Gaudio v. Ford Motor Co.

deliberations. Con- jury out for ing the Individually GAUDIO, and as The Tara viewpoint, Ms. trial court’s

trary to the a re- of An desire review of the Estate expressed Administratrix O’Brien’s ambiguity as to Gaudio, not create in Her lease did M. as well as drew See id. at agreed upon. what was Capacity Parent to Patricia Gau general like to see (stating “I would dio, Gaudio, Rocco J. Gau Catherine judge the trial point At which release.” Gaudio, Minors, dio, Brooklyn Appel ex- declared, allowing further without then lant case isn’t settled. “then the planation, Rather, jury-”). was

Bring in the of her desire merely expression Autoliv, COMPANY, FORD MOTOR duty as counsel to ascertain fulfill her Masthope Rapids Prop Ford, Gibbons a proffered the terms of or not whether Council, erty Appellees. Owners parties’ oral release would conform understanding. Pennsylvania. Superior Court ¶23 Instantly, undisputed evidence Argued April 2008. clearly expression an record establishes parties suffi- mutual assent between 1, 2009. Filed June agree- binding create a settlement cient to Reargument Aug. Denied Moreover, there is no evidence ment. any controversy arose about

record particular provision of a

the inclusion subsequently proffered formal release. Ap-

Defense counsel does not assert rejected prof- counsel ever

pellants’ draft of the release or that

fered written any proposal counsel had made

Appellants’ than al- a more limited release was shortly after the

ready agreed upon lunch simply sup- The record does not

recess. that it was

port the trial court’s conclusion not to be bound until parties’ intention ap- the release was at least

a draft of Accordingly, if not executed. we

proved trial court’s

find conclusion orally no enforceable contract

there was clearly erroneous. 2007 is re- Order of October judgment entered on the

versed 15, 2007, is vacated. Case

verdict of June relinquished.

remanded. Jurisdiction herein, jury. set forth For reasons for a new reverse and remand trial.

we procedural The factual basic background dispute. of this case is not approximately At 4:15 a.m. on June driving was a 1996 Deceased private truck his pickup Ford F-150 Lackawaxen, community association Pennsylvania way to work. he on his As approached a “T” intersection where the down, stop sign ap- knocked had been he plied through his brakes but skidded ditch, he intersection into a where hit a emergency per- dirt embankment. When scene, sonnel on the the Deceased arrived passenger found seat. dead deployed. The had bag truck’s air wearing Deceased a seat was not belt. Coben, Scottsdale, AZ, Larry ap- E. for Expert witnesses for Gaudio and Ford pellant. had been agreed that the Deceased travel- hour ing per between miles before 30-34 Thomas, Chicago, John E. IL and Kris- applying experts es- his brakes. Gaudio’s Dennison, Wayne, for ten Ford and E. traveling timated barrier that he was Gibbons, appellees. equivalent speed mph of 8.6 when he hit Norristown, Murphy, Frank P. for Pa. embankment, experts while Ford’s es- Assoc, Justice, Amicus Curiae. timated the at the time of speed impact to mph. investigative report be 14 An pre- DONOHUE, J., McEWEN, BEFORE: by Highway pared Transpor- the National *, P.J.E. FITZGERALD J. and (“NHTSA”), tation Safety Association enti- DONOHUE, OPINION BY J.: Report”, tled “Veridian estimated his speed per at hour. 11.6 miles ¶ (“Gaudio”), Tara Gaudio Appellant ¶ 13, 2002, individually both and as the administratrix 3 On November Gaudio filed alia, (the inter Ford,1 against, of the of Andrew M. this civil action estate Gaudio “Deceased”), in asserting sounding from the appeals negligence trial court’s claims trial, judg- liability. order and strict Prior to the trial April entering dated evidentiary Appellee rulings ment court a favor Ford Motor issued series (“Ford”) in limine response Company jury after trial that to motions filed parties. Rulings in Ford’s on these motions rel- resulted a verdict favor. Gau- to included evidentiary rulings appeal dio various evant this denials of appeals to evidence prior during made the trial court and Gaudio’s motions to exclude and trial, to the argument further contends that the trial related Deceased’s non- and belt, expert testimony of a re- court in certain of its instructions to use seat erred * specially assigned Supe- Masthope to the against Rapids Former Justice 1. Gaudio's claim Counsel, rior Property respon- Court. Owners which prior stop sign, settled sible for the fallen to trial. garding pre-impact belt, the Deceased’s con- ceased’s non-use of a seat Ford’s duct, and various statistical and introduction of relating evidence to risk/bene- fit evidence. behavior, pre-impact Deceased’s the F- compliance 150’s government with safety proceeded only 4 The case to trial on standards, generalized statistics, various Gaudio’s strict claims. Gaudio and evidence. Gaudio raises risli/benefit at trial presented attempt objections four charge the trial court’s that the air the F-150’s jury, contending charge (1) bag system was defective because failed to instruct placement quantity timing and sen- definition of crashworthiness and the irre- bag sors caused the driver’s side air care, levance of Ford’s due the Deceased’s deploy at a speed low collision where it behavior, pre-impact compliance and with all, deployed should not have at industry government Ap- standards. late, deployed causing too the De- pellants’ Brief at 9. body ceased’s to be too close to the steer- at ing deployment. wheel the time of Gau- ¶ 8 addressing Before these is argued dio if the air bag had not sues, we will respond first argu Ford’s all, deployed deployed timely or had in a ment that the trial court in denying erred fashion, the Deceased would have suffered its compulsory motions for a nonsuit and only injuries, any. minor if directed verdict on Gaudio’s liability strict argued 5 Ford air bag system its claims, crashworthiness which Ford con bag was not defective and that the air granted tends should have been as a result deployed precisely designed. Through Supreme Court’s decision in Penn witnesses, expert Ford contended that the sylvania Dep’t General Services v. Unit heavy Deceased’s breaking the intersec- ed States Mineral Products 587 Pa. tion, belt, his failure to use seat (2006) (“General Ser perhaps pre-impact other (e.g., conduct I”). end, vices To this briefly we will reaching for something on the truck’s history products review the liability law floor) caused him to out of position and the crashworthiness doctrine steering too close to the wheel at the time Commonwealth. Our Court first bag deployment. of air argued Ford also adopted section 402A of the Restatement bag that if the air deployed, had not Gau- (Second) Zern, of Torts in Webb v. dio have significant injuries would suffered (1966). 424, 220 A.2d 853 To state sec in the crash. products tion 402A liability claim in Penn ¶ jury 6 The returned a verdict in favor sylvania, plaintiff the must that the Ford, indicating on the verdict form product defendant sold a “in a defective that bag sys- the F-150’s air crash sensor condition,” that the defect existed when tem was not defective. Based upon this hands, product the left the defendant’s and finding, jury not reach did the issues of that the defect plaintiffs inju caused the damages. causation or The trial court de- See, e.g., ries. Hadar v. Corp., AVCO 886 post-trial nied Gaudio’s motions and en- 225, (Pa.Super.2005). product A.2d 228 A judgment tered in favor Ford. is “in a defective condition” when it lacks

¶ followed, “any necessary element it timely appeal 7 This in which make safe for possessing any Gaudio contests a number of the trial its intended use or element evidentiary court’s in- that it rulings and renders unsafe for the intended Co., Inc., challenges structions. Gaudio the trial use.” Azzarello v. Black Bros. evidentiary 547, 559, 1020, court’s rulings on the De- 480 Pa. 391 A.2d 1027 532 the defective de- attributable to in all ries were key inquiry

(1978). Because sign. not Id. cases is whether liability products not defect, and product, it is the there is a ¶ recognizing the crashworthiness 11 In conduct, on trial. the defendant’s upon relied in this Court Kupetz, doctrine v. Penske Truck See, Hutchinson e.g., decision prior Court’s Supreme (Pa.Su 978, Co., A.2d 988

Leasing Co., Harvester v. International McCown 38, 922 A.2d Pa. affirmed, 592 per.2005), (1975), which A.2d 381 Pa. (2007). the crash- tenet of adopted principle i.e., doctrine, manufacturers worthiness ¶ doctrine The crashworthiness that do not strictly liable for defects are liability law products of strict is a subset cause but nevertheless cause the accident in the context of arises typically that most severity injuries that in the an increase See, e.g., Colville accidents. vehicular the defect. have occurred without would Corp., 809 Equip. Crown McCown, hit a truck denied, plaintiffs appeal (Pa.Super.2002), to make a attempting as he was (2003). guardrail explicitly First A.2d 310 caused the steer- turn. The collision right product subset of specific as a recognized left, spin rapidly ing wheel Kupetz this liability law Court Inc., spokes of the steer- this occurred the Pa.Super. when Deere & arm, right re- (1994), ing plaintiffs “crashworthi struck the term wheel A.2d 1213 and fore- that a motor in fractures to his wrist protection sulting “the ness” means against per admitted that passenger its arm. The manufacturer vehicle affords defective, of a motor death as a result mechanism was injury steering wheel sonal Id., at 1218. The doc not the accident.” the defect was vehicle claimed but liability manufacturers trine extends the accident. Our Court cause of in which the de contributory to “situations and sellers the manufacturer’s rejected or initial cause the accident (i.e., plaintiffs fect did not defense negligence severity accident) increased the but rather impact, driving caused the careless have that which would injury over judgment plaintiffs favor. affirmed the Id. design defect.” occurred absent doing, In so Id. must liability, a manufacturer To avoid of a recognized purposes that for Court product so and manufacture the design claim, liability the defect does products or, crashworthy,” “reasonably accident result- the cause of the have to be way, the manufacturer another stated injuries, and instead plaintiffs ing intended uses include accidents as must claim acknowledged that strict accordingly. Id. product its resulting recovery injuries may allow occurred. Id. after the collision claim re 10 A crashworthiness First, background, General Against quires proof of three elements. I, brought the Commonwealth design of the Services prove that the plaintiff must damage liability property defective, products time strict and that at the vehicle manufacturer alternative, safer, against claim a chemical practi an design government of a for contamination others existed that could have been cable fire, a Second, In the aftermath of building. the office incorporated instead. Id. biphenyls polychlorinated presence the identify injuries those he or must plaintiff (“PCBs”) and in on surfaces was detected if the alternative she would have received The Third, building. air ambient inside used. Id. design had instead been inter brought against, suit inju- what Commonwealth plaintiff must demonstrate (the alia, Company liability Pennsylvania strict in Monsanto PCB relative to manufacturer) as well as the manufactur- non-intended where uses even foreseeable PCB-containing ers and installers of build- by a manufacturer.” Id. in construction.

