*1 commonality typicality requirements failed to meet the for class certification. decision, unnecessary
Because of this we find it to decide trial in concluding appellants whether court erred represent the class ability adequately. failed show observe, however, did not Hayeses ap- that while We hearing, deposition at the certification pear person to the court and testimony Nancy Hayes was offered presented evidence was to show that the Hayeses other represent sharp would be able to the class. This is Co., Kemper facts of Miller v. Federal Ins. contrast 581, (1986), Pa.Super. upon A.2d which the There, plaintiff solely upon trial court relied. had relied conclusory allegations complaint. On the other hand, recognize specific we circumstances relied upon by appellants to avoid the coordination of benefits policy repre- clause their would make it more difficult policies sent the interests of other assureds whose were purchased under different circumstances.
Order affirmed.
v. COMPANY, CINCINNATI MACHINE Cincinnati a/k/a America, Company Appellee. Schafer Superior Pennsylvania. Court of
Argued March 1987.
Filed Jan. 1988. *3 Mattise, Scranton, appellants. for Nicholas S. Saunders, Scranton, for Stephen Pittsburgh, appellee. W. CIRILLO, BROSKY, Judge, Before President and WIEAND, OLSZEWSKI, SOLE, MONTEMURO, DEL TAMILIA, JOHNSON, and POPOVICH JJ. SOLE,
DEL Judge: appeal We consider an from the judgment entered in Appellee’s products liability favor in a Following action. post-trial the denial of motions judgment, appeal this Court was filed in which a of this panel Court affirmed however, granted reargument, trial court. We have three principal reasons:
1. clarify evidence, the role which “state of the art” including of industry evidence custom and federal safety standards, plays within the context of a strict liability action;
2. prohibits to re-examine the rule which hearsay state- appearing ments in learned treatises and other informa- tional material from being admitted into evidence *4 proof used as substantial of the matters which they to relate; and,
3. to determine admissibility the evidence similar constructive, prior accidents to show post-sale notice of a product. defective
The underlying facts of this are case as follows. On 20, 1978, April Majdic Appellant-Henry was (Majdic) em- ployed by National Company. Standard Majdic’s duty on operate power that date was to press which designed, was manufactured, and sold Appellee-Cincinnati Machine (Cincinnati). was utilized to power press The Company punching, with the conjunction functions various perform In the sheering operating or of metal. stamping, bending, at- dyes the fed sheet metal between Majdic hand press, and shaped bed of which press, to the ram and tached steps The entailed further procedure the metal.1 formed to into the machine Majdic reach necessitated which power The at least ten times. process the work in remove however, guard prevent equipped with was press, point in contact with the coming hands from operator’s Likewise, no feature was attached safety operation. press the user’s hands were operation the of the while bar signs posted No were warning the ram and bed. between exposing advising danger of the involved on the machine operation. point hands the one’s press the question, power date in the ram of On the he right operated hand as upon Majdic’s descended wife, Thereafter, his April 8, Majdic on machine. Cincinnati, Ann, against the manufac- commenced an action he from power press, injuries of the received turer asserted: recovery Three theories of were the accident. warranties, and implied negligence, expressed breach of action, however, solely tried on liability. was strict Majdic his contended liability theory. By complaint, strict in a press manufactured and sold the that Cincinnati had This on the Re- defective condition. averment was based (Second) of Torts statement 402A. § power was Majdic’sposition It was trial that guard inasmuch did not contain a defectively designed as it from prevented operator’s would hands which have addition, In entering point operation. claimed equipped the machine was defective since was not of the prevent operation a mechanism to while Further, in the lack pinchpoint. user’s hands were warning danger of the one’s hand placing of a involved machine, upper part 1. The ram was the mobile while the bed stationary part press. lower *5 for ground work area was cited as a the claim design. defective trial,
During dispute the course of Cincinnati did not allegation press had not Majdic’s power discussed, guards warnings supra. and equipped with Rather, Cincinnati maintained that the brake was a multifunctional unit une- general purpose, which was point operation dies and had no when sold. quipped with Thus, only Cincinnati claimed that Standard Machine Com- into its manufac- pany, incorporated which brake guards could determine and install the and turing system, function warnings necessary particular assigned for the Brief, 12). that, press. (Appellant’s posited Cincinnati reason, guards for for responsibility providing Compa- rested with Standard Machine warnings solely The verdict returned in ny, Majdic’s employer. by jury was Cincinnati’s favor. filed a Motion for a New Trial assignments allegedly which contained error committed by evidentiary rulings. the trial court its beginning analysis evidentiary rulings Before involved, important it is that we remain mindful of the policy broad and sound social which underlies a seller’s (Second) liability the Restatement established Torts, provides: 402A. Section 402A §
(1) One sells in a condition any product who defective dangerous to the user or or to his unreasonably consumer property subject liability is harm physical thereby consumer, caused to the ultimate user or or to his proper- (a) if ty, engaged selling the seller is the business of (b) such a is product, expected to and does reach the user or consumer change without substantial condition in it is sold. which (2) (1) (a) applies although rule stated Subsection possible the seller has exercised all care in prepara- (b) tion and sale of his product, and the user or consumer bought has not the product from or entered into any contractual relation with the seller. implication effected sought to be policy
The social
*6
basic,
simple and
very
very
very
is
liability
of the seller’s
a
product
of
and
innocent user
As
an
between
sound.
of
is
in the business
engaged
seller who
or
manufacturer
injuries
risk of loss for
manufacturing
selling
product,
or
from the use of
borne
product
a defective
shall be
resulting
seller. Salvador v. Atlantic
and/or
manufacturer
See: Webb
Co., 457 Pa.
