Sherk v. DAISY-HEDDON, ETC.

Constitution its framers. Its insertion the Court branch unnecessarily deprives co-equal juris- of concurrent diction over activities of There is basis attorneys. no simply in the Constitution for the Rule’s use of the word “exclu- sive”. I would grant Ethics Commission’s

Accordingly, appli- cation for clarification.

450 A.2d 615 SHERK, Monica Administratrix of the Estate of James Sherk, Deceased,

Louis v.

DAISY-HEDDON, A DIVISION OF VICTOR COMPTOMETER

CORPORATION, Appellant SAENZ, Saenz, Michael June and Robert Saenz.

Supreme Court of Pennsylvania.

Argued March 1982. Aug. Decided 1982. Reargument Denied Oct. Pitts- Jordan, IV, Grigsby, Rhodes & Thompson,

John W. burgh, appellant. for Monica Sherk. Mansmann, Pittsburgh,

Peter J. Services, Pitts- Donadee, Legal Neighborhood Michael A. June for Michael and Saenz. burgh, for Robert Saenz. Bould, Shelley Pittsburgh, LARSEN, ROBERTS, NIX, O’BRIEN, J., and Before C. jj. hutchinson, McDermott OPINION ROBERTS, Justice. administratrix of filed the by

This is an action in trespass Dai- against appellant-defendant the estate of James Sherk Allegheny Pleas of of Common in the Court sy-Heddon (Second) of Restatement liability, on counts of strict County (Second) Restatement 402A, Torts misrepresentation, § administratrix, the ap- The 402B, negligence. Torts § of James for the death damages seeks appeal, on pellee head aby been struck having after Sherk, who died Model 880 King pump-up Power from a Daisy “B-B” fired At trial the decedent. Saenz, friend of a air rifle Robert the that theory on appellant proceeded against appellee rifle, had failed to appellant, manufacturer of the air an provide adequate propensity of the rifle’s lethal warning and that failure to warn of the lethal alleged propensity of the air rifle At the had caused James death. Sherk’s close of the the case to evidence, the trial court submitted with jury instructions on the count of strict but liability, denied instructed on the appellee’s request be jury counts of misrepresentation and negligence.

The on jury returned a verdict favor of but appellant, J., appeal panel of the Court Superior (Lipez, dissenting) reversed the entered verdict and re- judgment upon the manded for a new trial. 427 A.2d 657 Pa.Super. (1981). Superior Court the trial court’s refusal upheld to submit the count of but jury,1 to the misrepresentation because, view, deemed a new trial to be in its necessary trial court had refused to charge improperly negligence and had evidence of the erroneously excluded that BB marketed “community’s perception” guns previously appellant had been non-lethal.2 trial, Because the evidence presented including plain- tiff-appellee’s evidence, own finding precluded allegedly inadequate Power accompanying air rifle death, caused James we conclude that Sherk’s the Superior Court erred in disturbing judgment Hence, trial court. we reverse the order of the Superior appeal aspect Superior 1. No has been taken from this Court’s ruling. sought through 2. Plaintiff had to demonstrate the excluded evidence propensity Daisy King that the lethal of rifle not the Power air would generally by public warning have been known the without a to that (Second) j (1965) effect. See Restatement of Torts 402A comment § (warning required danger, danger, potentiality not “when the or generally recognized”). known and The excluded evidence included Daisy products King advertisements other than the Power that parents. had not been seen Robert Saenz or his propensity previously Plaintiff did mar- establish the non-lethal Daisy products through testimony keted Director of Prod- Development uct Evaluation and the Director Research Daisy-Heddon. entered judgment upon jury’s Court and reinstate the in favor of appellant.3 verdict

I held that plain Court Superior properly While and strict of both negligence tiff on theories may proceed 457 Pa. Corp., v. Baldwin-Lima-Hamilton see Kuisis liability, concluded that the it (1974), erroneously 319 A.2d 914 or to admit trial failure to charge court’s in negli new trial. Liability evidence challenged requires a manufacturer upon strict is not gence imposed Rather, product. for the manufacture of a defective simply sustained injuries must demonstrate plaintiff Azza defect. See caused product’s were proximately (1978); A.2d 1020 480 Pa. rello v. Black Bros. 83, 337 A.2d Corp., v. Brantley Helicopter Berkebile Corp., Kuisis v. Baldwin-Lima-Hamilton (1975). also See King Power Daisy The claimed “defect” supra. failure on the the alleged Model 880 air rifle was pump-up adequate an provide part appellant Daisy-Heddon Although lethal King’s propensity. of the Power warning propensi if the lethal on the theory appellee proceeded never have directed would known, had been Robert Saenz ty head, appellee’s proof the Power at James Sherk’s King concluded that it must be facts from which established knowledge with chargeable Robert was legally Saenz lethal King’s propensity. Power old on the day Saenz, years was fourteen Robert who he and James Sherk on that day testified that shooting, and tin cans bottles glass Power firing had been Robert feet. Saenz twenty of fifteen to from a distance pumped times many you on how aware that “depending] reassigned on June to this writer 3. This case was plaintiff-appellee, did his as behalf of Robert Saenz testified on par- and his Robert Saenz parents, Saenz. Both June and Michael defendants, joined by appel- having been also additional ents were and Mrs. in favor of Mr. verdict lant. The trial court directed a along Saenz favor of Robert a verdict Saenz and the returned challenge parties not appellant. The do with its verdict favor of parents. relating Saenz and to Robert the determinations fired could the BBs from the rifle shatter the up,” [the rifle] through bottles and the cans. He also testified that pierce had he known the air rifle was that “some[what more] BB had powerful” spring guns previously than the he used. Moreover, he knew that a BB fired from the Power King blind a and that he never point gun could should person Indeed, that he had anyone. expect- Robert Saenz testified to use kill and rats. He King ed the Power rabbits had been told his father and mother not use the Power King until his had him its use. father instructed On the the day gun Robert used without shooting, Saenz and read the instructions accom- permission having without panying King.4 the Power

Robert familiar operation Saenz was with the Power King. He knew that in order for air to be pumped rifle, into the the had to and the bolt be manual opened safety position, device had to be to the “on” pushed the rifle position red mark that the was indicating ready fire would not visible. He the be also knew trigger would not when fire the rifle the bolt was or when open the was to the “on” Robert safety pushed Saenz position. that, admitted he had Power when directed the at the King decedent, he knew that the Power had been King pumped with air. He testified that he didn’t bother” to “just check position Instead, the he safety pushed device. device assumed went on safety “just that it safe.” In fact, he had from the “on” to the “off” pushed safety enabling the rifle to fire. position, thereby Robert that he Saenz testified had stood five feet from decedent, who was on and that sitting he ground, pointed had of the Power at the King barrel decedent’s head. He name,” testified that he had Jimmy’s “called intending him, that James Sherk would turn look at then “squeezed trigger, was on.” thinking safety testified, Robert around, Saenz further “I just horsing days during 4. The other evidence also establishes two shooting week of the Robert Saenz had Power used the without parents’ permission. He said I was around.” just fooling to scare him. intended head, he rifle at James he directed the Sherk’s that, when be doing” that shouldn’t something “this was knew that [he] friend.” injure that could something was and “this [his] Power air rifle King it clear that evidence makes This in a manner that Robert Saenz was misused Robert Saenz by his knowl- bodily injury. Despite cause serious knew could Power could kill animals King BBs fired from the that edge the Power King directed Robert Saenz person, and blind head. James from close Sherk’s range was gun lethal Where, here, propensity as user, to the liability have been known known or should because merely the manufacturer imposed upon cannot be warn of that pro has failed to allegedly the manufacturer Prosser, As stated Dean pensity. that strict no reason to doubt to be appears

“[t]here rule, settled in the well change has made no is not to be cases, product that the seller of makes an abnormal use of when the consumer held liable that ground this has been put it. Sometimes for normal only has assumed responsibility manufacturer ” uses; off on cause.’ gone ‘proximate sometimes it has Citadel, 791, 824 Prosser, The Fall 50 Minn.L.Rev. v. Atlantic Steel See Salvador omitted). (1966) (footnote Boiler 24, 32, (1974) (“a 319 A.2d his advertising by marketing manufacturer use”); intended it is safe for its impliedly represents comment h (1965) of Torts 402A (Second) Restatement § when it is safe for (“A is not in a defective condition Thus, because this normal handling consumption.”). is legally chargeable record demonstrates that Robert Saenz risk of the nature of the with sufficient appreciation exclusively responsible misuse of the Power he is King, of his misuse. consequences II on the if the theory parents cannot Appellee prevail lethal King’s had known of the Power Robert Saenz would not have Robert they permitted Saenz propensity, have of the Power possession King and thus be a position to misuse it. The King purchased Power Mrs. Saenz from a mail order at the of Robert catalogue request and his older brother Mrs. Saenz testified that she had “no Wayne. did knowledge not know “what BB look guns,” guns like.” She the Power air rifle without purchased husband, her consulting informing at a time when her son hit at the Wayne “just right moment with the proper [her] approach.” mail, When the rifle arrived in the Mrs. Saenz did not Instead, the box or read the instructions. open box “was put and Mrs. directed her sons that away,” Saenz the gun was not to be used until their father had instructed them week, in its use. Later that Mr. Saenz looked at the gun but did not read the operation and instruction manuals the Power Mr. testified that he accompanying King. Saenz had told Robert not to at point gun and not to anyone use the until he gun had been instructed him in its use. Mr. Saenz had intended to read the instructions and to instruct his children in the use of the on the gun upcoming Saturday, the that the took day shooting place.5 operation accompanying 5. The and instruction manuals the Power King operation were introduced into evidence. The cover of the greater power powerful manual stated: “Built for more than —much non-powder guns.” operation other The text of the manual further stated: new, Pump-Up powerful type gun “The Air Gun is a much more Daisy spring-air gun. than the B* B traditional It shoots with four power spring-air gun to six times the of the B»B and must be great respect. treated with care and ALWAYS HANDLE A AS IF IT GUN WERE LOADED. ‘Han- dling’ every you your gun. you means time touch It also means point your gun any living thing any part must never toward nor at your body anything damaged by own nor at that could be an accidental shot. you pump your Daisy, higher velocity The more of the pellet pumps B*B or when it is fired. Two or three are recom- target shooting. Higher velocity mended for indoor for outdoor shooting by pumping gun up can be achieved to ten strokes. power Pump-up Gun, CAUTION: Due to the additional of the Air precaution required selecting target. extra is a safe You must pick target penetrated that cannot be or cause a ricochet. 602 Keane, 147 v. (1961), Pa. 167 A.2d Ucci