ing products used Mon- (citing at 600 Phillips Lighters, Cricket it could not argued santo be held (plurality responsible for contamination re- chemical decision)). way, Put another the Supreme sulting subjecting from because the fire a Court held that because incineration was fire is an building product to a abnormal not an building products, intended use of use of not an building product, intend- the manufacturer no obligation had ed use. The Commonwealth acknowl- products make the “fireworthy”.2 edged fire in spreading the role of the ¶ 14 Ford argues Supreme PCBs, but fire is a argued foreseeable Court’s in pre- decision Services I General against event Monsanto which should have cludes the application the crashworthi- guarded. Trial a million resulted $90 ness doctrine in this case. Ford contends against verdict Monsanto. that the fundamental basis for the crash- Supreme agreed 13 Our Court with worthiness doctrine is that crashes are Monsanto and ordered new trial. The intended uses of automobiles they because recognized Court at an “abstract theoreti- foreseeable, are and thus manufacturers cal in- concept level” that the “overall must design products their to make them tended all reasonably use should include “crashworthy.” Appellees’ Brief at 15-19. foreseeable uses occurrences.” and/or such, As Ford concludes that “[w]hile I, General Services [General Services I ] was ‘fireworthiness’ refused, however, A.2d at 603. It to “im- case case, rather than a ‘crashworthiness’ port! foreseeability concept the] into exist- a holding that vehicle motor manufactur- ing liability generalized strict in a doctrine only ers—and motor vehicle manufactur- fashion” the “central because tenets of ers—can strictly be held liable for harm liability such have been scheme construct- resulting from but foreseeable unintended ed on contrary negligence notion that products uses of protection without the concepts are to it.” foreign Id. As a the ‘level field’ under negligence available result, Supreme Court concluded that law flatly would be inconsistent with the “a only manufacturer can deemed liable holding of that Id. at decision.” 18-19.3 for harm connection occurs with a product’s use an 15 We disagree. Supreme intended intended Our Court user; general rule is that carefully there is no General Services I avoided remand, Council, 2. Advisory On Liability Commonwealth tried the The Product Inc. again, theory case on the that an unsafe level filed support an amicus curiae brief of this building of PCBs existed in the for reasons position. See Brief of Amicus Curiae Product unrelated to the fire. Commonwealth Council, Liability Advisory Support Inc. in argued that the PCB contamination resulted ("Crashworthiness Defendants-Appellees at 3 building from the intended use of the materi- qualify liability theory cannot as a strict under (i.e., supplies), als as construction and that Pennsylvania law.... The Court vapors building from the PCB-laden materials agrees. Only rejected year, last 'fireworthi- spread throughout building had from the ness' exactly basis for on strict ordinary heating use ventilation rationale, [citing the same General Services systems. The resulted in a retrial defense /]”). verdict, subsequently which has been affirmed Court, by both the Commonwealth (Pa.Commw.2007), Supreme 717 Court, and the 331, (2008). 598 956 A.2d 967 Pa. 534 would, fact, an represent bility arena crashworthiness doctrine

eliminating the disap liability type law the that was of strict extension of cognizable subset as a majority crashworthiness of in Phill equate proved by a Justices and refused to began by It de- with “fireworthiness”. ips.4 doctrine as the scribing crashworthiness at 603. 257, A.2d Id. 898 follows: ¶ Thus, contrary interpretation 16 the devel doctrine has [C]rashworthiness Ford, Supreme the Gen- urged by Court product facet of liabil oped as discrete reject I not the crashwor- eral Services did particularized having ity jurisprudence, Although Supreme the thiness doctrine. the fact finder to requiring elements rationale of refused to extend the Court injury distinguish non-compensable to other the doctrine crashworthiness have occurred (namely, that which would clearly recognized the contin- products, it in the of in a vehicular accident absence targeted ued the doctrine as a viability of defect) from the enhanced any product utiliz- exception prohibition against resulting harm from compensable foreseeability an the of an ing analysis of generally Ku product the defect. See liability in strict law in Penn- intended use Inc., Co., Pa.Super. petz v. Deere & 10, 257, n. A.2d at sylvania. at 254 Id. (1994). 1213, 16, 26-27, A.2d 10, judice pres- n. The case sub 603. I, 587 Pa. at Services General the of straightforward application ents the disapproving

A.2d at 601. Without doctrine, ar- as Gaudio crashworthiness concept use of the foreseeable use discrete bag deployed if air gues that the had (i.e., cases motor vehi- in crashworthiness all, timely the De- deployed, or had accidents), Supreme Court refused cle the only ceased have suffered at most would foreseeability the test to other to extend no injuries. Accordingly, minor we find products: grant error in trial court’s refusal to the that the are of the view metamor [W]e a compulsory nonsuit or a directed phosis particularized the crashworthi verdict. generalized into a eondi- ness doctrine Evidentiary Issues tions-of-use/outside-cause-or-instigator ¶ 17 turn now to issues Gaudio We the against resort exception to the bar starting chal- appeal, lia raises with her foreseeability concepts strict on opinion Phillips, Lighters, concurring In a Justice Phillips v. Cricket (2003) (plurality), Saylor concepts Su- suggested negligence grant preme the trial Court affirmed court's 2 of Restatement included in Section summary judgment in favor of manu- (Third) into Torts should introduced liability design facturer on a strict defect law, liability Pennsylvania's strict rather than claim after child's use of a butane a small 402A of the continued adherence Section lighter upon a fire. Based resulted in Id., (Second) of at 664- Restatement Torts. finding that children were not the in- small J., (Saylor, concur A.2d at 1012-23 lighters, Supreme tended users of butane ring). has Supreme We that the Court note liability Court ruled that "in a strict case, granted Bugosh appeal in a more recent claim, plaintiff must defect establish (Pa.Su v. Allen A.2d 901 Refractories product its intended user.” was unsafe for per.2007), appeal granted, ruling, In so Id. at 841 A.2d at 1006. (2008), specific to address issue emphasized that Court the limita- "[wjhether § apply 2 of this Court should only scope liability tion on of strict (Third) place Restatement Torts necessary intended because extend- users (Second) § of Torts”. 402A of the Restatement liability ing all foreseeable users to use negligence improperly import con- "would Id. cepts into law.” strict to the trial lenges evidentiary parties permitted court’s rul- shall be to include evi- ings. Although Gaudio raises a wide vari- arguments dence regarding pre- issues, ety of such for sake of discussion circumstances, impact but shall not be per- we will divide them catego- into five broad mitted to argue negligence comparative or (1) ries: seat belt us- fault Order, of the decedent.” Trial Court (2) age, pre-impact evidence of the conduct 6/1/06, upon at 2. Based ruling, this (3) Deceased, evidence of Ford’s permitted expert introduce testimo- standards, compliance safety with federal ny at opining that trial Deceased’s (4) (5) evidence, various statistical evi- failure to wear his seat explained why belt relating analysis. dence to risk/benefit he was “out of position” and therefore too

¶ In considering these issues bag close to the air deployed. when it Gaudio, raised we note that our stan (“N.T.”), 6/14/06, Notes of Testimony at 75. dard of is a review narrow one: expert Ford’s permit- witnesses were also When we review a trial ruling court’s on testify ted to the F-150’s air bag evidence, admission of we must acknowl- system is “supplemental referred to as a edge that admissibility decisions on are system” restraint because the seat belts

within the sound discretion of the trial shoulder) (lap and are the primary re- court and will not be overturned absent system keep straint occupants vehicle an misapplication abuse of discretion or in a proper seating position, thereby re- addition, ruling of law. for a on ducing the risk of them being posi- out of error, evidence to constitute reversible tion at the time of air bag deployment. must have been harmful or prejudicial to See, e.g., 65-67, 134, 154, 222-23. 6/13/06 the complaining party. ¶ 21 part As of Pennsylvania’s Occupant Stumpf Nye, Act, (Pa.Super.2008); A Protection section 4581 party prejudice suffers of the Vehicle when the trial court’s error could have Systems.” Code is entitled “Restraint affected the Ray- verdict. Trombetta v. 4581(a)(2) § Pa.C.S.A. 4581. Subsection Services, Inc., mond James Financial 907 requires drivers and front seat passengers (Pa.Super.2006). properly adjusted wear a and fastened (e) safety seat belt. Subsection then ad- Regarding Evidence admissibility dresses the of evidence of Usage Seat Belt system non-use of a seat belt in civil ac- 19 In Motion in Limine No. tions: Gaudio asked trial court for an order (e) Civil actions. In no event shall a alia, excluding, any argu inter evidence or alleged violation or violation of this sub- ment that the Deceased was not wearing chapter be used as evidence in a trial his seat belt at the time of the accident. any action; requested any Gaudio further that the seat civil nor belt shall in a system vehicle, including Deceased’s civil action be instructed that con- its role in the vehicle’s overall restraint duct did constitute or could be interpret- trial, system, not be mentioned and that ed them to constitute a violation of questions of defect and causation be decid subchapter; nor shall failure use ed without presence reference to the passenger a child system restraint use of a seat belt. safety system seat belt be considered as contributory negligence 20 The trial court nor shall fail- denied Gaudio’s Mo- system tion ruling in Limine No. that “the ure to use such a be admissible 536 ¶ any in language 24 We find that the in trial of civil the evidence 4581(e) clear highlighted subsection above