(1974).
903,
24,
Boiler
A.2d
907
319
Zern,
(1966)
424,
adopted
402A
(§
v.
With this
product
402A.
In a
of
under
liability
lyze
application
§
Dam
case,
place.
of
have no
principles
negligence
liability
Mollis,
22, 27,
v.
Dambacher
485
By
Pa.Super.
bacher
336
upon a
(1984).
not
focus
408,
Liability
428
does
A.2d
or
design
manufac
reasonableness
manufacturer’s
manufactur
Nor does
concern the
product.
ture
Rather,
liability
concepts.
of “state
art”
er’s use
product
is
in the
which caused
there
a defect
rests where
or
Whether or
the defect was known
the user.
injury to
design or
time of the
anticipated at the
could have been
Id.
no
is of
concern.
manufacture
“unreasonably
dan-
402A
contain the term
does
Section
concepts
gerous,”
arguably
negligence
introduces
which
However,
Supreme
our
Court
products liability cases.
into
402A
term was included within
explained that
that
has
§
argument
the seller of a
any
“to foreclose
that
‘automatically
harm
would become
possibilities
inherent
things
in the
for all the harm that such
do
responsible
”
Brantly Helicopter Company,
Berkebile v.
462
world.’
Prosser,
83, 95,
893,
(1975) (quoting
337 A.2d
900
Strict
Pa.
California,
9, 23
18 Hast.L.J.
Liability to the Consumer
Co., Inc.,
v.
Azzarello
Black Brothers
(1966)). Later,
(1978),
547,
“unreasonably
1020
the term
480 Pa.
391 A.2d
trial court
dangerous”
impose
was found
on the
determining
“as a matter
law
responsibility
‘the risk
policy’,
considerations
‘social
whether
resolving
” Dambacher,
placed upon
supplier.’
loss
should be
supra,
Pa.Superior
59-60,
Ct.
at
I. “State of the Art” Evidence questions are mindful concerning We the admission and exclusion of evidence are vested within the trial court’s abuse, discretion, discretion. Absent rulings such Sears, Co., not be reversed. Burch v. Roebuck will 444, Pa.Super. 467 A.2d In assess- ing propriety actions, of the trial court’s a fundamental in determining consideration the admissibility of evidence is its is relevance. Evidence if it relevant tends to make a fact *7 v. Soblotney, Martin at issue more or less probable. 418, 422, Pa. 466 A.2d Majdic’s objection,
Over L. Joseph Schwalje permit- was ted testify the concerning industry custom the in 1949 with respect power press brakes. sold Cincinnati injured Majdic which to National Standard Machine in 1949. The witness testified customary practice that was at that time for an employer or another party implementing the press brake into a metal forming system to provide the Further, necessary safety Schwalje permitted devices. was to refer to the 1973 American National Standards Institute (ANSI) Safety power presses Standards to demonstrate that the standard in 1973 was the same as trade custom prevalent in 1949. trial, argued
At that evidence of practices industry or trade customs was inadmissible strict liability cases since it related the reasonableness of a manufacturer’s conduct. The rejected trial court this argument and found be testimony to relevant as to whether the press brake was defective at the time it was sold to National Standard. The written 1973 reports ANSI were excluded from evi- dence; however, was Schwalje permitted to refer to them in order to determine the custom industry during 1949. Lewis v.
Recently, our
Hoist
Coffing
Supreme Court
Division,
Co., Inc.,
515 Pa.
In this bellwether
among
general
noted that there existed a
consensus
Court
that the manufacturer’s due care
the various jurisdictions
*8
However,
in products liability
has
case.
there
bearing
no
among
respect
discrepancy
is a
the courts with
the
demonstrating in-
relevance and
of evidence
admissibility
standards,
design
of the
dustry
practices
customs and
of
Id.,
342,
Pa.
