*1 of the contract rely language on the is entitled Indemnity of public in contravention is language not here where policy. Court of the Commonwealth the decision
Accordingly, reversed.
Robert Thomas for Navis- tar Intern. Transp. FLAHERTY, C.J., ZAPPALA, CAPPY,
Before CASTILLE, NEWMAN, NIGRO and JJ.
OPINION NIGRO, Justice.
This presents opportunity case first to Coisrt’s address product liability non-product whether defendants and liabili- ty defendant are entitled to judgment when the plaintiff allegedly preserve has failed to a defectively-designed below, product. For the reasons discussed we reverse the Commonwealth Court’s affirming grant decision sum- mary Appellees. designed Transportation Corporation
Navistar International of a truck and sold cab and chassis and manufactured Gary of 1986. August Truck Center them Sheets from containing parts truck these Kelly bought Schroeder 5, 1991, driving Gary was May Schroeder in 1988. On Sheets lost control. a state road when he southbound on the truck roadway, northbound lane of the into the The truck crossed time, embankment, At the and turned over. an struck (PennDOT) con- doing was Transportation Department berm of the road. There away had cut struction work and accident. to the eyewitnesses were no truck and upon work came travelling to police A officer The roof on the spinning. were still saw that the front wheels trapped crushed. Schroeder partially driver’s side was him, in the help ignited a fire the officer tried inside. While officer, to the According the cab. and consumed engine area out. died until the fire broke Schroeder was alive Schroeder at the scene. facility. Mar- towing taken to a truck’s remains were the wrecked truck arranged buy Salvage & Sons
gala up adjuster. Margala picked & Sons an insurance through 18, 14, 1991. facility on June On June towing the truck at the destroy not to Margala asked Kelly attorney Schroeder’s it. made to examine until could be arrangements truck’s cab 26, July truck for a fee. On to store the Margala agreed insurer, title over to her Great the truck’s signed American August On Great Company. American Insurance February of Margala. By ownership transferred parts. the truck’s had sold some of Margala and survival actions wrongful death Kelly Schroeder filed *4 PennDOT, Truck Cen- Navistar and Sheets against Appellees Pleas in Court of Common Washington County ter in the complaint asserts in her of 1992.1 Schroeder October wheel of his truck right lost control when Gary Schroeder July United States initially Appellees in of 1992 in the 1. sued Pennsylvania. The case was the Western District of District Court of Amend- jurisdictional grounds and because the Eleventh on dismissed against PennDOT in federal court. ment bars suits off cut dropped edge roadway where PennDOT had away alleges the berm. She that when Gary Schroeder tried to the truck back onto it bring roadway, sideways slid road, embankment, across the struck the Schroe- flipped. and included, alleges among der that PennDOT’s negligence other things, the creation of a dangerous road condition and the failure to warn of its existence. Schroeder further asserts negligence, claims of strict liability, warranty and breach Navistar against manufacturing selling and Sheets and truck that crashworthy. was not expert
Schroeder’s examined the of the truck that parts Margala had not of 1992 sold December and Navistar’s in March expert sought examined them of 1993. PennDOT examine the remains in June of 1993 Margala ultimately told it that they Alleging had been sold. that Schroeder failed to preserve purposes litigation, including the truck for primarily respect cab at issue with liability, Appel- lees filed separately August motions Appellees 1994. maintain that they effectively precluded are from defending Schroeder’s claims.
Summary judgment may
granted
be
when
plead
ings,
answers, admissions,
depositions, interrogatory
affida
vits, and
if
expert reports,
any, show that
is
genuine
there
no
issue as to any material fact
the record entitles the
moving party
judgment
as a matter of law. Pa. R. Civ. P.
addition,
alone,
1035.2. In
testimony
through
“[o]ral
either
testimonial
depositions,
affidavits or
of the moving party or
witnesses,
uncontradicted,
the moving party’s
if
gener
even
ally insufficient to establish the
genuine
absence of a
issue of
Id.,
material fact.”
