457 Pa. 321 | Pa. | 1974
Lead Opinion
Opinion by
On January 17,1967, appellant, Andrew Kuisis, was injured by a load of steel pipe which fell on him when a brake locking mechanism on the crane from which the pipe was suspended became disengaged. Kuisis brought suit against appellee Baldwin-Lima-Hamilton Corporation (Baldwin), the manufacturer and seller of the crane.
I.
At the outset, we must decide whether appellant’s claim was barred by the statute of limitations. Kuisis
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to Ms property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in wMch it is sold.
“(2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.” The amended complaint included allegations that the defective condition wMch proximately caused Kuisis’ injuries was substantially the same as it had been when the crane was sold by Baldwin, and that Baldwin was engaged in the business of selling cranes. At the close of the evidence, the trial court ruled that the claim of negligence in design and manufacture was not made out, and submitted the case to the jury solely on the issue of liability under Section 402A.
Appellant’s claim under §402A was clearly implicit in his allegations of negligence in the design and manufacture of the crane. The principle of strict liability in tort adds nothing to Kuisis’ theory of how the accident occurred; it operates merely to simplify his proof problem by eliminating the issue of negligence from the case. If in negligence actions “we have defined ‘cause of action’ as ‘the negligent act or acts which occasioned the injury’ ”, Saracina v. Cotoia, 417 Pa. 80, 85, 208 A.2d 764 (1965),
Given the averment in the original complaint that the brake locking mechanism was defective, the new
II.
We turn next to the question whether there was sufficient evidence to withstand a motion for judgment.
Appellant introduced no direct evidence of a specific defect in the brake locking mechanism. Instead, he attempted to prove the existence of a defect indirectly, through the circumstances immediately surrounding Kuisis’ mishap, and the occurrence of five earlier malfunctions of the lock. The circumstances of the accident were as follows: A minute or two before the load of pipe fell, the crane operator set the locking device to hold the load about four feet off the ground. After checking in the normal manner to see that the lock was engaged,
These facts were clearly sufficient to support a jury finding that the locking mechanism malfunctioned; and in the absence of other identifiable causes, the malfunction itself is evidence of a “defective condition” within the meaning of §402A. MacDougall v. Ford Motor Co., 214 Pa. Superior Ct. 384, 257 A.2d 676 (1969); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. 1972); Greco v. Bucciconi Engineering Co., 283 F. Supp. 978 (W.D. Pa. 1967), affirmed, 407 F.2d 87 (3d Cir. 1969); see also Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968). This rule reflects the fact that liability under §402A turns on a lack of fitness in the defendant’s product, as in the case of an action for breach of warranty, rather than on the breach of a particular duty of care by the defendant, as in the case of an action for negligence. While a plaintiff’s hand in a strict liability case will obviously be strengthened by evidence of a specific defect in the defendant’s product, such evidence is not necessary to take this part of the plaintiff’s case to a jury. We agree with the court en banc below that, on the evidence here presented, a jury could find that a defect existed in the brake locking mechanism, and that this defect was unreasonably dangerous to users of the crane.
Given the occurrence of a malfunction, the operator’s alleged negligence assumes legal significance only if it was a superseding cause of Kuisis’ injuries. Questions of proximate causation should normally be left to the finder of fact, and this case is no exception. We certainly cannot say as a matter of law that the accident would not have occurred had the operator remained at the controls, particularly since all five earlier failures of the locking device had happened while an operator was in the cab. Moreover, even if the operator’s negli
III.