action. ... ly unambiguously expresses the intent 4581(e) added). (emphasis § 75 Pa.C.S.A. of Legislature of the that evidence non-use case, trial court ruled 22 the strictly prohibited of seat belts should be 4581(e) not “does mandate that subsection Pennsylvania civil actions tried on of seat belt an bar” evidence absolute courts, the any purpose. Because merely prohibits usage, that instead it language nor highlighted neither contains prove to contribu- the use of such evidence rule, any to its exceptions references we tory Opinion, Trial Court negligence. legislative provi construe the intent of the 6/14/07, at 7. The trial court found of a blanket exclusion evidence sion to be the prohibit does not intro- subsection usage any of actions for seat belt civil “for pur- belt duction of seat evidence including only not con purpose, to products in a causation pose proving of defect, tributory negligence but also causa claim,” liability “to disallow such damages. tion Kmonk-Sulli and/or Cf. necessary disprove it is to evidence where van v. Farm Mut. Auto. Ins. 567 State unjust.” would be products a claim (2001) (“As 514, 525, Pa. 962 788 A.2d Id. interpretation, a al statutory matter of ¶23 a application of a statute is The though ‘one is admonished to listen atten law, and re- question of our standard of tively says[;][o]ne to what a statute must Baird, v. view is Commonwealth plenary. also attentively listen to what does not 114, 115 (Pa.Super.2004). 856 A.2d When say.’”) Frankfurter, (quoting Felix Some statute, Statutory a interpreting Con- Statutes, Reading on the 47 Reflections approach. Act struction dictates our (1947)). Colum. L.Rev. 1921; Baird, § Pa.C.S.A. A.2d at 115. disagree of a are clear and “When the words statute 25 We with dissent 4581(e) interpreted to ambiguity, may free from all the letter of it is subsection be disregarded pretext preclude only contributory to not under evidence First, spirit.” negligence, its for at least two reasons. pursuing Pa.C.S.A. 1921(b). object highlighted language prohibits § “The all use interpreta- tion is “as usage and construction of statutes to as- non-seat belt evidence action,” trial limi- any any certain and effectuate the intention of the civil without Assembly.” tation per- General Pa.C.S.A. evidence issue must 1921(a). contributory Listening § a tain negligence. “When the words of statute ambiguity, they are attentively clear and free from all what the statute does not presumed say, may are not interpret language be the best indication of we legislative express simply intent.” a limitation it Aviation does Chanceford Second, Properties, Tp. L.L.P. Bd. contain. the third clause of the Chanceford 100, 107-08, in- Supervisors, entirety 923 subsection its contains two Of dependent provisions. provision A.2d The first (quoting Hannaber ry Comp. Appeal specific v. Workers’ Bd. bar to use of non-seat belt HVAC Jr.), (Snyder 66, 77, contributory Pa. to show negligence (“nor (2003)); ... safety failure use a seat see also Commonwealth shall 141, 151, system contributory belt be considered as Bradley, 575 (the (2003) (“As rule, general negligence”). provision best second legislative plain highlighted language) general intent is bar to indication of statute.”). usage of non-seat belt evidence for language (“nor evidentiary to use such a purpose ruling permitting inquiry shall failure into as evidence in the system be admissible the matter was In error.” Nicola v. Nico- action”). any la, trial civil The dissent’s 293, Pa.Super. (1996), 449 673 A.2d 950 recommended of the third interpretation this Court language concluded that the in provision the second clause would render 4581(e) “speaks subsection to the failure to merely duplicative provision, as first use a safety system, seat generally, belt express provisions precisely as both would and directs that facts cannot such be con- (i.e., exclusion evidentiary the same evi contributory negligence sidered and can- contributory negligence).5 to prove dence not be used as in the any evidence trial of construction, statutory Under rules of civil proceeding.'” (emphasis Id. 951 every give every we must effect word in added). Betz, v. And Grim 372 Pa.Su- statute, provision may of a and we not 614, (1988), per. 539 A.2d 1365 we found language in a interpret statutory manner (E) clearly § “Section 4581 states any provision superfluous that renders as that the failure to a ‘child passenger use surplusage. Marcy, or mere Holland system’ ‘safety restraint sys- seat belt (2005) 449, 195, 206, A.2d 584 Pa. 888 455 considered, tem’ any shall not be civil decision); Keystone (plurality Aerial Sur action, contributory negligence, as and veys, Inc. v. Pa. & Cas. Ins. Guar. Prop. shall not be as admissible evidence in any Ass’n, 84, (Pa.Super.2001), 777 A.2d civil (emphasis action.” Id. at 1369 add- affirmed, 147, (2003); 574 Pa. 829 A.2d 297 ed). Mortg. Corp., Wiernik v. PHH U.S. 616, appeal A.2d 620 (Pa.Super.1999), de 27 Whether or not the applica nied, (2000). 700, 561 Pa. 751 A.2d 193 tion of a blanket exclusion of evidence of usage products non-seat belt in a cases, 26 In at three this least Court “unjust”, case was trial court con interpreted highlighted has language cluded, trial was not for the court and is 4581(e) preclude in subsection the intro- not for this Court In enacting to decide. usage. duction of seat belt evidence of 4581(e), Legislature subsection deter 636, Fannie, Pulliam v. 850 A.2d mined public policy of the Common denied, (Pa.Super.2004), appeal 583 Pa. wealth with 696, (2005), respect to issue. Com 879 A.2d 783 this Court ruled Newman, 424, 429, monwealth v. 534 Pa. ambiguity is no in the “[t]here statute 633 A.2d (“Subject, only which prohibition sets forth an absolute limitations, against legislature of such constitutional introduction thus, always we conclude the court’s free to change govern- rules (a (Pa.Super.1997) 5. We take trial issue with the court's reliance decision offered one on this Court’s decision Kreiensieck and Superior member of a three-member Court at, Kreiensieck v. A.B. et el, Saab-Scania pan remaining judges with the two either (filed 4, 2002). EDA 806 A.2d 472 June result, dissenting concurring in the is of no by unpublished Kreiensieck was decided mem- value); Biddle, precedential McDermott v. precedential orandum and has no therefore (1994) (for Pa.Super. any ("An § unpub- value. See 65 65.37 Pa.Code principle expressed of law in a decision of this lished memorandum decision shall not be re- precedent, Court to be considered it must upon by party lied Court or other majority judges voting command a both as Moreover, action....”). because one mem- disposition principle expressed), of law three-judge panel ber dissented and a grounds, reversed on other result, only second concurred the un- (1996). Thus, A.2d 665 it is clear that even if published memorandum decision in Kreien- published, would have had Kreiensieck no represented single judge. sieck of a the views precedential value. Blee, See Commonwealth v. sys- failure to use the seat belt and admissi- decedent’s of witnesses competency ing * evidence.”).6 the function at 2. It is Id. To the extent bility of tem.” in- legislative to determine relating this Court to the exis- introduced evidence give effect enactment and tent of an purpose of the F-150’s seat belt tence Reefer, Commonwealth that intention. system from which the could infer (Pa.Super.), appeal wearing Deceased seat that the was (2003); 759, denied, Pa. A.2d 599 574 831 accident, then at the time of the the belt v. Campbell, Commonwealth prohibited by was subsection evidence In re- 1231, (Pa.Super.2000). this 1233-34 4581(e). Legislature must assume that the gard, we ¶ Moreover, 29 because subsection of civil ac- that the outcomes understood 4581(e) of precluded the introduction evi- for tions, including products liability claims related to Deceased’s non-use of dence the vehicles, af- defectively designed might be belt, the a seat the seat existence of belt prohibiting a rule fected blanket system purposes the F-150 and the regarding seat introduction evidence at issue system were not matters It is not role to usage. this Court’s belt statutory As a of the the case. result judgment regard, our in this substitute such was irrelevant prohibition, evidence

just for the trial appropriate as it was not See, materiality. e.g., a lack upon based so. court to do McNeely, Pa.Super. Commonwealth ¶ reasons, trial For these (“Rele- (1987) 517, 778, A.2d 779-80 Motion in Li- court’s denial Gaudio’s comprised fundamental vance is of two to its No. 3 was error. In addition mine probative components: materiality and prohibit of seat belt refusal evidence ‘If the is offered to value.... evidence the trial also have non-usage, court should prove a which is not a help proposition a evidence the F-150 had precluded issue, matter in the evidence is immateri- system purpose that the seat belt and/or ”) McCormick, Evidence, (quoting al.’ system to serve as the the seat belt was 1984)), 185, § 541 (Cleary ap- at 3rd ed. system. regard, In this primary restraint denied, peal from the persuasive we find a decision (1988). for the East States District Court United v. Maz Philadelphia, ern District of Russo Regarding Evidence Deceased’s (E.D.Pa., Corp., Motor da WL Pre-impact Conduct 17, 1992), in court found August which the In No. 30 Motion in Limine evi “allowing Defendant to introduce for an asked trial court order belt Gaudio dence of the existence of the seat excluding any argument or of allow evidence re system step falls but half short comparative ing garding negligence Defendant introduce evidence statement, merely it reject 6. We Ford’s that the eviden- bative value contention 4581(e) may tiary preclusion in is un- excludes certain at trial. And subsection evidence uniformly applied impartially under Hill Coal Co. be constitutional Rich Bashore, case, (1939). party permitted as neither to intro- Hill, regarding seat held that a rule duce evidence the F-150's belt Rich Court hypothetical adopted by legislature may system. issue raised brief, proper gives “probative namely in a if it Ford in its case unconstitutional either plaintiff or if its could introduce evidence that a value to statement that has none” (which occupant “impartial using a seat belt application is not or uniform.” Id. vehicle 484-85, rebut), evidentiary not A.2d at defendant not before 319. The could 4581(e) give pro- not address this Court and thus we will it. rule in subsection does my opinion is that The trial court No. it’s that he is fault of the Deceased.7 respect to unrestrained the time that this event request Gaudio’s with granted my opinion, during occurred. No. it is negligence Deceased’s argument regarding fault, braking phase because of whatever “[t]he but ruled that comparative doing whether he is reaching he is down to include evi- permitted shall be parties something, reaching to the side for for impact arguments dence and radio, for reaching ashtray, giving circumstances rise to the collision.” floor, CB, reaching something on the Order, 6/1/06, Trial at 5. Court seat, something the box on the has him upon ruling, Based the trial court’s I begins get distracted that think him permitted were expert Ford’s witnesses that he is not in a normal position [sic] pre-im- testify regarding Deceased’s of his because distraction. Dr. pact example, conduct. For James I think that at the time begins he to testimony: following Benedict offered the my opinion realize—it is that at the time Now, Benedict, Q. you have an Dr. do begins he to realize he is in danger, he is you developed any opinion or have optimal not in an position provide to respect conclusions with to this case protection breaking from either the im- you hold to a reasonable de- pact getting and he is closer to the gree engineering certainty wheel, pre-impact braking he is which is certainty? medical going panic type to be a breaking, is Yes, going A. I have. to him sir continue to move forward gets and once he within a few inches of Q. opinions, are those doctor? What wheel, impact point then at the he is My opinions basically A. that I [sic] going very to be on to the wheel or close my opinion it’s to a reason- believe to the wheel at the time of the interac- degree certainty able of biomedical bag. tion with the air caught No. [Deceased] surprise, that there’s an element of my opinion It is also that had he been surprise in this whole accident properly properly belted and seated at event, sequence. He accident I start of this think he would not riding a road that he is fa- down fatally injured. have been potential The with, regu- miliar he drives it on a injury markedly for serious would be basis, something day lar on this reduced. obviously, my opinion, in had him N.T., 6/12/06,at 134-36. caught distracted he because was unaware, it is the whole accident 32 Gaudio contends that such testimo- sequence geared ny wrongly injected negligence principles which is toward in panic liability someone who is break- in a strict case and should have vehicle, ing, compara- cannot control his was been ruled inadmissible because familiary negligence cause in a inter- in unaware tive is not a defense a strict action, liability I think No. 1. Appellants’ so that’s case. Brief at 17. 10, ruling may 7. Gaudio’s Motions in Limine Nos. 7-10 re- that “such evidence be intro- quested prohibiting expert orders Ford’s wit- through expert testimony, long duced so from, alia, testifying nesses inter about testimony upon a such is based reasonable pre-impact The behavior Deceased. degree professional certainty.” Trial Court trial court denied Motions Nos. 7-9 and Order, 6/1/06, at 6. granted part part and denied in Motion No. upon of the defective placed supplier that while evidence counters inad- privi- was fault or pre-impact regard conduct without product Deceased’s contributory negligence, prove ty missible of contract. prove admissible it was nevertheless Development Corp. v. Michael D’s Kimco Appellee’s and causation. lack of defect Outlets, 8-9, A.2d Carpet agreed 24-25. trial court Brief at (1994). reasons, For these Ford, someone finding that while