In Court stated: alone, with ‘Proof of injury that is well established

“[I]t condition negligent existence of the more, out or of the of, complained it caused the injury that showing without Burns v. a case of liability.’ to establish is insufficient It of Pittsburgh, (1935). 320 Pa. 181 Atl. City not, even exist which could is that a defect enough not that an ‘Proving caused the accident. have conceivably, an opportunity or the existence of accident happened, insufficient alleged, entirely in the manner it to happen 96, 99 Reading, 255 Pa. Stern negligence: to establish show not must further and go Plaintiff (1916). Atl. 367 com injuries but negligence, defendant’s only Houston v. such negligence.’: were the result of plained of 218, 220, (1941).” 22 A.2d Rep.Ath.Assn., this record it is at 150. On Id., 471-72, at 167 A.2d Pa. warnings accompany- “defect” in the alleged clear that cause James air rifle did not Sherk’s the Power ing King Power King only had possession death. Robert Saenz directions not to use his disobeyed parents’ because he had of the Power his own Notwithstanding knowledge the rifle. the rifle should knowledge lethal King’s propensity, to check the and his failure never be pointed anyone, mechanism, he directed the Power position safety As this head. close at James Sherk’s range from death did not result that James Sherk’s record establishes warnings accompanying inadequate from the allegedly target targets for the Spring-air gun not considered a safe B *B are Pump-up will cause a ricochet.” Air Hard surfaces Gun. stated: The instruction manual also gun anything point point gun anyone. a at Never “Never at living Daisy any point your you at shoot. Never do not want to thing.” inadequate that, allegedly he read these testified had Mr. Saenz instructions, difference to him.” “have made a the instructions would King’s Power “accura- learned of the He testified that he would have it, period. I velocity” them use cy have never let and “would sent it back.” would have he, too, allegedly read the that had not Saenz testified Robert King: just “I accompanying was inadequate the Power instructions out, eager that’s all.” too to take it Power in its favor King, entitled to a verdict appellant on all counts.

Ill Because the evidence refutes contention appellee’s that James death Sherk’s was caused the inade allegedly quate Power exclu accompanying King, sion of evidence of regarding “community’s perception” BB guns other than the air marketed Power rifle under the trademark not Daisy appel did affect adversely Thus, lee’s case. it is question to address the unnecessary admissibility evidence of the percep “community’s Keane, tion” of a manufacturer’s Cf. Ucci products. 472-73, supra, Pa. 167 A.2d at 150 failure (plaintiff’s to show “proximate cause as the alleged between and the sustained,” it injuries makes discuss “unnecessary degree standard and from the seller of owing care goods a foreseeable user”).

Order of the Superior Court reversed. Judgment Court of Common Pleas of upon entered Allegheny County in verdict favor jury’s reinstated. appellant J., did not

FLAHERTY, in the consideration or participate decision of this case.

HUTCHINSON, J., in joins opinion and files concur- ring opinion.

McDERMOTT, J., concurs in the result.

LARSEN, J., files a opinion O’BRIEN, dissenting J.,C. joins.

HUTCHINSON, Justice, concurring.

I join Justice Roberts’ and concur in his view Opinion plaintiff has failed to show causation. Specifically, plaintiff has failed to causal be- any establish connection tween the warning asserted of defendant’s inadequacy However, I wish tragic plaintiff’s death decedent. make clear view dealing we are with in my issue

604 fact,

this case is not the of legal concept causation must, in the evidence, the as we Taking cause. proximate winner, the most to the verdict it is clear light favorable the fatal shot was well aware of the substan- person firing this risk of involved in pointing tial death or serious injury head and the Whatever pulling trigger. decedent’s gun the commu- logo gave false of the expectations safety Daisy air record shows powered gun, the nity regarding high would the shot knew the risks youth warning the firing them. regard have alerted him to and acted without case, one including of imposition any products showing requires 402A strict liability, based Section the was caused some defect plaintiff’s injury that that the is defective Thus, finding product where a product. on the predicated 402A is within of section meaning to provide adequate failed the manufacturer theory warnings dangerous propensities plaintiff’s the failure to warn caused must plaintiff prove Annot., (1967). Regardless 13 A.L.R.3d 1085 injury. See rendering inadequate, whether were Daisy’s 402A, failed to plaintiff defective under section knew parents establish Saenz and causation because would have described warning risks which an adequate (Second) Restatement acted without to them. See regard Dixie also v. Torts, (1965), 402A n See Martinez comment § Carriers, Inc., 1976). Cir. Given (5th 529 F.2d circumstance, testimony refusal to admit the trial court’s nature of of the non-deadly the Community’s perception to the rifles, as that related perception air Daisy-Heddon was correct. warnings, adequacy ocean, immediately if a overboard into It is as man fell to have a lifeboat The failure sinking without a trace. Prosser, of Torts Law is not a cause of death. See ready Co., 232 Mass. v. Fisheries Ford Trident (1971) citing § But, c.f. Kirincich Standard (1919). 122 N.E. 389 there was (3d 1940) (where 112 F.2d Cir. Dredging saved). might man have been drowning evidence that the have it would by Daisy, furnished warning Whatever been ineffective in deterring the conduct. youth’s Saenz Therefore, any in that inadequacy warning, sense it was not aptly designed to overcome the failure community’s appreciate to the deadly nature of this air particular gun did not in fact cause plaintiff’s decedent’s death. cause,

Issues of proximate with its sets of sub intervening cause, involve superseding decision of policy selecting limit, a cutoff beyond which the law will not impose liability for the ever but expanding force of an constantly declining act setting motion a risky set of events. should not They be reached until cause in fact is shown. liability imposed manufacturers of defective prod-

ucts is strict, denominated fault, or without because the usual requirement plaintiff show a breach of has duty eliminated, been or attenuated to the point elimination. In cases, such under the principles of section 402A of the Restatement (Second) Torts, a is plaintiff not to required prove defendant failed to of care. In discharge duty addition it either is assumed his extends to all duty users of the product, or that harm from the defect is foreseeable to all users. Modern Tort Law 32.55 Dooley, (1977). Thus § the manufacturer be liable to may person any suffering harm even if he exercised all due care. See Berkebile v. Brantly Helicopter Corp., 462 Pa. (1975) A.2d 893 opinion). However, (plurality plaintiff must prove defect existed in the product at the time of the accident and that this defect was proximate plaintiff’s injuries. cause of See Kuisis v. Baldwin-Lima-Hamilton Corp., A.2d 914 (1974). If the issues relevant to policy proximate cause are analyzed terms of foreseeability, distinct notions to relating cause can be easily confused with those relating in the sense of duty the risk. Extension of the scope to manufacture duty free of defects to all users then be may eliminate the incorrectly thought require- ment of proximate cause.

theOn facts of this case we do not reach the issue of whether a failure to provide adequate warning forseeable or cause of proximate plaintiff’s injuries because I do not Accordingly, in fact. not a cause

such failure was an entire we have “overruled view that share the dissent’s (substantial causation concerning law Pennsylvania body superseding cause and cause, intervening factor, proximate J., dissenting). (Larsen, at 637 ...” cause) See a means of protecting to warn is for failure liability Strict in una- risks unrecognized from generally users of products the hidden By bringing products. useful dangerous voidably in a manner a use against protects home to the user it risk is defective Thus, the product risk. create that likely unreasonably it is if of strict the doctrine under such warn- and no warning adequate an without dangerous present knows risk is the actor Where ing provided. it, serves warning regard chooses to act without still Imposing harm. the particular in preventing no purpose connection based on any cannot be in such a case liability It can incurred. and the harm warn the failure to between anis that a manufacturer assumption follow from only use of his product. from resulting all harm against insurer inarticulat- on the either be based must an assumption Such unavoidably in a utility of social that no degree ed notion liability, prevent can defective but not dangerous degree that or dangers; for fully recognized even the risk nature of against balanced must be utility manufacturers makes all view fact finder. The former latter cause. The products their insurers all harm against rifle’s pump the Daisy of whether the issue leaves to a jury seems its Neither utility. outweighed propensities deadly law. our case required by rifle of the marketing pump Daisy’s

The dissent argues That the injury. in causing factor a substantial constituted a lethal assumes appealing, which is superficially argument, all harm it for liability without marketed cannot be weapon use, regardless an unreasonable harm from causes, including it. accompanying of the and quality of the nature the requirement would eliminate argument Accepting harm for and impose be defective regardless dangerous propensities unavoidably from or warning, knowledge, those dangers. On theory, Daisy’s marketing the rifle would constitute a substantial factor in causing child, the death of the Sherk when coupled with Saenz’ foreseeable negligence. a theory Such was not trial, advanced at is not supported by cases and has no relevance to the issue of of evidence admissibility community’s perception of the nature of deadly Daisy’s pump rifle. The proffered was offered on the testimony issue of the adequacy inadequacy Daisy’s warnings. The arguable absence of adequate warnings plainly did not “cause” plaintiff’s within injury any meaning word.