A.2d
593.
products.
at
at
After
of
embarking upon an
of the treatment
such evi-
analysis
states,
opined:
our sister
court
among
dence
Lewis
of
[hjaving
industry
reached the conclusion that evidence
relating
design
pendant
standards
to the
of the control
case,
its widespread
involved
this
and evidence of
use
industry, go
appel-
the reasonableness of the
choice,
in making
design
lant’s conduct
its
we further
improperly
conclude that such evidence would have
into the
brought
concepts
case
negligence law. We
of
also conclude that such evidence
have created
would
strong
of diverting
jury’s
likelihood
attention from
appellant’s
control box to the reasonableness
appellant’s
conduct
its
For
choosing
design.
those
reasons we conclude that
the trial court correctly ruled
to be
evidence
irrelevant
hence inadmissible.
Id.,
343,
Further, Concurring Opinion of Mr. Larsen Justice adds: injection industry design standards into a defect
[t]he only case would be not distracting, irrelevant but also, inherently self-serving because nature standards’, ‘industry would be highly to the prejudicial consumer/plaintiff. By our today, determination we have it made clear that a manufacturer liability cannot avoid injures its consumers it or through that maims its defec- designs tive by showing that ‘the other guys do it too.’ Id., 515 Pa. at 528 A.2d 595. are Pennsylvania
We
aware that
there exists in
cases
discussed,
suggested,
which have
and even
that custom or
usage
art,
and state of
matters,
as well as similar
should
design/defect
be admissible in
is
cases.
It
abun-
dantly clear that
the rationale
in this
employed
body
cases has been expressly rejected by Lewis.
Likewise,
the extent
that the
in the
panel
dicta
recent
decision
Court in Foley
Co.,
v. Clark
Equipment
Pa.Super.
(1987)
For the reasons cited we reverse trial court’s decision to admit into evidence testimony concerning the custom in the industry during related to power Further, brakes. we hold trial im judge properly permitted evidence of the 1973 Safety ANSI Stan power presses. dards for we Accordingly, must remand this case for a new trial.
621
Learned Treatises
II. The
Use
of Paul
testimony
trial,
presented
expert
the
At
in his
testified that
engineer, who
Glasgow, a mechanical
had
Cincinnati
power press
by
manufactured
opinion
guards.
safety
of the absence of
defective because
been
sought to introduce
During Glasgow’s testimony, Majdic
publications
from trade
evidence various articles
into
forming
upon
relied
Glasgow
which
had
learned treatises
patents
evidence numerous
opinion. He also offered as
his
safety guards
suggested
availability
which
Although
had
manufactured.
power press
time the
to these materi-
Glasgow to refer
permitted
the trial court
into
or
als, it
to
them to be received
evidence
refused
allow
jury.
to be read to the
their contents
an
is well-settled that
law
this Commonwealth
on the contents of a
may be cross-examined
expert witness
upon
forming
he
she has relied
which
or
publication
other
respect
any
publication
and also with
to
opinion,
in the
expert
work
acknowledges
which the
be standard
Nazareth,
v.
430 Pa.
field.
Cummings
Borough
See:
255,
(1968);
Kirkpatrick, 305
Under the current state the law this Common wealth, it was trial court to refuse to entirely proper patents admit into evidence the treatises and offered being Majdic. Because these materials offered were *10 prove (i.e., of the truth matters asserted therein safety guards 1949), could have added to the they hearsay, were were inadmissible substantive It also for proper evidence. the trial court to refuse to to Majdic’s expert offer allow his witness read the contents of documents aloud in Excerpts court. from a into publication purpose which are read evidence for proving the truth of the statements contained therein are and, therefore, still This hearsay inadmissible. fact is not changed merely because document is read into evidence by being instead an witness received as for exhibit inspection by jury. It is the for purpose which the offered, information is not manner which is intro- duced, which makes it objectionable.
Majdic concedes that information in private contained hearsay. Nevertheless, argues treatises is he that we adopt should a more view liberal towards treatises and periodicals and allow their admission upon when relied by decision, however, an That expert. is not Court to decide; therefore, decline this we invitation. respect patents,
With to the the learned treatise exception has no application. assurances of trustwor thiness which are intrinsic in scholarly treatises do not exist patents where are concerned. treatises, Unlike learned patents not necessarily propounded expert are by an field in patent applies; rather, which the they may be any obtained original Moreover, individual with idea. they are not generally to the subject type of criticism and analysis which learned usually undergo. treatises In light circumstances, these trial court did abuse its discretion by refusing either to admit the treatises and patents into evidence by declining or portions to allow thereof to read to be the jury.
III. Prior Accidents Majdic argues that the trial court erred refusing to admit into evidence certain admissions by Cincinnati con- cerning 64 accidents that involved injuries operators of prior occurred All of these incidents its brake. intro- sought be This evidence was accident. Majdic’s dangerous of the was aware that Cincinnati prove duced to of the dan- machine, not warn but did propensities evidence and disallowed this The trial court gers involved. accidents prior that the failed to show Majdichad ruled that inci- Majdic’s similar circumstances under had occurred dent. a “defective in this Commonwealth
It is established *11 or manufac- design defects in the is not limited to condition” is product or not the is whether test product. ture of a make it safe necessary to element equipped every at 462 Pa. Helicopter, supra, Brantly v. use. Berkebile Berkebile, Supreme our Court In 100, A.2d at 902. 337 noted: instructions warnings and/or bemay such element
[o]ne
such
give
A seller must
product.
of the
concerning use
inform the
required
are
instructions as
warning and
inherent
risks and
possible
user or consumer
(Second) of Torts
Restatement
product.
his
limitations of
defective absent
402A,
If the
is
comment h.