with negligence ruled that con- Supreme Court argu- put forth “an “inappropriately” could be used the amount cepts cannot to reduce negligence part on the ment ease, recovery liability a strict [Deceased], the evi- [the fact is negligence a result comparative that as was relating pre-impact conduct] dence may not be asserted as a defense such in that Trial Court not used fashion.” 8-9, actions. Id. at 637 A.2d at 606-07 6/14/07, Instead, trial Opinion, 5-6. (“[W]e negligence have been adamant that concluded that “the evidence court place have no concepts a strict theory regard- [Ford’s] admitted action.”); Phillips Lighters, Cricket in the vehicle ing position the [Deceased’s] (plurali- Pa. at at 1006 deployment time of air bag at the (same). ty) with the impact the time of vehicle’s ¶ Id. at embankment.” hand, progress 34 On the other “[t]he in extending liability of the law without ¶ Supreme explained Our has 33 Court in product suppliers fault to not [has been] underlying for re- philosophical basis disregard pertaining to fundamentals to covery in strict cases as follows: Randy, of causation.” the law Bascelli v. and development sophisticated of a Inc., 1110, 254, Pa.Super. 339 488 A.2d society prolif- industrial its complex with (1985) Davis, 223 (quoting 1113 v. Oehler products change of new vast eration and (1972)). 333, Ac- Pa.Super. private system has in- enterprise cordingly, has ob- Court spired change legal philosophy a from that served “while evidence can be found of which principle emptor caveat may for one be purpose, inadmissible century prevailed early nineteenth for v. S. Spino admissible another.” John place suppli- a market view that [the] Co., 286, 293, Tilley Ladder Pa. 696 548 products er of should be deemed 1169, 1172 v. safety. (quoting A.2d Bialek guarantor products’ ‘the of his 176, 185, Brewing society Pittsburgh The realities of our economic 231, (1968)). today that it exists forces the conclusion 242 A.2d 235 injury resulting the risk of loss for from ¶ 35 In deci applying these products by defective should be borne sions, Court has while evi held that suppliers, they principally because negli a plaintiffs contributory of dence position are in a absorb the loss inadmissible, generally there are gence is distributing it doing as a busi- cost exceptions certain limited in which the In an giant corporate ness. era of may conduct in case plaintiffs particular a structures, utilizing the national media See, e.g., be relevant. Childers v. Power wares, original to sell their concern Rentals, 94, Equip. Pa.Super. Line 452 681 industry emerging manufacturing for an denied, (1996), 547 appeal A.2d way to given has the view that it is now (1997). A.2d 236 Pa. Evidence protected. the consumer must be who of the plaintiffs voluntary assumption have increasingly adopted Courts risk, product, highly that of a reck- position risk of loss must be misuse judice, to the extent the case sub Ford does conduct is admissible less argue any excep- of these limited the issue of causation. it relates to Inc., apply regard tions with to the Deceased’s Bil-Jax, Clark pre-impact conduct. The record contains (quoting Toyo- (Pa.Super.2000) Charlton no Deceased was aware Equipment, Industrial ta any air bag system defect his truck’s To establish volun- (Pa.Super.1998)). voluntarily or that he assumed risk risk, tary assumption of the the defendant therewith, connection and Ford does not buyer that the knew of defect must show argue alleged pre-im- that the Deceased’s yet voluntarily unreasonably pro- unforeseeable, pact conduct was outra- product. to use the Ferraro v. ceeded such, geous, extraordinary. As the ex- Co., Inc., Ford Motor ceptions voluntary assumption for of the Charlton, (1966); A.2d 746 see also risk, of product, highly misuse reck- (“Evidence contributory A.2d at 1047 apply less behavior do not here. alone, negligence, standing is insufficient voluntary assumption of the prove risk Instead, the evidence offered ”). product, ... To establish misuse expert Ford’s witnesses regarding the De- must that the use was the defendant show ceased’s pre-impact conduct amounts to Childers, outrageous.” allegations ordinary contributory negli- “unforeseeable or gence the Deceased Highly 681 A.2d at 208. reckless conduct caused —claims by, example, the accident and his death requires is akin to evidence misuse and radio, CB, reaching for the or some- that the use was the defendant thing Although on the argues floor. extraordinary and as to “so unforeseeable that this evidence was relevant to the issue superseding Dillinger constitute cause.” it of causation because tended to (3d Inc., 959 F.2d Caterpillar, position the Deceased was out of at Cir.1992); Harley see also Madonna v. the of air bag deployment, time it was not (Pa.Su- Davidson, Inc., 708 A.2d 507 admissible because the accident was not (evidence intoxi- per.1998) plaintiffs of “solely necessarily the result of the De- cation was admissible causa- any conduct and not in ceased’s related (evidence Bascelli, tion); 488 A.2d at 1113 way alleged the defect in prod- with the plaintiff operating motorcycle was at Charlton, uct.” 1047. Under mph more than 100 was admissible as to principal liability one of her two theories of accident). cause of presented jury, Gaudio contended system air in bag the F-150 was ¶ 36 Unlike these limited ex deployed defective because it at a low colli- plaintiffs ordinary “evidence of a ceptions, it speed sion where should not have de- negligence may not be admitted in a strict ployed upon theory at all. Based this of ... products action unless liability, product un- alleged defect solely shown that the accident was questionably contributed to the Deceased’s result of the user’s conduct and not related death, regardless of whether or not he was any [way] alleged in with the defect in the position deployment. out of at the time of (em Charlton, 714 A.2d at 1047 product.” in in phasis original). explained As we theory liability, second of Gaudio’s Madonna, negligence “a user’s is not rele bag deployed that the air too late and thus if the product body vant defect contributed the Deceased’s to be too close caused Madonna, any way steering deploy- to the harm.” 708 to the wheel at the time of ment, problematic. at 509. is more As Ford cor- A.2d speculation, upon but only purely upon based notes, alleged defect could rectly this forensic found vehicle.” if he had evidence the Deceased’s death have caused 6/14/07, at 6. This Opinion, acci- Trial Court at the time of the position been in evidence, however, including forensic blood dent, position as a result of out and not (if truck, to tended show spatters Appellee’s conduct. pre-impact other result, anything) only that the Deceased was out theory under Brief at 27. As deployment. time of position at the po- Deceased’s liability, evidence provide sound the time the acci- evidence did basis truck at sition in the speculate permit experts as to to the issue of Ford’s clearly relevant dent why might got- the Deceased have how causation. reaching (e.g., ten out of for the position conclude that nevertheless We radio, floor, for something on the the ash- ex- permitting Ford’s trial court erred CB). tray or the testify regarding possible pert witnesses to why might explanations as to Deceased ¶42 For the reasons set forth in the truck. position have out of been herein, trial we that the court’s conclude Deceased out of Evidence evidentiary rulings regarding erroneous relevant admissible as position was non-usage belt and the seat Deceased’s But pur- evidence the issue of causation. could have pre-impact conduct affected why posi- he was out of porting explain prejudiced verdict and thus Gaudio was reaching he was (e.g., tion because trial. and is entitled to a new Trombetta radio) relevant nor admissible. was neither Services, Raymond Financial James injected in- “why” This evidence otherwise Inc., (Pa.Super.2006). contributory testi- negligence admissible Allowing non- Deceased’s providing any mony into the trial without testimony regarding use of a seat belt regarding either de- relevant information possible pre-impact may conduct negligent The trial should fect or causation. court impression have with the well left attempt permitted have to demon- based, have been that its decision should position was out strate that Gaudio comparison part, whole or in on a between accident, but Ford should time of Deceased in oper the relative fault of the present to not have been allowed testimo- ating the and that of Ford in de vehicle why ny position. to he was out of explain signing prejudicial, it. This was since the cases products focus all must necessary It is not address product on the and not on the conduct of argument detail the testimo- Gaudio’s See, parties. e.g., Hutchinson v. Deceased’s ny regarding pre-impact Co., 978, Leasing Penske Truck 876 A.2d note, speculative. conduct was We do 38, (Pa.Super.2005), affirmed, 592 Pa. however, that Dr. Benedict admitted (2007). 922 A.2d address the re We no could know for certain what actual- one maining parties raised issues ly of the at the time accident happened assist the court on remand. trial why allegedly Deceased was out of N.T., 6/13/06, 122, at position. 162. (3) Compliance Evidence of with such, how As it is difficult understand Safety Federal Standards (or Dr. other expert Benedict Ford’s wit- ¶43 nesses) pretrial In its order dated have testified with a reason- could 12, 2006, granted court certainty on June the trial Gau degree professional able 5, excluding No. court dio’s Motion In Limine these matters. The trial allowed “any argument compliance it evidence or testimony because found that “it was not industry with federal standards that the bag system F-150’s air deployed and/or ” footnote, practice.... In a the trial because, alia, late inter it failed the “5 “[sjhould court warned that intro- [Gaudio] inch—30 millisecond” timing rule used industry during duce evidence of standards industry the automotive (pursuant testimony their or during witnesses’ cross- which an bag air fully deploy should examination of [Ford’s] witnesses or milliseconds before the driver has moved 5 through the introduction of exhibit forward). N.T., 6/8/06, inches at 35-36. standards, containing industry evidence of ¶ 46 agreement We first note our with may present then of in- [Ford] the trial court’s initial decision not to allow dustry Order, standards.” Trial Court evidence of compliance with industry or 6/14/06, at 2 n. 1. government standards. In Lewis v. Coff trial, During the trial court allowed Division, ing Hoist Compa Duff-Norton (Dr. at least two of experts Ford’s Bene- Inc., ny, (1987), Brantman) dict and Dr. Russell to testify Supreme Court concluded that “the compliance the F-150’s with question of whether or not the defendant Safety Federal Motor Vehicle Standard complied has with industry im standards (“FMVSS 208”) § C.F.R. [49 571.208]. properly focuses on the quality of the de N.T., 6/13/06, 23-25; N.T., 6/14/06, at at fendant’s conduct in making design its complex FMVSS 208 contains a set of choice, and not on the attributes of the regulations requiring federal vehicle manu- product itself.” Id. 528 A.2d at 594 passive sys- facturers to install restraint (citing Lenhardt v. Ford Motor capable protecting tems crash test dum- (1984)). Wash.2d 683 P.2d 1097 Ac mies in frontal barrier crashes at 30 miles cordingly, the Court held that “such evi per permitted hour. The trial court dence should be excluded because it tends testimony regarding to introduce its com- jury’s mislead the attention from their pliance with FMVSS because found proper inquiry,” namely quality “the that Gaudio “opened had the door” to such design product question.”8 Id.; testimony as a result of her introduction of see Spino, also 696 A.2d at (1) expert testimony using industry stan- Lewis). 1172 (citing Court dards timing to establish a defect in the ¡is also indicated that “there no relevance deployment bag, of the air in the fact that such a is widespread government results of a investigation of industry.” 342-43, Id. at the Deceased’s accident. at 594.