LARSEN, Justice, dissenting.

I dissent. The opinion Mr. Justice Roberts announcing the result of the has, Court in essence, held that aas matter of law and without need to any present the issue to the jury, a subsequent act of negligent a second tortfeasor completely absolves an original tortfeasor from any responsibility his negligent acts, even though subsequent act of negli- gence was eminently foreseeable and was to be expected. (That opinion states “because this record demonstrates that Robert Saenz is with legally chargeable sufficient apprecia- tion of the nature of the risk of his misuse of the Power he is King, for the exclusively responsible consequences of 618; misuse.” At added). emphasis Such a position misperceives nature of the defect” inherent in the Power Daisy King, and muddles the separate concepts of fact, cause in cause intervening and superceding cause, thereby and ignoring avoiding much of the law of this Commonwealth to causation of pertaining damages. With the decision and result reached the Penn- majority today, has sylvania taken a giant step backwards in the develop- ment of negligence and products law. liability

In April, Robert fourteen-year-old Saenz purchased through a mail-order with catalogue, his parents’ permission, a Model 880 “Power air King” pump-up rifle manufactured by appellant, the Daisy-Heddon On Company (Daisy). April 7,1973, playing while with the Power King, Robert uninten- decedent, friend, (appellee’s James Sherk shot his

tionally BB penetrated BB. The in the head with a fourteen), also brain; he through inches and traveled five James’ skull wound. a result of this the next as day died setting in trespass complaint filed a Plaintiff-appellee warranty, sounding negligence, action forth causes of the Restatement 402A of section (under strict section (under misrepresentation and Torts) (Second) The case was Torts). (Second) 402B of the Restatement in the Court of in September, tried before a jury County. of Allegheny Pleas Common upon Daisy’s case was predicated the Appellee’s theory condition defective allegedly in an gun distribution and liability) warnings (strict absence of adequate due to an manufacture, promo- conduct negligent its allegedly a lethal weapon, King, of the Power marketing tion and is, attempted appellee That “Daisy” logo. under “bull’s-eye” target that the Daisy logo demonstrate —and —a of relative image an BB-guns generally projected Daisy an eye, or injure could sting (i.e., Daisy BB-guns that safety from an aberration King the Power kill), not that but Power therefore, norm, that, placing that and without adequate market BB-gun on the traditional King liable strictly Daisy rendered danger of the lethal warnings and liable principles, under 402A, liable under § 402B. under misrepresentation § logo the Daisy a box bearing arrived in King The Power instructions, various accompanied by and was gun anyone to point not warning including more powerful a much King the Power statement However, Daisy BB-gun. than the traditional type gun accompanying in the material no warnings there were literature, or promotional nor in the advertisements gun, had lethal propensi- the Power suggested limitations.1 age recommended ties, any nor were there warnings, instructions descriptions detailed 1. For more opinion King, refer to accompanying Power advertisements Daisy- Judge Sherk per Cercone. Superior President Court trial court allowed to appellee introduce evidence to show how the Saenzes viewed the but refused to Daisy logo allow to appellee introduce evidence of how BB-guns were Daisy perceived in generally The trial court also community. limited evidence as to how were Daisy BB-guns marketed and advertised to only those ads pertaining specifically the Power King which the Saenzes themselves had seen. trial,

At Daisy’s evaluator, chief Mr. Brau- Guy testified an inter-office memo he had ghler, regarding writ- ten indicating that had been aware of Daisy the deadly nature of the Power before placing it in the stream of commerce. That memo read, part:

This is a dangerous gun, it is not a controlled velocity play gun for which we are noted. I am not contradicting direction and the unit, objective this it is a needed and welcome line, addition to our but with gun, its ab- sence of proper safety procedures mechanisms, invites a dangerous condition, both in plant and in the consumer’s hands. With the an presentation of unsafe product that has the energy capabilities such as this gun, we could lose immunity criticism that we have enjoyed toy market.

To aget feeling just is, how unit I dangerous this have conducted some penetration tests using the 880 as com- pared with some of our other models.

It is easy note that the penetration possibilities 880 of a % inch new depth opens up areas of vulnerability when this unit is used. Whereas we unsafely now can injure an eye skin, irritate the we will be able to inflict a dangerous wound with the high velocity High is the velocity objective of this and it gun, should not be changed, but we do need to have the unit handled as as safely I do possible. not feel we have succeeded at this review, requirement the latest design (emphasis add- ed). Heddon, Pa.Super. 320, (1981) (Montgom- 427 A.2d 658-59 J., J.,

ery, concurring opinion; Lipez, dissenting opin- filed filed a ion).

The trial court refused to give appellee’s requested jury instructions on to which negligence, appel- Daisy’s potential and on the excepted, against lee directed a verdict appellee on of 402B negligence count as well as the count § the charge liability, On the of strict misrepresentation. (which rendered the definition of “defect” following court an- opinion definition was in accord with the substantially result of this Court Berkebile nouncing Brantly A.2d (1975)): Helicopter Corp., that the do we mean a defect? The Law by says What is the of its guarantor safety. manufacturer a product therefore, be with must, every the product provided So for it safe and without necessary any element to make use If find that condition that it unsafe use. you makes it left the control the time defendant’s product to make it safe for use or any necessary lacked element use, made it unsafe for then contained condition that any was and the is liable for defective defendant product if find. defect, you harm caused such so Now, even a and designed product may made perfectly warnings if accompanied by proper be defective not instructions its use. You have evidence. concerning warnings A must such and instructions as supplier give risks possible for the user or consumer of the required are or which are created the inherent using products use. If find that such limitations of such safety you not the defendant or instructions were given, liable caused thereby. would be for the harm safe for Now, a is not defective if it is its use. manufacturer is not add required normal And the danger a when or the warning danger potentiality Now, is known and if recognized. of a product generally defective, still find that must you you condition, if determine or not the defective such whether find, alleged. is the of the harm that legal cause you Daisy. returned verdict for a new A en banc motion for trial appellee’s court denied it to exclude evidence holding regarding that was not error the reputation other as Daisy BB-guns community demonstrating non-lethal and other evidence how the tradi- guns tional were marketed because such evidence was irrele- vant, that it was error to charge not refuse on as “plaintiff show elements”, failed to any necessary and that there 402B was no misrepresentation. §

On appeal, panel affirmed on the Superior Court 402B ruling § Court decision portion Superior [this has not from], been but on the appealed reversed evidentiary rulings the refusal charge remand- negligence, ed for a new trial. Sherk v. Daisy-Heddon, Pa.Super. 320, 427 A.2d 657 (1981). See note supra.

The thrust of the of that opinion court was “ordinary consumer expectations” were a element of a “fail- necessary ure to warn” that, case in strict therefore, and liability evidence of the community’s as to the knowledge character- istics of the product and the perception of the community’s logo and were Daisy relevant to the image necessity for and adequacy warnings, should, therefore, and have been admitted. The further opinion held that the lower court erred in refusing charge on jury negligence. This Court granted petition for allowance on Daisy’s appeal June 1981. I would affirm the Court. Superior I. Refusal to on Charge Negligence

Under the circumstances herein the lower presented, court’s refusal to permit case to to the proceed on negligence erroneous mandates affirm- theory ance of the Court’s Superior grant reversal and of a new trial. The opinion (lower) en banc court stated: “plaintiff failed elements, to show any necessary therefore was not entitled to a charge on issue. Negli- is gence not an in a issue strict case. Berkebile v. liability Brantly Corp., A.2d Helicopter 893 (1975).” Appellant relies Berkebile its solely support position that strict products liability and are not negligence alterna- tive theories of recovery and that it is superflous and improper both. charge on Berkebile, analysis

I with the Court’s agree Superior 333, 427 A.2d at 663: Pa.Superior mis- Berkebile to be reliance upon We find the court’s against filed suit plaintiff In Berkebile the placed. of strict under the only theory defendant-manufacturer on negli- of action based was no cause There liability. The Supreme the Berkebile court.... before gence as that before to a situation such made no reference Court action for files causes of in which the plaintiff this Court liability. and strict negligence both Procedure Rules of Civil However, the Pennsylvania 1044(a), In Pa.R.C.P. question. to cover this appear would it states: two or more in his complaint

“The state plaintiff may same county, triable in the causes of action in trespass, occurrence or same transaction or which arise from the or occurrences.” series of transactions Rule. is in with this keeping Plaintiff’s complaint jurisdiction in this authority There is no simply where causes of action to choose between requires plaintiff 402A, comment is in an Section injury. involved that the Torts, a, (Second) provides of the Restatement exclusive, does not preclude here not “rule stated ground the alternative upon based Most of can be seller, negligence proved.” where such have conclud- have dealt with the issue jurisdictions that are alternative liability that and strict negligence ed that, supports where the evidence and grounds liability refuse on both. action, charge it is error to both causes of Alter- on Annotation, Instructing and Propriety Necessity Warranty, or Breach of Negligence native Theories of in Tort is Given in on Liability Where Instructions Strict 101; see, Case, e.g. 52 A.L.R.3d Korpela, Products Liability 379, Sears, Co., Cal.Rptr. 4 Cal.3d 93 Jimenez v. Roebuck & Industries, Inc., 92 Little v. PPG 769, (1971); 482 P.2d 681 911; Co., Aircraft 118, Hansen v. Cessna Wash.2d 594 P.2d v. Paint & 679 Jackson Coast (7th 1978); 578 F.2d Cir. v. W.W. Co., 1974); 809 Calvanese Lacquer (9th 499 F.2d Cir.

