MICHAEL AND MELISSA SULLIVAN, H/W v. WERNER COMPANY AND LOWE‘S COMPANIES, INC., AND MIDDLETOWN TOWNSHIP LOWE‘S STORE #1572
No. 3086 EDA 2019
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED APRIL 15, 2021
2021 PA Super 66
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
Appeal from the Judgment Entered November 19, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 161003086
Michael Sullivan (Sullivan) and Melissa Sullivan, his wife, brought this strict products liability action after he fell through a scaffold made by Werner Company (Werner) and sold by Lowe’s Companies, Inc. (Lowe’s) (collectively, Manufacturer). A jury determined that a design defect caused the accident and awarded Sullivan $2.5 million in damages. On appeal, Manufacturer raises three challenges. First, Manufacturer alleges that the trial court erred in precluding industry standards evidence. Second, Manufacturer asserts that it should have been allowed to argue that Sullivan’s negligence was the sole
I.
A.
The scaffold that was alleged defective is the Werner SRS-72, a six-foot tall steel rolling scaffold. It has two end frames, two side rails, a steel-encased plywood platform, and four locking caster wheels. To assemble the frame, the user attaches the side rails to the end frames. Once attached, the side rails and end frames create a frame for the platform to rest in. The user seats the platform in the frame by placing it on horizontal flanges on the side rails. When fully seated, the platform should be flush with the top of the side rails.
The user then secures the platform to the frame with two deck pins - one on each side diagonal from the other. With an inverted L-shape design, the deck pins cover the platform. To secure the platform, the user pushes the spring-loaded deck pins up and rotates them so that their upper parts cover the platform. When fully rotated, the deck pins protect the platform against upward force. Finally, with the platform secured, the user attaches the wheels to the end frames. When the wheels are unlocked, the user can roll the scaffold to his work area. After locking the wheels, the user climbs the rungs on the end frames to get on the platform and work.
At the wall, Sullivan did not need the scaffold to install the bottom two rows of DensGlass pieces, which were eight-by-four feet and about 40 pounds per piece. Sullivan, however, needed the scaffold to install the top row. After placing the scaffold six inches from the wall, he climbed the rungs to get on the platform and take measurements because the DensGlass pieces were too big for the top row. Sullivan then relayed the measurements to Bentzley at a nearby cutting station. Bentzley would cut the pieces based on the measurements, walk the pieces to the scaffold, rest them on the platform,
Sullivan installed the first two pieces with no problems. Each time, he installed the piece, climbed off the platform, unlocked the wheels, rolled the scaffold about eight feet to the next section, relocked the wheels and then climbed back up on the platform. While installing the third piece, Sullivan fell through the scaffold and crashed to the ground, landing on his backside. At trial, Sullivan testified the platform collapsed beneath him like a “trapdoor.” Bentzley heard the crash and rushed over to find a dazed Sullivan laying under the scaffold. The foreman also came and saw the same thing. Sullivan told him that he “fell through the scaffold, that the scaffold plank gave way.”
Despite the accident, Sullivan got up after a few minutes and continued working on the scaffold. Later that night, however, he went to the hospital. X-rays revealed that he injured his lumbar vertebrae and fractured his sacrum. Having suffered permanent injuries requiring continual medical treatment, Sullivan has been unable to return to work as a carpenter since the accident.
B.
Sullivan, together with his wife, filed this action in the Court of Common Pleas of Philadelphia County (trial court) against Manufacturer.1 Sullivan asserted claims for negligence (later withdrawn at trial) and strict products
We have explained the different doctrines under which a plaintiff can prove a product’s defectiveness:
To prevail in an action under [S]ection 402A, the plaintiff must prove that the product was defective, the defect existed when it left the defendant’s hands, and the defect caused the harm. The threshold inquiry in all products liability cases is whether there is a defect. This threshold can be crossed ... either by proving a breakdown in the machine or a component thereof, traditionally known as a manufacturing defect; or in cases where there is no breakdown, by proving that the design of the machine
results in an unreasonably dangerous product, traditionally known as a design defect. A third doctrine recognized under [S]ection 402A is the “failure-to-warn” theory, under which the plaintiff may recover for the defendant’s failure to provide adequate instructions to the user on how to use the product as the product was designed. To succeed on a claim of inadequate or lack of warning, a plaintiff must prove that the lack of warning rendered the product unreasonably dangerous and that it was the proximate cause of the injury.