Note (citing Nanty-Glo v. American
Surety
309 Pa.
The trial the Court’s deci- part upon Superior judgment. It relied Pa.Super. 599 Electric in Roselli v. General sions (1991), Hocking v. Anchor Consumer and DeWeese A.2d 685 47, 628 A.2d Pa.Super. Group, Industrial Products for defen- (1993), summary judgment granted was where at issue were products suits after the in product dants cases were decid- found that these destroyed. The trial court or loss of a that destruction policy grounds on the public ed a defense. preparing defendant from may the product prevent cases, of Roselli federal rejection the acknowledging While by Superior that it was bound trial court stated Court’s decision. that she tried rejected argument court Schroeder’s
The trial Rather, found that she truck. the court preserve ultimately prevented and that her actions transferred its title it after the the vehicle as existed examining from Appellees that rejected argument further The trial court accident. not warranted because Schroeder summary judgment was trucks. It stated common to other design defect alleged control method of Appellees’ would that otherwise Schroeder uncovering from other causes experts their preclude proof for the accident. grant summary Court affirmed
The Commonwealth that holding It as quoted for DeWeese Appellees. suffered claiming an action he brings a plaintiff “where product, produce his failure as a result of a defective injury will render by the defense product inspection him The Commonwealth appropriate.”3 judgment against rationale of Roselli and DeWeese policy that the Court found that since she design defect claims and to Schroeder’s applies truck, appropri- was preserve did not prejudiced were Appellees The court also concluded ate. they present since would be unable the loss of evidence by causation defenses. Schroeder, (Pa.Commw.1996). at 730 676 A.2d in Roselli and DeWeese Superior Court’s decisions present in the case. dispositive not of the issues
are Roselli, a coffee carafe shat injured when plaintiff alleged She sued the manufacturer and tered her hand. plaintiff malfunctioned.4 The lost carafe’s that the inspect could them. The pieces broken before defense *6 summary judgment a of for the grant Court affirmed Superior of evidence. It rea upon spoliation manufacturer based the of the public policy, requiring plaintiff soned that as a matter fraudu allegedly product discourages to an defective produce claims. 410 defending lent claims and facilitates valid Pa.Su 227-28, 599 at The court also found that per. at A.2d 687-88. plaintiff possible failed to eliminate other causes the given prior malfunction evidence related to the carafe’s use. 230, 599 at Id. at A.2d 688-89. Roselli, opinion Judge
In a
Del
dissenting
Sole stated
it
function
jury’s
weigh
testimony
that was the
since the
theory
malfunction
allows a
a
plaintiff
prove
defect with
circumstantial evidence.
Id. at
Roselli not apply does here. As discussed further a alleges design defect common to all trucks like her husband’s truck — not the malfunction of one product. for proof product liability The burden these claims not is Moreover, the same. against Schroeder’s claims PennDOT concern the dangerous roadway condition of the and have Thus, nothing to do with a product. defective Roselli does not control whether defendants this case are entitled judgment as a matter of law. is a product
DeWeese
also
malfunction case.
impor-
More
tantly,
produce majority
it did not
a
opinion. Judge Olszewski
theory
liability,
plaintiff may prove
4. Under a malfunction
a
of strict
a
product defect with circumstantial evidence of the malfunction’s occur-
eliminating
possible
Rogers
rence and evidence
other
causes.
v. John-
Products, Inc.,
176, 182,
son & Johnson
523 Pa.
565 A.2d
discussing
finding
an
Roselli and
opinion
authored
identify
could not
plaintiff
warranted because
Judge
In a concurring opinion,
manufacturer.
product
summary judgment
Elliot
that
was warranted
agreed
Ford
manufacturer
inability
identify
plaintiffs
because
reliance
Roselli.
Judge
upon
with
Olszewski’s
disagreed
but
McEw-
wrongly
Judge
that Roselli was
decided.