§
cause of the
is a proximate
and the defect
warnings,
such
proof
liable without
strictly
the seller is
plaintiff’s injury,
negligence.
100,
Id.,
sion of such tempered evidence is by judicial concern that the evidence may raise collateral issues which confuse both the real issue and the jury. These matters are vested within the sound discretion of the trial court. Whitman v. Riddell, 177, 182, Pa.Super. 521, (1984). A.2d error, To constitute ruling reversible on evidence must be shown to be erroneous and harmful to the complaining Id., party. Pa.Superior 180, Ct. at 521, 471 A.2d at quoting Anderson v. 417 Pa. Hughes, 208 A.2d trial,
During Majdic sought to introduce into evidence certain admissions made by Cincinnati reference to 64 involving accidents the same type brake which had injured purpose him. Majdic’s requesting the introduc tion of this evidence was to show that the mere occurrences of the 64 accidents served as notice to Cincinnati of the dangerous propensities of the unshielded brake and that Cincinnati had the duty alert those who used the addition, machine to these In dangers. Majdic maintained specifics that the of these accidents were unnecessary presenting these admissions to the jury. The trial court however, disagreed, and ruled that the admissions were *12 repetitious required and lacked the specificity as to whether the accidents were fact similar to the circumstances under which Majdic injured. was We have reviewed the record of the instant case and find that the trial court did not err by excluding Majdic’s proffered evidence. The admissions, presented court, to the trial specified neither the exact circumstances under which the other accidents occurred nor in what manner they were Majdic’s similar to accident. Clearly, the burden respect with to the admissibil of ity prior accidents was not sustained by Majdic. There fore, we find that the trial court did not abuse its discretion in disallowing the admissions. pointed out,
As supra, Cincinnati during conceded trial that it had been of aware the hazards associated with the Compensation Law, (1983) (col- Under 33 Drake L.Rev. 817 Uniform cases).
lecting though, argued, press. of Cincinnati power use the of component part utilized as a press the was power since ma- forming system, the larger metal National Standard’s it dangerous until after had been did not become chine Therefore, Standard, the was buyer, National integrated. safety features installing necessary for responsible particular pow- function the warnings to commensurate maintained that it essentially Cincinnati er served. charged duty apprising buyer not with the each could be dangers, given array the wide product’s inherent was for which machine utilized. purposes indeed Although may Cincinnati have disagree. We any to hazards associated expected buyers safety its correct within their once it was consolidated power duty warn manufacturing systems, a manufacturer’s it dangers nevertheless continue when becomes may making necessary buyers that its are cognizant product. question to its It would be safety adjustments jury of fact for the determine whether purchasers sufficient instructions to its safe absent to the guards warnings should be attached safety implementation larger into a form power press upon metal reason, that on retrial it For we believe ing system. to introduce evidence appropriate permit would be so that claim that it was of similar accidents Cincinnati’s inform buyers product’s its hazards unnecessary However, challenged. empha integration may after be we admissible, must size that in order such evidence to be comprised occuring substantially of similar accidents be same and under the same similar circumstanc place or es.
IV. Cross Examination Richard Griesheimer trial, During presented Cincinnati of Richard testimony *13 Griesheimer, manager engi- engineer a staff former cross-examination, neering. Majdic attempted On to cross- examine concerning discrepancy Mr. Griesheimer be- in interrogatories tween which had been answers filed this case by Cincinnati and those which it had filed in a case case, in another In jurisdiction. the instant an- Cincinnati it had no knowledge injuries, swered that other than resulting Majdic’s, from the use of its power presses. By comparison, had filed interrogatories Cincinnati answers to another action which it listed approximately sepa- rate incidents involving power press, including Majdic’s Majdic attempted claim. to use these inconsistencies to impeach credibility Cincinnati’s on cross-examination.
“It is well-established that the scope and limits of cross- examination are within the trial court’s discretion and the rulings court’s thereon will be reversed the absence of a clear abuse discretion or an error of Kemp law.” v. Qualls, 319, 324, Pa.Super. A.2d After considering Majdic’s arguments in support of the cross-examination, requested the trial court refused this line questioning light previous of its ruling which excluded prior evidence of accidents. The opined trial court that the materiality and relevance of cross-examination would be outweighed by resulting its prejudice Cincinnati.
We conclude that the trial court erred in prohibiting this line of questioning which went to Cincinnati’s credibili ty. The totally different answers filed in the other action by Cincinnati were a proper subject matter for cross-exami nation on the issue of credibility. We find that the trial court could have restructured questioning to ensure that the jury would not focus its attention on extraneous light issues in judge’s previous Thus, trial ruling. we find that the trial court abused its discretion on this eviden tiary matter.
