Davis v. Berwind Corp.

CIRILLO, BROSKY, ELLIOTT аnd JJ. Before FORD CIRILLO, Judge: an of Common appeal

This is an from order Court post-trial Philadelphia County denying Pleas of defendants’ judgment notwithstanding for a new trial or motions defendants Berwind entering judgment against verdict and (Berwind) (Bepex). Corporation Bepex Corporation We reverse. quality as a control Kimberly employed

Plaintiff Davis was Folcroft, Keystone Equity (Equity) for Meats inspector to Mc- Pennsylvania. Equity supplies hamburger patties responsible operat- Donald’s restaurants. Ms. Davis was blender, a ing system. in the meat formulation blender blender, It mixed by Bepex. Reitz was manufactured lean regulation quality speci- and fat cow and steer meats into as operating fied McDonald’s. In addition to the Reitz blen- meat, responsible testing der to mix the Ms. Davis was certain fat range it fell within a mixture to assure met, Ms. specifications Once the were specifications. content its mode to operate discharge then the blender on Davis would on a hopper into a where it would be carried release the meat processing. conveyor phase belt to the next fingers Ms. Davis lost three on her day question, On the mode; on operating discharge hand while the blender its right discharge reached into the area of the apparently she had hopper. to remove meat which had accumulated doors rotating into contact with the Her hand then came blades. manu- system designed meat formulation Equity’s (Boldt). Industries, Equity purchased factured Boldt Inc. system incorporated in 1979. The Boldt equipment owned by Bepex, company Reitz manufactured blenders Berwind at the time. manufactured and sold with an Bepex

The blenders were safety interlocking electropneumatic safety device. This de- hands to valves required operator depress vice an to use both meat; and release the if the open discharge doors released, is, if hands were taken off the valves were both valves, automatically would close. The discharge doors safety prevent operator’s for this device was to an purpose coming anywhere rotating hands from near blades.1 device, electropneumatic safety Bepex addition tо the warnings instructing operators included on the blender visible keep fingers away discharge their hands and from the blender, DAN- warning: doors. A decal was affixed to the GER, KEEP OF DOOR This FINGERS OUT OPENINGS. warning on the Rietz it was was included blender when Further, provided by Bepex, in the manual manufactured. Bepex against removing warned the interlock device: operate guards safety place

Do not unless devices are working. electropneumatic and are control is consid- integral ered an of blender and not removed part should syslem discharge safely 1. The interlocks the driver motors with the installed, properly operator’s door controls so that if both of the hands open. discharge for the must be on the controls in order doors ... interlock feature preclude or modified to valve control handles must discharge job Both button and dis- operator during the the entire position be held interlocking operator This feature forces the charge cycle. and screws keep discharge open to use hands to doors both running. manual sold to product included the with blenders

Bepex Boldt, blеnders, the included the purchasing Boldt. after system Equity.2 manual with the it sold to equip- installed the meat formulation Shortly Equity after ment, from the Equity safety removed the device blenders. device, could two By removing safety employees operate the time; the did not have to operators Reitz blenders at one in order for the dis- continually keep occupied both hands modifications created a charge open. Although door operators’ fingers might caught risk that the hands or discharge of the without the shield of the blades blender door, to increase Equity production the alteration enabled force costs. increasing without labor accident, Following Davis’s she filed a against Corporation, Bepex Corporation action Berwind and jury Boldt. A trial commenced the Honorable Ethan before Doty. Although Equity Allen Davis conceded that had re- safety moved the device and that the accident could not have device, safety occurred without the removal of the she none- that it was that the device theless contended foreseeable Thus, Dаvis had failed to argued, Bepex would be removed. light foreseeability of the that provide adequate warnings purchaser safety Specifically, would remove the device. warnings that failed to that the argued Bepex provide Davis blades would continue to rotate after the machine was turned Burson, Engineer Manager, Bepex’s 2. Lewis Product testified David Bepex’s including language that rationale for this in the manual was to assure that discharge people purpose controls were understood that convenience; just operator they safety purposes not that were for and convenience, they changed they shouldn’t be that were required keep the machine safe. R.R. 927-928. warning in the despite advanced argument off. This was not purchasers manual that remove Bepex blender safety device. electropneumatic evidence, filed a Bepex Berwind and

At the close of Davis’s court denied this motion and for non-suit. The motion theory defended on the Bepex trial Berwind proceeded. devices was the removal Equity’s injury. cause of Davis’s case submitted proximate theory liability against Berwind jury on 402A Section a section 402B manufacturer of the blender and Bepex as The trial against claim Boldt as the seller blender. charge so that Boldt could be to amend a court refused system of the meat formulation as the manufacturer identified determining whether Boldt should be held purposes section 402A. liable under attorney improperly that Davis’s

Appellants also contended on an Bepex placing that Berwind and were blame insinuated jury “Eq- The court instructed the as follows: party. absent not uity present you.” is not for reasons which do concern why Equity to elaborate as to was not The court refused present. and jury plaintiff returned a verdict favor Davis

The Boldt, Bepex. and against defendant and defendants Berwind $400,000.00 damages in the amount of jury awarded against Bepex. Berwind and motions, timely and filed and Bepex post-trial

Berwind damages. briefing request delay Following Davis filed a argument, Bepex’s post- and the court denied Berwind’s and delay damages trial Davis’s granted request motions and $213,725.92. appeal in the amount of This followed. Berwind following and raise the Bepex issues: (1) in refusing judg- the trial court erred to enter Whether at appellants presented ment n.o.v. for where the evidence trial, to the verdict light viewed most favorable winner, support insufficient as a matter of law to was defectively manufac- jury’s verdict was tured?

(a) refusing the trial court erred in to whether enter judgment jury appellants strictly n.o.v. where the found though plaintiff for failure to warn even failed to liable would have altered her conduct in the prove she of a presence warning?

(b) trial court erred in refusing whether enter judgment jury’s finding contrary n.o.v. where the charge given by contrary the trial court and to the law of this Commonwealth?

