Parks v. AlliedSignal, Inc.

PARKS, Individually, Edith J. Personal

Representative of the Estate of Leslie E. Parks, parent and and next Deceased

friend of Kori J. Parks INC.;

ALLIEDSIGNAL, The Warner Swasey Company; & Company.

Gradall Individually, Parks, Edith J. As Personal Representative of the Estate Leslie E.

Parks, Deceased, parent next Parks, Appellant

Mend of J. Kori No. 96-3256. Appeals, Court of United States Third Circuit. Argued Feb. May Decided Assoc., Pennsylvania State Educ. trict court should now revisit state these law (3d Cir.1996). properly dismissing After ev- claims. ery complaint, Finally, agree majority count of Latessa’s the district with the that Latessa’s obligation jurisdic- pursue wrongful accept under no failure law common dis- charge precludes tion two over new state-law claims. Given the claim before district court majority's pursuing reinstatement of some of Latessa's fed- him from such a claim on remand. claims, however, Op., Maj. eral law I concur that the dis- n. 1.

I. alleges visibility

Mrs. Parks defective AlliedSignal’s features on Gradall ex- G-600 cavating machine caused her husband’s (Mr. Parks) gen- death. Parks Leslie awas Allegheny Sand, eral laborer for Inc. Mrs. Parks is his widow. Mr. Parks was killed machine, working while with the Gradall separate excavator two with cabs that is used breaking for pieces. boulders into smaller front, ordinary One cab is in the inas truck, occupied by and is driver cab, rear, vehicle. second The excavating attached to and controls the arm. cab, arm, The second and arm’s all in counterweight are one coun- line. The keeps terweight tipping the machine from when the arm is used off-center. When operator second cab moves as if the arm circle, tracing a arm machine’s entire (including counterweight) swings around point. operator central The sits in the middle, along swinging with the arm. arm, operator’s excavating seat faces the and counterweight swings out behind his mirrors, opera- back. has no The cab so the tor has no to the area and view behind him (argued), Foret and L. Palmer Foret visibility operating limited side while DC, Thompson, Washington, Appellant controls. Edith J. Parks. accident, morning On Mr. Parks (argued), D. Heintzman Kenneth Michael co-workers, and two the direction of their Klanica, Heintzman, Weis, F. Warren & supervisor, endeavored to break some blocks PA, AlliedSignal, Pittsburgh, Appellees regular of carbon. The machine’s had shovel Inc., Company. The Gradall replaced by employer been Mr. Parks’ with GREENBERG, Before: COWEN and chipper attachment used for carbon-break- MeKEE, Judges. machine, Circuit ing. From outside the Mr. Parks co-workers, occupied who

directed his THE OPINION OF COURT two cabs controlled the Alan and truck. McMunn, sitting cab, in the front drove COWEN, Judge. Circuit back of a machine to the shed where (Mrs. Parks) appeals Edith J. Parks from Kline, in the carbon was stored. William April order of the States United cab, and operated second the excavator arm District for the Court Western District boom. Pennsylvania denying her a in a new trial products liability as- Mr. shed. tort action. She Parks walked the back of the pulled district serts that the court erred in instruct- As McMunn the machine into the shed, ing contributory as to causation and Mr. Parks directed him. Mr. Parks swing negligence, failing told the boom to take sufficient Kline to the left. steps complied excavating coun- to ensure defendants instruction sent arm’s discovery agree terweight orders. will Mr. We on collision course with pressed remand for a reverse and new trial. Parks. Mr. Parks was between wall, II. causing his and the counterweight death. juris The district court exercised § pursuant 28 U.S.C. diction sought AUiedSignal to hold Parks Mrs. jurisdiction diversity citizenship. We have theory it failed install liable on the appeal pursuant to 28 U.S.C. over this safety device or alternative mirror rear-view 1291(1993). Concerning § propriety alleged that machine. She on the Gradall jury, stan charge our delivered “unreason- made the omission plenary, are review dard of review it caused the vision ably dangerous” ing in formu whether the district erred operator needlessly to be cab’s second & lating legal precept. Hook v. Ernst See objections by Mrs. Over circumscribed. (3d Cir.1994) (citing Young, 28 F.3d Parks, court admitted evidence the district Corp., 988 F.2d v. CIGNA Griffiths (3d Cir.1993) immediately Parks’ conduct concerning Mr. Corp, v. (citing Rotondo Keene court refused to death. The district prior his Cir.1992))). (3d 436, review 956 F.2d 438 We charge jury that Mr. Parks’ conduct to discovery by the district supervision a cause of death as his could viewed United court for abuse of discretion. See if it unforeseeable. were Land, 506, 924 F.2d States v. 27.93 Acres of (3d Cir.1991); v. Marroquin-Manriquez 510 in- product was jury The found (3d Cir.1983). INS, 129, 134 F.2d defective, returned a but nevertheless deed The the manufacturer. verdict verdict for III. finding presumably based on was initially questions key two We review “a jury the defect was not First, a appeal. what must raised on causing the Parks’ motion factor” in death. plaintiff in a show order to recover a was denied. Mrs. Parks for new trial liability Pennsyl- action tort under argues the district court erred when law, incorporates 402A of vania which section charge to that Mr. Parks’ failed (Second) Second, of Torts? Restatement foreseeable, such conduct could were having admitted evidence of a decedent’s any link- not have chain causation broken accident, immediately what before ing alleged defect to his death. obligation a district court do to fulfill its must addition, during explain appropriate the trial Mrs. Parks to to a use of such information? sought compel disclosure of information to during pre-trial requested that she dis- had A. 402A Section