The judgment is reversed. Case remanded for a new trial consistent this Opinion.
WIEAND, J., files a dissenting opinion.
OLSZEWSKI, J., concurring files a dissenting statement.
WIEAND, Judge, dissenting:
I respectfully dissent and would affirm the judgment entered in the trial court. 20, 1978, April Henry Majdic injured during
On was course of his when the ram of the employment power press he had operating upon right which been descended his hand. Majdic against commenced an action Cincinnati Machine (Cincinnati Machine), the manufacturer of Company alia, power press, alleging, inter that Cincinnati Machine (Second) was liable under the strictly Restatement of Torts 402A1 manufacturing selling for and in a defec- press § In particular, tive condition.2 he alleged press that the had defectively designed been because it did not contain a safety guard prevented which would have the operator’s entering hands from point operation and because it not equipped prevent with a mechanism to operation of the machine while operator’s pinch- hands were in the point.
Cincinnati Machine did not contest Majdic’s allegation should equipped safeguards have been prevent to an operator placing from his or her hands within point operation. Rather, it was Cincinnati Machine’s principal defense that it had no obligation provide safety urged features In by Majdic. regard, Cincinnati provides: 1. That section (1) any product One who sells in a defective condition unreason- ably dangerous property subject to the user or consumer or to his is liability physical thereby harm caused to the ultimate user or consumer, property, or to his if (a) engaged selling product, the seller is in the business of such a and (b) expected it is to and does reach the user or consumer without change substantial in the condition in which it is sold. (2) (1) applies The rule although stated in Subsection (a) possible preparation seller has exercised all care in the product, and sale of his (b) bought the user or consumer has not from or any entered into contractual relation with the seller. negligence 2. also implied asserted theories of and breach of tried, however, express solely warranties. The action was on the theory liability. of strict it had manu- which showed that the brake3 Machine National employer, Standard Majdic’s factured and sold Standard), completed (National had not been Company general multifunc- only purpose, had but product, having point no unit, dies and unequipped with tional into a incorporated ultimately was be which operation, National Standard had forming Until system. metal larger *15 into the incorporated had it press on the dies installed argued, protective Machine no Cincinnati larger system, result, As a Cincinnati installed. could have been barrier maintained, providing safeguards for responsibility Machine who had Majdic’s employer warnings solely rested press. the assembled a the evidence returned verdict which heard jury trial in filed a motion for a new Majdic Machine.
Cincinnati rulings by the evidentiary error in several alleged he which ques- he purposes, for our importantly trial court. Most expert to a defense appropriate it allow tioned whether was in 1949 power press industry in the the custom to describe manufactured) and to in had been (when press question which had presses standard for safety refer to a federal addition, the trial challenged In he in 1973. published been to read from expert his witness court’s refusal to allow relevant allegedly were patents treatises and which learned injury caused his press which determining in whether moreover, asserted, that the trial He defective. had been acci- of similar excluded evidence erroneously court had occurred af- press brakes which involving dents Cincinnati and sold to in had manufactured question been ter to injury sustained the before National Standard but evidentiary in found no error its The trial court his hand. therefore, for a new and, Majdic’s request denied rulings; verdict, a panel on the Following entry judgment trial. for three granted reargument of this Court affirmed. We admissibility of evidence reasons: to review the principal in ac- standards safety and federal industry customs metal, large generally sheets of are used to bend Press brakes 3. adjusted perform such as although they may to other functions also be stamping. punching and hearsay state- tion; prohibits to re-examine the rule which other information- in learned treatises and appearing ments into evidence and used as being material from admitted al relate; and, they matters to proof which substantive admissibility of evidence of other to determine the finally, constructive, notice of a defec- post-sale accidents to show product. tive Industry
I. Customs Evidence of trial, L. Joseph Machine called During Cincinnati mechanical expert. Schwalje, as an Schwalje testify concerning the custom engineer, questioned power press brakes industry pertained sold Cincinnati Machine to year which brake had manufactured. He testified National Standard or practice employer that the 1949 was for an customary into a metal form- party incorporating other brake pre- devices ing system provide safety necessary operator’s entering point opera- hands from vent conclusion, In referred to a support Schwalje tion. of this *16 had been safety power presses federal standard for which (ANSI) Institute published by American National Standards imposed responsibility providing in 1973 and which the for metal point operation guards of on those who assembled the of the forming systems rather than on manufacturers of 1973 press Although brakes. the established standard injured was not in existence in 1949 which when manufactured, plaintiff Schwalje opined, had been in trade in the 1949 practice prevalent power press industry the same as that the 1973 standard. was reflected Majdic opposed Schwalje’s testimony grounds. on two First, cus- industry-wide contended that evidence of to focus of upon toms tended attention the reasonableness and, therefore, the manufacturer’s conduct inadmissi- Second, in action he upon liability. ble based strict argued that safety because 1973 standard was until after promulgated twenty-four years brake manufactured, had question Schwalje’s testimony 630 respect to the standard was irrelevant to a determina- of the brake at the time of safety
tion
manufacture.
