Loretta ELLIS, Administratrix of the Estate of McHendly Ellis, Deceased v. CHICAGO BRIDGE & IRON CO., Appellant
No. 156, No. 1733
Superior Court of Pennsylvania
July 1, 1988
Reargument Denied Aug. 23, 1988
545 A.2d 906
Argued Sept. 11, 1987.
No. 156—affirmed.7 - No. 1733—affirmed in part, remanded in part.
Jurisdiction is relinquished.
Notes
What do we mean when we speak of strict liability of a manufacturer for harm caused by his product? It is sufficient for a plaintiff to show that he used the defendant‘s product and that he was injured? the answer to this is no. If the plaintiff‘s theory is breach of warranty, he must prove the breach—i.e., that the article was not merchantable or was not fit for the purpose sold. If the theory is strict liability in tort, the plaintiff must still prove that the article was unsafe in some way. Thus the liability is not that of an insurer; it is not absolute in the literal sense оf that word. Wade, Strict Tort Liability of Manufacturers, 19 S.W.L.T.J. 13 (1965).
On the one hand, courts have accepted the social policy rationale that those injured by defective products should be compensated for their injuries without being subject to the contractual intricacies of the law of sales and without having to face the onerous evidentiary burdens inherent in negligence cases. On the other hand, even though courts agree that manufacturers can most effectively distribute the cost of injuries, they recoil at the prospect of making sellers insurers of their products and thus absolutely liable for any and all injuries sustained from the use of those products.
Underlying the whole body of tort law is an awareness that the need for compensation, alone, is not a sufficient basis for an award ... An award is not to be made unless there exists some reason other than the mere need of the victim for compensation. Otherwise, the award will be an arbitrary shifting of loss from one person to another at a net loss to society due to the economic and sociological costs of adjudication. 33 Vand.L.Rev. 593, 600-601 (1980) (footnotes deleted).
As an example, the failure of a seller of ordinary knives to warn of dangerous propensities can not be considered the proximate cause of a consumer‘s cutting his finger since the potentiality of its danger is generally known and recognized. It is sometimes necessary to consider whether any warnings are required. Here the only issue was the adequacy of warnings since FAA regulations and the defendant‘s own inclusion of some warnings in regard to the autorotation system demonstrated the necessity of warnings. The issue of necessity and adequacy of warnings and instructions for use must also be considered in light of any contrаdictory promotional activities on the part of the seller. Incollingo [v. Ewing, 444 Pa. 263 [444 Pa. 299] 282 A.2d 206 (1971).]
Stanley B. Gruber, Philadelphia, for appellee.
Before MONTEMURO, POPOVICH and CERCONE, JJ.
CERCONE, Judge:
This appeal is from an order of the trial court denying appellant Chicago Bridge and Iron Company‘s (hereinafter “CBI“) post-trial motion for judgment notwithstanding the verdict and for a new trial.
The relevant facts of the case are as follows: In December, 1979, CBI arranged for the shipment of steel plates, fabricated at its plant in Greenville, Pennsylvania, to the United Arab Emirates by barge via the Port of Philadelphia. The shipment included seventy-two (72) trаpezoidal or pie-shaped plates.
CBI packaged the 72 plates of steel in bundles (or drafts) of twelve sheets each. Each draft was approximately three inches thick, weighed over 7000 pounds, and was clipped together by several C-shaped steel clips. CBI packaged the steel this way in an effort to maintain its rigidity for safe shipment and to insure the safety of individuals who would be handling the steel. CBI provided no lifting or shipping instructions with the drafts, nor did CBI mark the center of gravity of each draft.
The decedent, McHendly Ellis, was a longshoreman employed by the Delaware Operating Company, a stevedoring company. Mr. Ellis normally worked as a docksman on the pier but was assigned to work aboard the bаrge on Decem-
Appellee Loretta Ellis, the decedent‘s wife, brought actions under the wrongful deаth and survival acts against CBI and Atlantis Contractors, Inc. (hereinafter “Atlantis“), the shipper and exporter of the steel plates. The complaint included theories of negligence and strict liability. The negligence theory was abandoned at trial, as was the suit against Atlantis and the case proceeded solely on the theory of strict liability against CBI. The jury returned a verdict in favor of appellee in the amount of $750,000.00. Appellee moved for delay damages under
Appellant has raised several claims of error for our review. However, because we have determined that as a matter of law the case was improperly tried under the theory of strict liability, we need not address each claim raised.