covery, allegedly which had not been but divulged. That information concerned other 402A, by the adopted which was Section involving similar machines and accidents Pennsylvania in v. Supreme Court of Webb placement of mirrors on those machines. Zern, 424, 853, 422 Pa. 220 A.2d granted motion com- The district court liability injuries “imposes strict caused pel,1 appeal but record on raises serious product design.”2 v. Pacheco defective Cir.1994) Co., Inc., 418, (3d questions properly to whether defendants Coats 26 F.3d Div., Coffing complied discovery (citing Lewis v. Hoist orders. Duff- (b) App. expected or it is to and does reach the user at 528-531. change consumer without substantial in the condition in which it is sold. provides: 2. Section 402A (2) (1) applies The rule stated in Subsection (1) any product who sells defective One although unreasonably dangerous to the user condition (a) possible all care in the seller has exercised property subject or his consumer preparation product, and sale his physical thereby (b) bought harm the user or consumer has not consumer, prop- or to the ultimate user product into rela- from or entered contractual erty, if tions with the seller. (a) (SECOND) § engaged in the OF 402A the seller is business RESTATEMENT TORTS (1965). selling such Co., 334, 590, Foreseeability 515 Pa. A.2d 592 1. Norton (1987)). Phillips See also A-Best Prod Section 402A cannot be found 542 Pa. A.2d ucts if, accident, at the product time (1995) (acknowledging Pennsylvania’s adop being used unforeseeable manner. 402A). tion of section In the words requirement foreseeability therefore Court, Pennsylvania Supreme “Section 402A enables strict to exist without trans requires only proof product ... that a forming manufacturers into absolute insurers unreasonably sold in a defective condition products. importance their of this consumer, dangerous to the user or and that repeatedly rule has been demonstrated proximate plain Sheldon, the defect was the courts. F.2d we held injuries.” Corp., tiffs Walton v. Avco 530 that “the district court[ [should not] ] fail[ ] 454, 458 (1992). instruct Pa. “Manufac effect that the intend product ed use of a any includes use guarantors upon finding are held turers Id., foreseeable the seller.” See of defect and causation.” 610 A.2d at AMF, Inc., 1259, 1263 also Schell v. (3d Cir.1977) (quoting Kuisis v. Baldwin Corp., -Lima-Hamilton 457 Pa. prevail In order section 402A (1974)) (“whether particular 921 n. 13 action, that a show depends use of is abnormal on “unreasonably dangerous to intended users whether the reasonably use was foreseeable Pacheco, for its intended use.” 26 F.3d at seller.”). by the In Eck v. Powermatic omitted). 422 (emphasis interpreting In Houdaille, 178, 1012, Pa.Super. 364 A.2d 527 use”, phrase “intended we have held that Superior 1019 Pennsylva Court of product “the intended use a ‘includes all nia reversed a trial on grounds those which are foreseeable [uses] requires ” “the established rule of law ... (quoting to v. the seller.’ Id. Sheldon West ” ‘foreseeability’ consideration of (3d 603, Equip. Corp., Bend 608 liability instruction in products a strict ac (alteration Cir.1983) added)). Under tion. test, therefore, strict a defendant is concept foreseeability The is rel causing injury person a liable for to who was evant cases for the behaving in a foreseeable manner. This purpose determining whether use that principle is reflected in the instruction product was made of a the time of the by Pennsylvania’s recommended Committee was one manufacturer could Instructions, Proposed Jury for Standard Schell, reasonably anticipated. See 567 Pennsylvania Supreme which the Court en prevail in F.2d at 1263. In order to a section Co., dorsed in Azzarello Black Bros. Inc.: then, action, products liability plain 402A product provided ... be (1) (2) product tiff a must show that: every necessary to it element make safe (3) product harm while the use, for any intended] and without [its being used in a foreseeable manner. condition that makes it unsafe for [it is Pennsylvania Superior As the Court held you If prod- intended] use. find that the Dempster Sys., Sweitzer v. 372 uct, at the time it left defendant’s 449, 880, (1988)(eiting 539 A.2d 882 Salvador control, any necessary lacked element Co., 24, v. Atlantic Steel Boiler 457 Pa. [its make it safe for or intended] use con- added)): 903, (1974)(emphasis any tained condition that made unsafe foreseeability product The role of in a lia- use, [its then the intended] bility ease is consistent with the broad and defective, and the defendant is for all liable 402A; policy underlying § sound social harm caused such defect. is, an innocent user of between (1978). 480 Pa. 391 A.2d n. and a manufacturer seller who Div., Coffing See also Lewis v. Hoist engaged is in the business of manufactur- Duff- Norton ing selling 515 Pa. risk loss (1987). injuries resulting the use from of defec- grounds, v. L.J. Carr by the manu- on other be borne product shall tive Williford (Alaska 1989). Invs., Inc., seller. 783 P.2d and/or facturer course, may produce manufactur- a defect Of dic Pennsylvania law Our review only when the given case er may intro that a tates conduct type threatened of the harm caused is claim duced undermine defect. only insofar as the defect caused his accident as it Re- Factor” Causation “Substantial was unforeseeable Foreseeability lates to defendant, even where the setting played part some the accident of fore- determining how elements concerning a decedent’s motion. Evidence may properly be seeability causation case, bringing we are her own possible in the instant role in about his or demonstrated guided by law. When again support defen death admissible causation, has re- addressing so “ex dant’s claim that the conduct was adopted for” test and jected the “but traordinary” or “[un]foreseeable” test as embodied “substantial factor” unjust to hold the liable defendant (Second) § Torts Restatement e.g., Holloway v. J.B. for the harm. See. provides: Cir.1979). Ltd., (3d Sys., F.2d is a negligent actor’s testimony, they such courts admit When (a) con- another if: cause of harm to permissible limited uses of must elucidate the factor duct a substantial evidence, highly susceptible it is (b) harm, no rule of there is jury. misinterpretation by the liability be- relieving the actor from law negli- manner which his causation, determining there in the harm. gence resulted fore, simply task Martin, 614, Pa.Super. 442 Trude v. 660 See plaintiff played part a determine whether the (1995) 626, (citing v. A.2d Whitner Von 632 Rather, causing in accident. the thresh (1970)). Hintz, 448, 263 A.2d 889 437 Pa. question actions old is whether above, noted the man were foreseeable. As following other The courts of states making prod a fac responsible defined ufacturer is Restatement have “substantial “merely negligible.” as one is not tor” that safe for foreseeable Decorative uct all uses. Asner, 155, 250, v. 344 Md. 686 A.2d ACandS Erectors, Bucyrus-Erie Inc. Precast Stone v. (1996). ‘[[liability differently, at 260 “Stated Co., 555, (W.D.Pa.1980), F.Supp. 493 557 dominating cause but taches (3d Cir.1981),informs aff'd, 642 F.2d 441 us any any also to cause which constitutes liability Pennsylvania products that under event in factor law, if both a defect and a manufacturer’s ” injury.’ v. Hill Dawson Bunker Plaza proximate found conduct are to be Assocs., 309, 847, N.J.Super. 289 673 A.2d causes, the plaintiff will recover unless City (App.Div.1996)(quoting v. 853 Peer proving defendant the burden of meets Newark, 12, N.J.Super. 71 176 A.2d 249 was so as to unforeseeable added)). (App.Div.1961)(emphasis The sub infra, a superseding constitute cause. See replaced for” has the “but stantial factor test foreseeable, III.A.3. If Sec. pre in strict contexts causation test find for the unless it finds design cisely cases defect substantial, play did defect typically speculation whether matter causing negligible, than role in more would, safety given presence of a device Schell, In at 1263 plaintiffs injury. instance, actually prevented a harm. 351, Billinger, (citing v. 432 Pa. Bartkewich Gordon, Equip., Yukon Inc. v. 660 See P.2d (1968)), 603, explained 247 A.2d (Alaska 605 428, 1983)(stating “but for” 433 recovery is allowed where the absence improper causation instruction was case), safety type design injury overruled device caused manufacturer’s