The trial court determined that the custom evidence intro-
duced
Cincinnati Machine did not relate to the reason-
of the manufacturer’s conduct and was relevant in
ableness
aiding
jury
responsible
adding
to determine who was
all parties agreed
missing.
devices which
were
safety
the 1973 written standard from
The court excluded
evidence
to refer to it in order to elucidate
expert
but allowed
in 1949.
industry
custom of
refers to
industry
way things
Custom the
the common
industry,
industry
are done in an
or to a formal
standard.
Use State
the Art Evidence
Spradley,
See:
Defensive
343,
Liability,
Products
67 Minn.L.Rev.
344-345
Strict
(1982); Note, Perpetuating Negligence Principles in Strict
The Use
State
the Art
Liability:
Concepts
Products
797,
(1985).
Cases, 36
L.Rev.
816
Evi
Design
Syracuse
negligence
dence of
custom was
used in
industry
originally
prove
cases to
that a defendant-manufacturer’s conduct
See, e.g., George
either was or was not unreasonable.
v.
Co.,
(E.D.Pa.1975);
389
Morgan
F.Supp.
Construction
253
Works,
Aderhold,
Forrest
Machine
Inc. v.
City
Rayburn
33,
(1981);
273 Ark.
720
Barco Manu
S.W.2d
Varas v.
Co.,
(1962);
facturing
Cal.App.2d
Cal.Rptr.
1980).
(Iowa
Chown v.
Despite negligence heritage, opinion its am of the theory custom evidence is also relevant under the of strict products to determine whether a is defec- liability Commonwealth, In this the determination of defec- tive. *17 First, is through two-step process. tiveness made a engage risk-utility trial court must in a to decide analysis imposition liability justified; whether the of strict would be thereafter, the case is submitted to the to determine jury whether the facts of the case the averments of the support 547, complaint. Co., 480 Pa. Azzarello v. Black Brothers Equipment v. Clark Foley 1020, 1026 (1978); 558, 391 A.2d Co., Pa.Super. 599, 523 A.2d may one factor which be industry of custom is but Evidence balancing posed by in the risks by considered a court position explained its This has been against utility. Appeals States Court of cogently by most United Inc., v. Massey-Ferguson, Carter in the Fifth Circuit Garwood, Cir.1983). There, in lucid (5th Judge a F.2d 344 stated: concurring opinion, design conforms to or devi- product’s that a
[E]vidence custom, though dispositive, industry may ates from determining in the prod- relevant whether nevertheless be dangerous risk-utility under the bal- unreasonably uct is be two-fold. ancing potential may test. That relevance First, custom tend to show the industry usually will and in industry subject, on the judgment collective of relevance as a respect it has the same character standard, though the is relevance professional society product safety since factors other than more attenuated custom than the standard. likely are more to influence the instances, all, Second, though no means many by it will in expecta- and general experience tend to user show to the product handling performance respect or tions issue; extent design frequently characteristics and design posed given product the risk actually degree to which it characteristic will be affected performance and to con- product’s operation causes general experience expectations. form to user custom is relevant given industry Whether case theories, if degree under either of the so the above value, depend, among other probative naturally its will particular design on things, product, the nature of industry characteristics at issue and the custom.
Id. at 350 (Garwood, J., concurring) original). (emphasis
Legal admissibility who have considered the scholars it is liability agree custom evidence strict cases industry’s perception insofar as it relates to the relevant See: danger product. associated with the use *18 632 Survey supra Annual 357-359; Keeton,
Spradley,
Law-Torts,
Texas
1,
(1981).
35
11
Sw.LJ.
The same or
has
reasoning
employed by
majority
similar
approving
admissibility
in
of custom evi
jurisdictions
Car
sounding
See,
liability.
e.g.,
dence
actions
strict
Inc., supra;
Motor
Massey-Ferguson,
ter v.
Reed v. Tiffin
Inc.,
Homes,
Smith v. Minis
(4th Cir.1982);
1192
F.2d
697
Co.,
Wagner
Machine
v.