Barton v. Lowe‘s Home Centers, Inc., 124 A.3d 349, 354-55 (Pa. Super. 2015) (internal citations and some quotation marks omitted).
For the design defect, Sullivan alleged that it was foreseeable that the platform could collapse during normal use of the scaffold. Under his theory, a user would inadvertently rotate the deck pins off the platform by kicking them while working or when the user moved tools or materials near the pins. With the deck pins rotated off, the platform would become unseated when the user climbed the rungs or moved the scaffold. The platform would stay unseated because of a weld protrusion in one of the platform’s steel corners. The user would then be unaware that the platform was misaligned, leading to a collapse once the user stepped back on the unsecured platform.
As for failure-to-warn, the side rails contained a sticker instructing the user to “[e]nsure deck pin is completely rotated and platform is seated within side rails before each use.” Besides being obscured by the deck pins and not warning of the consequences for failing to follow, the instruction was alleged
To support his claims, Sullivan obtained the opinion of Russell Rasnic (Rasnic), an expert in mechanical engineering. In his report, Rasnic stated that the Werner SRS-72 scaffold was defective because the deck pins could become inadvertently rotated off the platform, which could then lead to the platform becoming unseated from the side rails. In finding the scaffold defective, Rasnic reviewed several similar scaffolds and concluded that there are safer alternative designs to protect against a platform collapsing during normal use. In particular, other manufacturers included four deck pins instead of two to secure the platform. Additionally, other manufacturers included positive alignment devices to their deck pins to ensure that they could not be rotated off the platform. Having found the scaffold defective, Rasnic further concluded that the scaffold’s defectiveness caused the accident.
As part of his analysis, Rasnic filmed himself testing an exemplar Werner SRS-72 scaffold. The videotaped testing shows Rasnic making the platform collapse twice. He does this by first setting the welded corner of the platform on top of the side rail. With the deck pins still on, Rasnic gets on the platform while hanging onto the ceiling. After kicking out a deck pin, he steps on the platform and causes it to immediately collapse. He does this a second time but has to apply lateral force several times before the platform collapses.
Additionally, Knox concluded that a properly seated platform will remain so during normal use with the deck pins engaged. Through his own testing, he determined that a properly seated platform will not become misaligned even with abnormal pressure being applied to the scaffold. He concluded that the only way the platform could collapse in the way that Sullivan described was if he did not properly place it within the side rails with the deck pins engaged before climbing on it. Knox added that Sullivan could have avoided the accident by following the instruction that the platform be seated within the side rails with the deck pins rotated “before each use.”
Before trial, Sullivan filed a motion in limine to bar the admission of any government or industry standards evidence at trial, arguing that Pennsylvania courts have generally barred such evidence in strict liability cases.
Manufacturer, meanwhile, filed two pretrial motions in limine seeking to limit Rasnic’s testimony at trial. In the first, Manufacturer argued that no evidence supported Rasnic’s opinion about how the platform collapsed. Under this argument, his opinion about how the accident happened was speculative because neither Sullivan nor Bentzley remembered the deck pins being disengaged or the platform being unseated. Similarly, in their other motion, Manufacturer sought to preclude Rasnic’s videotaped testing. According to Manufacturer, the conditions of the testing differed from those described by Sullivan, emphasizing that Rasnic intentionally displaced the platform and applied “abnormal, unforeseeable” force to get the platform to collapse.
The trial court denied both motions. As a result, the trial court allowed Rasnic to opine that the scaffold was defective without testimony that the deck
The parties proceeded to a two-week jury trial. During trial, a dispute arose whether Manufacturer could argue that Sullivan’s negligence caused the accident. Manufacturer insisted it be allowed to argue that Sullivan was the sole cause of the accident, asserting that he was negligent for failing to ensure that the platform was seated with the deck pins fully rotated each time he climbed onto the platform. Sullivan responded that contributory negligence is inadmissible in strict liability actions unless it amounts to assumption of risk, misuse of a product or highly reckless conduct.
Agreeing with Sullivan, the trial court ruled that Manufacturer could not argue in its closing statement that Sullivan’s negligence was the sole cause of the accident.