We begin by setting forth the language in section 402A of the Restatement (Second) of Torts which was adopted by our Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966):
§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Id., 422 Pa. at 427, 220 A.2d at 854.
The crux of appellee‘s count in strict liability was that appellant failed to secure “lifting eyes” or other appropriate lifting devices to the drafts, it failed to mark the center of gravity of the drafts, and that it failed to provide appropriate lifting instructions and warnings, all of which rendered the drafts of steel “defective” or “unreasonably dangerous” within the meaning of section 402A. Appellant admits that it did not attach lifting devices, mark the center of gravity, or provide lifting instructions or warnings.
The fundamental issue to be determined by this court is whether, under the undisputed facts as given, the trial court erred in allowing this case to go to the jury on the theory of strict liability. The determinative question is whether a product, not alleged to be defective for use in its intended purpose, can become defective as to intermediate shippers by the manufacturer‘s failure to provide lifting devices, instructions, or warnings.
Product liability law is a branch of the law of torts. The function of tort law is to shift the cost of an accident from a
While the manufacturer‘s responsibility for injuries resulting from the lack of warning as a defect in the product is an expansion of the supplier‘s role as a guarantor of a product‘s safety, it was not intended to make the manufacturer an insurer of all injuries caused by the product.2 See Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). Since almost every industrial product would appear to have some potential for inflicting harm, and since instructions and warnings can not reasonably be required in the marketing of every product, a rule as to standards of conduct must be applied in determining the circumstances under which a warning or instruction is required so as to keep every product from being considered “defective” with-
In order to prevail under strict liability a plaintiff must prove (1) that the product was defective, (2) that the defect existed when it left the hands of defendant, and (3) that the defect caused the harm. See Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 98, 337 A.2d 893, 898 (1975).
The pivotal question in most product liability cases involves a determination of what is a defective product. The focus of this determination is in the product and not on the conduct of the manufacturer. Accord Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 527 A.2d 140 (1987); Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (1987). The majority of product liability cases fit in two categories: manufacture defect or design defect. A subcategory of design defect includes inadequate warning4, to the user or consumer, of the defect or dangerous prоpensity of the product. See Berkebile v. Brantly Helicopter Corporation, supra; Annotation, Failure to Warn as Basis of Liability Under Doctrine of
Appellee‘s theory at trial relied heavily on language found in Berkebile v. Brantly Helicopter Corporation, supra. In Berkebile, the plaintiff‘s decedent was killed in a helicopter crash. Plaintiff brought wrongful death and survival actions, including a claim in strict liability, against the manufacturer of the helicopter. In an opinion announcing the decision of the court, then Chief Justice Jones, with one Justice joining and one Justice concurring in the rationale regarding inadequate warning, used the following language:
A “defective condition” is not limited to defects in design or manufacture. The seller must provide with the product every element necessary to make it safe for use. One such element may be warnings and/or instructions concerning use of the product. A seller must give such warning and instructions as are required to inform the user or consumer of the possible risks and inherent limitations of his product. Restatement (Second) of Torts § 402A, comment h. If the product is defective absent such warnings, and the defect is a proximate cause of the plaintiff‘s injury, the seller is strictly liable without proof of negligence.
“Comment h to the section [402-A] makes it clear that a product, as to which adequate warning of danger involved in its use is required, sold without such warning is in a ‘defective condition.‘” Incollingo v. Ewing, et al., 444 Pa. 263, 287 [444 Pa. 299], 282 A.2d 206, 219 (1971).
Id., 462 Pa. at 100, 337 A.2d at 902 (emphasis added). It is based on this expansive language that appellee rests her claim in strict liability. She argues that, in Berkebile, the
The language quoted from Berkebile established a standard of review to be applied to the facts by the jury once the court has determined that the facts alleged would support a finding that the product was defective without adequate warnings.5 It provides no useful analysis for making an initial determination whether warnings were required and, if so, what factors should be considered in determining the nature and extent of that requirement.
