*1 misuse). were not building Appellees mine that the materials Because never factor in the contamination. a substantial contended that Mr. Reott’s failure to wear Instead, the held that be- Supreme Court safety strap or to test the tree stand at building materials were not be- cause ground level were superseding the sole or way by manu- ing used in a intended injuries, causes of his the trial court prop- facturer, building materials were not erly granted the Reotts’ motion in limine. I, legally defective. Services General 14, Order dated December 2009 re- 252-54, Pa. at at 600-01. versed. Case remanded for a new trial words, building other because the materi- damages. jurisdiction limited to Panel re- burned, designed they als were not to be linquished. were not defective as a matter of law to the extent that chemicals were released (even
during a fire if the fire was foresee-
able). Similarly, Phillips Id. v. Cricket
Lighters, 576 Pa.
(plurality Supreme our Court lighter
held that a butane was not defec- safety
tive for lack of child
features be-
cause it was not intended to be used
Sterling LEWIS, Appellant
toy
plaything.
children as a
Id. at
Smith,
1003;
ing grant judgment grounds that are to be “ATVs Superior Pennsylvania. Court of setting, driven in an off-road and Mr. Argued May 2010. utilizing capaci- Smith was the ATV that occurred”). ty when the accident Sept. Filed 2010. result, provides As a Services I General Reargument Denied Dec. support Appellees’ arguments
no Appellees dispute
this case. do Instead,
defectiveness of the tree stand.
Appellees only contend grant
court’s of the Reott’s motion in li- precluded introducing
mine them from evi- conduct,
dence to suggest that Mr. Reott’s
including safety strap his failure to wear a level,
and to test the tree at ground stand injuries.
contributed to the extent of his the collapse
Because of the tree stand
collapse indisputably fac- substantial in causing injuries,
tor Mr. Reott’s correctly any court reasoned that evi-
dence of Mr. Reott’s conduct was admissi-
ble extent was intro-
duced to show that his conduct was sole (i.e., collapse
or superseding cause of the
to establish the affirmative defense of *2 Wolfson,
Brett Philadelphia, appel- lee. *3 ALLEN, LAZARUS,
BEFORE: *, FREEDBERG JJ. LAZARUS,
OPINION BY J.: Sterling appeals judg- Lewis from the ment in the Philadelphia County entered Pleas in Appel- Court Common favor of lee, Industries, (“CRC”), Inc. CRC follow- ing jury trial this strict liabili- review, ty action. careful After we reverse and remand for a new trial.
Lewis, worked an apprentice as lineman for Vineland Municipal Utility, Electrical Jersey company. Lewis jun- was the team, four-person ior member of a which included Kevin Sherman. On October 2004, the team received a work order to perform pole top breaker maintenance. Part of the required work order the team pole top to clean electrical using switches (“Precision PF CRC Precision Cleaner Gleaner”), an aerosol solution manufac- The tured CRC. team decided Lewis perform would the maintenance. This performed would the second time Lewis maintenance, pole-top breaker and his first time Precision to perform Cleaner such maintenance.