1333 expected gence that could be from the foreseeable products and strict liability. In strict product.3 use of the products liability, the focus is on whether the product was unreasonably sold danger causation, The element of while ous condition for reasonably foreseeable required, primary is not the focus of section Carpenter Co., uses. See v. Koehring may by 402A cases. Causation be shown 206, F.Supp. (E.D.Pa.1975), 210-11 process aff'd, of elimination or circumstantial evi (3d Cir.1976). In dealing dence. cases mal F.2d 644 negligence, In by function, instance, Pennsylvania appellate contrast, the focus is on duty whether a consistently courts have reversed trial courts Kuisis, care was breached. See 319 A.2d at sending for not eases In either products strict directly causation had not been demonstrat liability, proximate cause defines “such limits See, e.g., Chrysler ed. Ducko v. Motors recovery on as are economically socially 47, Corp., Pa.Super. 639 A.2d 1204 Klages desirable.” v. General Ordnance (1994); Co., Agostino v. Mfg. Rockwell 236 Equip. Corp., Pa.Super. 367 A.2d Pa.Super. (1975); 345 A.2d 735 Burchill (1976). Kearney-Nat’l v. Corp. area, Pennsylvania has determined that it is (3d Co., Cir.1972). Elec. 468 F.2d 384 Simi economically socially desirable to hold Co., larly, MacDougall v. Ford Motor manufacturers liable for accidents by caused (1969) Pa.Super. over products, their defective without introducing grounds, ruled on other REM Coal Co. v. negligence concepts comparative fault that Equip. Clark weigh 128, 134 (1989),4 manufacturer’s negligent Supe against injured rior Court stated: that of the Walton, evidentiary requirements user. See negli- 610 A.2d at 462. See also gence proof law demand infra, See. III.A.4. proximately specific defect in design or construction because Superseding or Intervening Cause hinges upon whether the accident could The test for what constitutes a su have been avoided the exercise of rea- perseding cause reflects contrast, de-emphasis sonable care. the concern of both section warranty products liability 402A and causation litigation. law is with product. the fitness of the Klages explains that a foreseeable intervening de-emphasis “satisfy act cannot require of causation is a natural corollary of the negli- distinction between superseding ments of a cause.”5 367 A.2d at 3.The dissent writes that about Mr. Parks' death?” Dissent at 1344. But holding today our is that the instructions did majority The result the reaches does not take illuminate, alia, properly inter what consti- into account the distinction in tutes a substantial factor strict law plaintiff's negli- between treatment of a action, liability question so this was not ade- gence which is the sole cause of the quately explained jury. Having to the found that plaintiff's negligence which combines with defective, the Gradall machine was product injury. the defect in the to cause the could have found that the defect was not a sub- Negligence of the second kind could defeat the causing plaintiff's injury stantial only factor in only claim if it is ... unforeseeable. place, it found that had the mirror been in precisely Dissent at 1342. The instant case is glanced driver would not have into it before type: juiy explicitly yes the second answered backing. Only in this sense does causation re- question, "Was the Gradall de- excavator susceptible dispute. main a factor As this is a at fective the time it was manufactured and action, products liability plaintiff's strict fore- App. sold?” at 432. The machine's defect was ques- seeable actions remain immaterial to the impaired visibility precisely the area in which tion of causation. the accident occurred. In accordance with the description, dissent’s above the manufacturer of 4. We note that the dissent does not address these the defective in this case should be held cases. plaintiff’s liable unless the actions were unfore- Foley seeable. See also the criticism of articulat- Dillinger, opinion (SECOND) ed in discussed in this at 5. The RESTATEMENT OF TORTS infra points § 1335-36. The dissent out superseding 440 defines cause as"an act aof responded question, person “no” to the by "Was the defect third or other force which its interven- in the prevents being excavator substantial factor in tion the actor from liable for

1334 negligence notions liability strict tort between the 402A In a section case, liability. fault” It would serve in the “a strict “no instant as that claim such act, muddy the intervening defen waters introduce reheve negligent an action based accountability, comparative must be ... ‘so ex into dant fault liability. reasonably solely to have been on strict traordinary as not v. Grant’s and Eshbach W.T. foreseeable.’” (citations omitted)(emphasis 610 A.2d at 462 (3d 940, Cir.1973)(quoting Co., 945 481 F.2d added). by It been noted numerous has Co., 753, F.Supp. 331 764 Dorsey v. Yoder Pennsylvania Supreme “[t]he courts that v. American (E.D.Pa.1971)(quoting Wilson Court, any more other perhaps than state (3d Co., 364 F.2d 562 and Cable Chain nation, emp appellate has been Cir.1966))). Similarly, in Baker v. Outboard divorcing negligence concepts from hatic in (3d Corp., F.2d Cir. Marine product-liability doctrine.” Kern Nissan 1979), intervening negli we held Co., Equip. F.Supp. Indus. party could serve as a gence of a third (M.D.Pa.1992)(quoting Ford Motor Conti v. injuries to shield defen superseding cause (E.D.Pa.1983), F.Supp. manufacturer from dant (3d grounds, rev’d F.2d 195 on other extraordinary only if it were as not “so Cir.1984)). foreseeable.” Id. have been Supreme recently Court 945). Eshbach, See (quoting explained extending its reasons for not (act may Williford, at 237 783 P.2d also comparative to a negligence defense of strict only if, superseding addi constitute products liability action: defendant, being by tion unforeseeable solely on position Our based extraordinary). highly problem conceptual of the confusion that negligence would ensue should and strict short, intervening if an but although liability concepts commingled, responsible ma action is for the foreseeable Rather, negligible. is not that concern injury, jor products liability of a share strict underlying purpose think that the of strict ordinarily be action cannot held to be liability is intro- undermined Instead, injury. ducing negligence concepts into it. Strict picture,and from at removed product liability premised concept on the remaining causal ac taches to the actor or casting prod- of ... Here, a defective possibility person if the of a tors. uct into the stream commerce. standing path of the Gradall is found ordinary, or Parks’ to be foreseeable Mr. imposing effect The deterrent disrupt legally actions cannot be viewed as product liability would be weak- standards part in ing playing the causal upon otherwise we to allow based ened were actions defeated, chain that culminated in his death. it to be reduced recoveries concepts. Comparative Rejection Fault Outlets, Carpet Kimco Dev. v. Michael D’s (Pa.1993)(em 536 Pa. 606-07 approaches to The above-described added). phasis causation, foreseeability, superseding products liability Pennsylvania strict cause Similarly, in Int’l Harvester McCown v. Pennsylvania’s compelled by rejec cases are Co., Pa. 342 A.2d 381 the particular comparative fault. rele tion of Of here, injured plaintiff, by was an as industrial case, explained Walton vance instant According plaintiff, the ma- vehicle. the that design chine’s was defective and caused his injuries. Supreme] argued plain- that Pennsylvania Court has The defendant [The continually contributory negligence the dam tiff’s should fortified theoretical by negli- injured party’s due to the harm to another which its antecedent diminished own compatible gence negligence. to be with is a factor in about.” In order strict (and products liability, concept Superseding intervening the related substan- cause, 441) comparative tially any is a narrowed to eliminate foreseeable con- defined in section party. negligence whereby injured concept, duct actor’s of plain- Dilling- to reduce the defect.’ Id. at 442. considered either We reasoned been recovery permissible plaintiffs or as a defense to er tiffs evidence of the liability. Supreme Court especially was inadmissible when the conduct disagreed, explaining that it would be unwise “merely prevent was insufficient the acci- system comparative a of to “create assess- dent attributable to the defect.” Id. In Dil- Id., damages ment of for 402A actions.” therefore, linger, open question we left A.2d at 382. whether different result would obtain plaintiffs where the been had more Pennsylvania’s “muddy[ing] wish to avoid “merely than prevent insufficient to the acci- discussing that in the waters” dictates causa- dent attributable to the defect.” Id. tion, comparative parties fault Rather, involved is immaterial. the focus is argument of defense instant again activity engaged by on whether plaintiffs case—that a foreseeable conduct foreseeable, If plaintiff was foreseeable. can by break the causal chain set in motion and the defect is found to have been championed defect —was Foley v. injury, plaintiffs of the actions cannot Equip. Clark liability. Any preclude ap- defendant other (1987). Dilling A.2d 379 But as we stated weighing negligence proach require today, er and reiterate we believe that case care, inject comparative lack which would inconsistent with prod products liability. fault into strict Dillinger, ucts law. 959 F.2d at 443. Inc., Dillinger Caterpillar, Foley, In Superior -Court endorsed the (3d Cir.1992), plaintiffs which undertook an exten- admission evidence of contrib Pennsylvania products survey liability utory sive in a section 402A suit. law, There, here, charge expressly court’s final plaintiff the trial was struck permitted plaintiffs to consider al- operator industrial vehicle when the failed to leged negligence determining plaintiff alleged when whether notice him. The injuries: defectively defendant’s designed manufacturer had alia, that, it “The defendant denies that is liable for vehicle inter the driver’s view injuries. improperly Defendant contends that Superior obstructed. The defectively designed, the 773 truck was not “negligent] court stated that conduct is ad any injuries by plaintiff and that sustained missible where is relevant to establish causation[,]” plaintiff were caused the acts of himself.” allegedly negli reversed, Dillinger, gent 959 F.2d at 440. In we purpose. behavior is admissible for this disapproving- jury charge Foley, Nonetheless, we “effectively Dillinger found that framed the issue explained contributory negligence____” one of Id. at meaningful way is no there to reconcile the “point[ed] 440 n. to a 18. The defendant line plaintiffs negligence view that, suggest[ although of cases which ] evi- type in Foley involved should admitted plaintiffs contributory negligence dence Supreme undercut causation ordinarily inadmissible, it is admissible to prohibition Court’s of the introduction of a prong rebut the ‘causation’ of a liability____ negligence to defeat liability claim.” at 441. Id. Foley, plaintiff did not observe the rejected oncoming arguments We the defendant’s forklift and did not move out way. similarly and found line cases cited to be “in its Because driver had plaintiff, some instances with the not noticed the [irreconcilable] driver crashed Pennsylvania Supreme Although Court’s declarations him. into contended subject.” design on this Id. at 441. We distin- ... also the forklift because, guished part, that line of cases from the case in ... [of the] then defective us, by view, in explaining permitted before that the cases ... the court obstructed defendant, plaintiffs cited the “the con- to of the the defendant introduce evidence actively plaintiffs duct contributed to the cause inattention the accident [had] because accident, merely [failing] of the if [rather than] could have been avoided the had prevent negligently____ to the accident to no attributable the not acted [T]here prohibit capable the of con of whether “instruction was evidence reason