The issue to be addressed in the case sub judice is whether the trial court correctly concludеd that the facts, as pleaded and presented by the plaintiff, were such as to make out a prima facie case in strict liability which should then have been taken to the jury.6 That is, under the facts, were the drafts of steel unreasonably dangerous so as to be defective without hooks, instructions or warnings?
The instant case involves a claim that the product, although well manufactured, was defectively designed by reason of lack of warnings. The language of section 402A
Comment (i) to Section 402(A) elaborates on the concept of “unreasonable danger” for Section 402(A) purposes. In relevant part, comment (i) says,
“The rule stated in this section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer.... The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Emphasis added.)
In keeping with comment (i), one treatise summarizes the rule for the manufacturer‘s duty to warn under Section 402(A) thusly:
“The rule stated in § 402(A) of the Restatement is held to apply only when the product is in a condition not contemplated by the ultimate consumer, and dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Thus, a product containing an obvious hazard is considered neither defective nor unreasonably dangerous, and therefore there is no
Comment (j) to § 402(A) points out that some products may be defective and unreasonably dangerous within the meaning of this section if the seller does not include a warning concerning the danger with the product.8 Although comment (j) focuses on warnings relative to the dangers of ingredients in food and drugs, without question this duty extends to other types of products, including equipment and household goods.9
On the basis of comments (i) and (j), one treatise summarizes the rule for the duty to warn thusly:
“The test to determine whether a danger is obvious is an objective one, not dependent upon the actual knowledge of the user, or his actual awareness of the danger. It is the knowledge and realization of the danger that would be possessed by the ordinary consumer who purchases or uses the product ... If the product is one customarily used by children, the danger must be one which children would be likely to recognize and appreciate in order to prevеnt them from recovering for a product related injury on the grounds that the danger was open and obvious.”10
Without further elaboration, it is evident that under § 402(A) the necessity of a warning by the manufacturer depends in part upon the knowledge of the “ordinary consumer who purchases it, with the ordinary knowledge
Appellee in its brief contends that the perceptions of the community regarding the product at issue have been ruled irrelevant under § 402A by the Supreme Court‘s decision in Azzarello v. Black Brothers, Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). Appellee‘s interpretation of Azzarello is incorrect. In Azzarello, the Supreme Court noted that there are two requirements set forth in Section 402A for liability—that the product be “in a defective condition,” and that it be “unreasonably dangerous.” However, the Azzarello court recognized that there are difficulties inherent in giving a jury instruction using the term “unreasonably dangerous.” The Azzarello court cited the California Supreme Court in Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 442, 501 P.2d 1153, 1162 (1972), in which the Cronin court disapproved the “unreasonably dangerous” terminology because it “rings of negligence.” The Cronin court further said:
“We recognize that the words ‘unreasonably dangerous’ may also serve the beneficial purpose of preventing the seller from being treated as the insurer of its products. However, we think that such protective end is attained by the necessity of proving that there was a defect in the manufacture or design of the product and that such defect was a proximate cause of the injuries. Although the seller should not be responsible for all injuries involving the use of its products, it should be liable for all injuries proximately caused by any of its products which are adjudged ‘defective.‘” Id. at 133, 104 Cal.Rptr. at 442, 501 P.2d at 1162.(footnote omitted).
Therefore, the Cronin court, while acknowledging that § 402A employs the term “unreasonably dangerous” to indicate that the seller should not be treated as the
We note that in the Restatement comment g, entitled “Defective condition“, it is stated: “The rule stated in this Section applies only where the product is, at the time it leaves the seller‘s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous tо him.”
The emphasis is upon the consumer‘s reasonable expectation of buying a product that is reasonably safe. The ordinary consumer evaluates a product in terms of safety, recognizing that virtually no product is or can be made absolutely safe.