Lewis and put protective Sherman on sleeves, gloves, gauntlets. Lewis lifted, Sherman then were each in them own one-person insulated passenger buck- et, to the electrical switches.1 The switch comprised, part, of a “blade side” and “keeper position, side.” Once Lewis Tannenbaum, Jenkintown, cleaned the switches spraying Charles L. appellant. grease. Cleaner remove dirt and At * Judge assigned Superior Retired Senior equipped fiberglass 1. The bucket was with a Court. step mounted inches above bucket’s floor. step on a were up
one Lewis climbed court’s instructions erroneous.5 point, (1) Lewis Specifically, alleges: gain his bucket to better access inside so, improperly court instructed the doing switches. Lewis’s clean the compar- principles metal tie hip touched the uninsulated right ative risk sprayed Lewis then Precision Clean- rod. and, to instruct the court failed switch, and in keeper er to the side of the jury not to consider his use of the received severe electrical shock. doing so determining whether supervised cleaned Sherman as Lewis risk-utility analy- was defective under the examination, On the switches. direct *4 sis.6 up stepped Sherman confirmed that Lewis law, and sprayed his bucket Clean- Pennsylvania Under our wit- er. Sherman that he then considering testified standard of review when through a “small ball of fire” travel in a civil adequacy nessed of instructions case Lewis around his trial the air toward and “roll” is to “determine whether the court Trial, 3/18/09, a clear hand. N.T. at 16. Sherman committed abuse of discretion or of law the outcome of controlling testified he believed that when Lewis error 596, Motts, v. Pa. up right hip in his Lewis’s case.” Stewart 539 654 stepped bucket (1995). only when with metal A.2d 535 It is “the made contact the uninsulated a rod, inadequate as whole is completed tie which an electrical cir- tendency clear or has a to mislead or causing cuit Lewis electrocuted. to be 3/18/09, result, clarify confuse rather than a material Trial, is N.T. at 68. As in a charge sue” that error will be found to scarring Lewis sustained severe burns and be a sufficient basis for the award of new body. to his 540; Id. at trial. Ferrer v. Trustees of alleging Lewis sued CRC that Precision 310, Pa. University Pennsylvania, 573 of designed defectively Cleaner was and con- 591, (2002); 825 A.2d 612 see also Tindall inadequate warnings prod- tained (Pa.Su Friedman, 1159, v. 970 1175 A.2d dangers.2 In particular, uct’s Lewis per.2009). the product claimed was defective because spray electricity.3 the aerosol First, conducted contends the Lewis trial, After a two-week deter- court committed error in in reversible that, law, according Jersey mined to New structing principles of con defectively was not designed tributory comparative negligence and and returned verdict in favor of CRC.4 assumption of risk in this strict appeal, On Lewis liability contends that action. We agree. therefore, and, Pennsylvania governs 2. Lewis’s failure to claim not warn is relevant law de- disposition. to our termines our standard of review of Lewis's challenge to the trial court's instructions. Works, 3. See Jurado v. W. Gear 131 N.J. ("To (1993) 619 A.2d succeed issues, disposition 5. Because of our of these strict-liability design-defect theory, under a we do not claim that address Lewis’s (1) plaintiff prove must admitting court erred in certain evidence at defective; (2) the existed when the defect trial. defendant; product left the hands injury the defect caused the to a reason- appeal preserved 6. Lewis on these issues user.”). ably foreseeable objecting to the instructions trial court's at trial, motion, parties agreed Jersey post-trial 4. The substantive the time of New his 1925(b) govern Procedurally, law would this action. Pa.R.A.P. his statement. Jersey repeated case law has fense “an employee engaged at his as- signed on a ly principles plant held that the task machine.” Id. at 648. The court contributory negligence apply “any do not stated that limitation principle of the Suter to a product liability factory setting in a strict action where a clearly would now injured by inappropriate.” a defective Id. performing job assignment while at his According to the court in Cavanaugh v. workplace. Angelo or her Suter v. San Corp., N.J.Super. Skil Foundry & Mach. 81 N.J. (1999), represented Tirrell the “next (1979); Sterling A.2d 140 Extrud Green Suter, logical step” of which no long- could Corp., er 95 N.J. 16 er be “to interpreted apply only factory (1984). workers while performing assigned factory tasks machines on the factory Suter, Jersey Supreme the New floor.” Cavanaugh Id. at 595. The court that “an employee engaged Court held reasoned: ... assigned plant task on a has no choice,” would be ludicrous to meaningful “irrespective [I]t allow a *5 factory employee to may rationale that the recover but not a employee have construction worker solely unreasonably voluntarily encountered because the risk, former works inside a policy building a known we hold as a matter of on the factory floor. It employee equally an in not would be ludi- guilty that such (em- unjust crous and contributory negligence.” permit employ- at an Id. 167 added). injuries ee to recover for The sustained phasis by “essence of the Suter a freestanding, stationary machine employee meaning- rule is that the had no but by not a ful He hand-held saw. choice. either worked at his as- signed subject task or was or discipline Id. a being labeled as troublemaker.” Crumb Indeed, Suter, since law case has estab Decker, 521, v. Black & 204 N.J.Super. 499 principles lished that of comparative (1985) added). 530, (emphasis
A.2d
533
contributory negligence
are disre
Int’l, Inc.,
In Tirrell v.
garded
Navistar
248
in the context of a
strict
390,
(1991),
N.J.Super.