principled thereby misleading jury.” negligence fusing in but the McCown plaintiffs the (3d Gable, of almost identical evidence Bennis F.2d permit Foley. in Cir.1987)(quoting United States v. Fischbach character Moore, (3d Inc., 1183, 1195 & 750 F.2d Cir. plain- that fact the at 443-44. 959 F.2d 1984)). contend that the district Defendants way of have out the Foley could moved tiff in But the court’s instructions were sufficient. Foley acci- that caused the not mean does contradictory in (who pages of sometimes several could dent, the driver also and that jury way) structions nowhere state did cause moved out ordinary proximate not consider the foreseeable or uses was a Obstructed vision accident. of injuries product of a to be a an acci Foley; in no plaintiffs of dent, in the that actions can be made between sense foreseeable meaningful distinction liability. in limit ac plaintiffs and the roles cannot a defendant’s operator’s may weighed Mr. tions of Parks causing the accident. jury only calculation if the finds causation although Dillinger, we did endorse In them to have been unforeseeable extraor plain- distinction between dispositive dinary. requirement is a Omission in accident[s] “set motion” [their] who tiffs Sheldon, holding violation of our in clear merely stop them, fail to we who and those (“On F.2d at 608 remand ... the district holding to in which the our cases limited charge jury ... court should stop his from plaintiff merely failed use intended of a includes all those by product 959 F.2d at being caused defect. reasonably which are [uses] foreseeable artificial, This distinction somewhat seller.”). susceptible will often be conduct category. in either But to characterization Furthermore, holding our Baker demon- operator assuming directing strates that that contain some instructions boom, swing the Mr. Parks “set characterizations of the law that are accurate motion,” the question now address will may unacceptably nonetheless become taint- plain- uses of permissible evidence other, presence misleading ed com- actively such has conduct where tiffs ments: accident motion.” Id. “set the opinion The district court stated its foregoing Based on the discussion denying new trial motion that its in- uses permissible may struction that there be more than one actions, 402A we find that section evidence cause, proximate and that Outboard would preceding of Mr. Parks’ actions the evidence proximate be liable if a defect [were] “[a] appropriate jury death were cause,” adequately informed it first decided that those consider negli- it could find to be [the defendant] were not foreseeable actions gent, and further find her to be extraordinary. failing otherwise were proximate cause[,] greatly ... ‘a’ di- jury, put that test to district [by minished other instructions]..... jury’s gave impression that the function case will be remanded for a new [T]he to assess the relative contributions trial. defect in caus Mr. Parks and machine’s law, matter death. As a ing Mr. Parks’ (citation omitted). Baker, however, demands Eshbach, foreseeable actions can nev we reversed the district court displace manufacturer when er ques- failed to either “remove the defect was substantial factor [third-party] negligence entirely tion of from causing plaintiffs injury. or, considered, case if it was to be appli- as to limits of instruct its Jury B. Instructions cation.” 481 F.2d 945. Strict sufficiency entity for all reviewing the means liable accidents When instructions, they extraordinary are or un- our is to determine caused unless task foreseeable, regardless vigi- of of extraordinary. the level actions were unforeseeable or by others. jury lance demonstrated If the found that the actions nei- were ther unforeseeable nor extraordinary, case, present court’s district could not found his “a actions to be jury spread several instructions over legal injury. cause” his of Yet in the above- transcript, summary pages of the and the of instruction,.the quoted court indicated that offered at misstated the instructions the end Mr. “legal Parks’ conduct could be a cause of analysis. appropriate The district explaining the accident” without was stated, accurately only true extraordinary if the conduct were you if find that a in a was a defect or unforeseeable. harm, in bringing factor substantial about prod- the manufacturer seller of the and/or centrality of foreseeability Pennsyl- responsible uct that harm products liability vania strict law was recent- you may though have found that there ly reaffirmed Childers v. Power Line well as a were other factors as Rentals, Inc., Equip. bringing defect in about the harm. 208-09 which evi- held that App. imper- 414-15. But the district court injured party’s dence of an missibly summarizing blurred the matter in properly from a barred action the instructions: because the defendant had failed to demon- you If man- determine the defendants injured strate that party acted in lacking ufactured and sold the' excavator “unforeseeable,” “reckless,” “extraordinary,” necessary safe for element make it “outrageous” Here, manner. having ad- its use and that of this intended the lack plaintiffs conduct, mitted evidence of dis- or elements was a element substantial fac- obligated trict firmly court is to instruct the tor in about the incident comparative fault is no death, you in Mr. resulted Parks’ will then liability, defense to defendant and should not find that defendants are liable to the weighed against al- manufacturer’s Otherwise, plaintiff. you will leged potential inju- defect aas cause of favor find Likewise, your verdict ry- of defendants. you will be for defendants if find either the conduct em- decedent’s IV. ployer legal ... was a the acci- cause of our you We now shift focus from the dent or that the conduct Mr. if find discovery instructions at trial to the process. Parks or the co- himself appears It that defendants produce did not legal was also a workers cause discovery concerning information and that other simi- alleged defect accidents, lar of which there were at least legal not a cause the accident. five. Defendants concede that all informa- So, defendants, you order in. find for tion on five other these accidents came from alleged must was not find investigation by plaintiff, conducted legal cause the accident. discovery. was not disclosed defendants added). App. Here, (emphasis at 418-19 AlliedSignal specific introduced information concluding, the court instructed that the de- trial, these accidents when prevail “you fendant ... will ... find arguing that evidence of their occurrence alleged legal defect was not addition, should be inadmissible. rec- accident.” use of “the” rather than ord contains credible evidence that defen- “a” indicated that safety reveal dants failed to the existence of others, predominant, greater than all rath- comparable machines, including mirrors on (albeit several, .varying er than one the Gradall 880-C. “substantial”) weights. above, primary As apparent discovery noted reason that These abuses did fatally the instruction is erroneous is its become until trial. evident While we make particular wording but that to re- no propriety failed definitive assessments as to the quire analyze actions, Parks’ whether Mr. of defendants’ on retrial the district