613 895 Inc., 726, 10 412 N.E.2d Mass.App. Babcock Company, 548, Fireco, 81 410 A.2d (1980); Capital Cartel v. N.J. Corp. Machine, Inc., 674 cf. v. Harvill 141 (1980). But Dorminey 233 R.A. Jones 507, (1977) S.E.2d 815 and Masi v. Ga.App. Co., 888 and N.J.Super. (1978). 163 394 A.2d In these cases, recognized numerous other it is the primary difference between strict is negligence products liability (or at least on the theoretically is) negligence focuses strict conduct of the tortfeasor while focuses on the liability next will product. (The condition of the section elabo (II) difference, rate on this one theoretical which is frequently lost in this, in cases such as where the practice.) Clearly defect is a defect the flaw or manufacturing not wherein blemish is visible or but is perceivable only by measurable factors, reference to external it to the may plaintiffs be conduct, focus on the Jimenez advantage to manufacturer’s Sears, Co., v. 93 Roebuck at 772-73 Cal.Rptr. 683, 684-85, at 482 P.2d and it is force the unwarranted to plaintiff to elect between negligence and strict theories where both are supported evidence. Id. 686; 774, 482 Cal.Rptr. P.2d at Howes v. Deere & Wis.2d 238 N.W.2d (1976); Coisman, v. Jahnig N.W.2d 557 (S.D.1979).

As no there is prohibition charging both theories, it is left to examine the court’s statement “plaintiff has failed to show any necessary negli- elements [of gence].” presented case, Under the evidence in this statement is erroneous: all of the elements presented.2 were This Court has defined as “the negligence want due care which a reasonable man would exercise under the circum- Palmer, stances.” 628, 630, Gift 141 A.2d 408 (1958) (citations omitted). “Conduct if negligent only consequences harmful could thereof have been reasonably foreseen and the exercise of prevented by reasonable care.” Id. (citations omitted). then, Essentially of action cause brief, appellant posit In its does not even the contention that the noted, lacking. appellant elements of were As has instead solely, erroneously, Brantly Helicopter relied on Berkebile v. Corp., supra.

614 where there is a duty obligation exists of the actor to conform to certain standards of part conduct for the of others foreseeable protection against risks, a failure on the actor’s to conform his conduct to part the standard a required (breach duty), reasonably close causal connection between conduct and result McAdams, Macina v. ing 115, 421 A.2d injury. Pa.Super. Co., v. 432, 434 (1980); Thompson Reading 343 Pa. Palmer, Gift v. section III infra A.2d 729 (1942); supra; (see regarding causation). the element of

Tort law is on a social predicated policy protects plaintiff’s interest, as a member of a class of to whom people owed, from duty be free unreasonable risks of injury. Co., Hahn v. Atlantic Richfield 625 F.2d 1095 Cir. (3d 1980). This of an actor to policy recognizes duty appreciate dangerousness of an and to act object prevent accordingly others, from whether object harm actor causing v. Thompson Reading article, be the owner/possessor Co., Maize v. Atlantic supra, manufacturer/seller, or its Co., Refining (1945). 352 Pa. 41 A.2d 850 The is the duty imposed duty “normal human any being ... to foresee those which are the injuries consequences he, his acts of omission or commission which as a reasonable v. human being, should have foreseen.” Thompson Reading Co., supra 600-01, at Pa. A.2d duty/standard is, moreover, of care a variable concept— “[vjigilance must be commensurate with A always danger. calls for a high degree danger high degree of care. The care to be in a case must particular exercised be always proportionate to the seriousness consequences are reasonably to be as a result of the conduct in anticipated Co., Maize v. Atlantic Richfield supra question.” at 352 Pa. 56-57, 41 A.2d 850 quoting MacDougall Pennsylvania Power Co., & Light 387, 396-97, 166 A. 589 (1937).

Two of the more common variables which in invariably voke a are higher standard of care the use of “dangerous Maize v. Atlantic Rich substances”, instrumentalities field (manufacturer fluid held to cleaning high

615 standard of care dangerous propensities), because of its use or come that children are to into foreseeability likely v. Thompson Reading contact with the In dangerous object.

Co., supra 736, 343 Pa. at this stated A.2d Court children have no “[y]oung foresight scarcely any appre- hensiveness of This danger. is a circumstance those owning potential instrumentalities for harm [possessing] mind, must bear in for it is individual’s to use every duty what due care then and there toward others See requires.” v. Styer 212, 218, Reading, (1948) 360 Pa. 61 A.2d 382 (“children must be act immature expected upon judg- to ment, childish others who are impulses; instincts with chargeable a of care and caution toward them duty must this, calculate upon precautions and take accordingly.”)

Finally, Court has embraced a cause of expressly action in the manufacturer negligence recognizing seller of a product has a having dangerous propensities duty to warn those who will come contact with of those dangers, and that must be adequate to inform such persons of the risks. Thomas v. Avron Products Co., Pa. (1967) (seller A.2d 897 of varnish product owes to user duty to exercise reasonable care and to give adequate warning dangerous nature of the Incollingo Ewing, substance); 282 A.2d 206 (1971) (manufacturer of antibiotic owes to user duty exercise reasonable care and to give adequate warning of risks inherent in product’s marketing de- techniques use — signed to stimulate use dangerous of potentially must be considered in testing Maize adequacy warning); v. Atlantic Refining (“That conspicuous dis- on each of play the four sides of a can cleaning [of fluid] the words lull the user would “Safety-Kleen” naturally that fluid so-named into a false sense of security might also have reasonably been foreseen the defendant” —manufac- turer failed to give adequate warning dispel that false sense of security).

In light well-established foregoing, body negli- gence principles, ruling the lower court’s failed to (“plaintiff

show any necessary elements”) is not with compatible the evidence presented at trial. There be no can doubt owed Daisy exercise the highest standard of care duty toward James Sherk. Daisy manufactured a danger- highly ous instrumentality gun capable penetrating human —a skull —and placed it upon a market associated ordinarily with non-lethal used BB-guns children. One of those children was killed while with the playing gun.

There is also substantial evidence from which the jury could have inferred that breached that breach Daisy duty —a of duty consists of act which any an innocent subjects person to an risk if the risk unnecessary outweighs advantage actor. Clewell v. Pummer 384 Pa. accruing to the 515, A.2d 459 (1956). The risk in this case was exceedingly great foreseeable that a child was it only fire might —not the Power child, but there is uncontradicted at another King knew that evidence that Daisy actually its in- cautionary structions traditional accompanying BB-guns were Daisy ignored instances, children and caused in those by injuries, of a less serious nature.3 such Despite knowledge, Power King was marketed in a manner which predictably resulted in its a that purchase youth. against Balanced risk, extreme would weigh advantage accruing to the actor its conduct in so the Power marketing King without limitations or age gun that could kill. to “advantage” the actor would to be (Daisy) appear more, that and children would younger, purchase gun, i.e., the Power a market. King larger would to appeal facts, From these a well have found jury might Daisy’s conduct to have been negligent placing unreasonable a on a a market under a certain logo conveying image precautions without safety taking adequate Incollin- See disassociate the image. Power from that King go Ewing, at 226. (“When Pa. at 282 A.2d is retained in the face of required warning unchanged See, e.g., testimony Guy Braughler, Daisy’s evalua- chief (Notes 29, 1977, 285) Testimony, September tor at and of Mr. Henry Waring, Daisy’s development Francis director of research (N.T. 391). at knows or has supplier and the being widely disregarded, be disregard, jury may reason to know of such wide Indeed, insufficient.”) given permitted warning to find the the known failure of the known power gun instructions children to adhere to the cautionary accompany- inevitable that such a ing it was Daisy BB-guns, virtually would occur if the Power death as James Sherk’s tragic substantially were marketed in a manner similar King warning danger other without BB-guns adequate death. will be reserved

Discussion of the element of causation it III, section infra. For the suffice present, say a “substantial factor” Daisy’s undeniably breach of duty of James bringing about the death Sherk. Whitner v. Hintz, Von I cannot (1970). 263 A.2d fathom announcing the assertion in the result of opinion the Court that of the Power possession “Robert had Saenz King because he had directions only disobeyed parents’ rifle,” added); not to use the (emphasis viewpoint at 619 ignores of the case which was not appellee’s theory simply, as the states, known, “had the lethal been opinion propensity Robert the Power Saenz would never have directed was, ”, James Sherk’s head ... id. at but more accurate- that had and marketed a lethal ly, not manufactured Daisy market, Robert weapon and distributed it in the Saenz toy would never a instrument in his dangerous have had such did, hands in the Robert place; Daisy first because Saenz had access to a as a which he weapon (disguised toy) Moreover, otherwise such an assertion would not have. in the hands suggests appeared that the Power simply Saenz, of Robert the role completely ignores paramount played by Daisy.