plain-
job judice, the trial court In the case sub garded). on the doc- improperly instructed Moreover, Jersey’s Product contributory comparative trines of trial court from Act Liability prohibits The of risk. negligence on charging part, as trial court instructed the employee an negligence when follows: machinery workplace you negli- briefly I will define for 2A:58C- N.J.S.A. equipment. Under gence. question There is 3(a)(2), may de manufacturer you that asks to determine verdict form claims show against design fend defect negligent. whether ing: was an interven- Whether are The characteristics of his ing proximal cause or the cause user, ordinary consumer or known injuries. legal negligence, The term *6 by an the harm was caused unsafe carelessness, known as means otherwise that is an inherent aspect product of the ordinary reasonably care using not product and that characteristic of given would use in a prudent people by ordinary recognized be would may A conduct negligent situation. prod- person who uses or consumes or a failui'e to act an act or an omission com- ordinary knowledge with the uct duty Negli- to when there’s a do so. persons for whom mon to the class of something reason- gence is do is intended. product do, ably people doing careful or would however, ex- Jersey Legislature, The New reasonably people careful something pressly paragraph stated that this “shall how would not do. You determine must machinery apply to industrial or other act un- reasonably people careful would workplace.” in equipment used in case. der the circumstances this 2A:58C-3(a)(2) added). (emphasis N.J.S.A. term, Ordinary care not an absolute Applicable prohibits case law also Ordinary care is but a relative one. introducing court from reasonably people careful would what of risk as a defense principle given People use in a situation. must liability claim plaintiffs product to a strict ordinary protect care not use injury an due to a defec- stemming from others, themselves, property their workplace setting. tive used in a injury to others. What but also to avoid Inc., USA, v. Makita See Johansen ordinary care varies with the constitutes (1992) (even N.J. circumstances and existing particular knowledge with actual plaintiff required amount of care condition. The by danger presented defective by keeping the law must be in with the voluntarily encounters that knowingly and degree danger involved. risk, such conduct cannot serve as basis defense); Corp., Grier v. Cochran W. that ing allegedly The defendant contends an defective assigned a happening complete allegedly was at fault for the work task. The plaintiff workplace product may accident. The defendant must defective be a of this voluntarily, un- plaintiff heavy piece machinery, that the of industrial prove a saw, solution, encounter a a reasonably proceeded to hand-held can of aerosol or equipment workplace.” and that such action was “other used in the danger known 2A:58C-3(a)(2). The proximal a cause of the accident. N.J.S.A. The workplace may factory, atop mere failure to discover defect be inside a outside guard against possibility utility pole. or to The trial court’s instructions for the of the existence is not defense contravened binding Jersey case law. words, Therein, liberally defendant. other the defen- the courts have applied prove plaintiff principle dant must that had the that workers job knowledge particular “meaningful actual dan- have no choice” and are knowingly ger protected ruled his conduct and from the doctrines of assumption voluntarily that encountered risk to of -risk and win on this defense. product liability similar strict Ramos, actions. Cavanaugh, supra; See comparative negligence. This is If Fabian, supra; supra; Mettinger, supra; you find that both the and the Tirrell, Congiusti, supra; supra. proximally defendant were at fault and accident, you then must caused com- Furthermore, disagree we with the trial negligent their pare conduct terms of court’s conclusion pre the evidence you ... will attribute to percentages sented at trial indicated that Lewis some percentage you each of them that voluntarily how encountered known risk. find describes or measures his or its presented The evidence at trial indicated contribution to the of the ac- happening stepped up that Lewis inside his bucket to cident. body extend his to clean the switch Trial, 3/31/09, 22-23; N.T. 48-49. Precision Cleaner and touched the. uninsu *7 conduct, lated metal tie-rod. Such howev the justify To its instructions to the er, appropriately is more characterized as trial court that Lewis a reasoned had inadvertence,” “mere carelessness or “meaningful perform choice to the work in which cannot relieve a manufacturer of manner, a safe and that he had actual liability product liability a strict action. knowledge danger posed by of the the USA, Inc., See Johansen Makita 128 12/24/09, product.” Opinion, Trial Court citing N.J. 641 at disagree. 19. We Cepeda Eng’g v. Cumberland 76 N.J. by introducing The trial court erred to (1978). Having jury principles the the of concluded Lewis did not have a comparative negligence of “meaningful choice” whether to use Preci injured risk because Lewis was Cleaner, sion we the trial court conclude while workplace performing pole top by instructing committed reversible error breaker maintenance principles the of part assigned Cleaner as of his task as a contributory assump utility worker. Lewis had no choice but to tion of risk. pursuant use Precision Cleaner the order, Next, work which directed its use. We Lewis contends the trial distinguish factory, jury’s decline between court erred to limit the construction, utility determining' or worker us- consideration of his conduct in by the exercise danger to avoid designed was use[r]s Precision Cleaner
whether Six, Brief, the product. the Spe- at 30. of care and use of defectively. Appellant’s trial court that the cifically, argues Lewis awareness of the dan- foreseeable user’s jury that Lewis’s to instruct the failed and them product inherent in the ger only be considered conduct could pub- avoidability general of the because We the issue of causation. determining the obvious condition knowledge lic’s of agree. or of the existence product of the warnings suitable instructions. ac liability product
In a strict
tion,
plain
jury may
consider evidence
utility
re-
the risk
factors
applying
of causation.