(10th
ter
Cir.1982);
Almost identical factual presented scenarios were in two cases decided the federal judiciary Pennsylvania. of In Co., Powell v. Bliss E.W. F.Supp. (E.D.Pa.1981), 529 48 aff'd, (3d Cir.1982), F.2d the plaintiff had been injured when his hand caught became the pinchpoint of a punch press. He commenced a product liability action against the brake, manufacturer of press the alleging that press had been defective because it had not been equipped with safeguards prevented which would have operator’s hands from entering the work area and because it had lacked warnings regarding danger of operating the press without such safeguards. The defendant-manu facturer did not dispute that safeguards were necessary; rather, it contended brake which it had manufactured and, therefore, was not a completed product it was not responsible for providing point of operation safeguards. The jury was if instructed that it found that as sold the defendant-manufacturer was not a of product, industry
finished could consider evidence determining responsible providing who for custom The that the jury features. District Court observed safety charged not that it could consider the evidence of had bearing upon reasonableness trade custom conduct, but instead had been instructed that defendant’s only purpose to be considered for such evidence was installing responsibility safe- determining who bore charge Id. 53. Because the “did press. on the guards ” ‘ring negligence,’ the court conclud- impermissibly not ed, erroneous. it was Id. appropriate a set facts which mirrored those in
Confronted Powell, States District Court for Middle the United Co., Bliss Pennsylvania, District Christner v. E.W. (M.D.Pa.1981),employed reasoning F.Supp. similar industry custom evidence admissibility upholding arising theory liability. in case under a strict also *20 of trade had not been court noted that the evidence custom care, that due but rather to show the prove offered operation guards of had not been the point absence If jury manufacturer. the were to of the responsibility press product not a power completed conclude that the was control, the it defendant-manufacturer’s court when left the said, consider custom to industry it could then evidence determining responsible providing it in who for assist was operation guards. Id. point In the courts. the adopt analysis I federal would Christner, judice, as and custom case sub Powell the exercise of due evidence was not offered to demonstrate press only care manufacturer show that but incomplete which, industry as the brake was an of a it, completed by to be the assembler understood was design alone larger forming system metal who could system. appropriate assembled provide safeguards hold, industry I would the customs of the purpose, For such determining and admissible as aid were relevant for safeguards to add the responsibility was whose completed system.
II. Evidence
Governmental Regulations
In
upon
actions based
strict
liability,
almost universal
compliance
governmental standards,
rule is that
rules
regulations
constitutes evidence of the
adequacy
design,
admissible,
and is
product’s
therefore
though not
conclusive.
Spradley, supra
(collecting cases).
See:
at 367
This is also the
in Pennsylvania.
law
See: Jackson v.
(1986);
Spagnola,
Pa.Super.
Instantly, expert the defense offered by Cincinnati Ma- chine was allowed to refer to an power ANSI standard for presses which had published in 1973 in order to the custom power press describe within the industry 1949. Evidence that brake manufactured by Cincinnati Machine in compliance was with governmental would, course, standards pertinent be to the issue of and, defectiveness accordingly, would be for admissible purpose. contention, It is Majdic’s however, that the stan- dard was irrelevant because it promulgated twenty- was years four after brake had been manufactured. argues, therefore, He it was error to permit any reference to the 1973 standard.
In issue, resolving the decision in Powell v. E.W. Co., Bliss supra, again There, is once instructive. defendant-manufacturer permitted to introduce into which, evidence the 1971 ANSI standard like the 1973 here, standard at issue placed the responsibility install- ing point of operation safeguards upon the employer. The *21 plaintiff contended that because the standard had been promulgated in it was irrelevant to the issue of whether the press was defective when it was manufactured in 1954. The court rejected argument, stating: this standards,
The 1948 A.N.S.I. which were in effect when the press manufactured, was did not explicitly place the responsibility providing such safety upon devices any Hence, one party. the express mandate of the 1971 standards placing obligation this on the employer was in jury’s
relevant to the determination that served to clarify ambiguous promulgated the standards somewhat in 1948. case, in Similarly at 54. the instant Cincinnati Machine’s
Id. to clarify to the 1973 ANSI standard the expert alluded in This testimony was relevant determin- standards. press industry the time ing power the custom within the in manufactured. question the was brake perceive any prejudice I am not that caused able evidence; not admitted into Majdic. The standard itself was rather, Schwalje merely permitted was refer to concerning the in explaining opinion standard in his custom expressly in 1949. The trial court instructed industry the testimony only it could consider for that jury that itself and not as evidence standard purpose, circumstances, in effect 1949. Under these. to the 1973 standard was testamentary reference ANSI harmless.
III. Learned Treatises Admissibility of agree I as if I had written fully myself majority’s as It is regarding discussion the use learned treatises. however, jurisdictions other noting, promul- have worth adopt whole or gated rules or enacted statutes which rule part exception hearsay the learned treatise 803(18).4 Ala. embodied in Federal Rule of Evidence See: provides: 4. Fed.R.Evid. 803 rule, hearsay though following are not excluded even is a witness: declarant available as (18) Learned To the to the of an treatises. extent called attention expert upon upon by witness or relied him in cross-examination examination, treatises, published direct statements contained medicine, periodicals, pamphlets subject history, or on a or other art, testimony authority by or science or established as a reliable testimony expert by judicial of the witness or other or admission admitted, may but notice. If the statements be read into evidence may received not be as exhibits. that, exception hearsay
This to the rule is on the belief founded although technically hear- the material contained in such literature is say, compelling admitting evi- there are reasons which favor such dence under limited circumstances. These reasons have been summa- rized follows:
637
803(18); Ari-
12-21-108; Alaska Rules of Evidence
Code §
803(18); Arkansas Uniform Rules
zona Rules of Evidence
1341;
803(18);
Colorado Rules
of Evidence
Cal.Evid.Code §
803(18);
Rules of Evidence
Delaware Uniform
of Evidence
803(b)(18); Idaho Rules
803(18);
Rules of Evidence
Hawaii
60-460(cc) (1986);
803(18); Kan.Stat.Ann.
of Evidence
§
803(18);
Rules of
Montana
Minnesota Rules
Evidence
(1986); New
803(18); Nev.Rev.Stat.Ann.
