 n. (report 297 A.2d 5 of “doctor” with respect to mental health and fitness as a parent’s parent because, alia, expert opinion inadmissible as inter doctor did not, therefore, in court and appear did state area of record). Duffy v. National Janitorial expertise on See: Inc., Services, 334, (1968) 429 240 A.2d Pa. 527 (plurality opinion) (although proposed expert may expertise have had field, qualified some other he was not as an expert with causation, respect to fire had formal having training no thereto); Sweeney v. very experience respect little with Co., Beverage Blue Anchor 216, (1937) 325 Pa. 189 A. 331 (a witness as a “teacher of biological described sciences” unqualified was an with expert respect as what caused ale); Erschen v. Pennsyl breaking of a bottle of ginger Co., vania Independent supra Oil (a trooper, employed months, a fire marshall qualified for six was not as an expert respect origin of a gas explosion).

83 determining whether a witness is qualified express an opinion as an expert, object is to be sure question that the to the

[t]he witness will be answered aby person who is fitted to answer it. fitness, then, His is a fitness to point. answer on that He ¡about to answer matters, countless other fitted but that does not justify accepting his views on the matter in hand.

2 Wigmore (Chadbourn 1979) (em on Evidence 555 rev. § added). phasis See: Randolph Collectramatic, Inc., 590 844, (10th F.2d Cir.1979); 848 Loose, Arnold v. 352 F.2d (3rd Cir.1965) (applying law); Pennsylvania Flick v. Inc., James Monfredo, (E.D.Pa.), 356 F.Supp. mem., (3rd Cir.1973) F.2d 1394 (applying Pennsyl aff'd law); vania Robinson v. Greeley Hansen, 114 Ill. 720, 727, App.3d Ill.Dec. 449 N.E.2d (1983); Barrett v. Coast Range Plywood, 294 Or. (1983);

661 P.2d Sears, Burch v. Co., Roebuck & 471-472, supra, Pa.Super. (Dissent 467 A.2d at 629 ing Opinion Wieand, J.); 2 by 14:12, Jones on Evidence § supra.

The issue in this case called for expert testimony. had to jury decide whether a radial tire on the right front wheel of the Plymouth Fury Mallis, driven when the other three wheels were tires, mounted with non-radial a substantial factor in Mallis causing to lose control while driving between 20 and 25 per miles hour. To aid the answer, in its search for the it was necessary expert witness possess knowledge, education, whether gained by experience, both, or in the field of vehicle dynamics. He had to possess sufficient knowledge experience or to enable him to understand predict the movement of vehicles under varying minimum, circumstances. At a required this in knowledge the fields of engineering and physics.

William Kelly admitted readily that he had received nei- ther formal education nor in training these disciplines. He was an automobile mechanic. He performed had of job auto mechanic well and had advanced to become service

manager for an However, automobile dealer. “didn’t he in specialize school; mechanical any things” did not high attend college; kind”; “never studied engineering any did not tires; take any involving courses design received neither formal education nor informal training regarding vehicle dynamics as changes affected in the by types or conditions tires. He had never worked for anyone whose function it towas test automobile perform- ance as affected by changes the types or conditions of tires. He said that he had road tested other 1971 Plymouth Fury automobiles, but the tests which he conducted were to determine, for inspection state purposes, whether there might be a problem mechanical that could not be observed by visual inspection. The tests were not made with the idea testing tires, effect of mixing and Kelly did not know during any given whether, how, test or the tires were mixed. He had not made tests to determine the dynamics of a vehicle moving with mixed tires and had “never read any technical published articles aby scientific or profession- al or engineering society.” extent of his reading on the had subject been the service manual distributed by Chrysler and the Inspection State Manual.

Kelly was permitted give an expert opinion because he said he was expert. His naked expertise assertion of was unsupported education, training experience. He should not have been permitted to express an opinion that presence of a radial tire on the right front wheel was a substantial causative factor the accident which caused injury to the plaintiff. He had no pretension reasonable specialized knowledge on the subject under investigation.

The trial court’s admission of Kelly’s evidence was alone error requiring a Therefore, new trial. Pruyn’s qualifica- tions need not be length. reviewed at Suffice it to say that pretension his to expertise was not much greater than Kelly’s. He awas retired teacher, school seventy-five years of age, who had taught automobile mechanics. Upon retire- ment, he became a self-styled “accident investigator.” It did not appear that he any had relevant knowledge of had'greater experi- that he principles dynamics of vehicle did the only in than Not testing Kelly. ence vehicles any proven record of achieve- evidence show an absence it failed to dynamics, in automobile but ment the field of design, manufacture and familiarity demonstrate with tires the embossment of marketing of automobile about opinion. an See: Flick permitted express which he was to Inc., qualified not as supra (Pruyn v. Monfredo, James respect motorcy- with to reconstruction “impactologist” accident). cle experi a education and scope