tiffs conduct on the issue
con-
may
not be
product
member that
USA, Inc.,
N.J.
v. Makita
Johansen
reasonably safe unless the risks
sidered
(1992).
Limiting
A.2d
greatest
ex-
have been reduced
therefore,
are,
critical
clari
instructions
prod-
consistent with the
possible
tent
proper purpose
the
of such
fy for
is, without
utility. That
uct’s continued
where the
evidence. This is so even
and without
impairing its usefulness
was not defective
product
finds that
it
for it to be
making
expensive
too
the issue of causation.
and does not reach
reasonably marketable.
jury’s
Id. at 640. The
focus
determin
Trial, 12/24/09,
The fifth fac-
designed
defec N.T.
37-39.
ing
whether
tively
squarely
be
on the condition
to consider
should
tor above asks
plaintiffs
not the
use
product,
of the
of the foreseeable user. Johansen
conduct
product.
Id. at 642.
is on an “aver-
makes clear that the focus
user,”
plaintiff.
age
particular
and not the
Here,
judge
instructed
Accordingly,
risk-utility analysis
determining
designed
whether Precision
Cleaner
plaintiffs
instruction
[A]n
defectively.
judge
The trial
instructed
in the context
not be considered
conduct
jury as a follows:
risk-utility analysis
is essential.
weigh
must consider and
[Y]ou
it,
that a
jury might
Without
find
one, the usefulness and
following facts:
designed,
although improperly
product,
benefit of the
as was
because the
is not defective
as a whole.
public
user and
danger posed by
have avoided the
could
Was there a need that this
through
the exercise of due
*8
Two,
designed
specific
in this
manner?
differently,
jury
proper-
care. Put
safety aspects
product.
the
of the
That
inadvertently com-
ly
might
instructed
is,
product
the likelihood or risk that the
defendant’s fault
pare plaintiffs
the
designed
injuries
as
would cause
determining
product
whether a
is defec-
any injury which
probable seriousness of
tively designed.
have or should have been antici-
could
645;
Johansen,
A.2d at
see also Lad
pated through
product.
the use of the
America,
North
ner v. Mercedes-Benz
Three,
for
design
was the substitute
this
481, 630 A.2d
N.J.Super.
Four,
practical?
feasible and
(1993) (“Without
[cautionary
that
instruc
to
ability
of the defendant
eliminate
tion],
that
jury
free to reason
was
the unsafe character of the
user;
the stan
plaintiff was
foreseeable
mak-
impairing
without
its usefulness or
her;
she violated
applied
dard of care
maintain its utili-
ing
expensive
too
standard;
Five,
would not have
and she
ty.
ability
of foreseeable
insulation,
ergo,
properly
been
had she not done so:
failed to
insulate his
defective.”).7 bucket,
design
rod,
was not
[product’s]
touched the metal tie
touched
the metal can of Precision Cleaner to a
Here,
Johansen,
like
the risk that the
piece of
equipment,
electrified
or removed
limiting
instructions misled or
omission
safety gloves.