1338 Judge Greenberg also sent at 1342. states superintend to with care court is directed pre- law of does not properly that defendants confident and be plaintiffs clude of a conduct consideration materials to which adequately disclose and ... an accident where that “conduct caused rightfully Specifical- entitled. plaintiff is product.” independently of the defect in the in ly, discovery that the entered orders However, Greenberg Judge trial,and Dissent at 1342. apparently were original range typi- simplifies over of causes that full, zealously policed shall in be heeded injury. cally In cases lie behind an most by court. the district upon by Judge (including those relied Green- berg) fact finder could conclude a reasonable V. injury resulted from a combination above, will stated we re- For reasons plaintiffs challenged and the de- conduct 1, 1996, April denial the district court’s verse analysis Judge Greenberg’s fect. trial appellants’ motion for new and permit seem to use trial. for a new remand However, in cases. I think that nei- these Dillinger nor previous ther our decision in McKEE, Judge, concurring: Circuit today con- principles our decision allows However, tributory negligence govern dispute to opinion. I join Judge I Cowen’s merely “plaintiffs conduct set the my because separately understanding to state write leading in as today, upon events to the accident motion” we hold and comment whát Judge Greenberg believes. Dissent at 1342. approach tak perceive problems Judge Greenberg. colleague, In by en our Greenberg v. Judge upon relies Bascelli view, opens my approach the door that Inc., Randy, A.2d 488 Pennsylvania Supreme Court closed in (1985), Gallagher Ing, and v. 367 Pa.Su- 480 Pa. v. Black Brothers Azzarello (1987) per. and our discus- A.2d (1978), compara 391 A.2d 1020 and beckons Dillinger support sion of them in discussions of strict lia tive fault reenter conclusion we have barred evidence Any liability bility. of strict discussion only in situations where policy considerations endemic adhere injury by that conduct exacerbates an caused §to the Second Restatement of 402A of defect, prevent injury or failed to Dillinger Caterpil As noted in Torts. it, by caused and where the conduct Cir.1992) (3d lar, Inc., in our F.2d 430 injury independent of the causes an defect. Brantly Helicopter discussion of Berkebile v. in Clearly, one can not be liable a strict held (1975): Corp., 462 Pa. 337 A.2d 893 actu- action unless claimed defect liability developed law of words, ally injury. caused other changing societal response to concerns “a factor defect must have been relationship consum- between the over the harm.” Powell v. product. The in- er and the seller Drumheller, 539 Pa. creasing complexity manufacturing However, plain- see dissent at 1341. process placed upon and distributional inquiry tiffs conduct is not relevant to this injured plaintiff nearly impossible burden simply may because such conduct have also where, policy proving injury. contributed Before reasons, a seller it was felt that should be conduct can admitted must viewed injuries caused responsible for defects policies context with societal lie be- products. in his hind strict that assist deter- mining Dillinger. under causation omitted). (citation Bascelli, Judge Greenberg Superior reads our decision in “injection]” “neg- hold that Dillinger precluding Court did evidence driving motorcycle per actions” had 100 miles ligence principles been causation, plain- hour relevant to establish those circumstances where pre- merely it also could not be excluded tiffs conduct “exacerbated failed contributory negligence. vent an the defect.” Dis- intended show However, extraordinary we noted as to amount to assump- either risk, Dillinger, longer provides with tion of the Bascelli no us misuse of the Bascelli, highly conduct, Pennsyl- reckless guidance. deciding In the that conduct be- Superior society comes relevant to causation as vania Court cited Greiner v. has Volks- no protecting interest in plaintiffs such wagenwerk Aktiengeselleschaft, 540 F.2d 85 from the (3d Cir.1976) which, consequences of that irresponsibility. kind of Dillinger, as we noted in Moreover, unjust it is Azzarello, to the prior shift cost of such supra, was decided to where- person from the outrageous whose Pennsylvania Supreme “signifi- Court (or it) conduct it caused contributed to to scope the cantly broadened the of under pass who manufacturer will in turn that cost § Dillinger, 402A.” F.2d at on to innocent consumers. Dillinger following: we did the state significance, Of more conduct policy This concern is written into the law actively in Bascelli contributed to through strict the mechanism of accident, [plaintiffs] while Accordingly, causation. we observed in Dil- merely conduct this ease linger: was insufficient prevent accident attributable to [t]he ... issue of causation raised when Thus, [product]. defect of the here action is so reckless that the compelling was that evidence the defect injured would despite have been damage,

which resulted in hose rather curing defect, any alleged or is so conduct, [plaintiffs] triggered than ac- extraordinary and unforeseeable as to con- cident. superseding stitute a clause.