The liability arising from inadequate warnings is not “strict” in the same sense as liability arising from a defect due to fault in manufacture, since a determination of whether an object is unreasonably dangerous without adequate warnings, and thus defective, necessarily involves negli-
In Azzarello v. Black Brothers Co., supra, the Pennsylvania Supreme Court recognized that the test of reasonableness might be appropriate in the initial determination whether warnings were required. In that case, the jury
Thus the mere fact that we have approved Section 402A, and even if we agree that the phrase “unreasonably dangerous” serves a useful purpose in predicting liability in this area, it does not follow that this language should be used in framing the issues for the jury‘s consideration. Should an ill-conceived design which exposes the user to the risk of harm entitle one injured by the product to recover? Should adequate warnings of the dangerous propensities of an article insulate one who suffers injuries from those propensities? When does the utility of a product outweigh the unavoidable danger it may pose? These are questions of law and their resolution depends upon social policy. Restated, the phrases “defective condition” and “unreasonably dangerous” as used in the Restatement formulation are terms of art invoked [to determine] when strict liability is appropriate. It is a judicial function to decide whether, under plaintiff‘s averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint. They do not fall within the orbit of a factual dispute which is properly assigned to the jury for resolution. A standard suggesting the existence of a “defect” if the article is unreasonably dangerous or not duly safe is inadequate to guide a lay jury in resolving these questions.
Ultimately, this court must review the facts as presented by the plaintiff and make a determination whether section 402A, as interpreted by the courts, was intended to be applied to the specific facts of that case. In doing this, common sense dictates our conclusion that strict liability was not a proper legal theory for plaintiff‘s case.
In the case at hand we are called upon to determine when liability should attach where a manufacturer of large, irregularly shaped, heavy objects shippеd those objects without providing hooks or shipping instructions. That is, were the drafts of steel “defective” as being “unreasonably dangerous” so as to impose a duty upon Chicago Bridge and Iron to provide shipping aides and instructions? The object was obviously difficult to move and dangerous if dropped. Manufacturer hired a shipping company to move the object. Does this scenario support a finding that the product was unreasonably dangerous without shipping aids or instructions? Our answer is “No” as to respond otherwise would place the manufacturer in the position of insurer rather than guarantor of the object. Examples provided by appellant in its brief are illustrative:
Until the present case ... no-one has suggested that automobiles being hoisted aboard ships for movement overseas must be designed with hooks or eye-lifts on their roofs. Nor are pianos designed with handles so that they may be more easily lifted up steps. Precast concrete slabs used to construct office buildings are not designed with hooks for lifting.
As defined in the comments to section 402A, a “defective condition” is “a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.” See, section 402A, comment g. Thus, “defective condition” is the description of the product, but “unrea-
The lower court erred in failing to determine whether the inherent danger of moving the drafts of steel was evident not only to the decedent (subjectively) or to the community as a whole (objectively).17 We take judicial notice of the fact that the inherent danger in moving the drafts was obvious to all parties involved and we conclude that the lower court erred in denying appellant‘s motion for judgment notwithstanding the verdict. Accordingly, judgment is vacated and the case dismissed.
POPOVICH, J., files a concurring opinion.
POPOVICH, Judge, concurring:
While I concur with the majority‘s holding that “the case was improperly tried under the theory of strict liability,” I believe that the majority incorrectly declined to address the primary issue in a thorough products liability analysis:
The Restatement (Second) of Torts, § 402A, specifically states:
§ 402A. Special Liability of Seller of Prоduct for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold. (emphasis added).
The language “ultimate user or consumer” is pervasive throughout products liability case law. See Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615 (1983); Dickerson v. Brind Truck Leasing, 362 Pa.Super. 341, 524 A.2d 908 (1987). In Schriner v. Pa. Power & Light Co., 348 Pa.Super. 177, 501 A.2d 1128, 1132,
When we distill § 402A into its constituent elements, we find the following are necessary to an appropriate application of this section:
(1) a product;
(2) a sale of that product;
(3) a user or consumer;
(4) a defective condition, unreasonably dangerous; and
(5) causation—that the product caused physical harm to the ultimate user or consumer, or to his property.
If any of these requisite elements remains unsatisfied, § 402A has no applicability. (Emphasis added.)