(2) undisputed Where the evidence trial established that designer defendant Boldt was the manufacturer of a system incorporated meat formation which blenders manu- by appellants, refusing factured did the lower court err in grant erroneously charged jury a new trial where it Bepex was the manufacturer of the and Boldt was the seller?

(3) in refusing Whether the trial court erred to instruct plaintiffs еmployer that the was not a defendant in this immunity provided case because of the under the Workers’ Act Compensation plaintiffs opened after counsel the door instruction by making closing such statements its arguments regarding plaintiffs employer absence the case? reviewing a trial court’s denying

When order a mo trial, tion for a new this court must determine whether trial clearly palpably court abused its discretion or com mitted an error of law which controlled the outcome of the case. Stevenson v. Motors Corporation, General 513 Pa. (1987). 521 A.2d 413 The standard of review when consider ing denying judgment an order n.o.v. is the same standard employed by the trial court: the appellate court must deter mine competent whether there was sufficient evidence to verdict, granting sustain the the verdict winner the of benefit every reasonably inference which can be drawn from the all rejecting testimony evidence and unfavorable and inferenc Walsh, Inc. Ingrassia Construction es. Pa.Super. (1984). 58, 486 A.2d 478 n.o.v. Judgment may granted only reasonable that no two the facts are such сase where in a clear Id. improper. verdict was that the agree could fail minds trial, now on throughout maintained appellants from the the meat intended to clear that Ms. Davis appeal, or using the shovels doors without discharge front task, and, she had no for this since provided by Equity hooks door, an additional hand inside the her placing intention continue turn of the blender would that the ribbons warning (a of which Ms. delay off factor turned power the was after accident) would prior to the unaware apparently Davis was this, appellants The reason made no difference. have her would have affected behav- warnings is because argue, inside the her hands place if intended only ior she had discharge door. that by plaintiff that it was admitted argue also

Appellants and that safety system had removed employer, Equity, her would not the accident place, had the device been Equity’s that removal contend Appellants occurred. have alteration post-sale a substantial safety device constituted therefore, liability. and, it should be relieved that the Ms. Davis maintains response argument, to this removal nonetheless ‍‌​‌‌‌​​‌‌​‌​​​​‌​​‌‌‌‌​​​​‌​​‌​‌​​​‌​​‌‌​‌‌​​​‌​‍because is liable Ms. Davis rea- Essentially, foreseeable. safety system removal of the anticipated have Bepex should sons and, therefore, included additional should have safety device machine, warning that operator, on the aimed at the warnings rotate after the would continue to ribbons blades was turned off. machine against that the verdict was

Additionally, argue appellants although Appellants contend the court’s instruction. on not instructed liability, on 402A it was jury was instructed by Equity. modification foreseeability of the trial, argue appellants a claim for new respect their With Bepex was charged erroneously court that the main- Appellants was the seller. manufacturer and Boldt of the the meat component part Bepex blender was tain the therefore, and, by Boldt system formulation manufactured 352

Boldt erroneously characterized as a seller under section (Second) 402B of the Restatement of Torts.

A review of the record reveals that there no dispute is аppreciated Ms. Davis danger placing her hand near the discharge doors. Ms. Davis was trained on operation dangers. blender and made aware of the Davis Ms. admitted that there were warnings discharge on the door to from keep away hands the door. She testified that she did not and, place fact, intend to her hands in the doors believed right approximately her hand was away three inches from “pulled the door when it was in.” (Second) Torts, Section 402A of the Restatement adopted Zern, as the law of the Commonwealth Webb v. 422 Pa. (1966), 220 A.2d 853 provides any that “one who sells in a defective condition unreasonably dangerous to the user or property subject consumer or to his is to liability physical harm thereby consumer, caused to the ultimate or user or to property, his if:

(a) engaged the seller is in the of selling business such a product, and

(b) it is expected to and does reach the user or consumer without change substantial in the condition in it which sold.” applicable though

This rule is even (a) the seller has possible exercised all care in the prepara- and, tion and sale of his product, (b) the user of consumer has not bought from any entered into contractual relation with the seller. (Second) (1965) § Restatement of Torts 402A (emphasis add- ed). judicial tendency products liability cases tois retain

negligence Co., Inc., principles. Azzarello v. Black Bros. Cf. 547, 555, (1978); 480 Pa. 391 A.2d Dambacher Mallis, 22, 59-60, Dambacher v. Pa.Super. 485 A.2d (1984). In approaching products liability case, however, underlying strict policy of the social conscious must be we it, the “social or, Prosser termed Professor liability, as product fault. liability without W. assign adjustment” required 1979). (4th Torts at 495 Law of Prosser, ed. law is alloca liability underlying products theory

The injured by products. Plaintiffs, inevitably, will be tion of loss. loss is the to absorb that position The in the better party doing a cost of business. That loss is or seller. Azzarello, Corporation, v. Avco see also supra; Walton See v. Sweitzer (1992); 454, 568, 574, 458 610 A.2d 530 Pa. 880, 449, 453, 539 A.2d 882 Dempster Systems, Pa.Super. 372 Protection, Inc., Pa.Super. 292 Property v. Lobianco (1988); (1981). 417, 424-26 346, 359-62, A.2d 437 of section Nonetheless, purpose it was never guar is a liability.3 A manufacturer absolute impose 402A Azzarello, 480 Pa. at not an insurer. See product, antor of its & Iron Chicago-Bridge Ellis v. 1023-24; 551-55, at 391 A.2d see also (1988); 225, 906, 220, 545 A.2d 909 Pa.Super. 376 Mollis, 22, 61, 485 by Dambacher Dambacher Pa.Super. 336 (1984) “guar 408, that distinction between (proposing A.2d 429 instructions). The jury in and “insurer” be clarified antor” by manufacturers are proposed and caveats various defenses pure In a liability. risk of loss or attempts to shift forum, a manu the determination of whether liability product See judicial risk a function. bear is facturer should Azzarello, v. K-Mart see also Jordon supra; Jordon 188-92, 1330- Corporation, 611 A.2d Pa.Super. 417 (1992) (whether on placed is to the risk of loss be court; holding of law for the question question in is a supplier Azzarello threshold correctly applied trial court design); on liability product strict claim based determining the (“It Ellis, judicial a 545 A.2d at 913 Pa.Super. whether, averment plaintiffs to decide under function Institute, drafting of the Restate- section 402A Law 3. American Torts, (Second) product liability imposition strict limited the ment expected to and does reach user "is to cases where which it is change in the condition in without substantial consumer sold.” facts, recovery justified; would only judicial after this determination is made is the case submitted to the determine whether the facts of support the case the averments Wertheimer, of the complaint.”). Agonistes: Azzarello E. Cf. Tide, the Strict Bucking Liability Products 66 Temple L.Rev. (1993) (commentator the Azzarello decision stresses that has of Pennsylvania allowed courts to retain product liability doctrinally pure law its form providing a frame function). judicial work for the screening prevail case, order a plaintiff (1) (2) must defective; establish: that the that the (3) defendant; defect existed when it left the hands that the defect caused the harm. Berkebile v. Brantly Heli copter 83, Corporation, 98, (1975). 462 893, Pa. 337 A.2d 898 inadequate