Proving that a defect in the crane existed at the time of the accident and that it was the proximate cause
The crane was originally manufactured as a shovel, and sold to North Star in that form in 1946. In the following two decades, the machine saw extensive use for a variety of purposes. After functioning for several years as a shovel, it was converted first into a dragline and later into a crane. There was conflicting evidence as to the amount of maintenance the machine received. At least two motors wore out in succession and had to be replaced. The brake bands were changed several times, and the brake pedals and the brake lock release chain were each replaced at least once. A succession of operators used the crane, each one making his own adjustments to the brakes as required. In light of this evidence, the court below was of the opinion that the
Although, in its opinion, the court en banc spoke in terms of substantial changes in the crane as a whole, the parties agree that the proper focus of attention is the brake locking mechanism; the enumerated changes are relevant only insofar as they affect this particular component part. If there were direct evidence of a specific defect in the locking device present at the time the crane was delivered, we think the enumerated changes would have relevance to the issue of Baldwin’s liability only if, individually or in combination, they amounted to a superseding cause of plaintiff’s injuries. Compare Greco v. Bucciconi Engineering Co., 407 F.2d 87 (3d Cir. 1969) with Speyer, Inc. v. Humble Oil & Refining Co., 403 F.2d 766 (3d Cir. 1968).
The questions when and where a defect originated should be left to the finder of fact so long as “reasonable and well balanced minds [could] be satisfied from the evidence adduced that the defective condition existed when the machine was delivered [citations omitted]”. Greco v. Bucciconi Engineering Co., 407 E.2d 87, 90 (3d Cir. 1969) (applying Pennsylvania law); see also Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969). On the other hand, “the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but . . . there must be evidence upon which logically its conclusion may be based [citations omitted]”. Smith v. Bell Telephone Co., 397 Pa. 134, 138, 153 A.2d 477 (1959).
On the evidence here presented, then, the question is whether a jury could reasonably draw the inference that the brake locking mechanism was defective when the crane was delivered to North Star. We think that any such conclusion would be no more than a guess.
We recognize that, as a general rule, “prolonged use of a manufactured article is but one factor, albeit an important one, in the determination of the factual issue whether [a defect in design or] manufacture proximately caused the harm.” Pryor v. Lee C. Moore Corp., 262 F.2d 673, 675 (10th Cir. 1958). The age of an allegedly defective product must be considered in light of its expected useful life and the stress to which it has been subjected. In most cases, the weighing of these factors should be left to the finder of fact. But in certain situations the prolonged use factor may loom so large as to obscure all others in a case. Professer Prosser has summarized the position generally taken by the courts on this question: “[Lapse of time and long continued use] in itself is not enough, even when it has extended over a good many years, to defeat the recovery where there is satisfactory proof of an original defect; but when there is no definite evidence, and it is only a matter of inference from the fact that something broke or gave way, the continued use usually prevents the inference that the thing was more probably than not defective when it was sold”.
IV.
This brings us to the last question in this case: the exclusion of expert testimony on behalf of appellant. Appellant offered only one expert witness, a safety engineer named Louis Barbe, who was prepared to testify both to the cause of the accident and the specific nature of the alleged defect in the brake mechanism. Barbe was no more qualified than the jury to conclude from the immediate circumstances surrounding the fall of the pipe that some defect in the locking mechanism was the cause of the accident. Allowing an “expert” to draw this inference solely on the basis of the testimony of appellant’s other witnesses would have been a misuse of expert testimony; thus, a hypothetical question as to the cause of the accident, based solely on this testimony, was properly excluded. But there was other evidence available which was a proper subject for opinion evidence by one having technical expertise in product safety. Barbe had reviewed the blueprints of the brake locking device, which were admitted into evidence, and he had also personally inspected the crane on two occasions after the accident. These observations, together with the testimony of the other witnesses at trial, provided an adequate evidentiary foundation for the opinion of a qualified expert as to whether the accident was caused by a defect in the design of the brake locking mechanism. The question is: was Barbe so qualified? The lower court thought not.
Appellee points to the fact that Barbe was by his own admission a “safety engineer” rather than a mechanical engineer, and that he was not registered to practice mechanical engineering. From this it is argued
Acknowledging Barbe’s general competence in mat
Baldwin joined the North Star Coal Company, Kuisis’ employer and the owner of the crane, as an additional defendant, but North Star was dismissed from the action at the close of the evidence and is not a party to this appeal.