959 F.2d at 442. (internal omitted) 959 F.2d at 446 quotations (internal omitted). citations statement, however,

That is best under- policy Pennsylvania, when viewed in context with stood liability law which, repercussions ignoring conduct party the loss to “shift[s] who can most foreseeable, though easily Staymates is so unreasonable as to it.” bear v. ITT Holub Industries, justify finding Pa.Super. the manufacturer liable (1987). though However, general the manufacturer is policy deemed “guarantor” products.1 operate be the of its I submit does not where it would cause an exceeding had speed inappropriate unjust that Bascelli been Gallagher result. (1987) limit an hour than Ing, miles rather (cited rocketing through space per Judge at 100 miles Greenberg), another exam- There, ple hour his conduct not have been rele- this. administratrix of the (as determining alleged vant to if the deceased driver of an automobile sued the behavior) opposed responsible to his own was alleging manufacturer of the automobile that However, for his loss of control. a design his conduct defect had decedent outrageous so that amounted to as- driver lose control in fatal car crash. risk, sumption of the misuse of produced The that at evidence trial es- highly that, accident, Dillinger and reckless conduct. In we tablished the time of the hypothesized that all three of those theories driver had blood content of alcohol .18 permissible percent. continue in a defenses The was allowed to consider § proceeding. 402A 959 F.2d at as it 445-46. evidence tended establish that believe absent conduct which is so outra- the decedent was “unfit drive a vehicle geous as to safely,” fall into one of those three cate- 532 A.2d at that the intoxi- gories policy cation; defect, considerations that alleged hold not the caused the guarantor manufacturer Pennsylvania Superior liable as of its The accident. Court However, product plain- control. once such was appropriate, noted that evidence so per se, tiffs becomes unreasonable established intoxication use, Dillinger: any 1. As noted in [its it safe for and without intended] [supplier] guarantor [its condition makes it unsafe intended of a is the must, therefore, safety. use]. its (brackets provided every necessary original). element to make posted he or has exceeded a intoxication to the she never it established but because eventuality That cer- rendering speed unfit limit. is most decedent extent of Yet, tainly foreseeable. that circumstance noted that the defendant drive. The an“intervening decedent had not constitute cause” and will produced evidence had justify period consideration of approxi- therefore drinking scotch been driving in a action unless that mately before his ear hours 1-1/2 such as to had observed conduct rises to a level constitute that some witnesses home and risk, assumption prod- misuse “driving high been at a rate that he had uct, hilly Dilling- dark, winding highly road or reckless conduct. See and speed on a er, supra. though plaintiffs so from scene of the This is mile approximately one leading “set the events to the acci- 1182. The manufacturer accident.” Id. at Thus, Judge testimony Greenberg as expert to the dent motion.” produced had also holding too much into the of Galla- ability a blood alcohol con- reads of someone with Moreover, safely operate gher. Gallagher to discussion percent of .18 centration test, upon reliability of that with a focused the blood appeal ear. On the court noted admitting high, propriety of and evidence of level that blood alcohol propensity gen- to intoxication in view its every or child ... virtually person, adult no erate bias. There is almost discussion of impaired respect ... markedly to liability and that the strict causation issue time, ... judgment, response the coor- address here. The court’s entire discussion things pro- ... all these are dination very liability is of strict at end markedly gressively impaired and ... fo- is, entirety opinion and its follows: everybody toxicologists and else rensic level, Appellant argues says this kind of a alcohol also that the trial court that blood (3) in, allowing appellee’s in a ... person’s being likelihood of involved erred counsel greater ruling comparative negligence that fatal is over times than after principles suggest He no person application,to that a sober ... can still had safely. that ... but not defendant’s drive was sole cause of the accident. We Accordingly, the evidence 532 A.2d 1182-83. carefully have examined contentions these properly admitted to show that the dece- they have and conclude been ade- “incapable driving safely and dent was quately analyzed properly by and decided cause of loss of this was judge. say it the trial Suffice driving.” he at control of the vehicle was Id. appellant’s lacking in contentions are merit do trial. not warrant a new Thus, Gallagher support Judge does not at 532 A.2d position might to the Greenberg’s extent although correctly summary, Judge first he it I cor- appear quences stemming therefrom. (1) (2) product tiff must a show that: agree analy- I majority’s with much of the (3) caused a product harm while the was law, sis of including its discus- being manner.”); in a used foreseeable Ma- Pennsylvania Supreme sion of the Court’s (“If jority Op. foreseeable, at 1332 jury strong compara- resistance the inclusion of plaintiff find for the. unless it finds that principles liability tive fault in strict actions. play substantial, the defect did not even a or emphasize, however, that negligible, more causing than role in equally strong courts been in maintain- injury.”). plaintiffs ing requirement plaintiff that in a then, Plainly, there is a distinction between action bear burden of plaintiffs which, a conduct rather showing than the product both that the was defective product, defective injury was the cause of the and proximately that the defect caused the plaintiffs a and conduct that injuries was so extraor- question. See Berkebile v. Brant- dinary ly 83, 893, and unforeseeable it a Helicopter Corp., was su- 462 Pa. 337 A.2d that Yet, (1975) (“Neither perseding injury. cause of the if the plaintiff 898 can recover injury plaintiffs is a attributable to conduct proving product proof a defect absent character, i.e., causation, of either conduct that was the plaintiff eye where sustains injury cause of the or su- wearing not unforeseeable while safety defective conduct, perseding the defendant glasses.”); will Carrecter Equip. v. Colson product liable even if its was 95, (1985) defective. An 346 Pa.Super. 499 A.2d 329 understanding of Pennsylvania product (plaintiff liabil- must show a defect was “substantial ity requires law concepts kept that injuries suffered); these bringing factor in about” separate that so a court understands Daisy-Heddon, Sherk v. 498 Pa. 450 (1982) category into which the conduct when fits a (“Liability 617 in ... strict attempts plaintiffs defendant to attribute the imposed upon is a manufacturer injury to or his her conduct. simply for the manufacture of a defective product.”). Pennsylvania Supreme Court has not