Even where the of witness’ in enough subject ence be broad to embrace a specialized is so general way, subject frequently does to possess expertise necessary the witness not Thus, a of an express opinion. manager an automotive is not repair years experience quali business with fifteen expert fied as an in accident reconstruction. Callander v. Lines, Inc., (4th Cir.1964). Hunter Motor 327 F.2d 754 an who has never read a text Similarly, orthopedic surgeon, special on diabetes or comas and who has no diabetic diabetes, in knowledge quali the field of is not necessarily express opinion lapsed fied to that a driver into a coma, causing diabetic loss of control of a vehicle. Arnold Loose, Also, radiologist may qualified v. not be to supra. in testify proper procedure as to the to be used chest Bradshaw, (4th Cir.1958). surgery. Hunt v. 251 F.2d 103 State, See also: v. 26 So.2d 413 Wesley Ala.App. (1946) (toxicologist not qualified testify that wound was instrument); inflicted by screwdriver or similar v. Gaston (neurosur Hunter, 121 Ariz. 326 (Ct.App.1978) 588 P.2d geon qualified expert respect orthopedic not care); Lindquist, standards v. 37 Cal.2d Huffman (1951) 234 P.2d 34 (autopsy surgeon qualified not as to Belt, treatment for brain injury); Moore v. Cal.2d (1950) (autopsy surgeon qualified P.2d 509 not as to existing practice urology); standards Dolan Galluz zo, (1979) 77 Ill.2d 32 Ill.Dec. 396 N.E.2d 13 (physician qualified unlicensed podiatry testify podiatrist); action malpractice against Kirkpat- Burrell v. rick, (fireman (La.Ct.App.1978) 410 So.2d 1255 with 27 not years firefighter qualified to on experience testify fire); Nason, causes of E.N. Inc. v. Development Land-Ho (former (Me.1979) A.2d 403 1173 of Corp., superintendent public works and construction worker from Massachusetts qualified practices not to on conditions and trade testify concerning Maine); a road project construction in central 563, Bard, Inc., C.R. 110 313 Mich.App. v. N.W.2d Keefer (defendant’s (1981) 151 on expert prohib- catheters properly ited to expressing opinion from with respect absence of a catheter in the of blood on needle absence evidence of blood); his to ability recognize identify or Swanson v. Chatterton, 129, (1968)(internist 281 160 Minn. N.W.2d 662 not as to qualified orthopedic surgery); Askin, v. 90 State (1931) (general Mont. 3 P.2d 654 practitioner quali- not testify injury); Boehm, fied to as to brain 41 Whitehurst (1979) N.C.App. unfamiliar, (orthopedic surgeon 255 S.E.2d practice podiatry qualified testify not required as to standard of care of podiatrist); Capan v. Divine Providence 410 A.2d Hospital, Pa.Super. (1979) not qualified as to (anesthesiologist autopsy report). - experiences

The field of Kelly Pruyn auto- subject mobile mechanics have-embraced the of tires in a general way. Nothing experience, in their training however, was qualify express opinions sufficient to them to on regarding causative effect mixed tires a vehicle 20-25 on a being m.p.h. roadway. driven wet Similarly, Pruyn qualified express-an opinion regarding embossing warnings on sides of tires.

Sears contends that the trial court also erred when it experiments refused to allow evidence of conducted by force, designed Sears and to- tire evaluate friction and tire oversteering when a radial has been mounted on a car trial with non-radial tires. The court excluded evidence of the experiments because the simulated conditions under experiments which the had been conducted varied from “Experiments accident. at the time conditions very held to a normally are admissible use in a trial authenticated be thoroughly and must be strict standard reason' that very good this for the admitted and being fore divergence of condi great exists of normally possibility variables which great many of a and the existence tions Bar, Liquor Inc. result.” Clover any given could affect A.2d Case, Pa.Super. License Lawrence, 456 Pa. 541, 545-546 n. Atene v. See: (1974) (plurality opinion). 698 n. 5 318 A.2d the discretion of is committed to of such evidence admission results to exclude test court, and a determination the trial reversed of conditions will be dissimilarity of a because v. Motor thereof. Glick White of an in the absence abuse v. Cir.1972); Weaver (3d Co., 458 F.2d 1287, 1294-1295 (E.D.Pa.1974), Co., Ford Motor F.Supp. aff'd also: Common Cir.1975). mem., 515 F.2d 506 (3d See (1978). In the Sero, 478 Pa. 440, 387 A.2d 63 wealth trial court’s discre case, no abuse of the instant there was tion. introduce evidence Sears to permitted