She believed
most,
for the
in the result. At
DeWeese stands
en concurred
plain-
is warranted when a
summary judgment
principle
That is not the
tiff cannot
manufacturer.
identify
product
Thus,
upon
Court’s reliance
case here.
the Commonwealth
appro-
for the proposition
DeWeese
an
produce
allegedly
cannot
defective
priate
plaintiff
when
was erroneous.
inspection
Appeals
appropri-
addressed the
The Third Circuit Court
design
of evidence
defect
spoliation
ate sanction for the
Electric Tool
Having authority, adopt considered to the of evidence Schmid. approach spoliation Circuit’s Fashioning spoliation a sanction for the of evidence based fault, and other available sanctions will dis upon prejudice, courage intentional destruction. The burden of plaintiffs proof at trial to establish that a defective caused his injury protect will defendants cases where it is determined upon spolia not warranted based tion. case,
Applying the Schmid factors to this the product summary judgment. defendants are not entitled to fault, With there is a respect dispute factual as to Schroe preserve der’s counsel’s efforts to the truck. While Edward Margala Margala & Sons maintains that his agreement to preserve the truck ended in August there is also reflecting evidence Schroeder’s counsel’s understanding that Margala & to preserve Sons was the truck after that date and storage.7 bill her the cost of
Although
fact,
this
recognizing
dispute the trial court
found
signing
nonetheless
Schroeder at fault for
over the
truck’s title to
company
filing
her insurance
before
suit.
counsel, however,
Schroeder’s
asked
Sons to
Margala
pre-
&
serve the truck before title was transferred. There is no
evidence of the circumstances surrounding the transfer of
title. Although Schroeder’s action
led to the
ultimately
loss
Schmid,
applied
Since
several district courts have
the Third Circuit’s
summary judgment inappropriate
test and found
even in cases where
See,
only particular product
allegedly
e.g.,
defective.
Howell v.
Maytag,
(M.D.Pa.1996)(denying summary judgment);
the the motions do request the was bad faith. Given negligent the transfer conflicting transfer the evi- preservation before the and last, to how to we cannot long preservation dence as the was conclude, did, our as lower courts that Schroeder’s fault to Appellees summary judgment. entitles third elements of the Schmid test The second also and that is Since summary judgment inappropriate. dictate claim is a upon design Schroeder’s based kind, to all of its to prejudice common trucks the the defect can exam great.8 They comparably is not test and Appellees Schmid, defect. See alleged design trucks for 18 ine other the cases).9 (discussing prejudice design 76 minimal defect F.3d inspect other trucks for the Appellees may Since test defect, jury a instruc- design a lesser sanction such as alleged may spoliation Appellees tion on the inference warranted. at trial court present may evidence of and the spoliation that jury may parts the that it infer the truck’s would instruct addition, Appellees In have been unfavorable Schroeder. alleged modification may present evidence about truck’s may present sale. be some Appellees after its While unable truck examining related without evidence causation accident, proof remains with Schroeder to burden Thus, prove summary that a caused her harm. product defect crashworthy. Specifically, alleges that was not 8. Schroeder truck (1) theory, prove design vehicle this she that of the was Under must alternative, made, safer, design and that an defective when the existed; (2) injuries, design any, plaintiff practicable what if would used; design have received had alternative safer been what Kupetz injuries design. were to the defective v. Deere & attributable Co., Inc., 16, 27, Pa.Super. 644 A.2d motion, support of its submitted Navistar an stating the truck its employee’s affidavit was altered after sale. argument. states that withdrew this at oral Navistar affidavit argues transcript reflecting Navistar the withdrawal evi- part original is not record. the affidavit was dence Whether not, rely upon statement withdrawn or court cannot the oral of a moving party grant judgment. R. Civ. of a Pa. P. witness 1035.2, (citing Nanty-Glo Surety Pa. Note American (1932)). product's provide While evidence of alteration would A. 523 showing stronger prejudice, simply here there is insufficient any at all —of such an alteration. evidence —if *9 judgment is not product liability warranted defendants on spoliation the basis of of evidence.