Thus, plaintiffs spoken a explicitly evidence or third on the issue of how evi- conduct, not, party’s negligent third-party whether or dence of conduct allegation trial, Pennsylva- admissible to rebut the that a de- should be but the treated fect actually injury. Superior caused the Neverthe- nia Court has addressed the issue less, Pennsylvania Supreme has in a Randy, Court number cases. In Bascelli v. Inc., party’s (1985), held that third Pa.Super. or conduct 339 488 A.2d 1110 does not Superior relieve the defendant of Court held that evidence a defect plaintiffs negligent driving a substantial factor conduct motorcycle approximately per accident unless con- hour miles superseding intervening duct constituted a at the time accident admissible to Berkebile, A.2d at See also See speed,and not the excessive that show Raymond Corp., F.Supp. the Kramer v. in the caused alleged defect (E.D.Pa.1993) Id., (holding evidence of at 1113. In Galla- that 488 A.2d accident. admissible demon- Ing, gher v. injury). approved the admission that defect was not strate the court all, hardly level decedent’s blood alcohol After be said that it could evidence motorcycle so intoxicated the decedent was will that unforeseeable that driver “to show driving safely” Nevertheless, incapable of go high in Bascelli speed. that he was at a intoxication, rather than a speed was evidence of that admissible Id., defect, 532 A.2d at the accident. speed, rather than a de- show that the use of a fect, Thus, illustrate These cases accident. Bascelli was caused the to demonstrate plaintiffs conduct case. superseding not a defective injury cannot be attributed majority It me errone- seems to product. ously Dillinger require the exclusion reads how to treat considered We conduct of a of all evidence of foreseeable Inc., Dillinger Caterpillar, causation, plaintiff relating to indicates Cir.1992). (3d Dillinger, F.2d “fatally instruction was errone- the plaintiffs refused to allow evidence require ous it failed to [because] negligence because evidence contributory analyze Mr. Parks’ actions were un- whether prevent an he failed to could show extraordinary.” Majority Op. foreseeable resulting sequence events from indicates, majority then erro- at 1337. The product. a defect set into motion view, neously my “[i]f found Dillinger charac Although in we Id. at were neither the actions unforeseeable Pennsylvania Superi- in the terized the trend extraordinary, it not his nor could have found inject negligence increasingly or Court injury.” ‘legal to be a cause’ of his actions liability actions as incon principles into strict majority Id. result the reaches does not The Pennsylvania rulings of the sistent with the Pennsyl- take into the in account distinction Court, clear distinction Supreme we drew a of a vania law between treatment of conduct which caused between evidence sole negligence which cause of independently of the defect in the injury and which com- exac product evidence of conduct which and product to in the bines with prevent or faded to caused erbated injury. Negligence of the second kind only by explicitly held the defect. We claim if so extraordi- could defeat the Id. type of evidence inadmissible. at latter nary to be unforeseeable. Thus, 442, distinguished 444 Bas n. 23. Gallagher plain as cases where the celli jury charge. I now consider The dis- leading to the tiffs conduct set the events jury trict court instructed the there A of district accident in motion. number accident, possible were four causes ap applied in this courts this circuit conduct, alleged defect in the Parks’ See, proach. e.g., Equip. v. Ballarini Clark conduct, employer’s and his co-worker’s 662, (E.D.Pa.1993), Co., F.Supp. 665 841 conduct, legal all of which could causes (3d Cir.1996) (table); aff'd, 96 F.3d 1431 App. at 416-17. The court accident. Co., Equip. v. Indust. 801 Kern Nissan jury that if it further instructed found (M.D.Pa.1992), 1438, aff'd, F.Supp. 1441 - 13 defect and that “the defect was a substantial (3d Cir.1993) (table). F.3d 404 16 harm, causing your factor in then verdict plaintiff you if ... reading Dillinger requires will be for the find A any legal con- were causes of [that conduct] all evidence of other exclusion of foreseeable already you plaintiff relating to the accident because I told there duct causation cause____ So, may legal requirement of the be more than one would violate clear defendants, you Supreme plaintiff in order to find for the Court that a legal prove alleged find that the defect was not the action must a strict injuries. of the accident.” Id. 417-19. defect in the statement, charge with this confuses substan I this as consistent regard i.e., causation, charge recognized responsibility tial factor The law. instance, prod- if combination of defect the defendant the first su person’s negli- cause, perseding superseding Parks’ or another A uct and causation. accident, foreseeable, plaintiff gence caused the breaks the chain causation, much fact majority jury The makes win. but the must first find that phrase legal majority’s holding used the “the the court there was a chain. The Majority than “a cause.” requirement majority cause” rather eliminates this and the “[cjausation agree that “a” Op. says may at 1336-37. While pro be shown elimination____” situation, I do proper Majority Op. article to use cess charge so agree majority that this error taints The does not have case law jury. support a whole that it could have misled this conclusion. The cases it cites con- judge superseding told the to consider the deal with accidents where causes only as it relates to the initial causation duct exist after the defect first is found to be a factor, e.g., which events were of the accident evaluate substantial Decorative Precast Erectors, acci- bringing Bucyrus-Erie about the substantial factors Stone Inc. Furthermore, interrogatory (W.D.Pa.1980), F.Supp. aff'd, dent. “No,” (3d Cir.1981) (table), thereby answered re- which the F.2d 441 where the defendant, recklessly for the read as turning plaintiff allegedly exposed verdict himself defect, in the excavator a Equip. follows: ‘Was the defect to a v. Power Line Childers Rentals, Inc., about Mr. Pa.Super. factor course, (1996), had the change Parks’ death?” 208-09 where substantial interrogatory charged, it deliberated and when misuse of a Eck v. Pow Houdaille, I cannot believe that the these circumstances ermatic charge of “the” than “a” use rather or where the exis mattered. tence of a defect rather than causation is at issue, AMF, Inc., Schell v. see view, majority’s holding that a my (3d Cir.1977). charge required is funda- foreseeability mentally wrong because the face none of situations in this We those presented not third-party conduct was to the case. The issue at trial here was whether jury superseding as a cause of the accident. a substantial the defect Rather, that the defense advanced conduct causing jury factor in the accident. The su- the sole cause of the accident. a correctly if instructions said that it was the situation, is a perseding cause the defect still plaintiff jury win. found for the The accident, of the or a substan- “but for” cause by answering interrogatory defendant an ex- factor, superseding cause of the tial but the pressly a finding that the defect was not may from lia- excuse the defendant bringing about the acci- substantial factor Here, bility if not foreseeable. majority The will not allow a verdict dent. charged jury wheth- the court the to consider jury’s interroga- based on the answer this alleged a fac- er the defect was “substantial tory to it holds that a foresee- stand because causing jury tor” in the accident and the “legal cannot a able action the be It me to be found that it was not. seems to Majority Op. an cause” of accident. at 1336- lays precepts that a court the clear when “Instead, picture, it is from the removed against charge, it law the remaining to the causal attaches charge that the did not in- should conclude Majority Op. at I or actor actors.” clude a error. reversible simply wrong approach believe that this is jury’s my main view and for it eliminates the role determin- The difference between view, is a factor majority’s ing the the result we whether a defect substantial besides reach, involving cau- majority’s holding “the an It turns all cases is the that accident. plaintiffs superseding cause eases the question threshold is whether the sation into Majority plaintiffs par- or third Op. at that unless the actions were foreseeable.” sense foreseeable, ty’s not it cannot be do not it can make conduct is 1332. I understand how Bascelli, proximate issue de- deciding the cause the accident. As legal cause case, motorcycle ciding contrary jury so expressly hour to the which per it miles the 100 demonstrates, wrong. is following question: this clearly “no” to the answered the fact that the opinion overlooks majority in the excavator a substan- “Was the defect chain of causation find a jury first must bringing Mr. Parks’ tial factor superseding a considering whether before im- the machine had death?” The fact that that chain. It assumes a cause breaks jury visibility find paired doubt led the no exists. chain finding simply Yet that was defective. that a view, did not determine the defect was majority’s defendant Under acci- if factor in about the a defect even liable for could be found Thus, just already, happening I have indicated not contribute dent. defect did accident, majority involving removes majority because all cases causa- turns possibility that foreseeable plaintiffs party’s from the case con- tion or third when party a third plaintiff or conduct of the superseding is cause eases duct involved into important It is accident. cause of the party’s third so that unless the is just an accident remember unforeseeable, cannot conduct is might cause does not a defect type which of the accident. cause necessarily did cause mean appeal I this is As far as am concerned up to make It is the accident. incorrectly being decided itself Thus, determination, not I the court. do this consequences unfortunate. But the Pennsylvania Supreme Court not believe beyond case. There majority opinion go the result reached here. The would condone many diversity citizenship products are opinion majority’s will force district tried cases under law on the on incorrect try the case remand publica- in this circuit. From the time of the require and will it to deliver principles of law opinion in this tion case district incorrect, charge. following courts will confronted responding my dissent in which Pennsylvania law, as announced the Penn- majority emphasize that does take sylvania permit the to con- courts and plain- the distinction between into account party’s clude or third con- sole negligence which is the tiffs duct, foreseeable, the sole can be injury and conduct that was injury, proximate following cause of an intervening superseding unforeseeable majority’s opinion clear that the which makes majority sets injury, forth the to plaintiffs can be attributed or third following: party’s only if precisely of the second instant case I presume foreseeable. the district explicitly yes answered type: opinion majority’s courts follow the here will question, “Was the Gradall excavator may and thus the outcome of a case be the time it was at manufactured defective on it is determined whether tried the state at App. 432. The machine’s and sold?’ court. This is federal serious business. impaired visibility precisely defect area in which the accident occurred. Judge misinterprets McKee’s concurrence with the dissent’s above de- In accordance holding I suggest appropriate be scription, the manufacturer the defective persuade here thus it does me be held hable unless product should believe, my wrong. I views are do not plaintiffs actions were unforeseeable. do, Judge I at suggests McKee Concurrence Op. 1333 n. Majority 1338-39, 3. that a be conduct can liability merely used to reheve a defendant of foregoing analysis I deduce from because it contributed to an accident caused majority, sitting appeals, a court fact, opposite a I defect. believe the determining matter law must as a Yet, jury be true. a must determine whether nature of the it to be defect meant had a actually the defect is a substantial factor in bringing factor about the acci- substantial causing the majority thus consider dent. I understand how the cannot else, conduct, including a what can make determination because this have caused the accident without con- plaintiff could terial and thus if the was negligent Thus, agree from defect. with tribution would not bar his claim. “ Judge McKee when he states: the al- Rather, ‘[i]f he would lose because the defect was leged defect a substantial factor not a substantial bringing factor in about the harm,’ bringing assumption about the absent accident. The properly district court tried risk, highly misuse of reckless applying principles case these conduct, it is irrelevant whether (and probably law the law merely set the events motion or States) throughout establishes, the United prevent injury____” failed Concur- and thus we should affirm. however, Unfortunately, rence 134CM1. In the circumstances I am constrained to being the result here reached will not allow dissent. whether decide the defect “a in bringing factor about harm.”