The trial court prove in order to Ford Road accidents on Matson prior knowledge condition and PennDot’s highway dangerous to allow evidence However, the court refused thereof. ruling. in this There was no error accidents. subsequent would have Moreover, if assume that such evidence even we harmless. The its exclusion was purpose, a relevant served cumulative; had was it could have proper effect which only search for further its jury not have aided the it would Pa.Super. Castagna, Baldino v. truth. See: (1982), rev’d on other grounds, 505 Pa. A.2d where, peculiarly apparent This is A.2d 807 PennDot had here, as a fact that been jury found negligence. of causal guilty the trial court erred when it contends that

Finally, Sears among parties whose apportion liability directed the to Sears, whose negligence liability on liability depended depended of strict tort.6 The upon principles Pennsylvania statute Comparative provides at Negligence 42 Pa.C.S. 7102 as follows: §

(a) brought General rule.—In all actions dam- recover ages for or negligence resulting injury person death or the fact that property, plaintiff may have been guilty of shall contributory negligence recovery not bar a by the plaintiff legal his such representative where negligence greater was not than the causal negligence the defendant or against recovery defendants whom is sought, any damages but sustained plaintiff shall be in proportion diminished to the amount of negligence the plaintiff. attributed to (b) against joint defendant; Recovery contribution. recovery —Where allowed more than de- against one fendant, each defendant shall liable for proportion of the total dollar amount as damages awarded in the ratio of amount of negligence his causal to the negligence amount of causal attributed to all defendants against recovery plaintiff may whom is allowed. The recover the any full amount of the allowed from recovery against defendant whom the is not from plaintiff barred recovery. Any defendant is so compelled pay who more than percentage his share seek contribution. Although legislature term in has used the “negligence” defining scope act, of the appears it to me that the term was used to generically include actions in In sounding tort. reality and more it precisely, appears legislature that the intended to enact a comparative Thus, statute. dam- fault ages allowed in a tort action apportioned among must be all majority argument 6. The holds that Sears waived this when its counsel object failed to well the court’s position to instruction trial. This is page (page taken. At 1041a of the record 66-X of trial transcript), following appears: you they against "Mr. Williams: And then said if find than more First, Comparative Negligence applies. one the Act we'd like an exception part charge. to that may exception Court: You have an to that.” preserved post-trial The issue was by. also motions and was considered Therefore, properly the court en banc. it is before this Court for review. \

89 defendants against recovery whom is according allowed each proportion which defendant’s to the “fault” bears “causal fault” attributed all defendants. this manner the Pennsylvania statute can be interpreted consistently with Uniform Act7 which has proposed been for enact ment by the states. To interpret Pennsylvania statute narrowly application have only tort actions where recovery premised upon “negligence” would be to create such absurd and procedural unreasonable and substantive difficulties that the statute meaningless would be rendered impossible of application in tort many actions. This we 1 Belin, 1922(1). not do. See: Bundy v. Pa.C.S. § 255, 261, Pa. (1983); 461 A.2d Fireman’s Fund Insurance Co. v. Co., Nationwide Mutual Insurance 497, 502, Pa.Super. (1983); A.2d Worley v. Augustine, Pa.Super. (1983). 456 A.2d Annot., See generally: Applicability Comparative Negli gence Doctrine to Actions Based on Tort, Strict Liability 9 A.L.R. 4th 633 The instant good case is a exam To ple. require apportionment of negligence between Mal lis and PennDot but without considering the causative ef fault, fect of Sears’ if any, would achieve absurd and nonsensical A just result. result can be achieved if the only plaintiff’s damages can among be allocated all parties whose fault has caused hold, the loss. I therefore, would that the trial court did not err when it called upon to apportion fault among PennDot, Mallis and who were charged negligence, Sears, from whom recovery sought grounds on of strict liability for distributing product found to be defective because of inadequate warn ings. reasons,

For these I concur with the majority that the judgment should be vacated and the case remanded for a However, new trial. I am of the opinion that the jury include, alia, 7. The Uniform Act would define "fault" to inter “acts or any omissions negligent that are in measure reckless or toward the person others, property subject person actor or or that liability." Act, Comparative strict tort 1(b). Uniform Fault Section should be instructed consistently suggested standards in this Concurring and Dissenting Opinion.

ROWLEY, J., joins this opinion. A.2d Pennsylvania

COMMONWEALTH of LEONHARD, Appellant. Steve Superior of Pennsylvania. Court

Submitted March 1984. Filed Nov. 1984. Petition for Appeal Allowance of May Denied 1985. notes Thus, investigation” under was whether a “subject safe, crane and the had “specialized witness knowl- edge” subject only experiénce inspecting from cranes, but also because he had trained as an engineer been

Case Details

Case Name: Dambacher by Dambacher v. Mallis

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 16, 1985

Citation: 485 A.2d 408

Docket Number: 2813 and 3148

Court Abbreviation: Pa.