Let us a of fourteen following: youth the hypothesize ride their despite express takes his car for a parents’ joy while at an excessive driving admonitions to the contrary; do), he should not (which rate of he also knows speed he the walkway; applies crosses his pedestrian path defect, fail and the but, they brakes due to a manufacturer’s is mal- pedestrian struck and had the brakes not injured; functioned, Is the the car would not have struck the victim. fact that this of because youth only “had possession [car] he had to use the disobeyed parents’ directions not [car]” any relevance to the issue of whether of the defect was a I a statement legal cause? submit not —such in the situation, as well as in the instant hypothetical is a non situation, in each manufactur- sequitur as the defect er’s product was a “substantial factor” assuredly cause of each If the conduct (negli- manufacturer’s injury. gence) (strict or a defect in his is a substan- liability) tial factor in causing injury, intervening negligent act of a third manufacturer only can relieve the party to be a su- if that act intervening is determined cause under the perceding this Court in adopted by analysis Estate of Flickinger Ritsky, (1973), 305 A.2d 40 Torts, section 447 of the adopting (Second) Restatement uniformly followed the courts this Commonwealth absence, since. Conspicuous announcing its opinion the result of the Court does not even mention section nor does it interven- proffer any analysis concepts I these concerns ing superceding causes. shall address in section III. fully erred in hold, therefore,

I would the lower court charge negligence. refusing Daisy’s potential Products Liabil- of Evidence in Admissibility Strict II. ity/Failure Warn Cases earlier, As noted the trial court restricted plaintiff-appel- lee’s evidence advertising marketing Daisy regarding such products only pertained specifically evidence to the Power King, holding:

It was plaintiff’s community contention safety lulled into a false sense of about security not, contention, true or BB-guns. Such a whether Daisy case, not relevant. As in Court must deal given any be with the facts before Then the law must applied it. reveal. Gener- as the circumstances and facts parties in this alities about the have no place process. community specific perceptions defendant and parents son were that the gun not lethal. This was shown by their Thus, before the testimony jury. con- question sidered was whether the by and instruc- tions enclosed with the were gun sufficient to inform the user of the risks created by product. This was entire- in ly under the facts this case. proper The court’s were evidentiary rulings governed its inter- by of pretation Berkebile v. Brantly Helicopter (see of the Power propensities the lethal warnings concerning King. case, in this a examining specific problem

Before the Brothers, Co., Inc., Black supra, review of Azzarello v. is in order.4 Azzarello the of a recognized “development industrial with its society prolifer- sophisticated complex and vast in the changes private ation of new products change legal has a enterprise system inspired philosophy ... to the view that a emptor from the of caveat principle should be deemed to be the supplier ‘guarantor of products 553, ”. 480 Pa. at 391 A.2d at 1023 of his products’ safety’ the (citation omitted). (“guaran- Yet despite terminology strict “was not intend- tor”), products liability theory ed to make an insurer of all caused supplier] injuries by [the Id., 480 Pa. at 391 A.2d at 1024. product.” in devising

The difficult is an limita problem appropriate tion on a that will him from supplier’s liability prevent being while (as insurer) liable an deem absolutely simultaneously Id., ing the supplier “guarantor” products’ safety. 553-54, A.2d at 1024. This was not 480 Pa. at Court with the to this taken approach problem satisfied totally (Second) Torts, i.e., Restatement drafters caused is imposition injuries product “defective”, or, in where that is the words justified product Restatement, where the is in a “defective product 402A(1). condition Section unreasonably dangerous.” clear, of “defect” in a is concise concept While the defect meaningful manufacturing/fabrication “defect” is a visible or otherwise (because situation is less fault, blemish), concept help measurable flaw or (i.e., defect non-manufacturing type ful when with a dealing to failure to give adequate defect or a defect due design Id., 480 Pa. 554-55, at 391 A.2d at 1024-25. The warnings). support Appellant only on Azzarello and Berkebile to its 4. relies position Superior Azzarel- Court should be reversed. While that the case, interpretation of lo the trial of the instant was decided after interpreta- is consistent with the trial court’s Berkebile Azzarello evidentiary rulings. governed the which court’s tion of Berkebile Thus, primarily on the Azzarello decision. I will focus critical Restatement factor in those whether situations is dangerous.” Pa. at “unreasonably Id., 480 A.2d at

The dissatisfaction with dangerous” the “unreasonably is that it formulation “tends to which suggest considerations are thus, identified with “it usually negligence” and, has injured burdened the with of an element plaintiff proof Id., 391 A.2d rings negligence.” at 1025, on 121, Cronin v. J.B.E. Olson Cal.3d relying Corp., 8 433, 104 501 Cal.Rptr. (1972). P.2d 1153 Azza Accordingly, rello held that terms such as “unreasonably dan had no in a gerous” place strict cause of action nor in a instruction. jury problem

Azzarello’s “solution” to the an finding appro- the priate limitation was to allow at judge to determine outset whether the condition of the product was such as to justify placing liability upon supplier, as a finder of lay fact court, was viewed as less than the in non- competent manufacturing cases, defect to decide whether the risk of loss be should shifted to supplier. the court Once whether, decides under plaintiff’s averments proofs, justified, would be court recovery then sends the case to with a standard instruction that it find a may defect where the product left the supplier’s control lacking any element it necessary make safe for its intended use or possessing any feature or condition that rendered it unsafe for the intended use. Id. Pa. 559, n.12, 480 at 559 391 A.2d at 1027, 1027 n.12. however,

Azzarello left open, “what question is a defect?” in situations a wherein defect is asserted because Id., are absent or 480 at inadequate. n.11, Pa. 391 A.2d n.11. That question must now be addressed in order to assess the validity the evidentiary rulings below.

The Superior Court held even though Azzarello elimi- nated “unreasonably dangerous” similar language “range negligence” from consideration, the jury’s it did not preclude trial court from a articulating meaningful of “defect” to the circumstances appropriate

definition In in which is the case. 427 A.2d at 662. cases a defect the court inadequate warnings, asserted due to a lack of or rather sparse be on the misleading rely stated it would Id. a line of Following Azzarello definition of “defect”. decisions,5 the Court Superior California Court Supreme cases, in that, in failure to warn order to ensure concluded defect, of the nature of the understanding alleged the jury’s the trial court should considerations as

focus their attention on such relevant of the consumer as to how the the normal expectations will perform, degrees simplicity complication or use of the nature operation product, to which the user magnitude danger exposed, and the and beneficial injuring feasibility likelihood of Motor warning. effect of Cavers Cushman including at Sales, Inc., Cal.App.3d supra, Cal.Rptr. As the of a necessity warning depends A.2d at 662. with the expectations” ordinary consumer part “ordinary to the as characteristic knowledge community common held it was error to exclude the the Court product, Superior evidence to show such tending expectations community knowledge.

I evidence pertaining with the Court that agree Superior with the knowl- to consumer ordinary expectations ordinary Inc., 413, Engineering Cal.Rptr. Barker v. Lull In 20 143 Cal.3d 225, Supreme upheld (1978), the 573 443 the California Court P.2d decision, preclude emphasized that Cronin did not Cronin a trial but “defect”, framing and tailored to court from a definition of suitable case, particular guide jury. of the to circumstances cases, design Barker court noted that Cronin in defect the bare misleading vague apt jury, to be to a statement of defect was product design (1) two-pronged in if so devised a test: a is defective ordinary expectations consumer it fails to meet the threshold — reasonably using product in or foreseeable manner or an intended factors, if, (2) light relevant the benefits of the of numerous challenged outweigh danger design the risk of inherent in such do not Inc., Sales, 338, Cal.App.3d v. Motor design. 95 Cavers Cushman of Barker Cal.Rptr. (1979) extrapolated 142 then rule to failure to warn defect cases. is to the necessity common to the relevant edge community warning.6 of a for and adequacy A to warn a defect adequately defect due to a failure (or and the need adequacy extrinsic to the itself product cannot be made in a for) a is a determination that warning physical properties prod vacuum containing only Weinstein, Piehler, The Use and Twerski, uct. Donaher and Defect Abuse of in Products Warnings Liability Design— 495, (1976) 61 Cornell L.Rev. Litigation Age, Comes of see Laborato (hereinafter Donaher); cited as Ryes Wyeth In ries, 1264, 1273 1974). Cir. the manufactur (5th 498 F.2d defect situation there exists an intrin ing and/or fabrication sic of some sort which is flaw, blemish or imperfection demonstrable, i.e. see touch the physically jury may compare defective and can it to a manu product perfectly However, factured of the same line. product problem of a defect in a constructed finding perfectly prod Annotation, uct is different. Failure conceptually Korpela, to Warn As Basis of Doctrine of Liability Under Strict 239, Tort, 243, (hereinafter 53 A.L.R.3d 2 at Liability § cited as Korpela).