And then finally, again, having reviewed all the case law the defendant can argue, during closing, when it comes to causation, that the platform didn’t collapse and they can argue, during the design defect part of it, that people, the average consumer or whatever, who heeds the warnings won’t fall. But I did not find that the plaintiff’s conduct could be found as extreme recklessness or whatever it’s called. In fact, the case law makes it pretty clear that it has to be that even if the thing was designed properly, the recklessness still would have been so severe that he would have gotten injured anyway.
So, because it doesn’t rise to that level, it can’t be used in causation and it can’t be talked about specifically during the design defect portion except, again, to reference that the warning is sound and someone, when you’re looking at whether this is a properly designed product, you can consider this warning and how the typical consumer, reasonable consumer, would react to it.
Consistent with its holding, the trial court instructed the jury during its final charge that it could not consider any negligence or lack of due care by Sullivan as part of its defectiveness determination. Rather, the jury would need to consider the risk-utility factors and determine “what product a reasonable manufacturer would design.” N.T., 5/9/19, at 114. The trial court gave a similar instruction about causation, warning the jury that it “may not consider any negligence – negligence that is lack of due care – with respect to [Sullivan’s] handling of the scaffold’s warnings or the assembly of the scaffold.” Id. at 116.
The jury returned a verdict in favor of Sullivan, finding that his injuries were caused by a design defect in the scaffold.3 Having so found, the jury awarded Sullivan $2.5 million in monetary damages. After denying Manufacturer’s motion for post-trial relief under
Manufacturer timely appealed and now raises three issues for review.
- Did the trial court abuse its discretion in precluding [Manufacturer] from introducing evidence of compliance with industry safety standard, including evidence of other scaffolds with the same relevant design characteristics as [Manufacturer’s]
- Did the trial court commit an error of law in instructing the jury that it could not consider any negligence of [Sullivan] and in precluding [Manufacturer] from arguing that [Sullivan’s] conduct was the sole proximate cause of his injuries?
- Did the trial court abuse its discretion in denying [Manufacturer’s] motion in limine to preclude [Sullivan’s] expert witness opinion testimony and demonstrative evidence videotape, where the expert’s opinions, and the demonstrative evidence videotape, were not based on any facts of record?
Manufacturer’ Brief at 7-8.
II.
Manufacturer first contends that the trial court erred in precluding evidence that the scaffold complied with government and industry standards.4 Manufacturer asserts that it should have been permitted to introduce evidence of other scaffolds with deck pins similar in design to those used in its scaffold. While the parties generally agree that this evidence was inadmissible under long-standing Pennsylvania case law, they differ over what effect the Pennsylvania Supreme Court’s decision in Tincher had on the evidentiary prohibition against government and industry standards evidence in strict liability cases.
A.
To address this issue, a survey of the case law on the admissibility of government and industry standards evidence in strict liability actions is needed. Before Tincher, our courts prohibited industry standards evidence in strict liability actions. This prohibition began, in part, with our Supreme Court’s decision in Azzarello v. Black Bros., Co., 391 A.2d 1020 (Pa. 1978) where our:5
Citing Azzarello as support for its holding, the Court stated the following:
Besides holding that a product is defective when it leaves the supplier’s control lacking any element necessary to make it safe for its intended use, [the Azzarello Court] also concluded, if not expressly, then certainly by clear implication, that negligence concepts have no place in a case based on strict liability.
Id. at 593. Because industry standards evidence went to the reasonableness of a manufacturer’s conduct in designing the product, Lewis reasoned that industry standards evidence improperly introduced concepts of negligence into strict liability. Id. at 594. This evidence, the Court noted, would likely divert a jury’s attention from the product itself to the manufacturer’s conduct in designing the product. Id.
We followed the Lewis evidentiary prohibition in Gaudio v. Ford Motor Co., 976 A.2d 524 (Pa. Super. 2009). In Gaudio, we held that a trial court correctly applied Lewis in precluding evidence of a manufacturer’s compliance with industry standards relating to seat belts. Id. at 543. As part of our
Together, Lewis and Gaudio established a clear prohibition against industry and government standards in strict product’s liability. The question here is what impact Tincher had when it expressly overruled Azzarello and the strict division of negligence and strict liability. Now to Tincher.
B.