While an warnings case has been characterized v. case, as a kind of Incollingo Ewing, design defective 444 263, (1971), Pa. 282 A.2d 206 the term “defective” does not easily fit when applied warnings. For in a warnings case it alleged is not that there was anything wrong with the product’s design as such. Rather a “defect” is supposed exist because the user not adequately how was on instructed to use as the product was designed. product Mallis, Dambacher Dambacher v. 57, Pa.Super. 336 at 485 (emphasis A.2d at 426 in original). cases,

In failure to warn recovery sought is on the theory that “unreasonably is dangerous” when “unaccompanied by warning a with respect to nonobvious Ellis, dangers inherent the use of product.” 376 Berkebile, 908, at Pa.Super. 545 A.2d at 908. the Supreme of Pennsylvania Court explained: A “defective condition” is not limited to design defects in manufacture. provide The seller must with every necessary element to make it safe for use. One such element may warnings be concerning instructions and/or use of the A product. seller must give warning such instructions required as are to inform the user or consumer possible risks and inherent limitations product. of his

355 100, (citing Restatement A.2d at 902 Berkebile, Pa. at 337 462 h). this jury applies 402A, (Second) Torts, § comment that court has determined once the trial the facts standard finding a support alleged would the facts Thus, the initial deter adequate warnings. without defective trial by the answered of law question mination is a 1026; see Azzarello, 558, A.2d at Pa. at 391 480 See judge. (1993); 568, A.2d 454 610 530 Pa. Corp., v. Avco also Walton 52, 525 Pa. Corporation, Electric Westinghouse v. Mackawick Ellis, Jоrdon, D’Antona (1990); supra; supra; A.2d 100 575 120, Co., Inc., 310 Pa.Super. Grinding Wheel Hampton v. (1973). A.2d 307 removed the though Equity maintains that even

Davis theory Davis’s device, was foreseeable. this alteration argument on warnings, inadequate premised liability, and, this alteration there- anticipated have Bepex should fore, warnings. provided have additional should proper- the trial court must determine whether

Initially, we presented by the facts averred ly concluded in strict facie case prima sufficient to make out plaintiff were therefore, and, properly case was sub- whether the liability, Azzarello, 558, at Pa. at 391 A.2d jury. mitted to the See Jordon, 102; Mackowick, 54, at 1026; 525 Pa. at 575 A.2d Ellis, 1331; Pa.Super. at 190, at 611 A.2d Pa.Super. Co., 346 227, 910; Equipment 545 A.2d at Carrecter Colson (1985); see also 330 n. 7 101 n. 499 A.2d Pa.Super. (test D’Antona, determining whether substantial supra occurred is whether product in manufacturer’s has change alteration; foreseen the reasonably could have manufacturer the inferences for the factfinder unless is this ‍‌​‌‌‌​​‌‌​‌​​​​‌​​‌‌‌‌​​​​‌​​‌​‌​​​‌​​‌‌​‌‌​​​‌​‍determination of law that a say can as a matter that a court are so clear foreseen such could not have reasonable change). large mix was to of the Reitz blender purpose 2,000 mix meat; capacity had the of blender

quantities dispute did not parties of at one time. The pounds meat dangerous prod- A piece machinery. dangerous this was 356 commerce, however,

uct the stream of does not automatical- ly place liability upon the manufacturer. Strict product liabili- ty appropriate is only when there exists a manufacturing defect or a design, defective the inadequate claim warning Azzarello, falling within the latter category. supra; Bascelli Inc., Randy, 254, (1985). 339 Pa.Super. 488 A.2d 1110 The evidence undisputed that Equity removed the interlocking safety device and that the manufacturer had against warned removing the device. “Where a warning is given, may the seller reasonably assume that it will be read heeded; product and a bearing such a warning, which is followed, safe for if use it is is not in defective condition ...” (Second) Torts, 402A, Restatement Section j. comment Further, a change material product severs the chain of causation where the plaintiff would not injured have been had remained in its unaltered state. See Restatement (Second) Torts, 402A, See also Suieit Section g. comment zer, supra (one who sells a in a defective condition unreasonably dangerous subject is to liability for physical harm thereby caused if the product expected to and does reach the user or consumer without substantial change sold) condition in (Second) which it is (citing Restatement 402A(1)(b) (1965)); Sears, § Torts Burch v. Roebuck and Company, 444, (1983) 320 Pa.Super. 467 A.2d (same); Inc., Bascelli v. Randy, 339 Pa.Super. 488 A.2d 1110 (1985) (same).