¶ 45 regard expert With testimo- ¶47 ny, cases, the trial court testimony subsequent focused on the the rationale Mahon, Geoffrey of an engineering expert Lewis for excluding evidence of compli- by called Gaudio. Mr. Mahon testified ance with industry standards has been ex- Court, argues Supreme Ford that a decision of this Court to address evidence of com- 471, Spagnola, Pa.Super. Jackson v. pliance 349 industry 503 with or federal standards. (1986), Lewis, compels A.2d 944 a different result. expressly rejected In the Court deci- Jackson, In we concluded that permitting “[w]hile com- sions from other courts “manufac- pliance with FMVSS prove is not conclusive as to quality turer-defendants to that the or liability theory the absence of under a of product question strict comports liability, compliance probative of industry value in with widespread standards or inis Lewis, determining 343, industry whether there was a defect.” Id. use.” 515 Pa. at 528 view, however, 594; Harsh, 404, at 948. In our Jackson was A.2d at see also 840 A.2d implicitly (Pa.Commw.2003) by overruled Court's (refusing 425 to follow Lewis, Lewis). decision in the first case upon from our Jackson based 544 in their case in introduced the evidence compliance of to evidence

tended exclude See, chief, opposition e.g., deprive cannot later their standards. government with Co., Id. at 171 privilege denying 382 it.” Shaper the v. Cincinnati Sheehan of added). (evi- 1352, Similarly, in Marko 579, (emphasis Pa.Super. Textron, Inc., Helicopter Occupational vich v. Bell compliance with dence (E.D.Pa.1992), relied a case F.Supp. Administration and Health Safety excluded), court, court (“OSHA”) by the trial the district appeal upon de- standards 633, (1989); this “[h]aving introduced nied, A.2d 1261 concluded during testimony industry standards] [of Machine Majdic v. Cincinnati (evidence chief, cannot plaintiffs their case Pa.Super. offering tes National Stan- the defendants from preclude with American compliance (“ANSI”) in their case in chief to rebut the safety timony standards Institute dards excluded), denied, expert].” made [plaintiffs’ statements appeal Petroll, (1988); at 1240. Harsh v. Id. A.2d cf. (Pa.Commw.2003) (based 404, 425 A.2d Mar Leaphart 49 As the Lewis, compliance with upon evidence of clear, cases make a defendant’s kovich prod- standards inadmissible FMVSS to of com opportunity introduce evidence actions); but see Cave ucts industry government with stan pliance or Foods, Inc., Wampler necessary to to testimony is limited dards (evidence compliance (Pa.Super.2008) (i.e., to respond presented evidence regulation directly a federal relevant with it). judi deny or rebut In case sub unique facts of defect “under ce, however, the trial court concluded admissible, so products this food claim” (Mr. Ma- that because Gaudio’s witness evidence to demon- as the not used long hon) industry stan regarding testified an defendant’s due care in violation of strate (the timing “5 millisecond” dard inch — 30 Lewis). rule), opened generally the door permit 48 We also with the trial introduce evidence of agree any industry gov door” with plaintiff may “open compliance court that and/or compli introduction of standards it to discuss. ernment so chose industry stan the trial court nor Ford contends government ance with Neither testimony experts a defendant if a witness of Ford’s re plaintiffs dards con industry government garding compliance about with FMVSS 208 testifies during deny cross- an Mr. attempt standards either direct or stituted to rebut or See, e.g., testimony “5 examination. Castner Milwau Mahon’s In the timing Tool inch—30 millisecond” rule. Corp., kee Electric 2004 WL *1, concluding *2 2004 U.S. Dist. Lexis 22488 at absence of basis for 2004). (E.D.Pa., compliance October this re with 208 was reason FMVSS however, ably so created related to Mr. Mahon’s contention gard, openings reasonably scope bag system should be related in that the F-150’s air did testimony. industry’s millise offending meet “5 inch—30 substance timing (including, example, Pa.Su rule for Leaphart Whiting Corp., cond” (1989), compliance de contention that with per. appeal some nied, (1990), reasonably for involved issues FMVSS if test relating that “even to the movement of the example, Court concluded dummy bag deploy air industry timing the evidence was of [of standards] inadmissible, ment), experts having testimony of Ford’s appellants, fact regarding compliance with FMVSS 208 NHTSA SCI data base the 1994 to F-150, permitted. 1994, 1995, not have been should that is 1996 F- 150 besides Mr. fatality Gaudio’s there is ¶ disagree 50 We likewise with the only fatality one other in the data SCI trial court’s contention that references bag base due to an air deployment. Put witness, expert Gaudio’s counsel and Bruce that perspective, into there are almost Enz,9 findings to the in the Veridian Re two million of produced these vehicles port opened the regard door to evidence between 1994 and 1996. It an expo- had ing Report FMVSS 208. The Veridian years sure of over ten of the statistic I’m described the of a results NHTSA investi total, quoting of two cases that includes gation into the circumstances and causes Mr. Gaudio’s is right present. to the of the Deceased’s accident. Once intro That is over ten years exposure Gaudio, duced clearly entitled terms of way we look at things that (and did) introduce evidence to rebut or vehicles, years two million ten expo- deny the factual findings and conclusions sure, that is 20 million years vehicle government in that report, including the exposure, years 20 million vehicle of ex- investigations results its own posure only two fatalities due to the not, Report accident. The Veridian did air bag. you So can see how rare an however, any contain event type thing of this is.... compliance with FMVSS and there N.T., 6/14/06,at 74-75. fore its open introduction did not the door ¶ 52 argues Gaudio jury should permit expert testify regard Ford’s not have been allowed to hear this testimo- ing compliance Ford’s with FMVSS 208. ny because it upon reflected Ford’s due (4) Various Statistical Evidence in designing care bag system the air F-150. Appellant’s Brief at 31. Gaudio 51 Next Gaudio challenges various evi- further claims that it was confusing and dentiary rulings, which lumps together she misleading because the data “generalized statistics” or “evidence of was not restricted to speed low crashes. Appellant’s Ford’s due care.” Brief at Finally, Id. at 33. Gaudio contends that First, objects 42. testimony Gaudio Dr. Brantman was not statistician and expert, Brantman, from Ford Dr. did not conduct the statistical surveys him- NHTSA SCI10 only statistics show that self. Id. 34. two fatalities have bag resulted from air deployments in Ford F-150s: In Spino, our Supreme Court af-

As with any bag system air on firmed a trial court’s decision to allow evi- vehicle there always some risk of the dence of prior the lack of claims in a person up ends in an case, extreme out defect even if the evidence position situation. Fortunately that is also tended to the defendant extremely an Really rare event. very had acted with due care. Spino, 548 Pa. at rare event. if you Indeed look at the 696 A.2d at 1173: statement, 9. opening In his Gaudio’s experts counsel that this occurred because this air N.T., 6/6/06, bag stated that “it is our belief and it fired was the late.” at 45. Mr. belief, government’s testimony this accident Enz's included oc- references to the speed Report curred at Veridian running your as well. Id. at 144-162. truck into a wall at somewhere between nine and eleven miles an hour. gov- That is all. It Highway was the Safety National Traffic Adminis- ernment’s conclusion Special and the conclusion of Investigations. tration Crash of manufacture make, year model of the dan- fully cognizant

This Court Deceased, along by the prob- and the truck driven a the misleading ger of inability of the in the of manufacture years the other prejudice with lems meet the evidence. party system design. While opposing bag air same allowing in However, logic little there is contends, that the statis- true, as Gaudio accidents similar prior the admission not focus Dr. Brantman did by cited tics their absence.... admitting never but crashes, it is also low-speed on specifically can, and indeed counsel Opposing attempt did not that Dr. Brantman true claims should, prior soundly attack in Ford’s favor—in- the data manipulate it is incumbent believe testimony. We stead, all of the data merely he cited to the absence party opposing upon the agency for rele- by government a compiled to attack such testimony claims prior F-150s, would data which year vant cross-examination, as through (including accidents reported include all limiting cautionary a request well as note speeds). at low We occurring those provided. instruction be Dr. questioned counsel Gaudio’s 1174-75. A.2d at Id. at testimony on the regarding the Brantman ¶ in ruling, Court 54 In so length at some on cross- SCI data NHTSA for the requirements two Spino set forth 6/14/06, N.T., at 158-161. examination. claims testi- prior of lack of introduction conten- disagree with Gaudio’s 56 We (1) must be relevant mony: the evidence accept that if we the Commonwealth tion causation, offering the issue Harsh, on the result decision Court’s Id. at lay proper a foundation. party must Harsh, In be different. this issue would The Court held A.2d at 1173. manufac- in a vehicle passengers three proper determining whether (“GM”) died in a Motors tured General laid, a trial court must has been foundation precluded The trial court post-crash fire. offering party has determine whether testifying from expert have a GM they that “that would established based on substantially post-crash known simi- fires prior, frequency about at is- involving product the Fatal Accident produced lar accidents statistics foundation, (FARS), To establish this sue.” Id. a database Reporting System that “the party must show offering The Com- by the NHTSA. maintained using while others were accident occurred on ruling affirmed this monwealth Court to that which caused product similar not established that GM had grounds injury.” Id. plaintiffs Harsh, testimony. for the a foundation things, Among other A.2d at trial court agree with the 55 We identify types expert could GM’s were satisfied requirements that these two involved the collisions of vehicles First, above-quoted in this case. killed as occupants their were whether demonstrates, Brantman of Dr. passage fire. post-crash or the impact result data as evidence of fered the NHTSA SCI such, Court the Commonwealth Id. As causation, ie., to how seldom demonstrate “there was no basis concluded that bags become in F-150s with air drivers incidents described prove that the resulting during accidents position” “out of sufficiently similar were reports statistical Second, founda a sufficient in fatalities. contrast, incident.” Id. to the Harsh laid, testimony as Dr. Brantman’s tion was Brantman by Dr. presented the statistics for Ford F-150 accident data referenced in- limited to specifically in this case were same produced 1994-1996—the trucks involving Ford cidents F-150s for the rel- A. basically Yes and that is what most years evant of manufacture. the car companies in the world use as their unbelted must fire ¶ Second, argues Gaudio thresholds. that the trial court erred in permitting Dr. Q. Must fire fourteen, twelve to cor- testify

Brantman to that the to rect? Ford F-150 had received a “Five Star” safety from rating good the NHTSA and a Correct, A. some cars are a little bit “injury rating” from the Highway Loss higher they go to sixteen and some Data Appellant’s Institute. Brief at 35. go down to eleven but realistically agree. hereinabove, explained We As twelve to fourteen is sort where may manufacturers not attempt to people most are. quality of their product by N.T., 6/8/06, added). (emphasis showing that it comports industry with ¶ 59 Finally, objects Gaudio government standards or in widespread testimony regarding changes to FMVSS See, Lewis, industry e.g., use. 515 Pa. at 208 that allowed Ford de-power air bags 342-44, such, 528 A.2d at 593-94. As com years after Appellant’s Brief at parisons between safety ratings 45. Gaudio asserts that this testimony F-150 and those of other vehicles is not related only years after the F-150 at permitted in a strict liability design defect issue already sold, here had been and that case. “post-manufacture” evidence was therefore Third, Gaudio contends that any irrelevant issue the case. Id. the trial court erred in permitting Dr. note, however, We that Gaudio did not Brantman testify bag sys the air preserve this appeal, issue for objec as no tem in good the F-150 had or “acceptable” tion to the testimony was asserted at trial. deployment compared times as to other See, e.g., Bennyhoff Pappert, Appellant’s vehicles. Brief at 36. Dr. 313, 321 (Pa.Super.2001), appeal denied, Brantman testified that “all the manufac (2003). More turers have the must fire conditions that over, (re: testimony question de range from about twelve to fifteen miles powering bags) air was elicited Gaudio’s hour,” N.T., per 6/14/06, 55-56, counsel on cross-examination. Ford did later, “you also opinions have the issue, not raise the and it would not have all of the car basically manufacturers who come up at all but for question on have a must fire set between twelve and result, cross-examination. As a the trial fifteen.” Id. at 73-74. Although this tes court committed no error in regard. timony appears to violate the Lewis rule against the introduction of evidence of Analysis Risk-Benefit usage, trade on opened this issue Gaudio permit the door to Dr. Brantman to so 60 In Motion in Limine No. testify since Gaudio’s expert, own Mr. Ma- exclude, Gaudio asked the trial court to hon, substantially offered identical testimo alia, inter any evidence or rish/benefits ny on cross-examination at trial: earlier arguments jury, including the exclu