51.255
Evidence
§
803(18);
Mexico Rules
New
Hampshire Rules
Evidence
8-40.1; North
11-803(R);
Car-
of Evidence
N.C.Gen.Stat. §
803(18);
Rules of
North Dakota
olina Rules of Evidence
O.S.1981,
12
803(18);
Evidence Code
Evidence
Oklahoma
19-16-
2803(18);
Dakota Rules
Evidence SDCL
South
§
803(18);
22;
Utah Rules of Evi-
Texas Rules of Evidence
803(a)(18);
803(18); Washington Rules of Evidence
dence
803(18);
Rules of Evidence
Wis.Stat.Ann.
Virginia
West
803(18).
908.03(18);
Rules of Evidence
Several
Wyoming
§
by way
have embraced the federal view
jurisdictions
other
Huttenlocher, 185 Conn.
decision. See: Cross v.
judicial
Heilman v.
(1981);
Snyder,
390,
To
constructive notice of a
or defective
prove
condition, a trial court
under certain circumstances
may
occurring
accidents
under the
prior
receive evidence
may
same
Before such evidence
or similar circumstances.
received, however,
proponent
must show that
be
prior
sufficiently
accident was
similar to constitute con-
structive notice of a defective condition.
“This limited
exception, permitting the introduction of evidence of similar
accidents, is
tempered by judicial concern
the evidence
issues, confusing
raise collateral
the real issue
may
both
Riddell,
v.
177,
Whitman
jury.”
Pa.Super.
and the
324
181,
521,
(1984).
471
523
It
A.2d
follows that much must be
Stormer v. Alberts
judge.
left to the discretion of the trial
Co.,
461, 466,
87,
(1960);
Construction
401 Pa.
165 A.2d
89
Riddell,
v.
180-181,
supra,
Whitman
at
471
Pa.Super.
A.2d at 523. See also: Craven v.
Machine Tool
Niagara
&
Co., Inc.,
Works
(Ind.App.1981).
In the instant
offered an
Although appellant
not erroneous.
court was
accidents
sixty-four
Machine of
Cincinnati
by
admission
to show the
there
no evidence
injury,
his
preceding
of them had oc-
any
under which
circumstances
precise
showing
relevancy
Therefore,
curred.
the burden
met;
and the trial
accidents was
prior
the admissions
the evidence thereof.
excluded
properly
court
Richard Griesheimer
V. The Cross-examination of
Griesheimer, the
of Richard
During the cross-examination
engi-
staff
engineering
present
manager
former
Machine,
question
attempted
Majdic
neer for Cincinnati
interrogatories
which
regarding answers
Griesheimer
Machine
of Cincinnati
agents
other
prepared
had been
prior
the manufacturer
had
and which
been submitted
had
interrogatories,
In these answers to
trial.
knowledge
had no
that Cincinnati Machine
indicated
resulting
from use of its
other than
injuries,
Majdic's,
however,
answers,
were inconsistent with
These
brakes.
Machine
Cincinnati
interrogatories
to similar
which
answers
In the
in another jurisdiction.
filed in another case
had
acci-
had listed additional
action Cincinnati Machine
other
sought to
brakes.
involving
dents
Cincinnati
*25
in order
inconsistency
about this
cross-examine Griesheimer
he
argues
appeal
on
his
impeach
credibility.
this
prohibited
court
trial
is entitled to
new
because
In
cross-examination,
I do not.
majority agrees.
and the
exercise of discretion
ruling
proper
was a
my judgment,
the trial court.
cross-examination are within
and limits of
scope
thereon will
ruling
court and a
discretion of the trial
sound
of that
in the
of a clear abuse
reversed
absence
be
323,
534,
318,
241 A.2d
Will, 430 Pa.
discretion. Townsend
934,
Morris, 393
89 S.Ct.
537,
denied,
v.
U.S.
Cochran
cert.
293,
(1968);
Qualls,
Pa.Super.
This as is in- design true most defect complex try. My volved issues and was difficult to review suggests despite of the record inherent difficulty, the case was tried court and counsel. well both
I would affirm the judgment.
OLSZEWSKI, concurring dissenting state- Judge, ment:
I in Parts II and IV of the and in the join majority opinion disposition of the case. I, II,
I Judge Wieand in Parts and IV of his join Dissenting Opinion.