Where the has reached the user or con sumer with substantial change, the question then becomes whether the manufacturer could have reasonably expected or Bascelli, foreseen such an alteration of product. its supra; Houdaille, Eck v. Powermatic 364 Pa.Super. 527 A.2d (1987); D’Antona, supra. “If the manufacturer is to effectively act guarantor as the product’s of his safety, then he should be held responsible for all dangers which result from Eck, foreseeable modifications of that product.” 364 Pa.Su per. at 527 A.2d at 1019 (quoting Merriweather v. E.W. Bliss Company, (3d Cir.1980)). F.2d Foreseeability is

357 sо inferences are clear unless the a factfinder question of law that a reasonable say can as a matter that a court D'Antona, change. have could not foreseen manufacturer Stapley (citing A.2d Co. 310 at 310 O.S. Pa.Super. 225 (1968) Miller, and Mazzi v. Ariz. 447 P.2d 248 v. 103 Ellis, (2d Cir.1963)); also see 320 F.2d Tool Greenlee supra. law, held that a courts have Pennsylvania

Pursuant injuries by not caused a or seller is liable if created a substantial the defect was defective a product amounting supervening alteration See, Smith v. injuries. e.g., intervening plaintiffs cause (3d Cir.1962) Company, F.2d 570 Manufacturing Hobart law, court found Pennsylvania circuit (applying sending question to the whether trial court erred employer have would anticipated the manufacturer could safety guard grinder; from meat there evi remove the guard speed up the employer dence that the removed the Refining Inc. v. Humble & grinding process); Speyer, Oil (3d Cir.1968) Pennsylvania (applying 403 F.2d 766 Company, law, change found in the condition of the court that substantial the manufacturer gasoline pump precluded recovery against a liability theory; imposition of striсt re on strict or consumer quires that the reach the ultimate user it change condition in which was without substantial (3d sold); 490 F.2d 1148 Cir. Corp., Birdsboro Schreffler 1974) found law, circuit court (applying Pennsylvania for manufacturer trans properly trial court directed verdict modifications were made em fer table where substantial control; left the be ployer after the manufacturer’s modifications, defect, any, if design could employer’s cause of law, and, proximate as a matter of not be cause accident addition, recom employer’s implement failure its modify and its unilateral decision to the transfer mendations any concur with of the manufacturer and table did not conduct plaintiffs injury); cause of Hanlon v. superceding was the (3d Cir.1975) (applying F.2d Company, 541 Cyril Bath law, would not be Pennsylvania manufacturer of brake press strictly injury operator’s employer liable for to hand where switch); Rooney v. Federal Press pedal had substituted the (3d Cir.1984) Company, Pennsylvania 751 F.2d 140 (applying law, in judgment power on the record favor of manufacturer of sold, where, press proper press еquipped was as was dual with employer pedal palm button control and later added a foot control); Thompson Machinery v. Match & Merryweather Co., (1986) (manufacturer 149, 358 A.2d Pa.Super. 516 1226 of metal not for press design pur- sheet liable defective where of in press chaser altered machine a manner that could not reasonably by been manufacturer it have foreseen that made operator to reach was possible press press material while descending). jurisdictions, too, impose liability

Other have to refused the product undergoes where substantial alterations after See, e.g., Stapley leaving the of O.S. hands the manufacturer. Miller, v. (1986) (where Co. 103 Ariz. 447 248 P.2d motor, injured her plaintiff propeller foot on of outboard court finding reversed the trial court’s was boat manufacturer law; as a of liable matter the seller of the boat had altered steering larger mechanism accommodate an outboard motor than the for which designed; one the boat was the court apparent stated that it that the was had been substan tially possiblе altered and that it was the alteration was accident); v. J.D. Diffenbaugh of Valdez proximate cause Co., (manufacturer 494, 124 (1975) 51 Cal.App.3d Cal.Rptr. 467 conveyor of industrial system oven relieved of purchaser where and installing contractor made substantial Mayrath v. modifications); Ill.App.3d Willeford (manufacturer (1972) N.E.2d 502 of farm elevator was not injury boy liable who entangled power became takeoff shaft where was not as produced by elevator condition manufacturer, was assembled on of but dealer order De Armond v. Hoover Ball devices); purchaser safety without Division, Bearing, Uniloy & 86 Ill.App.3d 42 Ill.Dec. (1980) 193, 408 N.E.2d 771 (summary judgment in favor of molding manufacturer of it proper machine was where shown that safety interlock doors had been removed em- (La. Chainbelt, Inc., 349 So.2d 948 v. Rex Stevens ployer); (manufacturer injury not liable for cement mixer App.1977) exposed fan- caught were they when operator’s fingers as a belt; subsequent alteration was unforeseeable employer’s Corporation, 771 F.2d law); Plante Hobart matter (1st Cir.1985) law, judgment favor Maine (applying machine affirmed where potato grinding from grind had removed interlock employer plaintiffs machine; duty provide no additional ing defendant had of such warnings as where lack additional danger to obvious cause of accident warnings proximate could not have been grinder specifically against affixed to cautioned warning since grinder plaintiff and both and his using unclog hands to procedure); in danger aware of involved such employer were District, 1, 276 Minn. 148 312 Westerberg v. School N.W.2d (1967) (where it arm was severed when became plaintiffs extractor, was not in manufacturer held entangled a water provided by the manufacturer safety liable because features user; by stated that the not court were maintained that a required anticipate not to foresee manufacturer was safety as to render its devices product user will alter the so ineffective); Package v. Division Robinson Reed-Prentice of 471, 717, 403 49 426 N.Y.S.2d Machinery Company, N.Y.2d (1980) in judgment 440 reversed action (plaintiffs N.E.2d injury molding opera of machine for against manufacturer was original adequate safety gate hand substan tor’s where such by purchaser-employer modified and modification tially injury, however proximate cause of the foreseeable was Ametek, Inc., been); might modification have Lovelace such (3d 953, (summary 49 Dept.1985) 111 A.D.2d 490 N.Y.S.2d laundry of favor of commercial judgment manufacturer against in a strict action proper water extractor was arm caught plaintiffs in extractor manufacturer when material it; devices, have safety him into which would pulled and three other than injury, by had been removed someone prevented manufacturer); 15 Morgan Manufacturing Company, v. Biro (1984) (in 15 OBR Ohio St.3d N.E.2d design action defective failure products liability alleging warn, grinder, filed meat worker’s against