Trial, 3/17/09,
See N.T.
jury
confused the
its determination of
at 46-56. The
expert
defense’s
referenced
designed
whether the
was
defec
causes,
these same
during
closing
tively
great. Although
was
the trial court
statements, defense counsel made refer-
properly
jury
instructed the
on the risk-
ence to each of
again.
them
See N.T.
factors,
utility
provide any
it failed to
limit
Trial, 3/27/09,
9-16;
Trial, 3/30/09,
at
N.T.
The
ing instructions.
trial court failed to
41-47,
at
54-56.
explain
jury
to the
that Lewis’s conduct
was not relevant to its
application
While this evidence could have been
risk-utility analysis.
fifth factor of the
The
properly
jury
considered
in deter-
properly
court also failed to
instruct
causation,
mining the issue of
at the close
jury
that evidence of Lewis’s conduct of trial
required
the court was
to ensure
causation,
relevant
only
was
the issue of
jury
that the
proper pur-
understood the
being given
even after
the opportunity to pose of such evidence. An instruction not
upon
correct the error
plaintiffs counsel’s
to consider Lewis’s conduct when deter-
Trial, 3/31/09,
objection. See N.T.
at 58. mining whether Precision Cleaner was de-
were
These instructions
critical to ensure
fective under the risk-utility analysis was
the jury correctly
proper
understood the
critical
jury’s ability
to separate the
within which
scope
to consider evidence of
issue of design defect from the issue of
Namely,
Lewis’s conduct.
that
Johansen,
causation.
supra. Ensuring
risk-utility analysis
understood
did not conflate the two
an
contemplates
“average user” of the
issues is critical in a case such as this
product and that Lewis’s conduct was rele
where the
must
first determine
vant
to the issue of causation. Jo whether the product
designed
defec-
hansen, at 645.
tively
determining
before
whether the de-
Indeed,
potential
plaintiffs
fective
caused
injuries.
confusion
Jurado,
Here,
Johansen,
heightened by
supra.
was further
coun-
defense
like
we
efforts,
trial,
repeated
throughout
sel’s
conclude the trial court committed revers-
highlight
Lewis’s conduct
ible
in error
to instruct the jury statements,
product.8 During opening
de-
the limited role evidence of Lewis’s con-
fense counsel stated that
played
Lewis’s conduct
duct
in determining whether Preci-
injuries. Specifically,
caused his
defense
sion
Cleaner was
defectively.
stepped
counsel stated that Lewis either:
The trial court should have instructed the
up
bucket causing
inside his
him to lose his
that evidence of Lewis’s conduct was
Johansen,
Ladner,
Jersey Supreme
Court
ible error and ordered a new trial.
*9
plain
held that the trial court committed
error
314.
failing
jury
in
to instruct the
on the limited
plaintiff's
using
relevance of
conduct in
the
Johansen,
(danger
jury
See
By charging prin ble case appeal support lack merit. To ciples issues rely thorough I by my position, upon of risk and analysis judge, of the learned trial limit the consideration of detailed jury’s conduct, Quinones Alejan- Nitza I. the trial court abused its Honorable Lewis’s Pa.R.A.P, 1925(a) dro, opinion. in her Be- It is when “the as discretion. low, major points I con- inadequate whole is or not clear or has a summarize Alejandro’s Pa.R.A.P. tendency Judge mislead or confuse rather than tained 1925(a) opinion, adding only in a brief commen- clarify a material issue” that error tary supplement analysis. her to be a sufficient basis charge will be found 12/24/09, argu- Opinion, Court at 20. expressed the identical Trial 9. The trial court *10 jury ment in defense of its instructions. See First, judge jury the trial did not err in found that Precision Cleaner was not allowing Ap- such, to introduce evidence of design. CRC defective its jury As pellant’s Appel- conduct to establish that never comparative reached the issues of sole, lant’s unreasonable behavior was the cause, negligence superseding any proximate injury. of his regard cause error with charges these would not have affected the verdict. Harkins v. Here, introduced evidence that: CRC Realty Calumet 418 Pa.Super. (1) Appellant warnings read the on the (1992) 614 A.2d (“Appellant’s Precision Cleaner can and knew that the fourth argument is that the trial court spray electricity conducted and should not in charging jury erred on superceding applied to equipment that was ener- Appellant relief, cause. is entitled to no (2) gized; Appellant broke his insulation however, jury because the never reached protection when he climbed