In Tincher, our Supreme Court sought to address criticism from both within the Court6 and from outside commentators of Azzarello’s idiosyncratic, “super” strict liability approach7 to products liability claims, as well as to address agitation to adopt
In Tincher, the plaintiffs sued the defendant manufacturer in negligence and strict liability alleging, among other things,
defectively designed corrugated steel tubing. Tincher, 104 A.3d at 335–36. The plaintiffs alleged the steel tubing, which delivered natural gas to a gas fireplace in their home, melted after a lightning strike and ignited the natural gas inside. Id. The resulting fire caused significant damage to the plaintiff’s home and personal property. Id. Prior to trial, the defendant filed a motion in limine asking the trial court to apply Sections 1 and 2 of the Restatement (Third) of Torts to plaintiffs’ strict liability claim. Id. at 336. The defendant argued, in accord with the Third Restatement, that plaintiff had the burden to prove an alternate, safer design. Id. at 341. The defendant argued that the Third Restatement makes foreseeability of harm relevant to a strict products liability claim. Id. at 342–43. In other words, the defendant believed the reasonableness of its conduct must inform the analysis of the strict products liability claim against it. Id. at 344.
As part of its analysis, Tincher reviewed its post-Azzarello case law and criticism of the strict separation between negligence and strict liability concepts in design defect cases. The Court underscored that Section 402A relieves plaintiffs of the burden of proving the absence of due care in the manufacturing process. Tincher, 104 A.3d at 371. This did not, however, necessarily apply in design defect cases in which “the character of the product and the conduct of the manufacturer are largely inseparable.” Id. (quoting Phillips v. Crickett Lighters, 841 A.2d 1000, 1015 (Pa. 2003) (Saylor, J. concurring)). Finding that the separation between negligence and strict products liability neither reflected the realities of practice nor served the interests of justice, the Tincher Court overruled Azzarello to the extent that it was “in tension with the principles articulated in this Opinion.” Id. at 376.
Despite overruling Azzarello, the Tincher Court declined to adopt the Third Restatement, holding instead that a plaintiff may prove a product is defective by showing that either: (1) “the danger is unknowable and unacceptable to the average or ordinary consumer” (“consumer expectations standard”); or (2) “a ‘reasonable person’ would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions” (“risk-utility standard”). Id. at 385–91 (citations omitted).8
- the usefulness and desirability of the product – its utility to the user and the public as a whole;
- the safety aspects of the product – the likelihood that it will cause injury, and the probable seriousness of the injury;
- the availability of a substitute product which would meet the same need and not be as unsafe;
- the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility;
- the user’s ability to avoid danger by the exercise of care in the use of the product;
- the user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions; and
- the feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
Relevant to this appeal, while Tincher discussed Lewis, it did not overrule it, nor any other cases besides Azzarello. Anticipating the impact that its decision to overrule Azzarello would have, the Supreme Court in Tincher gave a disclaimer about the effect of its decision on related legal issues in strict liability.
We recognize—and the bench and bar should recognize—that the decision to overrule Azzarello and articulate a standard of proof premised upon alternative tests in relation to claims of a product defective in design may have an impact upon other foundational issues regarding manufacturing or warning claims, and upon subsidiary issues constructed from Azzarello, such as the availability of negligence-derived defenses, bystander compensation, or the proper application of the intended use doctrine. Accord Bugosh [v. I.U. North America, Inc., 971 A.2d 1228, 1244–45 & 1248–49 (3d Cir. 2009)]. These considerations and effects are outside the scope of the facts of this dispute and, understandably, have not been briefed by the [the parties].
This Opinion does not purport to either approve or disapprove prior decisional law, or available alternatives suggested by commentators or the Restatements, relating to foundational or subsidiary considerations and consequences of our explicit holdings. In light of our prior discussion, the difficulties that justify our restraint should be readily apparent.
In Webb, we considered Tincher’s impact on the formerly well-established Lewis/Gaudio prohibition against government or industry standards evidence in strict liability cases. There, the trial court instructed a jury that it was allowed to consider federal motor vehicle safety standards in a strict products liability action even though the court had dismissed the plaintiff’s negligence claims. After the jury returned a verdict for the manufacturer on strict liability, plaintiff appealed to argue that the trial court’s jury instruction improperly injected negligence concepts into its strict liability claim. Webb, 148 A.3d at 477-78.
To address plaintiff’s issue, Webb summarized the state of the law on the issue after Tincher.