When to a defect for failure to trying identify adequately warn or for “defect” becomes improper design, any apparent only by at a of elements additionally looking configuration external non-manufacturing/fabrica- —in context, tion then, “defect” is used in a sense. special Korpela, Wade, Product Defects” supra; “Design On And Their 33 Vand.L.Rev. 551-52 Actionability, (1980)(here- Birnbaum, inafter as Wade); Unmasking cited the Test for Design Defect: From Negligence Warranty] Strict [to (1980) 33 Vand.L.Rev. Liability Negligence, (hereinafter Birnbaum); cited as v. Kimwood Ma- Phillips chine Co., (1974); 269 Or. 525 P.2d 1033 Barker v. Lull Co., Inc., note 5. Engineering lengthy analysis 6. It would seem without the evidence clear ruled have been to the cause of action in inadmissible would relevant However, principles in section I. under the enunciated position appeal plaintiff-appellee’s proof at trial and were offers of liability theory upon based evidence to the strict relevance and, therefore, evidentiary theory. I discussion to that confine of “defect” devising The workable standard problem objectives limiting suppli the twin accomplishes caused identifiable “defects” injuries by er’s liability while warnings), those caused lack of (including adequate back into still from preventing negligence concepts slipping arena, the strict the most trouble liability undoubtedly in law some and controversial problem products liability See, Wade, e.g. supra 576; at and Wein Twerski today. stein, A of the Uniform Products Law—A Critique Liability Rush to Drake 234 (1978-79); Judgment, L.Rev. supra; Design Litigation Strict O’Donnell, Korpela, The Problem of Instructions Which Do Not Jury Liability: Instruct, v. Kim Phillips (1979); U.Det.J.Urb.Law Co., Machine wood (1974) (“This 269 Or. 525 P.2d 1033 other courts continue to flounder while attempt court to determine how one decides whether a is in a ing product condition....”, defective in failure to warn and especially situations). defect design of the courts and commenta- overwhelming majority in in a determination agreement making

tors are cases, defect in such the focus must be on the See conduct. cases cited in not on the manufacturer’s Donaher, 511-12; Wade, see also supra (at 619); section I at 553; Korpela, supra However, diligent despite § will give efforts to devise a standard or definition that non-manufacturing substance to the word “defect” in the to ensure that a manufac- attempting defect context while for all caused injuries products turer will not be liable defect, absent some evidence of a objective experience of preventing other jurisdictions highlights difficulty one form or another from creeping negligence concepts cause of action. back into the strict Some are: more efforts prominent Engineering

A. The Barker v. Lull Inc.—California Approach noted, is two-fold. A is defec-

As this approach expecta- tive in if it fails to meet consumer design ordinary

625 does, tions if (this threshold); is the minimum —the it then a number of are examined in a risk/utility balancing. factors also, See Aller Those in the section. factors are listed next Co., v. Machine Rodgers Manufacturing 268 830 N.W.2d Manufacturing Corp., Lunt (Iowa 1978); v. 13 Ariz. Brady Estate of 305, Ryder Kelly- App. (1970); 475 P.2d 964 Co., Springfield Tire 111, (1978); 91 Wash.2d 587 P.2d 160 Co., Heaton v. Ford Motor 467, (1967). 248 435 P.2d 806 Or. B. The “Wade-Keeton” Factors Analysis given

Under this a set of criteria is approach, upon which to the risks a product against evaluate its utility. These factors include: may

(1) The usefulness and of the desirability product —its to the user and to the utility public as a whole.

(2) The of the safety aspects product likelihood —the it will and the probable cause seriousness of injury, the injury.

(3) The of a substitute which would availability product meet the same need and not be as unsafe.

(4) The manufacturer’s to eliminate the unsafe ability character of the without impairing its usefulness it too making expensive maintain its utility.

(5) The user’s to avoid the exercise of ability danger by care in the use of product.

(6) The user’s awareness of the anticipated dangers inherent and their because of avoidability general public of the obvious condition of the knowledge existence product, or of the of suitable or in- structions.

(7) The manufacturer, on the feasibility, part spreading the loss by setting price product or insurance, carrying liability [footnote omitted] See On the Nature of Tort Liability Wade, Strict For Products, 44 Product Keeton, Miss.L.J. 837-38 (1973); Defect, and the Liability Meaning 5 St. L.J. Mary’s 37-38 (1973). another, This in one form or has analysis, been used See, e.g., Bowman v. several jurisdictions.

626 Hag

General Motors 234 Corp., F.Supp. (E.D.Pa.1974); v. Oliver Machinery (5th F.2d 99-100 Cir. ans 1978); Turner v. General Motors Corp., S.W.2d O'Donnell, 1058-62; (Tex.1979); Birnbaum, see also supra at 605. C. The Prudent “Reasonably Manufacturer” Presumed to

Have Known of the Risk A jurisdictions number of have taken approach variation—a is defective in if it is so design likely be harmful manufacturer who reasonably prudent had actual of its knowledge harmful character would not on place See, it the market. e.g., v. Kimwood Phillips Co., 485, Machine 269 525 (1974); Or. P.2d 1033 v. Cepeda Co., Cumberland Inc., 152, 76 386 816 Engineering N.J. A.2d (1978) as modified Suter v. Angelo Foundry San Co., 150, 81 N.J. 406 Machinery (1979); A.2d 140 v. Brady Homes 121 Manufacturing, Ariz. 589 P.2d 896 Melody (1978). Under this some commentators have approach, sug the standard becomes gested much like very negligence Wade, minus the prove necessity foreseeability. See 1067-70; O'Donnell, Bimbaum, at 56 and at supra supra supra at 618. The New Jersey experience example, is an complexity problem defining “defect”: Cepeda was viewed as establishing this and was firmly approach, Wade, cited as the front-runner of a trend. See at 562 supra and O'Donnell, However, at 1067-70. supra the definitive short-lived, statement of Cepeda as noted in Justice Suter, Clifford’s in concurring opinion to-wit: “I deplore ..., administered de bluntly coup grace to Cepeda barely weaned and now the victim of judicial infanticide.... Court has chosen to treat as Justice Cepeda (to borrow [T]he expression) ticket, Stone’s ‘not better than an excursion good ”’ for ... day trip 81 N.J. at 406 A.2d only [that] 140.

Under these approaches, especially (c), the latter the at- to maintain a distance from tempt negligence is not concepts successful. Notions of manufacturer’s entirely conduct and fault have found inexorably their back into the way definí-

627 of defect is, tion and the in purported product” “focus on cases, many Bimbaum, mere “semantic gymnastics”. Some courts have decided that apparently concepts negligence inseparable are from understanding an defect and failure to design e.g., warn cases. See Hohlen- v. Rheem kamp Co., 535, 601 P.2d Manufacturing 123 Ariz. (1979); v. Klix Anderson Chemical 256 Or. (1970) P.2d 806 overruled by v. Kimwood Machine Phillips Co., supra insofar as it held no there was difference negligence between and strict failure to warn Basko Sterling Inc., cases. F.2d 417 Drug, (2d Cir. 1969); Sterling Yarrow, Inc. v. F.2d 978 Drug, (8th Cir. 1969). This is the the Task Force of approach advocated by United States who have draft- Department Commerce ed Uniform Products Act. Act Liability Uniform for proposes abandoning cause of action strict liability altogether defects, and failure design to warn relying in those exclusively cases.

And at least one court has Professor agreed with Hender- son that defect that non-manufacturing require cases courts set to independent standards product safety by judging existing designs as defective are limits of adjudi- beyond cation. Owens v. Allis-Chalmers Corp., Mich.App. N.W.2d 291 (1978) (extrajudicial standards set safety by industry, association or are voluntary government determi- native on issue of defect —if in with those stan- compliance dards, no defect); Henderson, Judicial Review of Manufac- turer’s Design Conscious of Adjudica- Choices: The Limits tion, 73 Donaher, Colum.L.Rev. 1531 (1973). for supra See critical response to Professor suggestions. Henderson’s

This overview of the defect approaches defining taken various by authorities is far from an exhaustive analysis, and not intended as such. It is only intended highlight complexities of the problem as demonstrated by confusion and with uncertainty Starting area. assumption Azzarello, basic relied on in shared and by courts, majority vast of of strict the focus products is and should be on the product,7 much of the if the. confusion can be avoided one perhaps conceptualizes in itself as the “defendant” the case. Within this product framework, the trial should direct the attention jury’s court is, to the “invitational of the those aspect” product, characteristics, both as well as apparent physical properties activities, la- externalities such as marketing, promotional items, etc., that bels, use of similar combine logo, prior in evoke a the mind of the image product particular function, consumer as to the its product’s capabilities, use, risks inherent in its and its limitations. The popular in cannot be divorced from the perceptions marketplace Justice Jones stated in Berkebile v. As product. then Chief 102-03, Pa. at Helicopter 337 A.2d Brantly Corp., 893: warnings determining

The necessity adequacy and should be considered the existence of a defect can with a view to all the evidence. should view the with use of the associated degrees danger relative product danger requires great- since a greater degree The issue of necessity er degree protection.... use must also instructions adequacy contradictory promotional light any be considered seller, added; activities on the (emphasis part omitted) citations its “invitational through

A to society thus “speaks” apparent physical proper- both its as aspect”, ascertained factors. an external Such (and varying) ties and various of the manufacturer’s conduct the role approach relegates to the consist- insignificance and other negligence concepts and elevates to requisite ent liability, with strict product and users between interplay prominence pivotal (society). the of know- necessity illustrates amply

The instant case assess the in order to extrinsic characteristics ing product’s a liability, MacPher- theory forays of strict 7. into the One the initial (1916), authored sort v. Buick Motor 111 N.E. 217 N.Y. Cardozo, by Judge of the courts to the “nature the attention directed thing”. of a whether a defect warnings, determine adequacy for lack of The strict adequate warnings. exists King advanced at trial the Power was was theory for the market in which it was defectively designed placed labels because, through in that market the BB-guns, Daisy them, a conveyed attached to and associated with logos safe for use certain as that were image play guns relatively on that children, King the Power by introducing by market without to inform the user that warnings adequate gun image was unlike those other with their BB-guns effect, in the Power it was safety, (i.e., mislabeled) was King James in a defective condition which condition caused of ex- death. In to introduce evidence attempting Sherk’s factors, ternal endeavoring was plaintiff-appellee merely its prove King, one the characteristics of the Power “invitational aspect”.