See the Act of April 20, 1911, P.L. 70, §1, as amended, 12 P.S. §684.
224 Pa. Superior Ct. 65, 301 A.2d 911 (1973). Judge Spaulding filed a dissenting opinion, joined by Judge Hoffman.
Act of June 24, 1895, P.L. 236, §2, 12 P.S. §34.
Section 402A was adopted as the law of Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).
Rule 1033 of the Pennsylvania Rules of Civil Procedure provides: “A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. . . .” See Bata v. Central-Penn National Bank, 448 Pa. 355, 293 A.2d 343 (1972); Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971).
This Court has never adopted a comprehensive definition of what constitutes a cause of action, for the excellent reason that no such definition exists. In United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67-8, 77 L.Ed. 619, 623 (1933), Justice Cakdozo remarked : “A ‘cause of action’ may mean one thing for one purpose and something different for another. It may mean one thing when the question is whether it is good upon demurrer, and something different when there is a question of the amendment of a pleading or of the application of the principle of res judieata. ... At times and in certain contexts, it is identified with the infringement of a right or the violation of a duty. At other times and in other contexts, it is a concept of the law of remedies, the identity of the cause being then dependent on that of the form of action or the
See Polk v. Western Bedding Co., 145 Pa. Superior Ct. 142, 147, 20 A.2d 845 (1941), where the court said that under the strict liability provisions of the Workmen’s Compensation Act, “[t]he cause of action ... is the accident which resulted in an injury in the course of . . . employment”. Here, of course, the defective condition of the crane’s brake locking device was clearly alleged in Kuisis’ original complaint. Compare Breon v. Garbrick Mfg. Co., 8 Centre L.J. 127 (1972), in which a change in the complaint from an averment of negligence to a claim of strict liability under §402A was held to introduce a new cause of action. There, the negligence alleged in the original complaint was in the “operation” of an amusement park device.
The vice of the amendment in Breon, as well as in Cox v. Wilkes-Barre Ry. Corp., 334 Pa. 568, 6 A.2d 538 (1939), cited in the dissenting opinion of the Chief Justice, is not that it introduced a new theory of liability, but that it advanced a new factor as the cause of plaintiff’s injuries. The notion that a complaint weds a plaintiff to a particular theory of liability is foreign to Pennsylvania pleading. Ours is a system of fact pleading, not “theory” pleading; a plaintiff is free to proceed on any theory of liability which the facts alleged in his complaint will support. See, e.g., Curry Coal Co. v. M. C. Arnoni Co., 439 Pa. 114, 266 A.2d 678 (1970).
See, e.g., Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965); Downes v. Hodin, 377 Pa. 208, 104 A.2d 495 (1954); Mussolino v. Coxe Bros. & Co., 357 Pa. 10, 53 A.2d 93 (1947); Manning v. Andy, 51 D. & C. 2d 324 (1970), affirmed 454 Pa. 237, 310 A.2d 75 (1973); Brehm v. Johnstown Sanitary Dairy Co., 7 D. & C. 2d 315 (1955); cf. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). But see Groh v. Philadelphia Electric Co., 441 Pa. 345, 271 A.2d 265 (1970).
The considerations under the Act of April 20, 1911, supra note 1, are substantially the same as they would be on a motion for
The brake locking device operated on the principle of a ratchet. The operator would engage the lock by depressing the brake pedal to the desired level and releasing a chain attached to a pawl
Title 34, Pennsylvania Code, §25.76(f) (formerly Rule 209(f) of the Pennsylvania Department of Labor and Industry, in effect at the time of the accident), provides as follows: “When weight is suspended from the crane hook, the operator shall not leave his position at the levers for any purpose”. We are required to take judicial notice of the contents of the Pennsylvania Code. Act of July 31, 1968, P.L. 769, No. 240, Art. VI, §604, 45 P.S. §1604.