Appellee PennDOT is also not entitled to summary above, on this basis. As discussed summary judg ment is not warranted due addition, to Schroeder’s fault. In the second Schmid applying factor, PennDOT suffers less prejudice from the product loss of the product than the liability defendants. While may PennDOT also be unable to establish other accident, theories causation of the PennDOT can defend the claims brought against it since they have to do with the condition the roadway and not the truck itself. Thus, under the third Schmid factor, a lessor sanction such as instructing jury on spoliation inference is proper. Since Schroeder’s against claims PennDOT have to do with the condition of roadway, summary judgment for Penn- DOT upon based the spoliation of truck is particularly inappropriate. sum, we adopt in Schmid to determine the the test
appropriate sanction against a party who fails to preserve a product that subject is the of litigation. Applying the Schmid here, test is not warranted favor of the defendants PennDOT. We thus reverse the Commonwealth Court’s affirmance of the trial court’s grant of summary judgment in favor of Appellees and remand for further proceedings.
FLAHERTY, C.J., files a dissenting opinion in which CASTILLE, J., joins.
FLAHERTY,
Justice,
Chief
dissenting.
Although
majority
opinion expresses a logical and per-
believe,
suasive
I
approach,
respectfully,
majority
approach
incorrect,
is based on an
unnecessarily rigid applica-
tion of Nanty-Glo
Borough v. American Surety
309 Pa.
Navistar Truck a truck cab and chassis sold it Sheets factured sold Center, body truck the chassis and Inc. Sheets added a Gary Kelly September, the vehicle body the truck and shortened The Schroeders removed of an chassis, converting van into the front end large their *10 ” “eighteen-wheeler. Gary tractor that radically It was this altered corrugated trailer with driving, hauling a flatbed loaded tractor-trailer, in the resulting lost of his when he control pipe, 5, 1991. May of fatal accident driving that Mr. Schroeder was pretending
Instead of
recognized
the lower courts
by
truck produced
appellees,
prior
by
alterations effected
Schroeders
substantial
in
led to
result
This factual conclusion
a different
accident.
case,
I
correct.
a result believe is
of
is that
majority’s
reason for the
denial
the obvious
affidavits, a
in
of the alterations is contained
testimonial
proof
summary judg-
in the context of
source of facts
questionable
in
holding Nanty-Glo Borough
I think the
proceedings.
ment
1035.1,
Co.,
Surety
and Pa.R.C.P. Rules
supra,
v. American
1035.2,
permit
flexibility
acknowledgement
1035.3
in
and
some
affidavits,1
forth
and this is the
of facts set
in testimonial
affidavits,
facts.
and the
case to admit such
With the
perfect
deny
it
accompanying photographs,
is ludicrous
dozens
truck
in the accident was a tractor-trailer
that the
involved
sold
fundamentally
from the van manufactured and
different
rule,
on the
did
Appellant, relying
Nanty-Glo
by appellees.
that the truck
substan-
allegation
not contradict the
had been
altered,
she,
reality.
nor
in conscience
Like the
tially
could
alone,
testimony
following
states:
1. The note
Pa.R.C.P. 1035.2
"Oral
through
depositions,
moving party
testimonial affidavits or
of the
either
witnesses,
uncontradicted,
generally
moving party’s
even if
or the
genuine
of a
fact.”
insufficient to establish the absence
issue of material
added;
Co.,
Surety
supra,
(Emphasis
citing Nanty-Glo v.
American
House,
171,
(1989).)
Hoffman,
Pa.
Center
Inc. v.