arm mangled by grinder; applicable was the meat statute provided only injury that manufacturer shall be liable would have occurred if had original, been used its parties agreed unaltered and unmodified condition and protective removed, had original guard plaintiff not been injured); would not have been Tuttle v. Slicing U.S. Machine (4th Cir.1964) Co., (operator 835 F.2d of commercial meat grinder, party protective from which a third grill, removed injured was when the used his operator push hand meat into grinder using provided instead of wooden pusher purpose; summary court judgment affirmed favor of manufacturer); Davis v. Globe Machine Manufacturing (1984) (manufacturer 102 Wash.2d 684 P.2d 692 of glue- spreading machine held not liable where machine had been switch). safety sale modified after removal case, interlocking safety system this was an integral part though of the product, operational even was . safety without This device. was stated explained manual and Bepex’s trial Product Engineering (in Sweitzer, Manager. action supra against manufacturer Cf. truck, emptying garbage expert device attached testimo ny design established that mechanism truck, i.e., not with compatible garbage the environment vibrations, corrosions, rain and other liquids, the act of loading unloading continuous or can cause bends or corro sions). jury Bepex The found it was foreseeable to that the removed, safety device would in part Bepex be because had Thus, against jury warned removal. the that warnings found in addition those on to the doors of the were required, blender is, warnings which operator warned the in the event that the safety device was and which specifi removed warned more cally “Danger, than keep fingers away from door opening.”

We must determine as a matter of social policy the bounds of the manufacturer’s responsibility, beyond providing a safety device, warnings keep away portions to from dangerous product, ‍‌​‌‌‌​​‌‌​‌​​​​‌​​‌‌‌‌​​​​‌​​‌​‌​​​‌​​‌‌​‌‌​​​‌​‍warnings buyers and to not to safety remove the device. Does a have a duty manufacturer to warn anticipa- tion that the user will alter the to so as undermine its

361 with- operational the Though blender safety precautions? device, operate to and workers were able safety Bepex’s out device, safety a shift simultaneously without the two blenders is en- in this case an the manufacturer responsibility to incentive, actions, economic leaving no Equity’s of dorsement manufactur- otherwise, buyer/employer for heed the or the and health or the Commonwealth’s precautions safety er’s case was question of whether this threshold safety laws.4 The under strict jury for a determination аppropriate therefore, Azza- must, negative. answered the liability, D’Antona, Ellis, Mackowick, supra; rello, supra; supra; supra. above, many the various cases cited

As illustrated manufacturer, employer, not the injuries it workplace laws, compensation culpable party.5 is the Workers’ sole defen however, as the frequently leave 72; Larson, Law § 2A A. The Workmen’s See 77 P.S. dant. of (1983 Worker, Butler, A Supp.1985); & Compensation A Product, Why, Solu Injury: Pays An Who Defective (1985). In Ohio, judgment, our 50 31 tion in U.Cinn.L.Rev. jury jury prompts to the sending type case of this “redesigning prod described as in what has been engage tailoring the defect fashion negative/hindsight uct in a 630 Chrysler Corp., facts the case.” Dawson specific denied, (3d Cir.1980), 101 S.Ct. 450 U.S. cert. F.2d (1981). Gallub, Limit M. generally See 67 L.Ed.2d 383 Altera Product Duty Subsequent ing Manufacturer’s L.Rev. 16 Hofstra Steps Approach, to a Rational tion: Three (“The (1988) foreseeability allows reliance on court’s as if the hindsight design with clear original to view 25-6, Act, provides: § Safety P.S. Health and Section 25-6 4. § 25-6. Removal Guards— any safeguard, person shall remove or make ineffective No purpose of machinery except appliance or device attached making repairs adjustments, ... immediately § P.S. 25-6. 112(D) Liability Product analysis of of the Model Uniform 5. The section thirty-nine percent result alterations Act determined Act, Liability Product employers. Model Uniform the conduct of from 112(D) (1979). § had not materially machine been altered. addition to placing alteration, minimum on emphasis the court allows the to evaluate the original design by analyzing condition.”). dangers in its altered pocket Where a deep only manufacturer or is seller defendant, a jury likely injured verdict will favor the plaintiff. result, As a the limitations on provided ineffectual, in section 402A are rendered and the path liability. cleared absolute

Bepex did required responsible what was of a manufacturer; device, provided safety it provided it addi tional on warnings blender, the discharge doors of the and it a product included manual warning against removal of the safety device. which Warnings ignored, by buyer are whether user, are not inadequate simply possible because it is that (Second) one ignore chooses to them. See Restatement 402A(1)(b). Torts, § Equity’s unilateral decision remove safety change interlock was a “substantial the condition sold,” which the within the meaning [blender] of section 402A. argument Davis’s warnings were inadequate light of the foreseeability employer would remove the is, therefore, interlock device not tenable. Where a third party seriously original interferes with the design product, the risk of loss cannot be shifted the manufacturer. To do so leaves the manufacturer at the whim of a third party’s decision to safety forfeit measures. injuries

The evidence established that Davis’s were caused by the safety removal device and that the accident would not have occurred had the product not been altered. circumstances, Under these the inferences are so clear that the court should have concluded its threshold determination not Bepex reasonably could have expected or foreseen Mackowick, removal device. See D'Anto supra; ria, Hobart, supra; see also supra; Schreffler, Rooney, supra; suprа. Sears, Accord: Erickson v. Roebuck & 240 Cal. App.2d (1966); Armond, 50 Cal.Rptr. 143 De supra; Stevens, Lovelace, supra; Tuttle, supra; supra. The funda- therefore, to resolve error, the trial court’s failure was mental Mackowick, Pa. of law. See at a matter the as question 58-59, at 104. 575 A.2d substantial a endures product that where

We hold door, as re such leaving the manufacturer’s after alteration device, against is and where alteration safety a moval of manufacturer, to the the alteration rises warnings of injury, of cause intervening superceding or level an of the manufacturer relieving the chain causation breaking to contain the Commonwealth’s These efforts liability. forth in the framework set doctrine with liability 402A is consistent by section AzzareUo imposed limits policy. social with sound therefore, refusing court erred in conclude, that the trial

We on n.o.v. Based this judgment grant appellant’s motion to raised questions to unnecessary it address disposition, is a trial. motion for new to their respect with by appellants case is dismissed. is vacated and the Accordingly, judgment ELLIOTT, J., opinion. a dissenting files FORD ELLIOTT, dissenting: Judge, FORD majority’s conclusion respectfully I dissent from must refusing grant appellant’s erred the trial court conclusion, the reaching this n.o.v. judgment motion for majority states: altera- substantial a endures hold that where

We door, such as removal the manufacturer’s leaving tion after is device, against alteration and where that of a manufacturer, rises the alteration warnings of the injury, superceding or cause intervening of an level relieving the manufac- of causation and breaking the chain liability. turer opinion at 363.