See, e.g., the strikingly similar case of Brooks v. Allis-Chalmers Mfg. Co., 163 Cal. App. 2d 410, 329 P.2d 575 (Dist. Ct. App. 1958); Restatement of Torts 2d, §447; W. Prosser, Handbook of the Law of Torts, §51 (3d ed. 1964). Elsewhere, Professor Prosser has noted that this principle carries over from traditional negligence law to strict liability cases. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791, 826-27 (1966). It makes no difference in this regard whether the operator’s conduct is characterized as an intervening act of negligence or as an “abnormal use” of the crane; whether under §402A a particular use of a product is abnormal depends on whether the use was reasonably foreseeable by the seller. Restatement of Torts 2d, §402A, comment h; Hoppe v. Midwest Conveyor Co., 485 F.2d 1196 (8th Cir. 1973); Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943 (Mo. App. 1970); Williams v. Brown Mfg. Co., 45 Ill.2d 418, 425, 261 N.E.2d 305, 309 (1970) (dictum); cf. Dyson v. General Motors Corp., 298 F. Supp. 1064 (E.D. Pa. 1969).
Assuming that the operator could have prevented the accident had he remained at the controls and that Baldwin should have foreseen that an operator might leave the cab with a load suspended, we think that Baldwin had to do one of two things in order to render the crane not unreasonably dangerous to its users, viz., either supply a brake locking mechanism not dependent on the presence of the operator for its effectiveness, or provide an adequate warning to operators of the danger in leaving the cab while the lock was engaged. See Incollingo v. Ewing, 444 Pa. 263, 287-289, 282 A.2d
Pursuing this line of analysis, some courts have held that post-delivery alterations are beyond the scope of the “substantial change” language of §402A. See, e.g., Bradford v. Bendix-Westinghouse Automotive Air Brahe Co., 33 Col. App. 99, 517 P.2d 406 (1973); Dennis v. Ford Motor Co., 471 F.2d 733 (3d Cir. 1973) (purporting to apply Pennsylvania law, but without citation to authority). Section 402A itself is ambiguous on this question, although the examples given in comment p, Further processing or substantial change, are limited to changes in the product subsequent to manufacture but prior to delivery. The question seems to be of academic interest only, since, as Greco and Speyer illustrate, courts which have discussed post-delivery alterations in terms of substantial change have treated the problem as one of proximate causation.
It need hardly be added that, like the question of the crane operator’s alleged negligence discussed in part II, supra, the question whether a post-delivery alteration in a product is a superseding cause of harm to a plaintiff may turn on foreseeability as well as causation in fact. If the alteration should have been reasonably anticipated by the seller, it would be a “substantial change” within the meaning of §402A only if it were negligently or improperly implemented. See D’Antona v. Hampton Grinding Wheel Co., 225 Pa. Superior Ct. 120, 310 A.2d 307 (1973). Here, for example, the
The crane, which was then rigged as a shovel, was tilted at a steep angle; the driver was fumbling for a pin which was rolling along the floor of the cab. We discount testimony concerning four other malfunctions of the locking device, all of which occurred after 1966. If anything, this sudden spate of malfunctions in the two years immediately preceding the accident, after almost two decades of relatively troublefree operation, suggests that the alleged defect originated after the crane passed out of the seller’s hands.
Appellant argues that the trial court erred in limiting the testimony of North Star’s maintenance superintendent on the lack of change in the brake locking device, and that the court’s ruling was inconsistent with its conclusion that there was substantial change in the crane. Our review of the record convinces us that the trial court’s ruling was correct. The particular question to which objection was taken required the witness to compare his observations of the locking device after the accident with the original blueprints and pictures of the device from a Baldwin parts book. Since there was no dispute that the design of the mechanism had not been altered, the proffered testimony was superfluous. The witness testified without objection that the mechanism showed no signs of breakage after the accident; he was not asked about other relevant physical changes, such as signs of wear.
Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791, 844-45 (1966). Pryor v. Lee C. Moore Corp., 262 F.2d 673 (10th Cir. 1958) and the other cases relied by appellant for the proposition that prolonged use of an allegedly defective product does not insulate the manufacturer from liability as a matter of law are distinguishable on this point. Compare, e.g., Jakubowski v. Minnesota Mining & Mfg. Co., 42 N.J. 177, 199 A.2d 826 (1964). See Larson v. Thomashow, 17 Ill. App.3d 208, 307 N.E. 2d 707 (1974).
Record of Testimony, 198.
See Brooks v. Allis-Chalmers Mfg. Co., 163 Cal. App. 2d 410, 329 P.2d 575 (Dist. Ct. App. 1958), another crane accident case, in which a safety engineer was permitted to testify on negligence in the design of a locking mechanism which worked on identical principles to the locking mechanism with which this ease is concerned.
The proffered testimony of appellant’s expert witness would have borne on the question of Baldwin’s negligence in designing and manufacturing the crane as well as on the question of strict liability. Thus, the dissenting opinion of the Chief Justice is mistaken in assuming that a disallowance of Kuisis’ amended complaint would dispose of this case. Since the testimony of this witness was erroneously excluded, the case would have to be retried on the issue of Baldwin’s negligence even if Kuisis’ claim under §402A were held to be barred by the statute of limitations.
There has been no waiver of the negligence issue, as the dissenting opinion suggests. The exelusion of the expert’s testimony was objected to at the trial, and was asserted as one of the grounds in support of appellant’s motion for a new trial, as well as his motion to dismiss Baldwin’s motion for judgment on the record. Kuisis’ two motions, combined in one pleading, were disposed of by a single order granting Baldwin’s motion for judgment on the record. It was from this order that Kuisis appealed. In short, appellant asserted below, and has argued here, that the record was improperly diminished as it went to the jury. It is because we agree with this position that a new trial is being awarded. Our
Dissenting Opinion
Dissenting Opinion by
I disagree with the majority view that appellant’s claim was not barred by the statute of limitations. I therefore respectfully dissent.
In the present case appellant was permitted, over appellee’s objection, to amend his complaint to include allegations of liability pursuant to Bestatement 2d, Torts §402A, more than two years after the statute of
The pertinent portions of appellant’s original complaint are paragraphs 4 and 5 wherein the theory of recovery is set forth:
“4. Plaintiff, while an employee of North Star Transfer was helping to load some pipe when a crane, manufactured by Baldwin-Lima-Hamilton Corporation in such a defective and negligent manner dropped the load on top of plaintiff from which the plaintiff suffered injuries.
“5. The injuries and damages hereinafter set forth were caused by, and were the direct and proximate re-*342 suit, of the negligence, willfulness and wantonness of defendant, generally, and in the following particulars: [eleven specific assignments of negligence, willfulness and wantonness].” (Emphasis added.)
It is clear from the complaint that appellant’s theory of liability was one of negligence and not one of strict liability under Section 402A
To sanction the amendment to appellant’s complaint in this case would prejudice appellee not because it might lose its case on the merits if the amendment is allowed, but because the new allegation was offered late. An amendment will not be allowed if such allowance would undermine the valid policies embodied in the statute of limitations. Bata v. Central-Penn National Bank, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972). Since the only theory upon which appellant’s case was sent to the jury was Section 402A liability, a finding that the amendment to the complaint was improperly allowed would resolve the case.
The majority claims, however, that even if Kuisis’ claim under Section 402A were held to be barred by the statute of limitations, the case would have to be retried on the issue of negligence. Again I respectfully disagree. The diminished record, insofar as the excluded expert’s testimony would have borne on negligence, is of no relevance to this appeal. Appellant’s appeal from the Court of Common Pleas was from that court’s order
I would affirm the order of the Superior Court.
At the conclusion of the evidence in the trial of the case appellee moved for a directed verdict, but this motion was denied. The case went to the jury solely on the theory of Section 402A liability. After approximately five and a half hours of deliberation, however, the jury reported that it was deadlocked, and was subsequently discharged. Thereafter, appellee filed a motion for judgment on the whole record. This motion was argued before the court en banc and was granted, the court finding, inter alia, that the amended complaint should not have been allowed.