the step inside the issue of superceding jury cause. The protective exposed bucket and parts of found that was not defec- body his that would be protected otherwise tive.”); Robinson v. Philadelphia, (3) bucket; by Appellant knowingly (1984) Pa.Super. (finding sprayed Precision Cleaner on a charged harmless error where the defendant im- (4) switch; electrical Appellant removed proper admitted evidence concerning cau- protective gear, his work which was re- plaintiffs sation and contributory negli- quired employer his and would have gence where the never decided these prevented injuries; his a co-worker issues because it found that the defendant Appellant Appellant warned reposi- was not negligent). tion himself into a place shortly more safe Appellant Third, before energized cleaned the Appellant complains that the trial Opinion (T.C.O.), switch. Trial Court judge erred in failing to issue a limiting 12/24/09, 19-20; 3, 12-13, agree 17. I instruction to the informing them that with the trial judge that they this evidence was may not negligent consider his con- relevant and prove admissible to that Ap- duct assessing factors 5 and 6 of the pellant’s unreasonable use of Precision utility risk test. Appellant Brief for at 30- sole, Cleaner was the proximate cause of 31. I find this issue waived due Appel- injuries. See Johansen v. Makita lant’s affirmatively failure to request a lim- USA, Inc., 128 N.J. iting instruction during trial. (1992) (“Such evidence could have been Here, prior to the trial court’s considered ... in determining whether the Appellant did pro- not submit a specific manner in which op- had posed limiting instruction informing the erated the saw had been the sole cause of they may Appel- not consider accident.”). lant’s negligence when determining liabili-
Second, Appellant claims that ty. Although Appellant generally took ex- judge erred in instructing ception to the trial court’s instruction on legal principles comparative negligence immediately after and superseding cause. Brief Appel- the jury was charged and before it delib- 42-48, lant at erated, 51-54. Even if the trial Appellant never affirmatively re- judge erred in instructing on com- quested that the trial court issue an inde- parative cause, negligence and superseding pendent instruction limiting jury’s error(s) were harmless because the consideration of Appellant’s conduct.1 As Indeed, limine, an Appellant's examination of mo- tion in charging the trial court's con- *11 accurately conveyed the law to clearly trial
such, the assertion Appellant’s to consider instructing them limiting the failing to issue court erred waived, design submitted Appellant because whether the alternative instruction request practical. feasible and specifically by Appellant submit did during T.C.O., 12/24/09, Consequently, instruction at 32-33. proposed limiting Stash, below. Vernon v. part of proceedings I no reversible error discern (“An A.2d 441 Pa.Super. judge. the trial trial court of error that assignment reasons, relying upon For these will not instruction give specific to failed 1925(a) opin- Alejandro’s Pa.R.A.P. Judge affirmatively ap- unless be considered ion, affirm respectfully I dissent. I would request that a from the record pears in favor of CRC. judgment entered that it was made [and] such an instruction court[.]”).2 by the trial was denied
Fourth, err in judge did not the trial Appellant’s
failing to instruct contained a
claim that Precision Cleaner Quite simply, Ap-
manufacturing defect. any competent evi-
pellant failed to adduce to draw permit dence that would Pennsylvania, COMMONWEALTH an inference that Precision Cleaner deviat- Appellee T.C.O., design. original ed from its 12/24/09, at 21-24. I note that CRC’s Precision
representations regarding Clean- BROOKS, Appellant. Marc capabilities do not performance er’s Precision amount to evidence of Cleaner’s Pennsylvania. Superior Court See actual, Ap- Brief for design. scientific Argued May 2010. pellant at 19-20. Filed Oct. 2010. Fifth, judge did not err in 8, 2010. Reargument Denied Dec. charge elaborate provide more risk-utility test. on the third element of Indeed, Appellant
Brief for 26-29.
alleged omission would be redundant of charge judge provided; that the trial omission, charge alleged
even with
ference,
properly
appeal that were not
ob-
Appellant's exceptions to the
issues on
Stern,
charges
Appellant merely re-
jected
indicate that
to at the time of trial.
re
quested
(1953).
Although the