While Pennsylvania case law has not addressed the issue of whether an intermediate shipper is considered an “ultimate user or consumer” of the product it is handling, common sense dictates that a longshoreman who is merely involved in shipping massive steel plates to be used in construction of a water tank in Abu Dahbi is not an ultimate consumer of those steel plates. Consequently, § 402A is not applicable to the case at bar.
The issue of the applicability of § 402A to an injured intermediate shipper was squarely addressed by a Washington appellate court in Spellmeyer v. Weyerhaeuser Corp., 14 Wash.App. 642, 544 P.2d 107 (1975). Therein, a longshoreman sued a manufacturer under a theory of strict liability for failure to prepare bales of wood рulp properly for shipping. The Washington Court of Appeals, in affirming the summary judgment granted against the strict liability claimant, stated:
Imposition of strict liability is premised on the sound policy consideration that the manufacturer who markets his product for use and consumption by the general public is best able to bear the risk of loss resulting from a defective product. The thrust of Section 402A is, accordingly, to protect the “ultimate user or consumer” of the
product.... In the instant case Weyerhauser produced and packaged a raw material in an intermediate state, which was stored awaiting shipment to another processor. It did not harm or endanger any “ultimate user or consumer“; only expert loaders and expert carriers were required to deal with it. We therefore conclude that, because of the character of the “product” and the status of the plaintiff, the policy considerations which support imposition of strict liability in other contexts are too severely diluted here and dismissal was correct as to the strict liability theory.
Similarly, the instant appellee is not a member of the class of ultimate users and consumers which § 402A was developed to protect.
Moreover, Judge Montemuro of this Court, in his dissenting opinion in R.B. Equipment v. Williams, Sheilds, Snyder and Goas, 304 Pa.Super. 31, 450 A.2d 85 (1982), opined that a middleman handling a product does not qualify as an “ultimate user or consumer” and, therefore, § 402A is inapplicable to a middleman‘s claim for economic damages. 450 A.2d at 88 (The majority did not reach the issue of whether § 402A applied because the appeal was quashed as interlocutory.)
The implication that an intermediate shipper may be considered an “ultimate user or consumer” of the products which he transports is an extension of § 402A far beyond that contemplated by its drafters and our courts. Such an extension of § 402A would merely subject manufacturers to a myriad of product liability claims for injuries sustained by intermediate shippers of their product. Further, the effects of allowing such an appeal to proceed under § 402A would undermine Workman‘s Compensation Law. In sum, I find that § 402A is wholly inapplicable to the case at bar. As stated by the majority, “[The case] wоuld have been more properly based in negligence and not strict liability.”
In Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A.2d 615 (1982), the Pennsylvania Supreme Court upheld a jury verdict in favor of the defendant, manufacturer of a BB gun which caused injury. While the court‘s analysis in that case turned on whether the lack of instructions was the “proximate cause” of the injury, and not whether instructions were necessary, the court approved this court‘s conclusion that the trial court had erred in excluding evidence of whether the danger or potentiality of danger of the gun was generally known and appreciated in the community of which plaintiff was a member. Id., 498 Pa. at 597 n. 2, 450 A.2d at 617 n. 2.“In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use.
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Where warning is given, the seller may reasonably assume that it will be read and heeded, and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.”
“Where, as here, the lethal propensity of a gun was known or should have been known to the user, liability cannot be imposed upon the manufacturer merely because the manufacturer allegedly has failed to warn of that propensity.” Id., 498 Pa. at 600, 450 A.2d at 618.
To sustain a cause of action under section 402A, a plaintiff must first establish that a “defective product” was involved. It is only after determining that issue, in plaintiff‘s favor, that we must approach the second element of a 402A action and determine whether an “ultimate user or consumer” was injured. See Pegg v. General Motors Corporation, 258 Pa.Super. 59, 391 A.2d 1074 (1978). Our decision herein rests upon the conclusion that a “defective product” was not involved. Contrary to the Concurring Opinion, we have concluded that it would not be proper, in this case, to address appellant‘s argument that appellee‘s decedent was not an ultimate user or consumer. By this opinion we do not wish to give the imрression, sub silentio, that that argument is meritless. Rather, we leave it to another case to be decided straight on.