In Pennsylvania the pleadings must allege all ultimate facts upon which a cause of action is based. Pa. R. C. P. 1019. This system of fact pleading serves to secure a full and concise statement of the facts upon which a claim is based so that the other party will know with reasonable certainty the nature and character of such a claim. A litigant is not required to plead as such the particular theory or theories upon which he sues. Such theory or theories, however, must be disclosed by the facts and a theory not supported by the allegations of the complaint may not be proved at trial. See 3 Pennsylvania Standard Practice, ch. 11, §42. All the ultimate facts upon which appellant would have been entitled to recover under Section 402A were not contained in the original complaint. In fact, the only such facts are those also consistent with the enunciated theory of negligence and included in the complaint for the express purpose of amplifying that theory. On the original complaint alone, appellant would not have been entitled to have his case submitted to the jury on a theory of Section 402A liability.
Appellant amended his complaint by amending paragraphs 4 and 5 to read as follows:
“4. Plaintiff, while working as an employee of North Star Coal Company, which was the owner of a crane that had been manufactured by and sold by Baldwin-Lima-Hamilton Corporation, was injured when a load being supported by that crane dropped onto the plaintiff as a consequence of a defective condition in the crane that had been present since its manufacture and as a consequence of the negligent manner in which the crane had been designed and manufactured.
“5. The injuries and damages hereinafter set forth were proximately caused by the defective condition in the crane that was substantially the same as it had been when the crane was sold by the defendant, which was engaged in the business of selling cranes, and by the negligence of the defendant, the particulars of which are set forth, as follows:”
The propriety of amending a complaint alleging negligence to include allegations of liability under Section 402A bas twice been before the courts of this Commonwealth. In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), the case in which this Court adopted Section 402A as the law of Pennsylvania, the appellant was permitted to amend his complaint to explicitly state a cause of action for defective products liability since he had broadly pleaded those facts necessary to a cause of action for defective products liability and since not until that ease had we adopted this new basis of liability. Similarly in Thompson v. Wyeth Laboratories, 46 Pa. D. & C. 2d 360 (Del. C. P. 1969), the plaintiff was permitted to amend his complaint to clarify the allegation of products liability where the necessary facts had been broadly pleaded and where the original complaint had been filed prior to this Court’s ruling in Webb v. Zern. The present case, however, was commenced almost three years after this Court’s decision in Webb v. Zern.
As aptly stated in Mincy v. Washington National Insurance Co., 130 Pa. Superior Ct. 285, 295, 196 A. 893, 897-98 (1938): “A motion for judgment upon the entire record must be disposed of upon the record as it existed ‘at the close of the trial.’ The court can neither eliminate evidence which may have been improperly admitted, nor insert offers of evidence which should have been admitted but were excluded; the remedy in either case is a new trial. . . .” Thus, assuming that the statute of limitations did not bar the amendment to the complaint, if evidence bearing on appellee’s liability under Section 402A were improperly excluded, appellant would be entitled to a new trial based on Section 402A liability.
Appellant had available as grounds for appeal on this issue the improper exclusion of the proffered testimony of the expert on negligence, but chose not to pursue this avenue.
Concurrence Opinion
Concurring Opinion by
I concur in the granting of a new trial on the ground that the trial court incorrectly refused to permit appellant’s expert to testify.
I also agree that the trial court properly exercised its discretion in allowing appellant to amend his complaint. The reason for my conclusion that the amendment was proper can be stated simply and without embellishment. The facts alleged in appellant’s initial complaint plainly give rise to a section 402A claim. Eestatement (Second) of Torts § 402A (1966).
However, I cannot join parts II and III of the majority’s opinion. There, the majority considers questions that are unnecessary for the present disposition of this appeal. Manifestly, this Court’s grant of a new trial makes consideration of those questions premature. The resolution of those questions, if indeed they arise, is better left for another day.