Q. you say Now in your report [ ] sion of evidence relating the benefits

generally an air bag required or risks of the use of air bags. The trial occupant an unbelted in a front bar- court denied this motion. On appeal, Gau (Dr. rier crash above twelve to fourteen dio expert contends that Ford’s Brantman) per miles hour correct? should not have been allowed 548 allegedly product benefits of defective development of the the Ford’s testify about F-150, may design includ- in a defect 11: in the be relevant case bag system

air the decisions ing its for reasons question There no can be terms deployment speeds. and location of sensors such as and are ‘safeness’ ‘defective’ subject meaning. terms of art to relative argues that regard, Gaudio In this in stated Supreme Spino, As Court strictly and benefits is of risks evidence question ‘the the product is whether primarily on our Su- prohibited, relying designed safely.’ in it could more decision Lewis. While have been preme Court’s passage suggests analysis Court in Lewis This an is true that the in lia- product relativity. “defect” A manufacturer to define could build declined bility using approach, closely a risk-benefit cases automobiles to more resemble Lewis, 342-44, 528 at 593- but, Pa. at A.2d make them might tanks. This safer 94, jury it that the could not not rule perspective, unlikely did from a is societal and a the risks benefits of hear evidence of doing be viewed as a valid so would in an case. product’s design appropriate if, trade-off, process, particularly in Such true cases decided particularly is danger other is created. theory liability,