Majority to eliminate “foreseeabil- holding I a serves find that such to determine ity” from the test utilized caused, by post-sale modifications part, injuries least holding contrary and that such a established law this Commonwealth. law, majority, federal citing case frames the applicable law, as Pennsylvania

test follows: “Pursuant courts have injuries held a manufacturer or seller is not liable for caused a defective if the defect created product amounting superven- substantial alteration to a ing intervening plaintiffs injuries.” cause (Majority opinion at citing Smith Hobart Manufacturing (3d Cir.1962).) F.2d 570

Unfоrtunately, the majority’s recitation the test falls setting short of forth parts both of the Foreseeability test. is test, an integral part also as this court clear in made Pennsylvania several cases including Thompson v. Motch & Merryweather 149, Machinery, Pa.Super. 358 516 A.2d 1226 (1986). case, Thompson, as with the present was a post-sale manufacturer, modification case. in Thompson, argued The the question of substantial alteration should not have submitted to jury. disagreed, been the This court noting that determining the test for when a manufacturer is relieved of liability post-sale for a modification is as follows:

If the alteration not reasonably could been by have foreseen the if it superseding manufacturer and were a cause the injury, user’s the manufacturer would be relieved of even if had design there been defects existing at the time press the purchaser. was delivered to the 155, Thompson added). A.2d 516 at 1229 (emphasis Clear- ly, foreseeability is first part two-part, conjunctive this Furthermore, Thompson cases, test. in and several other this court has noted continuously question that the of foreseeabil- is ity generally a matter for the trier of fact to decide. ... in such a [t]he test situation is whether manufactur- er could reasonably have expected foreseen such an alteration its a product]; [in such determination fact-finder unless the inferences are so clear a court say can as a matter of law that a reasonable manufacturer could not have change. foreseen the

365 178, Houdaille, 190, 527 Pa.Super. v. 364 Eck Powermatic (1987), v. Hampton D’Antona quoting 1018 A.2d from (1973). Co., A.2d 307 Pa.Super. Grinding Wheel totally a test that Presently, majority’s opinion endorses I cases. foreseeability post-sale modification eliminates holdings with of this prior such a conclusion inconsistent find 449, 539 Dempster Systems, Pa.Super. v. court Sweitzer Sears, Eck, Roebuck (1988); supra; Burch & A.2d 880 (1983); DAntona, supra. Pa.Super. 467 A.2d 615 foreseeability key compo- is a clearly cases indicate that Those concerning foreseeability of the test and that issues nent instances, should, jury. a For exam- most be resolved Sweitzer, em- also involved a situation where an supra, ple, removing safety device. The product by a ployer modified that the removal injured employee maintained lock, device, as a container was foreseeable known that the manufactur- employee manufacturer. The contended with an equipped emptying have mechanism er should operation of system prevented have interlock which would if removed or not lifting the container lock was mechanism that the charge trial court failed place. injuries relating post-sale could be liable modifications, modifications foreseeable. when those were recognized foreseeability appeal, the Sweitzer court

On After integral post-sale modification cases. part is an trial, presented at the Sweitzer court reviewing the evidence have instructed jury concluded that should been “[t]he determining a factor to be considered foreseeability was injuries held responsible would be Dempster whether Sweitzer, product modification.” resulting postsale from at 883. Pa.Super. A.2d in this likewise warrant- Presently, I find that the facts case jury, issue to the foreseeability ed submission findings. There correctly court to disturb those trial declined from which the competent sufficient evidence certainly was could that it was foreseeable the jury have concluded manufacturer, by-passed. example, For feature could be manual, against removing the inter- in its instruction warned lock safety device. Such a warning presumes the possibility that the device could be removed. The manufacturer also placed a warning label on DANGER, the machine which read: KEEP FINGERS OUT OF Again, DOOR OPENINGS. such warning a would indicate that there were circumstances which bring person’s would fingers in contact with the blades. Additionally, jury was presented with evidence that the controls for interlocking electropneumatic safety device shipped were separately from the unit and had to be installed by the employer. This certainly raises the possibility that the safety device may not be utilized. sum, all of these provide facts a sufficient basis for jurors

reasonable to conclude that the modification to appel- lant’s blender was It foreseeable. is then left for jury whether, determine in light foreseeable, of the post-sale modi- fication, appellant’s blender was defective for failing to contаin a warning that the blades continued to rotate even after the power was shut off.’ The jury obviously concluded that the product was defective for failing warn about the continued rotation of the blades. Given that a judgment may n.o.v. only granted in a clear case where the facts are such that no two reasonable minds could fail agree the verdict was I improper, find majority’s clearly decision erroneous. There are facts record to support a finding of foreseeability jury. Once foreseeability established, it was not unreasonable for jury to conclude that the blender was defective for failing warn of the continued rotation of the blades.1 important