Recognizing the fundamental of alteration the truck after it left the hands of appellees, it is clear that spoliation of the evidence had a disastrous appellees’ effect on ability to defend the lawsuit. This is not typical case, design defect in which every product is identical every other that if so the vehicle lost, involved the accident is any other vehicle equally could Rather, well be tested. the vehicle involved in the accident distinctly different from the other vehicles manufactured by appellees, and sold testing and one of the other vehicles entirely would fail to duplicate the conditions of the Schroeder truck.
256
Therefore, of Milwaukee applying the test Schmid v. (3d Cir.1994), 76 I reach the Corp., Tool 13 F.3d Electric majority. suggested conclusion from the Schmid opposite of three factors: consideration
(1) destroyed of the who degree party the fault of altered evidence; by suffered the degree prejudice the (3) whether there is a lesser sanction party; and opposing party unfairness to the opposing that will avoid substantial fault, and, seriously is at will offending party where others in future. by to deter such conduct serve Schmid, First, at as between the fault parties, 13 F.3d Second, entirely appellant. prejudice on the is side Third, no than overwhelming. is lesser sanction appellees by suffered prejudice can overcome appellees. error, view, in granting no my
There was therefore International, judgment in favor of the manufactur- summary Sheets, er, The issue is whether it remaining seller. PennDOT, grant summary judgment in favor of was error predicated is not on the of the truck whose condition roadway. the condition of the but on argues against that her cause action PennDOT Appellant maintenance, roadway. negligent design, care of the is that she the existence of a argues only She must demonstrate dangerous that the condition caused dangerous condition and dangerous of a is accident. existence condition fact, v. precluding judgment. Bendas question (1992); Deer, Pa. 1184 White A.2d Township of PennDOT, Lloyds at London Pa.Cmwlth. Underwriters 603 A.2d that, although contributory negli- response PennDOT’s is case, not a in a it is products liability defense gence case; in a negligence defense condition of *12 therefore critical element in the case defending vehicle was a pre- to against appellant’s PennDOT. It claims failure rebutting from unique prevented serve evidence PennDOT theory of with tort defenses of appellant’s traditional plaintiffs contributory negligence comparative as well as the of causal of percentages negligence co-defendants. PennDOT of generic claims that examination truck is useless to determine the extent to which Schroeder’s used and altered causing question vehicle contributed to the accident. The causation is also critical in determining applicability of the of sovereign immunity. defense against cause of action entirely PennDOT relies on the (and allegation that the road condition not operation or truck) condition of caused the decedent to lose control. allegation requires plaintiff This to prove that his case falls Act, Sovereign Immunity § within the seq. Pa.C.S. 8522 et (1) He must of action prove cause is one for which statute; (2) had at or recovery may by be common law cause of action is one nine enumerated exceptions sovereign immunity; plaintiffs injuries were caused by negligence the commonwealth defendant. The real property exception Sovereign Immunity Act is narrowly to be immunity only construed so as waive when realty the commonwealth itself injury causes and not when injury is aby dangerous caused motor or vehicle human Harmon, condition on Snyder the land. 522 Pa. A.2d
Appellant’s argument presumes causation by preventing PennDOT from rebutting the issue with the con- decedent’s tributory negligence or an apportionment of negligence among ignores co-defendants. It also the fact that sovereign immunity is not if waived a mechanical defect of the Schroeder
vehicle caused it to leave the road fail to return safely case, the road. In this when the operator is unavailable to testify accident, and there are no eyewitnesses to the Penn- DOT’s sole of challenging means appellant’s theory of causa- tion is to expert have an reconstruct Appellant’s the accident. failure to preserve wreckage permit the truck does not this, leaving position PennDOT tantamount to strict liability for the accident. To permit the action to proceed against PennDOT would impermissibly contributory remove negligence as an available defense. I that spoliation conclude *13 defense harmful to PennDOT’s at least as wreckage was of the Sheets, so there International and it was to the defenses as to PennDOT. in granting no error the order of the Commonwealth I would affirm Accordingly, Court. J.,
CASTILLE, dissenting opinion. this joins