on the crashworthiness plaintiff

since in these cases a must design was defective but only that the ... Among factors for determin- other alternative, design prac- also “an safer ing a is product whether ‘defective’ is ticable under the circumstances existed.” consequences ‘the prod- adverse the Co., Kupetz Pa.Super. Deere & uct and to the consumer would re- (emphasis add- If, fact, design.’ sult ... in from a safer Co., ed), Equip. v. Clark Habecker cf. making question ‘safer’ [product] the Cir.1991) (crashworthi- (3d F.2d occupants for its also created an ‘unbe- “an liability appropriate ness where alter- others, risk-utility the lievable hazard’ to native, feasible, design safer would have essentially negative. safety is The utili- injury plaintiff the lessened or eliminated ty to would occupant seemingly the be If no such alternative feasible suffered. outweighed risk extra created to design product man- existed when was if, others. could be The same said ufactured, design cannot said then above, example used in an automo- ‘defective’.”). to be It bile were made to resemble tank. safer, such, might occupants this has make its but if 62 As Court unacceptable doing made so it creates an haz- clear evidence the risks Co., theory appropriate Bros. [Gaudio’s] Under v. Black under Azzarello (1978), case.’’). it is for the trial permitting no error in We find instance, court, evidence, in the first to conduct jury to such receive and consider analysis regarding whether the risk/benefit ultimately jury decide since must whether design outweighs benefits of the alternate its product was defective whether an opinion, the risks. In its written trial court Phatak, alternative, design See safer existed. regard. its in this case fulfilled function (Pa.Su- v. United Chair 6/14/07, Opinion, (“Applying Trial Court per.2000) ("many weighed by factors could be case, present principles these the trial reaching the ultimate conclusion present in- [Ford] court allowed defective,’’ product whether was and the volving analysis. Such evidence risk/benefit the alternative risks benefits of was the trial on then used court to rule equation prod- whether "enters into the Compulsory Motion Nonsuit. [Ford's] added). ”) (emphasis uct 'defective' recovery determined that trial court testifying pedestrians, that Ford evaluated various ard to other motorists sen- negative prod- variety sor in a wide risk-utility and the locations tests— at including speeds, be low thought high rough uct feature should and design road, road off over positive. (e.g., not a conditions rail- negative, a tracks), types of road and different colli- 694; Phatak, at see Duchess also side). (e.g., sions front and Dr. Brantman 529, 560, Corp., Langston explained system further that no sensor (“Langston also can at the designed deploy be same could associ- have addressed trade-offs conditions, speed all and instead design process ated such with the on systems designed such to deploy must terms, by pointing that an example, out range speeds. explained over a He adjust- require interlock would substantial per Ford chose hour as its eight miles “no set-up process to the that were not ments speed per fire” and fourteen miles hour as safety given existing warranted “must deploy” speed. its Over this range design.”). eight hour, per from to fourteen miles ¶ judice, In the case sub Mr. Mahon design system Ford’s intention was to a alleged length testified at deployed eight that never in an mile per bag system. air Ac- defects in the F-150 crash, hour half of the deployed time at Mahon, the air cording bag system to Mr. (the point, eleven miles center per hour or only F-150 was defective because it zone”), “grey always deployed at four- sensors, employed deployment two mount- According teen miles per hour. to Dr. relatively high ed side on the front side Brantman, Ford used the results of its Having just end of the truck. two sensors testing system select the “best overall locations, in upper mounted Mr. Mahon deploy that would to not in a work whole testified, bags air to deploy caused the too rough eight set of road conditions miles low-speed late in the event of a crash. Mr. per hour a providing timely while still safer, that a Mahon further testified feasi- deployment in the must fire conditions.” ble deployment system alternative sensor N.T., 8/14/06, at 55. at the was available to Ford time of de- sign. Mr. Specifically, Mahon indicated ¶ 65 We with disagree Gaudio’s conten- system would have safer if been testimony tion that Dr. Brantman’s consti- deployment a third had added sensor impermissible analysis”. tuted “risk-benefit sensors in triangle situated the three testimony Dr. raised legiti- Brantman’s Mr. triangle. inverted Mahon also ex- mate factual issues for the consid- plained have that Ford should used then- er, including whether the alternative de- (but expensive) higher available more bias (three sign proposed by Mr. Mahon high stronger magnets. sensors with Accord- triangle configuration) bias sensors in a Mahon, ing Mr. with three higher bias was a safer For example, overall. triangle in a design, sensors situated considerable existed disagreement over air that killed the bag Deceased would speed the exact which Deceased was (due deployed either at all not have to the traveling when he struck embank- crash) low speed of the not have would (Bruce Enz) opined expert ment—Gaudio’s (i.e., when his too deployed late head was was at than nine miles per less wheel). N.T., close generally See (Dr. Germane) hour, Geoff expert Ford’s 6/8/06, at 14-104. believed it to fourteen to be closer miles hour, response, per government’s 64 In Dr. Brantman defend- and the Veridian sensors, deployment Report per ed the location of the calculated it at 11.6 miles hour. judge are to product.... You that while Ford Brantman testified Dr. system the defendant.” product the sensor designed have could per per hour at 11.6 miles deploy never rejected court Gaudio’s 68 The trial (using configurations the Veridian estimate the follow- in favor of proposed instruction proposed like those bias sensors high ing: Mahon), that to do so would but by Mr. product is liable for supplier increase the “must required it to have a Plaintiff injuries caused to range to deployment of its deploy” end existed when defect in the article which per miles hour—which fourteen well above possession of the product the left the sys- in ultimately result a less safe would imposed supplier. Such overall, injuries fatali- more and tem since pos- supplier taken all even if the has at speed in crashes. Id. higher ties occur preparation and sale sible care admo- 67-73. Given our Court’s product. The manufacturer of of the case, “in defect design that a nition safety. product guarantor its is a have product whether the could question is at the you product ... If find that the safely,” Spino, 548 Pa. designed more been any control lacked [Ford’s] time left 1172, 293, Dr. Brantman’s 696 A.2d necessary to make it safe for its element alterna- critique proposed of Mr. Mahon’s use or contained condition intended design was relevant and admissible. tive that made it unsafe for its intended use Jury Instructions an safer de- and there was alternative ¶ A trial court must instruct 66 product was defective. sign then jury legal principles on the correct by liable for all harm caused [Ford] presented at trial. applicable the facts the defect. Cox, 515, 530, Pa. 546 Commonwealth added). N.T., 6/15/06, (emphasis at 15-16 (1996); Common language preferred precise While not the Matroni, 923 A.2d wealth v. instruction, Gaudio, in the trial court’s denied, (Pa.Super.2007), appeal accu- particular highlighted language, (2008). A trial court has clearly conveyed jury rately and precise lan choosing wide latitude care that it should not consider Ford’s due charge, of the but in all instances guage reaching its decision. convey ap fully adequately must jury. law to the Wilson plicable ¶ Second, that Gaudio contends Anderson, Pa.Super. any defini the trial court failed to include (1992). instruction. tion of crashworthiness its however, in conclude that the Again, we ¶ objections raises four Gaudio jury by to the the trial provided struction jury in charge to the trial court’s adequately applicable court described the First, contends that the this case. Gaudio law at issue: jury to instruct the trial court failed In this case has the burden of [Gaudio] of Ford’s due care was not rele product proving design re that the vant to its deliberations. Gaudio’s defective, that an alternative safer jury provided in rele was quested instruction under the circumstances legally responsible design practical “is part vant injuries That consequences selling [the Deceased’s] an unsafe existed. for the caused or exacerbated the de- you might even if otherwise find were product and that design product that Ford with reasonable care fective acted would not have suffered manufacturing marketing Deceased] designing, [the ¶ if the 72 Reversed for injuries alternative and remanded new these considering relinquished. after all of trial. Jurisdiction used. If were you persuaded feel the evidence FITZGERALD, J. files true probably are more propositions Concurring Opinion. & Dissenting not, for your [Gau- than verdict must be your must be Otherwise verdict dio]. AND CONCURRING DISSENTING FITZGERALD, [Ford]. BY J.: OPINION ¶ 1 as the majority Insofar “concluded] correctly ad- charge Id. at 14-15. This the trial court’s evidentiary erroneous specific of a elements vised non-usage rulings seat belt claim, in our as set forth crashworthiness pre-impact the deceased’s conduct could Kupetz.12 decision [Appel- have affected the and thus verdict Third, objects the trial Gaudio prejudiced entitled to lant] and is jury that the court’s refusal to instruct the trial,” I respectfully new dissent. all relevant. conduct of the Deceased was not I respects other concur. For length the reasons set forth at herein- ¶ majority 2 The finds the trial court above, to it was error the trial court rulings in its Appellants’ erred on motions Ford to introduce evidence of have allowed Nos. 1 in limine and 3. The trial court pre- the seat belt Deceased’s non-use granted Appellant’s motion in limine No. conduct, impact charge and on the remand any 1 insofar as evidence excluded or jury to the must consistent with argument negligence regarding or issues. rulings on these However, fault comparative of Deceased. the court ruled that parties shall be “[t]he ¶ Finally, appeals Gaudio to permitted argu- include evidence and jury trial refusal to court’s instruct regarding ments pre-impact circum- “discuss, or it should consider giving rise collision.” stances to the Trial speculate usage trade about” evidence of Order, 6/1/06, The trial Ct. at 5. court in industry government or or standards relating pre- to concluded evidence regard, verdict. how reaching its this impact conduct the Deceased was not ever, legal provided Gaudio has us with no “inappropriately” negligence used to show authority suggest to that such an instruc 6/14/07, part. Trial at Op., on his Ct. 5-6. required tion appropriate was either contrary, On the the court concluded that in upon presented based the evidence prove “the evidence was admitted to [Ap- Moreover, notes, as correctly case. theory pellee]^ po- [Deceased’s] might such an instruction have done more in the vehicle time of air bag sition at the jury than confuse rather educate deployment and the time of the vehicle’s it—since Gaudio’s witnesses also intro impact with the Id. at embankment.” 6. usage duced evidence of trade and indus See, N.T., try jury. e.g., agree 3 I that pre-impact standards (Mr. 6/8/06, testimony re prove at 35-86 Mahon would not be admissible to contribu- industry’s garding tory negligence, contributory negli- inch—30 millise “5 since timing products- rule for air is not a bag deployment). gence cond” defense strict contends court trial court Gaudio also that the trial include this information its phrase charge, used the N.T., 6/15/06, "intended use” in its charge & Kupetz on remand. v. Deere explain but failed Inc., Pa.Super. A.2d are that crashes intended uses of an (1994). agree, We and recommend that automobile. contributory negli- as evidence of Corp. Dev. v. Mi- sible Kimco liability actions. Outlets, 1, 7, any gence in civil action: Carpet chael D’s (1993). However, I would amendments is clear: import The lack that it is admissible find legislature has decided that de- majority con- and causation. defect comparative negligence, fense of in the truck position cedes that Deceased’s defense”, a “seat belt the form of relevant to of the accident was at the time on either the failure of an premised Majority Op. at of causation. the issue a seat his own employ adult to belt for Nonetheless, majority “eon- 541-42. or on the failure of an adult protection, permitting court erred in the trial clude[s] protec- belt for employ a seat his own testify re- expert witness to [Appelleej’s tion, the failure of an adult to or on explanations why as to garding possible protect his minor children with seat might posi- have been out the deceased belts, any civil will not be available tion in the truck.” Id. in this Commonwealth. Section action (E) clearly § 4581 states that Appellant’s 4 The trial court denied passenger failure to use a “child re- No. to exclude motion in limine system” “safety sys- seat belt straint argument regarding seat belt evidence or considered, in any tem” shall not be civil par- non-use. The court directed: “[T]he action, contributory negligence, to include evidence permitted ties shall be be admissible as evidence in shall not arguments regarding pre-impact any civil action. circumstances, not permitted but shall be added). (emphasis Id. at 1369 “The terms argue negligence comparative or fault of to provision of subsec- preclusionary of the Order, 6/1/06, Trial the decedent.” Ct. (e) specifi- The third clause tion are clear. majority statutory 2. The finds mandate cally safety that the failure to use a states 4581(e)1 § in 75 for the exclusion Pa.C.S. system cannot considered as seat belt be of seat belts in of evidence of non-use civil contributory negligence.” Nicola v. Nico- courts, Pennsylvania for actions “tried la, 293, 950, Pa.Super. 449 951 any including prove only to not purpose, omitted). (1996) (quotation marks Howev- defect, contributory negligence but also 5481(e) er, I would find that Section does damages.” Majority Op. causation and/or preclude not evidence seat belt non-use I respectfully disagree. at 536. every as to defect and causation. “[N]ot Betz, 614, Pa.Super. In v. negligence-related concept 5 Grim mention of a (1988) (en banc), Indeed, liability a claim. poisons 539 A.2d 1365 this Court strict pur- which for one opined that seat belt non-use was inadmis- is inadmissible action; (e) provides: any 1. Section 4581 trial of civil nor shall this sub- (e) chapter impose any legal obligation upon no event shall a viola- Civil actions.—In alleged subchapter tion or violation of this impute any to an civil whatsoever any be used as evidence in a trial of civil manufacturer, owner, employer, dealer or action; any jury in a civil nor shall action person engaged renting in the business of any conduct did consti- be instructed public equip leasing to vehicles interpreted by them to tute or could be passenger sys- vehicle with a child restraint subchapter; constitute a violation of this or to have such tem or child booster seat passenger a child nor shall failure to use passenger system or child child restraint safety system, child seat or restraint booster vehi- booster available whenever their seat system considered as contribu- seat belt transport may to a child. cle be used tory negligence failure to such nor shall use 4581(e). § system evidence in the 75 Pa.C.S. be admissible as presence of it and because the pedestrians another.” may be admissible pose Thind, carriage of obstructed (Pa. frontal the forklift v. Daddona trial court did not the driver’s view. The Commw.2006) (citations quotation of evidence that permit the introduction omitted). marks appellant the driver had not both Foley Equip. v. Clark 6 In negligence, attention and rather paid their (1987), 528 A.2d 379 Pa.Super. fork- defect of the than injured was struck when he appellant lift, re- caused the accident. This Court that the man- a forklift. He contended ... “negligent] and concluded that versed defectively the forklift designed it is relevant ufacturer conduct is admissible where Id. at 393.2 to alert its lack a device to establish causation.” upon based ing.” Pa.Super., A.2d at Dillinger Caterpillar, 959 F.2d Compare 2. Cir.1992), (3d opined: the court wherein In Id. at 444 n. 23. Russo v. Motor Mazda view, Foley accurately re- In our does (unre- (E.D.Pa.1992) Corp., 1992 WL 210232 Pennsylvania approach Su- flect the decision), ported court looked footnote preme in a strict Court would follow Dillinger, interpreted as lend- 18 in which is liability proceeding.... products Most im- ing support argument some that evi- meaningful way portantly, there is no system dence the existence belt seat negli- plaintiff's view reconcile the that a admissible that the truck should be type Foley gence should involved provides: was not defective. Footnote 18 causation with be admitted undercut concerning existence Evidence the mere prohibition of the in- Court’s braking systems the alternative is admissi- plaintiff's negligence to de- troduction of ble as it relates to the of a defect existence liability. feat However, Caterpillar the truck. effec- recognized: Dillinger at 443. The Court Id. tively framed the issue as one of contributo- decisions, Gallagher Ing, Two other Dillinger’s ry negligence stating fail- (1987), Pa.Super. allo A.2d 1179 systems braking ure to use alternative denied, catur addition, caused the accident. in its (1988) Caterpillar Trac v. Brandimarti closing argument, Caterpillar stated that it 26, Pa.Super. tor why” Dillinger “didn’t know had not used 629, denied, (1987), allocatur 517 Pa. perhaps braking systems, alternative but the (1988), support provide because, A.2d 810 also some Dillinger this was had stated Dillinger's Caterpillar’s that for contention deposition, he his did not know how to negligent allegedly be ad operate Caterpillar conduct should safely. the 773 then actions, negate prong Dillinger’s of argued mitted to the causation not a defect that truck, plaintiff's injuries. v. Bald claim. See also Kuisis were cause of his the during Corp., Although charge the win-Lima-Hamilton the conference 329-33, (inter (1974) initially only per- stated that it would 319 A.2d 920-21 court negligence party). Caterpillar to con- vening In Galla mit introduce evidence of third cerning the the alternative gher, the administratrix commenced existence of braking systems wrongful against the defendant because that evidence re- death action manufacturer, defect, the alleging that a defect in lated to the existence of a court car permitted caused the decedent’s acci modified its determination and the automobile argue Dillinger’s permitted Caterpillar to actions dent. The trial court the defen that injuries, decedent’s caused the accident and his but dant to introduce evidence of the merely arguing jury Caterpillar barred that alcohol level and the returned from blood ap Dillinger’s contributory of On actions verdict in favor the defendant. constituted negligence. Superior the trial peal, the Court affirmed Thus, evidence, holding we must determine whether it was court's admission of the sufficient, believed, permit proper for the the evidence was if district court "[t]he Dillinger’s as it intoxicated to consider conduct show that the decedent was so causation, incapable safely whether the driving relates to and not that he was of of of the brak- legal the his loss of mere admission the existence that this was cause for ing systems operator’s manual of the he was driv- the control vehicle which pay cycle going had lost control of the while Therefore, appellant’s failure the to causation. was admissible as attention rele- per significantly 100 miles hour was case, Appel- in the instant Analogously, extremely important vant and evidence. admissible behavior was pre-impact lant’s It to show the cause of the was admissible as to causation. accident; purpose that to exclude Gallagher Ing., Pa.Super. In v. was error.” Id. at 1113. The Bascelli (1987), this Court ad- Court, reaching its conclusion that the admissibility of dressed the issue of excluded, not be looked to evidence should intoxication an action for the decedent’s ju- in other persuasive decisions of courts contention wrongful upon death based guidance: risdictions for driving was that the Porsche decedent evidence could not be excluded [T]the was This Court found no error defective. merely because it also tended to show of evidence in the trial court’s admission “contributory part on of negligence” decedent’s intoxi- establishing It operator. was admissible for the incapable driving him cation rendered purpose showing causation. See: safely legal and that was the cause of his Volkswagenwerk Aktienge Greiner Id. at loss of control of vehicle. (3d Cir.1976) selleschaft, 540 F.2d 85 Inc., Randy, 8 In Bascelli v. (evidence drinking admissible show (1985), Pa.Super. causation); Englehart Corp., Jeep appellant brought an action to recover for 256, 260, Ariz. 594 P.2d injuries sustained a one-vehicle accident (evidence intoxication, plaintiffs theory upon based the accident though not admissible to show contribu by the was caused defective front-end as- tory negligence, may be on admitted sembly motorcycle. This Court cause); held: “An admission issue of proximate Bascelli he Honda Motor proper. reaching special interrogatory would have been court in its as whether ignore Caterpillar's we do not “the result con- defect was a substantial factor in bringing injuries [Dillinger]”, tention in its brief that evidence of the ''[i]f about some backing safety systems alleged existence of should be limited to the defect in admitted, was, properly protection which it then there hoses or the absence of logical excluding adequate warning system, was no basis for an as the back- [Dillinger] advantage up systems simply by very failed to take their existence systems.” happen- these While there is force to this could not have contributed to the argument, point ing we out that it is not our of the accident. Nonetheless, Pennsylvania Dillinger, function to establish law. 959 F.2d at 440 n. 18. Rather, merely apply precedents we to Russo Court concluded that the evidence inadmissible, predict system opin- how its Court would rule. of the seat belt was point may ing: We also out that our result not be Act, Caterpillar Occupant as anomalous as believes as the In the Protection Penn- presence back-up systems goes sylvania legislature expressed strong of the has a product public policy defect vel non of the whereas Dil- concern that evidence of the linger's goes neg- failure to use them to his failure to use a seat belt not be introduced Thus, ligence, obviously concepts. against plaintiff distinct in a a civil action. 75 that, 4581(e). jury Allowing § could conclude without re- Pa.C.S.A. Defendant conduct, gard Dillinger’s the existence to introduce evidence of the of the existence back-up systems precluded finding implicates important public policy a seat provides eighteen that the 773 was defective and concern. While such find- footnote ing authority, unwilling would end the case. On the other hand some the Court is 4581(e) back-up if the found that even with the weaken Section without clearer di- defective, systems the 773 was then the rection from Third Circuit. * Russo, question, causation defined the district at 2. (Fla.Dist. Marcus, damages, consequences, avoidance of So.2d Co. (failure comparative to wear seat belt and fault. Ct.App.1983) if relation may be shown it bore causal Corp., LaHue v. General Motors Ford, Inc., injuries); v. Bolan Scott (W.D.Mo.1989). 407, 410 F.Supp. (intoxi (La.Ct.App.1982) 420 So.2d if to causa cation admissible relevant tion); Ak v. Volkswagenwerk Bendorf court held that belt evidence The seat 414, 416, 564 tiengeselischafb, 90 N.M. purposes admissible was not for the (negli (N.M.Ct.App.1977) P.2d establishing contributory as- negligence, wrongful if plaintiff relevant his gence risk, miti- sumption of or failure to acci driving proximate cause of gate damages upon prevailing based dent); Caldwell v. Yamaha Motor survey seat belt statute and a of com- (negligence (Wyo.1982) 648 P.2d jurisdictions. other mon law from Id. if offered to motorcyclist admissible respect 410-16. With to the reasonable- testi impeach causation or to his however, design, ness of the vehicle’s mony). opinion LaHue held that seat belt evi-