Indeed, Judge explanation McKee’s Judge opinion effectively Cowen’s admits because, Cowen,

point quoting Judge he indi- “[ejvidence cates that ac- decedent’s tions in the is appropriate instant case if such determined that actions ‘not America, were UNITED STATES of reasonably foreseeable or were ex- otherwise traordinary.’” Concurrence at This 1340. Ronique BELL, Appellant. Roberta simply statement cannot be correct because opportunity removes from the No. 96-7654. consider whether the defect was “a substan- Appeals, United States tial factor in about A Court the harm.” plaintiffs unexceptionable may Third Circuit. plaintiff using a defective to be Argued April

injured without the defect contributing injury. example, May For Decided might car delivered defective brakes if plaintiff driving

but the car who is get accident, into an whether or he is negligent, brakes, use does not then the simply is not a substantial factor

bringing about harm if the brakes would not have worked had applied them. such case the defendant

should be able to establish the defective nothing brakes had do with the accident and the defendant should win Berkebile, liability case. See at 901 (“Whether actually attempted decedent auto- rotation relevant to the issue of causation. conclude, example, If the were to system non-defective would allow two seconds autorotation and that dece- attempt dent did not autorotation for three seconds; shown, even a defect was proximate

not have been the crush.”). my The fact in example brakes plaintiff might negligent been imma- notes believe Cowen plaintiffs rectly example as an of a case where a summarizes the state of § leading conduct did set the events law under 402A of the Restatement. Evi- motion. at 1342. In actions in accident in See dissent dence decedent’s the instant theory, Gallagher appropriate only conduct in would have ease is if a determined leading reasonably set events the accident that such actions were “not fore- marginal extraordinary.” motion im- or had the evidence shown seeable were otherwise added). 1336, Majority (emphasis pairment Op. or that the driver had exceeded the Yet, by Judge analysis speed per Greenberg’s limit 5 miles hour. I do not feel that do any meaningful not believe those situations a allows distinction be- could conduct on the issue tween circumstances where con- consider causation, if a manufacturer could duct becomes relevant causation —even by precluded policy where it show that had the not been exceed- those consid- limit, ing speed slightly not been erations that drive the doctrine of strict lia- impaired, particular bility as enunciated defect would not alleged If itself “a substan- been sufficient loss courts. harm,” honestly bringing among control. Few us state tial factor ab- can risk, Thus, assumption injury. sent misuse of cause of the the defendant is conduct, highly is irrelevant liable long reckless as the defect was “a substantial whether conduct set the events in factor in about the harm.” Powell Drumheller, merely prevent injury, motion or faded to 539 Pa. 653 A.2d Dillinger and I read our citing do not decision Hosp., Jones v. Montefiore (1981). contrary. course, Pa. 431 A.2d Of a superseding relieve a defen- GREENBERG, Judge, dissenting. Circuit dant whose conduct has been determined to harm, causing substantial factor in Judge thoughtful has Cowen written extraordinary must be “so as not to have opinion law, in a difficult field of I am but Powell, been foreseeable.” I interpret aspects forced to dissent because 623; A.2d at Kuisis v. Baldwin-Lima-Ham- Pennsylvania products liability funda- law Corp., ilton 457 Pa. mentally differently. explain my I first will (1974). Accordingly, ordinary negligence will my explain view of law and then differ- majority recognizes do. The point. majority ences with and the conse- See, e.g., (“[T]he Majority Op. plain- at 1331

Case Details

Case Name: Parks v. AlliedSignal, Inc.

Court Name: Court of Appeals for the Third Circuit

Date Published: May 14, 1997

Citation: 113 F.3d 1327

Docket Number: 96-3256

Court Abbreviation: 3rd Cir.