If the adequacy was to have evaluated properly of the had to have been given, they fully apprised of the seriousness of the danger danger hidden —the death inherent in a such as Power gun King placed the traditional market. That could be BB-gun danger only comprehended a by knowledge image projected by much BB-guns other order to “how Daisy appreciate warning is adequate?”. case,

There that the use emerges reality instant with the Power is of logo “Daisy” King paramount significance popular mind in that it creates public (as as to how the will expectations gun operate play gun), whom (children), it will be used and with what by probable (bruises, worst, results The Power stings, a lost eye). King “invites” use accompanied by logo8 by Daisy in a manner the same as the use young boy substantially “invited” traditional Daisy BB-guns, despite expecta- effect, tions or the use “intended” In the manufacturer. me as a “speaks” it “Use prospective purchasers saying case, noteworthy Daisy logo It is that after the accident in this advertisements, shipping from and the was removed box and years by youths sixteen Power recommended for use age, or older. kill”, regardless but not can hurt BB-gun—I powerful”. that it be “more may seem to have been seduced The of this Court majority Pow- intended the subjectively Daisy’s argument Daisy included target practice, er to be used only intent is irrelevant where to that end. Yet such instructions under the in a Daisy logo it marketed was mislabeled and of other to the marketing manner similar substantially and instructions ac- were, cautions despite BB-guns fired at other children guns, occasionally those companying fact, officers, in were (Daisy’s causing injuries. less severe sometimes Tes- ignored. instructions were aware that their 285) Waring at Braughler (N.T. Henry timony Guy of “intended use” language (N.T. 391).) Despite “defect”, “intended use” cannot definition of Azzarello liability on the manufacturer’s ceiling be construed to be a well invite other since, here, might the product as occurred of Azzarello was to The rationale non-“intended” uses. elements proving of added burdens relieve the plaintiff elevation of “intended use” ring negligence, yet and the defense, rulings the lower court to a as supplier’s the ultimate effect, impose would have done majority the man- proving burden burden the consumer—the upon The con- intent. subjective ufacturer/seller’s have been inter- or lack of fault of a fault cepts supplier’s to the admonitions of contrary into the jected dispute, “[bjecause Berkebile stated of Berkebile. Azzarello and any negligence, liability regardless seller is in strict liable is irrele- injury a particular whether he could have foreseen foreseeability If a supplier’s vant in a strict case.” that the intent irrelevant, supplier’s it without goes saying ele- language “lacking any Accordingly, is irrelevant. for its intended use or it safe ment to make necessary intend- renders it unsafe for the feature that possessing any read A.2d at must be use”, ed 480 Pa. at i.e., the minimum duty, to establish the supplier’s merely use. for its intended must at least be safe hold, therefore, I would that it was error to exclude the evidence proffered which would have tended to demonstrate the “invitational aspect” of the Power King. “ordinary consumer expectations” were relevant to the “invi- certainly tational aspect” as had a direct on the they bearing degree of danger associated with the product, as did the promotion- al activities traditional The same regarding Daisy BB-guns. is true of the incidence of and the extent and injury, type injuries, associated with normally BB-guns. The evidence of factors external to the Power was relevant to the image relative of similar safety guns, without which evidence the could not jury assess “how much accurately warning was adequate” to that dispel image and false sense of security. See Maize v. Co., Atlantic Refining supra. In a strict products action liability based failure to upon ade- warn, quately the trial court should admit all otherwise admissible evidence tending demonstrate the product’s physical characteristics as well as evidence factors extrin- sic to the physical properties which product illustrate its “invitational aspect”.9

III. The Element of Causation

As highlighted by the opinion announcing the result of the Court, another persistently area in recurring problem development of products law has been the trouble- necessity 9. The perhaps apparent of such evidence is more in this hypothetical. presented herein, only Take the same situation substi- tute King. Assuming a 30/30 rifle for the Power marketing the same Daisy logo, assuming activities and warnings use of which said only gun powerful “this Daisy is much more than the traditional BB-gun,” virtually impossible jury it would be for the to determine adequacy warning knowing without of the sense of securi- ty BB-guns. that attaches to the showing In the absence of evidence “sense”, jury that vacuum, would have to decide the case looking only physical at the (including characteristics of the rifle warnings, specifically instructions relating it), and advertisements might decide, being sufficiently danger not aware of fostered security, that sense of there was no defect because the adequate. case, were The in the instant because of the evidentiary rulings, operating handicap under a similar —the hypothetical difference between actually and the situation presented merely degree, is slight one of and a one at that. discredited, some, of “clear and obvious yet widely concept 507-09; Donaher, see, at danger”. Ford v. e.g., Ins. Highlands So.2d (Fla.App.1979) Hensley Corp., Mich.App. v. Muskin 238 N.W.2d 362 (1978). (Second) comment of the Restatement of Torts 402A j See § cited in that n.2. has opinion, slip opinion This concept as a defense in various has emerged guises. argument made, advances, been as Mr. Justice Roberts herein since the condition of the or product obviously patently that condition cannot be as a “defect” dangerous, regarded instances, In other courts have product.10 observed that the user of a need not be warned of a condition is, be, or would obvious to him.11 This has concept as well in the context of of the risk.12 emerged assumption cases, of the label used in individual the conse- Regardless of a court’s has been to quence acceptance concept sanction the of a defective and to marketing justify such an unconscionable result by explicitly implicitly the conduct of the user of the castigating product. alien to the pre- This which is so fundamental approach, law, of rise to consternation cepts product gives when the is the user of the the injured product. When party however, was, a innocent as injured party wholly bystander, case, in instant who had no the opportunity perceive the off, “obvious and take to ward it danger” protective steps of this is re- the full extent of the viciousness approach vealed. of this

Perhaps surprising aspect pernicious most have, in is that it masks the that courts concept reality fact, retreated to the outmoded “but for” causation test in E.g., Corp., 16, 498 (1972) and Garrett v. Nissen 10. 84 N.M. P.2d 1359 Co., Posey Equipment 1969), (7th v. Clark cert. 409 F.2d 560 Cir. 374, 24 denied 396 U.S. 90 S.Ct. L.Ed.2d 242. Inc., E.g., Borjorquez Toys, Cal.App.3d v. House of 62 133 11. Valley, Cal.Rptr. (1978) (La.App. and Walter v. 363 So.2d 1266 1978). Co., E.g., Hagans Machinery 1978) (5th v. Oliver 576 F.2d 97 Cir. Manufacturing and Brown v. North American 176 Mont. (1979). P.2d of the factor” test as the determinant place “substantial causation element. In an era when of life complexity for a less than “but for” test argues simplistic approach law,13 in the general area of it is ironic that the test, “but for” of cloaked in a “obvious disguise danger”, should reemerge to subvert the critical factors product and liability, exalt actions user thereby product preeminence.

Even if reading we were to a of the trial conclude from record that the in product child/user the accused this case was fully cognizant propensities weapon this death, inflict serious us it ill behooves to exoner- injury ate has culprit/manufacturer who so marketed this lethal as product to give every promise that its life-threaten- potential will ing be realized. If the complicity product-user essential to about the bring tragedy this case, how greater much was the responsibility toy manufacturer, this with marketing product toy the familiar logo name toy and without the kind of warning would to the leap eye and alert the user that prospective here was toy only, name but was in fact weapon designed to function lethal as a instrument.

Accepting arguendo the highly dubious that the argument was, product been, user or should have aware of the extraor- dinarily hazardous nature this product, and actions were the wound, immediate cause of mortal it is beyond dispute the manufacturer’s placing in the market place and into the user’s ultimately hands constituted a “substantial factor” to the contributing injury and death. If that defective, was in fact by virtue of its use of name logo familiar in a wholly different Pennsylvania rejected has the “but for” test for causation and adopted the “substantial factor” test as embodied in the Restatement (Second) provides: negligent of Torts § 431 which “The actor’s legal (a) conduct is a harm cause of to another if: his conduct is a harm, bringing (b) substantial in factor about there and is no rule relieving of law liability from in actor because of manner See, e.g., which his in resulted the harm.” v. Whitner Hintz, 448, (1970) Von 437 Pa. 263 A.2d 889 and v. Takach B.M. Root Pa.Super. (1980). 279 420 A.2d 1084 warning, of inadequate accompanying

context and because factor in the recognized paramount it must be was the death of the user’s playmate to the sequence leading this defective product. marketing manufacture act mere a third party’s negligent happenstance liability tortfeasor from original not of itself relieve does factor of the for which is a substantial conduct negligent Campbell, v. 493 Pa. Grainy See of. injuries complained As this Court stated in Estate (1981). A.2d 379 69, 74, (1973), 305 A.2d Ritsky, 452 Pa. Flickinger v. rule of law in on the extent “controlling Pennsylvania actor, i.e., proximate the law of negligent of a of an is causation, presented light where that question 447 of is contained in section act of intervening negligence, provides: of Torts” which (Second) the Restatement is act of a third intervening person The fact that an does in a manner negligent in itself or is done negligent to another which cause of harm not make it a superseding is a substantial factor actor’s conduct negligent about, if bringing conduct should time of his