Id. at 1113-1114. was admissible.... dence ¶ Although binding precedent, not (Del. Wolhar, A.2d 170 GMC is The Court

Supr.1996) instructive. GMC Additionally, with respect to the causa- opined: factor, the tion court also allowed the authority sharp split “There is a of non-use: amongst courts that have considered the though plaintiff may Even not have admissibility safety-belt evidence.” belt, duty had a to wear a and seat Swajian Corp., v. General Motors though contributory even fault would (R.I.Super.1989). products liability not be relevant Swajian numerous cases Court set forth action, may attempt defendant jurisdictions which have found seat injuries prove that the were caused at 1043-44. belt non-use admissible. Id. something other de- alleged than an court As another has stated: If sign defect. evidence shows that all has Enough been written about part injury is attributable body “seat-belt defense” to show the defect, other something than a split, fragmented of law related the critical element of causation is time, changing. It varies in instance, missing. In that a defen- rationale, place, implemen- effect and not, be, liable dant should No varies so tation. doubt the law for harm which that did not defendant not fit theory much because the does by way of a design cause defect. neatly into tort doctrines traditional Id. at 416. negligence (including duty, breach causation), duty liability, and See v. Mack Hodges strict Id. at 173-75.3 also (5th Cir.2006) Trucks, Inc., contributory mitigation of 474 F.3d negligence, toiy negligence any noted was decided civil suit or insur- 3. The court that the case adjudication arising any before the enactment of the statute: ance claim out of accident, (i) motor vehicle nor shall failure to occupant Failure to use an wear or occupant protection system an system wear or use protection not be considered as shall any comparative of either or contribu- be admissible in the trial evidence evidence (M.D.Tenn. Corp., tors (involving provided F.Supp. Texas statute which 1992) safety is not admis- (interpreting that “nonuse of belt Tennessee statute for trial,” court held that sible in a civil bidding introduction of seat belt non-use in admissible a crash- seatbelt nonuse was any civil permit the trial of action to seat relevant worthiness case when issues plaintiff alleged belt evidence where contributory negligence); than other automobile’s brakes were defective to Chrysler Corp., Gardner v. 89 F.3d 729 cause); Whitehead prove proximate Cir.1996) (10th (finding although Corp., American Motors Sales 801 P.2d bar legislature intended to (Utah 1990) (finding seat belt evidence compara- nonuse of a seat belt to establish similar admissible under Utah statute on mitigate damages, tive or to if negligence question of the vehicle’s overall de allegations of a defect introduced defend I sign). Similarly, discern no error in the admissible); DePaepe v. Gen. it would be evidentiary rulings regarding trial court’s (7th Cir.1994) Corp., Motors 33 F.3d 737 non-usage seat belt and the deceased’s (permitting permitted seat belt evidence I pre-impact Accordingly, conduct.4 would appellant alleged where the the sun affirm. defective); system was visor/header Brown v. Motor 67 F.Supp.2d (E.D.Va.1999) (holding evidence of the

failure to wear a seatbelt is admissible as negligent design relates to the issues of manufacture, warranty,

and breach of misuse); MacDonald v. Gen. Mo-

product adjudica- relationship civil action or claim noncompliance insurance between and the claim, tion. injuries alleged, products liability in a 4802(i) (emphasis § Del.Code Ann. tit. 21 except where the claim is related to a failure added). "Although Safety belt); the Seat Belt Act is of the seat see also Tenn.Code. Ann. inapplicable present proceeding, to the states, ... § 55-9-604. In certain the evidence holding this common-law ... will survive the comply of the failure to with the seat belt GMC, enactment of that statute. 686 A.2d at requirement only admissible in a civil ac- 176 n. 9. comparative negligence. tion as evidence of 316.614(9). jurisdic- § See Fla. Stat. Some acknowledge I that the resolution of this permit tions the evidence of a violation of the disparate issue has received treatment in this only mitigate damages pain statute Commonwealth, jurisdic- as well as in other 42-4-237(7). suffering. § See Colo.Rev.Stat. Therefore, suggest tions. I would that it is California, action, in a civil violation of the one should be decided negligence statute "does not establish as a See, e.g., Carrasquilla Court. Motor Mazda negligence per of law or matter se for com- (M.D.Pa.2001) Corp., F.Supp.2d parative purposes, negligence may fault but alia, (finding, DePaepe inter v. General Motors proven regard as a fact without (7th Cir.1994) Corp., 33 F.3d and LaHue See, 27315(j). § violation.” Cal. Veh.Code Corp., F.Supp. v. Gen. Motors provide Some state statutes that the evidence (W.D.Mo.1989) unpersuasive, applying only mitigate damages, is admissible reduc- 4581); meaning the literal of Section see also ing plaintiff's recovery an amount not to Estep Lincoln-Mercury, v. Mike Ferrell Ford percentage exceed a certain fixed after Inc., 223 W.Va. 672 S.E.2d 345 comparative reductions for fault. See Iowa (2008)(interpreting any civil "in action” to 321.445(4)(b); § Code Ann. cases). Mo.Rev.Stat. encompass dispari- defect 307.178(4). Legislation § enacted in Kansas ty legislation is illustrative. In some states "[ejvidence provides any of legislature. failure of the issue has been resolved See, 27-37-703(a) person safety e.g., (pro- § to use a belt shall not be Ark.Code Ann. admis- viding any may purpose sible in action "evidence of such failure be of deter- mining any aspect comparative negligence admitted in a civil action as to the causal of

v. INCORPORATED WYATT Pennsylvania Bank of Citizens

v. Bank, and Mellon N.A. BANK OF PENNSYLVA- CITIZENS Appeal of Mendel Steel Ornament Bank, N.A. NIA and Mellon Company. Iron Appeal of Citizens Bank Wyatt Incorporated Pennsylvania. of v. Incorporated, Wyatt Appellant Pennsylvania Bank of Citizens v. Bank, Mellon N.A. Pennsylvania Bank of Citizens Bank, N.A., Appellees. Mellon Lighthouse Appeal of Electric Company. Wyatt Incorporated Wyatt Incorporated Pennsylvania Bank Citizens of Bank,

and Mellon N.A. Pennsylvania Bank of Citizens Bank, and Mellon N.A. Apostolos Group, Inc. Appeal of Huckestein, Wyatt Appeal Incorporated of James E. Inc. gence, contributory negligence, Kan. Stat. of mitigation damages.” of evidence or or See 8-2504(c); damages,” tit. § Del.Code Ann. a basis for a civil action for nor in Ann. also see 4802(i); damages. mitigation § Ann. of Ann. La.Rev.Stat. See D.C.Code 50-1807; 32.295.1(E). § § a see also Ann. 40-8- Michigan, § In failure to wear Ga.Code 76(d); 22-412.3(h). Transp. § may Md. Code Ann. as evidence of seat belt considered Ohio, the reducing In evidence is not admissible as negligence, recoveiy no more negligence contributory negli- percent. Comp. evidence or Mich. Laws than five See gence, may recovery 257.710(e)(7). but "diminish a of com- pro- § The Nebraska statute damages pensatory represents noneco- admissible as to vides that evidence is not loss.” Ann. causation, nomic Ohio Rev.Code may or but be admissible 4513.263(F)(1), (b), (c). (2)(a), ju- § In some concerning mitigation dam- evidence as risdictions, the use or nonuse of a seat belt percent. ages, not to exceed five See Neb. any admissible in civil See Conn. suit. 60-6,273; § Rev.Stat. also Or.Rev.Stat. see 14-100(0(3); § tit. Gen.Stat. Oak. Stat. (admissible mitigation Ann. 31.760 as to 12-420; 31-5-1402(f). Wyo. § § Stat. Ann. damages percent, not to exceed five unless Wisconsin, the In evidence is "admissible in contributing cause of nonuse "is substantial personal injuries prop- any civil action for or itself”). permits evi- the accident New York damages resulting erty opera- from the use or noncompliance mitigation only in dence of tion of a motor vehicle.” See Wis. Stat. damages, regard but not in civil action in 347.48(g). § liability. N.Y. Law Vehicle & Traffic 1229-c(8). Virginia, § In non- West seat belt jurisdictions law from other is similar Case negli- is not admissible as evidence of use ly disparate. v. Gen’l Motors Waterson contributory gence, comparative, in mit- Corp., 111 N.J. igation damages, may con- (1988), but the court the court noted that to the admissi hearing duct an in camera to determine if strict-liability bility of seat belt in a context, proximate injuries. cause of the court If the law was of flux.” See in “state cause, IV, proximate Boney Shopping statute then ad- Lindsey finds C. Forum Evidence, damages. mitigation Through dresses the issue of Federal 60 Ala. Rules of 17C-15-49(d). (2008) (discussing § In the Dis- n. 58 com See W. Va.Code L.Rev. Columbia, evi prehensively seat belt of seat belt trict of evidence of non exclusion dence). negli- "evidence of use is not admissible as

Case Details

Case Name: Gaudio v. Ford Motor Co.

Court Name: Superior Court of Pennsylvania

Date Published: Jun 1, 2009

Citation: 976 A.2d 524

Docket Number: 1021 EDA 2007

Court Abbreviation: Pa. Super. Ct.