1. It is against to note that appellants prem- Davis’ claim upon ised a failure to warn of the continued rotation of the blades. alleged Davis that she power turned off the to the machine and then attempted to clear meat opening from the discharge chute. Because of the employer, modification made ‍‌​‌‌‌​​‌‌​‌​​​​‌​​‌‌‌‌​​​​‌​​‌​‌​​​‌​​‌‌​‌‌​​​‌​‍her which enabled the discharge open, doors to remain continuing rotation of the blades allowed Davis’ hand to be up" "sucked Appellants into the blades. argued have that even if it was reasonable for the to determine the foreseeable, modification to the any blender was warning additional continuing about the rotation the prevented of blades would not have the accident in that it would not have Appel- altered Davis' conduct. argument completely lants’ is by contradicted testimony Davis’ at trial unequivocally wherein she stated that had she known the blades contin- Eck, jury a requested this to review supra, court was chal- The import alterations.2 post-sale instruction on holding majority’s to the strikingly was similar lenged charge as question in in Eck read jury charge in The this case. follows: only seller, responsible or distributor is

A leaves at the time the defects as exists [sic] such not seller, is manufacturer or distributor control. The its by changes created substantial for defective conditions liable the has sold. occurring in after been the it is for defective you question if find the saw was So even originated Jury, to then decide whether the defect you, the Defendant, and Powermatic by time of the sale the the of a result originated as Hermanee or whether the defect the removing Company of Ernest L. actions Shumbat the manuals, adding the shim. guard failing to the and supply or you I think again to going I am read that because And if find you it in a manner. Even [sic] should hear cohersive Jury, it the question you, is defective the saw sale time the originated that defect at the decide whether Hermanee, Defendant, or Powermatic and by made was a the actions the defect resulted as result of whether by guard, Company removing L. Shumbat and Ernest you If shim. supply adding the manuals failing fence the shim fastened to the permanently find that was its Inc. or that Company, Ernest L. the saw Shumbat change ... employees constituted substantial agents off, rotate, put power shut she would have never ued to after obviously discharge found anywhere near the door. The her hand testimony position is in no to reassess Davis’ credible. This court credibility. Davis’ safety a post-sale 2. in Eck included the removal modifications saw. guard of a “shim” to fence of thе on the saw and addition changes were more than those While saw in Eck substantial bar, the Eck determined the blender in the case at court still made to determining component analyzing foreseeability was a vital Thus, liability. of a feature while removal manufacturer’s change, be a substantial such an alteration alone can itself considered particu- foreseeable the manufacturers can oftentimes considered changes equipment production larly allow the better meet if such goals of the user. the condition of the saw before it reached the Plaintiff then Hermanee Machine Company and Powermatic are not liable words, injuries. you the Plaintiffs other if find that fastening the of the shim to saw by Shumbat was a change substantial in the condition the saw then the not If you Defendants would be liable. find that the remov- guard al of the and the failure to supply guard Barry by Eck Ernest L. Inc. Company, Shumbat constituted a change substantial in the condition the saw before it Barry reached Eck then the Defendants Hermanee and Powermatic are not if injuries liable the Plaintiffs injuries Plаintiffs by were caused the failure to have a guard. you If find shim permanently fastened to the fence of the saw Ernest L. or agents Shumbat its done in an improper manner then such alteration of the saw could constitute a change substantial the condition of the saw.

Eck, 182-83, 364 Pa.Super. at 527 A.2d at 1014-15.

Noticeably absent from jury charge, majori- this as with the ty’s holding, is the concept foreseeability. Both the jury in Eck charge majority and the holding the instant case absolve a liability upon manufacturer of showing a sub- stantial modification to the product and a cause-and-effect relationship between the modification and injury. Both are foreseeability. silent as to In analyzing jury charge, charge the Eck court found the erroneous because it lacked foreseeability component. The issue in light was framed of Eck’s motion for a new trial as follows:

Eck filed a motion for new trial which he contended charge of the trial court on the issue of substantial change had been erroneous. He asserted specifically that the court should have instructed the the defen- dants would not be relieved of if the alterations made Shumbat the saw were foreseeable. Id. at 527 A.2d at 1016. analyzing After several Pennsyl- vania involving liability modifications, cases for post-sale “[tjhese Eck court recognized that decisions suggest that the concept of ‘foreseeability’ significant is a in determining factor responsible or seller will be held a manufacturer whether of a after modifications injuries resulting post-sale (emphasis 527 A.2d at made.” Id. have been added). of the con- significance Accordingly, because of cases, the Eck modification “foreseeability” post-sale cept of did not contain charge that a which court concluded of the law of incorrect statement was erroneous as an concept Id. Pennsylvania. page as set forth on majority’s holding I

Because find the statement of indistinguishable an majority opinion 363 of the disapproved by charge specifically forth in the the law as set Eck, inconsistent with majority opinion I find the be Pennsylvania. of the law in current state holding states that its Additionally, majority I note that the Co., Bros. of Azzarello v. Black guidelines with the comports (1978), Inc., policy and sоund social 480 Pa. 391 A.2d 1020 efforts to contain the Commonwealth’s considerations. “These provided by liability doctrine within the framework product 402A are consis- imposed by and the limits section Azzarello 363.) (Majority opinion social policy.” tent with sound I Again, disagree. must holding its is somehow implication by majority

Any in misleading. Azzarello guided by or mandated Azzarello is foreseeability of way no calls for a limitation of or removal argument in modification cases. Such an concept post-sale this court in Eck. squarely rejected by was raised and however, argue, viability that the defendant-appellees authority of this line of has been undercut the subse- in Pennsylvania Supreme decision of the Court Azza- quent Co., 480 Pa. 391 A.2d 1020 rello v. Black Brothers (1978). is as follows: argument, syllogistically, Their stated negligence principles precludes injection Azzarello actions; liability strict ‘reasonable foreseeabil- into Azzarello, therefore, under ity’ negligence concept; is a liability in a foreseeability may not be used strict concept of a manufacturer for responsibility action to eluсidate injuries by product undergone caused a which has substan- manufacturer’s control. leaving tial alteration after rejected by A the United States argument similar for the Third Circuit Merriweather v. in Appeals Court (3d Cir.1980). There, E.W. Bliss F.2d 42 the trial charge jury reasonably court had refused to fore- not manu- changes seeable a would absolve the liability injuries product. facturer of caused Instead, jury was instructed on the issue of substantial change any foreseeability. without reference to reasonable Pennsylva- this instruction to erroneous under finding law, nia the Third Circuit stated: felt that Azzarello had, apparently