(a) negligent the actor at the act, or a third so person might have realized that when existing the situation knowing a reasonable man (b) not it regard was done would person the act of the third acted, had so person that the third extraordinary as highly of a a normal consequence act (c) intervening manner conduct and the situation created the actor’s (Empha- extraordinarily negligent. which it is done is not sis supplied). 92, 188 A.2d also Grainy Campbell,

See 447 is each case, of section aspect In the instant (1963). realized should have only (a) Daisy—not invoked: the actor — in which act in the manner children would that young knew that such acts Daisy actually act, Robert Saenz did but admission, had, Daisy’s since other children would occur traditional BB guns instructions accompanying ignored (b) children causing injuries; had fired them at other 635 man, reasonable knowing children had shot other chil- dren with similar less powerful despite guns warnings, would not consider it highly extraordinary Robert would do Saenz the same with powerful the more Power King marketed under the (c) the interven- Daisy logo; ing act—Robert Saenz pulling the the Power trigger a normal consequence of the situation created by —was Daisy’s conduct, and was not certainly extraordinarily negli- gent it predictable. As this Court quite has —indeed “ stated, fault original carries as as its aggressive far ‘[a]n quality influences the movements of those who come within the boundaries of unspent its force.’ . The .. of a setting dangerous situation which bemay triggered, or negligently to the innocently, harm a third the basic person is tortious act, and the original tortfeasor escape not may liability by ” emphasizing the of the second tortfeasor .. . . negligence Co., v. Bangor 92, 98-100, Shimer Gas 188 734, A.2d (1963), 737 380 quoting Weaber, 590, Thornton v. Pa. 112 344 A.2d (1955).

Moreover, in presented, situations such as is here where proximate causation is issue an alleged because of inter- vening we negligent tortfeasor, act of second have consist- held such ently issues be a the jury’s matter for determi- nation. Ross v. 481 Vereb, 446, 451, 1376, Pa. 392 A.2d 1378 (1978); Miller v. Yellow Pa. 87-89, Checker Cab 465 348 A.2d 128 (1975); Kuisis v. Baldwin-Lima-Hamilton Corp., 321, 330-31, Pa. (1974); A.2d 914 Estate of Flickinger v. supra. In Miller v. Yellow Ritsky, Checker Cab Co., supra at 465 Pa. A.2d Justice Nix stated “it is a long maxim that a must standing trial court submit questions to the with and cites jury”, approval comment b to section 453 of the (Second) Restatement Torts, to-wit:

If, however, the character of the third negligent person’s intervening act or reasonable foreseeability its being done is a factor determining whether inter- vening act actor relieves the from for his anteced- ent under negligence, and facts there is undisputed as to whether

room for reasonable difference opinion foreseeable, question such act was should negligent left be jury. of

The must focus on the awareness subjective not on the criteria identified objective the second actor but actor’s 447, of the second (a) foreseeability the namely: § conduct, reasonable man would (b) regard whether a (c) whether extraordinary, conduct as intervening v. Grainy was a normal intervening consequence. conduct at In 94, at 425 A.2d 382-83. 493 Pa. Campbell, supra, v. cited Corp., supra, Kuisis Baldwin-Lima-Hamilton wrote: Pomeroy Justice majority opinion, operator’s of a [defect], Given the occurrence [the sig- assumes negligence legal second alleged tortfeasor’s] of plain- if a cause only superceding nificance it was [the causation should proximate of injuries. Questions tiff’s] fact, left of and this case no be to the finder normally Moreover, negli- if the operator’s even exception.... accident, it would not be fact of the gence was cause in were outside unless this superceding cause of fore- reasonable range defendant/manufacturer’s] [the locking of the brake device existence seeability. [the an to its use. invitation defective involved] fore- should have Whether defendant/manufacturer] [the it in a [might negligent seen that an use operator manner] 330-31, 319 A.2d was a 457 Pa. at jury.” for the question of 914, (Second) 447 of the Restatement citing section 457 Pa. at id., Torts cited added). authority See (emphasis n. 13, n. 13. A.2d and well founded precedent, the well established Despite the result of announcing Mr. Roberts opinion of Justice law, matter of that “because the Court as a posits, chargeable is legally record demonstrates that Robert Saenz the nature of risk sufficient appreciation with exclusively responsible he is King, misuse the Power has misuse,” doing, at so of his consequences Torts, (Second) the Restatement abandoned section 447 of on the extent of Pennsylvania rule of law in “controlling actor, of a negligent where question is present ed in the context of an Miller negligence,” act of intervening v. Co., 86, 348 Checker Yellow Pa. Cab at 465 A.2d has abandoned section 453 of (Second) the Restatement Torts, id., attempted and has sub an to overrule silentio entire body (sub law causation Pennsylvania concerning factor, stantial proximate cause, cause and su intervening cause), perceding including Estate of v. Flickinger Ritsky, supra; Miller v. Checker v. supra, Yellow Cab Ross Vereb, Kuisis v. supra; Corp., Baldwin-Lima-Hamilton su v. pra; Grainy Campbell, supra; Whitner Lojeski, 448, 263 889 (1970), A.2d to name few. just a

Further, I cannot this record accept premise demonstrates that Robert Saenz knew or should have known of the lethal of the Power of Mr. propensity King. Opinion Justice announcing Roberts Court, result of the Despite the laborious efforts therein to extract something from the inference, 617-618, record to this support id. at most knowledge that can imputed be to Robert legitimately Saenz is that he knew that the Power could break King bottles, cans and kill rats. pierce rabbits and Id. Such seems a far knowledge cry from the that the knowledge Power could kill a human Most is being. disturbing to willingness take from the determination just how much Robert should Saenz knew or have known when evidence, reconstruction of the despite painstaking record in an attempt result, to buttress the chosen is certain- ly not free from doubt. be Such doubt must resolved by trier of fact. Miller v. Checker Yellow Cab 465 supra A.2d 348 A.2d 128.

Here, case, as in product a crucial every element is the Moreover, availability defective even product. the most deadly a hazard while unlikely present it here, lies untouched on a If shelf. as is almost invariably case, the product’s can potential causing injury only be aby activated other person manufacturer, than the there is no permit reason to that event of activation to shield the manufacturer from the of its own manufactur- consequences

638 See, Kuisis Baldwin- v. e.g.

ing marketing activity. act of Corp., Lima-Hamilton (intervening negligent therefore, a not, and was operator of crane was foreseeable relieve defendant/manufactur- act would superceding Hobart Co. 185 Manufacturing liability); Smith er of of co-employ- cause F.Supp. (E.D.Pa.1960) (intervening 751 even if grinder, negligent, meat ees shield from removing not defend- and did relieve was not a cause superceding Dover v. products liability); ant/manufacturer from strict Perez, (Tex.Civ.App.1979), supp.op. S.W.2d use of (installer’s improper 547 (Tex.Civ.App.1980) S.W.2d would cause which superceding but not proximate products liability); relieve defendant/manufacturer strict Works, Gordon v. Machine Tool 574 F.2d Niagara reh. denied (employer’s failure (5th 1978), negligent Cir. concurrent but not danger warn employee/plaintiff would relieve defendant/manufac- cause which superceding Indeed, it more put succinctly, turer liability). from act he had killed unless could not have product-user to accomplish the defective product first been furnished with that result. causation between here establishes record adequately product. Argu- and the manufacturer’s defective injury under a “but for” it test even meets the causation

ably test factor” embraced Under the “substantial approach. is estab- no doubt that causation Court, there can be establishes that Robert Saenz’ record further lished. The cause, was intervening while an act of pulling trigger, cause a superceding to constitute not of such character as liability. relieve Daisy would Court reasons, the order of Superior For the foregoing County of Allegheny Pleas the Court of Common reversing the latter case remanded to and the should be affirmed court. J., dissenting opinion.

O’BRIEN, joins C. Notes of Testimony, September 31-32) at interpretation was accord with this Court’s subsequent pronouncement Inc., in Azzarello Black Brothers Co., Pa. 391 A.2d 1020(1978). The evidence excluded by trial court pursuant to Berkebile included: the knowledge and experience of Allegheny detectives County regarding of frequency and likelihood death and/or from injuries (N.T. traditional at 41 and BB-guns, 71); the knowledge and experience of Mr. Mrs. Saenz their regarding prior perceptions (N.T. at Daisy BB-guns, 77 and 131-32); the knowledge Mr. and experience Mrs. Saenz regarding their prior perceptions Daisy BB-guns as influenced by Daisy advertisements in various youth-oriented publications, (N.T. 74-75, at 157); the knowledge and experience chief product evaluator prior regarding injuries inflicted traditional (N.T. 252-55, Daisy BB-guns, 262); advertise- ments of the Power King which were not seen actually the Saenzes, (N.T. at 321); and evidence that Daisy BB-guns were advertised in Boy’s (N.T. Life Magazine, 442). While the lower court’s were evidentiary rulings under- standable in of certain light language Berkebile and Azzarello, I am nevertheless convinced that plaintiff-appel- lee’s contention the “false (regarding sense of security about safety Daisy BB-guns” arising from misleading mar- keting techniques, use mislabeling by of the Daisy logo) is not only case, further, relevant to this but is absolutely indispensible to a proper understanding of the nature of such a defect and to the determination of whether a defec- tive condition existed due to an absence or inadequacy

Case Details

Case Name: Sherk v. DAISY-HEDDON, ETC.

Court Name: Supreme Court of Pennsylvania

Date Published: Aug 23, 1982

Citation: 450 A.2d 615

Docket Number: 81-1-43

Court Abbreviation: Pa.