The court below ... Kuisis Bald [D'Antona [v. by implication, overruled Corp., win-Lima-Hamilton 457 Pa. 319 A.2d 914 (1974)] and federal decisions which had followed them] Azzarello, that, jury charge under on substantial not change could be framed terms reasonable fore noted, seeability. disagree. previously As we We Pennsylvania Supreme Court’s decision Azzarello sim phrase ‘unreasonably dangerous’ deleted the from ply instructions cases. It did not question change to address the of at purport substantial Azzarello this court has Moreover, following specifi all. in cally approved jury charges liability cases in foreseeability. which were framed terms of reasonable See, Corp., Baker v. Outboard Marine 595 F.2d 183- (3d Cir.1979), (approving an instruction on supersed ing liability incorporates cause case which also, See Heckman v. Federal foreseeability). reasonable Co., (3d Cir.1978)]. Press F.2d 612 Therefore we [587 precedential find no basis for the district court’s conclu sion that Azzarello has implicitly phrase deleted the rea sonably from instructions on foreseeable substantial change. fundamentally,

But more we that the trial court’s find directly instruction was in error because it contradicted policies underlying Pennsylvania Supreme Court’s decision in Azzarello. In Azzarello the court phrase unreasonably dangerous eschewed the use large part improperly because it that that phrase felt de-emphasized the to act as the duty of manufacturer Azzarello, guarantor product’s safety. supra, his See Pa. at to adopt A.2d 1027. Were we approach change by to the accepted substantial doctrine court significantly the district this case we would policy. effectively undercut this If the is to guarantor product’s safety, act as the of his then he should be held responsible dangers all which result from modifications of that Yet un product. foreseeable der the view taken the court below this would not Rather, occur. once the modification of the was shown to substantial manufacturer would be ex injuries cused from all product, caused if even that modification clearly foreseeable. As a matter, therefore, practical the district court’s decision considerably broadens scope change the substantial broadening defense. Because the of this defense is incon sistent with the concept guar the manufacturer as the antor of product, charge given by his we feel that the district court is in direct conflict with Azzarello.

Id. at 45-46. Eck, 190-92, 364 Pa.Super. at 527 A.2d at 1018-19 (emphasis added). Applying court, this reasoning from the federal this court in Eck held that no upon “[AJzzarello had effect established rule of requires law which consideration of ‘fore- seeability’ connection with a change’ ‘substantial defense.” Id. at 527 A.2d at 1019.

Interestingly, the language from Merriweather v. E.W. (3d Cir.1980), Bliss 636 F.2d 42 quoted favorably by the court, Eck clearly any analytical approach indicates that post-sale modification cases which eliminates diminishes the “foreseeability” concept, runs policy counter consider- ations underlying general. Azzarello and 402A in That notion court, is reinforced the Sweitzer which noted: The role of in a foreseeability product liability case is consistent policy with the broad and sound social underlying 402A; is, § as an product between innocent user of a in the business engaged who is a manufacturer or seller for risk of loss selling product, manufacturing

of shall product of a defective resulting from the use injuries seller. manufacturer by be borne and/or Thus, it Id., at 882. would at 539 A.2d Pa.Super. inconsistent with analysis is majority’s to me that the seem 402A. underlying policies and the social Azzarello must concern for the I that there Finally, recognize do liability in cases. We liability product of bounds to make encourage manufacturers to continue to want Furthermоre, I hazards. potential and warn of improvements it is the many workplace injuries in wholeheartedly agree that manufacturer, party.3 culpable that is the not the employer, However, majority’s I statement agree cannot with [i.e., with seriously interferes party employer] a third “[w]here of loss cannot be the risk original design product, of the 363.) This (Majority opinion shifted to the manufacturer.” Eck, inequi- court, already in as has balanced cases such modifies a after party where a third ties of a situation of a development it is sold. That balance has resulted “foreseeability,” of encompasses component test which hands of the thereto questions relating leaves policies the social promote cases. This test serves most 402A, among being them liability under chief products strict the manufacture and use of unrea- allocation of loss attendant majority I with the dangerous products. agree sonably fundamentally approach allocating my opinion, sound 3. the most cases, employer where the modifies the post-sale modification loss features, removing safely would be to by-passing or either by employees, such employers joined, in tort actions allow to be opinion, "thirty-nine majority 5 of its As the notes in footnote acts. employers.” percent result from the conduct alterations policy Obviously, employers which social should it is the conduct of However, modify. law in this under the current state seek to interpretation exclusivity provides a broad Commonwealth which Act, Compensation employers suffer no provision of the Workmen’s by-passing, safety equip- intentionally removing, or even for generally, Poyser 522 A.2d 548 See v. Newman & Pa. ment. (1987). injured, employer’s liability employee is limited If an (a exposure wages). There is no compensation payments fraction of injured damages. then be borne either the tort The loss must employee or the manufacturer. However, liability. a difficult issue as to presents this case jury applying appropriate this issue was resolved Pennsylvania law. That test includes applicable test under foreseeability. “substantially has analysis majority offered

altered” this test.

Accordingly, I dissent. A.2d Palange, H/W, Appellants,

Elvira PALANGE and Nicholas PHILADELPHIA, DEPARTMENT, and Anna CITY OF LAW Riggi, Riggi, Individually Anne and Bar ‍‌​‌‌‌​​‌‌​‌​​​​‌​​‌‌‌‌​​​​‌​​‌​‌​​​‌​​‌‌​‌‌​​​‌​‍and Priori’s a/k/a t/a Priori, Individually Restaurant and Anna Vince and t/a Telephone Company Priori’s Bar Bell & Restaurant Pennsylvania.

Superior Pennsylvania. Court of

Argued March 1994.

Filed March 1994.

Reargument May Denied 1994.

Case Details

Case Name: Davis v. Berwind Corp.

Court Name: Superior Court of Pennsylvania

Date Published: Mar 25, 1994

Citation: 640 A.2d 1289

Docket Number: 226

Court Abbreviation: Pa. Super. Ct.