To summarize, Azzarello, with its strict prohibition on introducing negligence concepts into strict products liability claims, is no longer the law in Pennsylvania. The rule presently at issue—the prohibition of government or industry standards evidence in a strict products liability case—clearly has its genesis in the now-defunct Azzarello regime. The Lewis and Gaudio Courts both relied primarily on Azzarello to support the preclusion of government or industry standards evidence, because it introduces negligence concepts into a strict liability claim.
Plaintiff argued that the Lewis/Gaudio evidentiary prohibition remained good law because Tincher did not expressly overrule either case. We essentially agreed, although with some qualification.
We conclude that the overruling of Azzarello does not provide this panel with a sufficient basis for disregarding the evidentiary
These contingencies illustrate that Tincher will affect every stage of future products liability cases. Post-Tincher, parties must tailor their pleadings, discovery, and trial strategy to one or both of the new theories of liability. We believe the continued vitality of the prohibition on government and industry standards evidence is a question best addressed in a post-Tincher case.
We concluded that the trial court should have instructed the jury to disregard the federal standards evidence once it dismissed the negligence claims that were the basis for the evidence’s relevance in the first place. Id. at 484.
In the years after Webb, this Court has had little opportunity to readdress whether the Lewis/Gaudio evidentiary prohibition remained good law. We briefly discussed the issue in Renninger v. A & R Machine Shop, 163 A.3d 988 (Pa. Super. 2017), a case that involved a challenge to the
Most recently, in Dunlap v. Federal Signal Corp., 194 A.3d 1067 (Pa. Super. 2018), we discussed the evidentiary prohibition in the context of a strict liability action brought by a group of firefighters alleging that they suffered hearing loss from their firetrucks’ sirens. Proceeding under the risk-utility standard for its design defect claim, the plaintiffs retained an expert who believed there was a safer alternative design for the sirens that could meet industry standards yet avoid causing hearing damage. Id. at 1068. The trial court, however, dismissed the claim on summary judgment by finding that the industry standards evidence was not enough to establish that the expert’s proposed alternative design met the third factor for risk-utility: the availability of a substitute product which would meet the same need and not be as unsafe. The plaintiffs’ industry standards evidence, therefore, was not enough to prove that an alternative design would provide as much protection to motorists and pedestrians as the manufacturer’s siren. Id. at 1068-69.
On appeal, we affirmed. In finding that the putative industry standards evidence was insufficient, we observed that the Webb panel concluded that Tincher, despite overruling Azzarello, did not provide a sufficient basis for
D.
Manufacturer contends that Tincher allows the introduction of government and industry standards, building its argument not on Pennsylvania case law but around several federal district court decisions. Under this view, these cases show that, post-Tincher, manufacturers can admit relevant government and industry standard evidence in strict liability cases. Manufacturer’s Brief at 33. At the outset, though, we note that federal district court decisions, as well as those by federal Courts of Appeal, are not binding on Pennsylvania courts. Dietz v. Chase Home Finance, LLC, 41 A.3d 882, 886 n.3 (Pa. Super. 2012).
E.
Having reviewed the relevant Pennsylvania case law, we make a few observations. First, notwithstanding suggested interpretations of Tincher that would make products liability law negligence-based on the due care of the manufacturer in designing or manufacturing the product, strict liability is still the standard to be used in determining whether a product is “unreasonably dangerous” in Pennsylvania. Under the RESTATEMENT (SECOND) OF TORTS § 402A formulation, a product can be designed and manufactured with “all possible care” but still be defective. Manufacturer liability then depends on the product’s dangers, not on the reasonableness of the manufacturer’s conduct in designing or manufacturing the product.
Under the
Reasonableness or foreseeability may be taken into consideration in other aspects of liability such as “negligence-derived defenses, bystander compensation, or the proper application of the intended use doctrine.” Tincher, 104 A.3d at 409. Generally, those concepts may be used in determining whether, in light of its inherent dangers, the product fails to satisfy either
Second, the Supreme Court’s decision in Tincher to overrule Azzarello did cast some doubt on the Lewis/Gaudio evidentiary prohibition against government and industry standards evidence in strict liability actions. However, Tincher does not cast any more doubt on that principle than any other decision issued while Azzarello was extant. Tincher foresaw that its holding could impact subsidiary issues derived from Azzarello. It advised, “[t]he common law regarding these related considerations should develop within the proper factual contexts against the background of targeted advocacy.” Tincher, 104 A.3d at 409. Following Tincher, however, no Pennsylvania court has held that Tincher, in overruling the Azzarello paradigm, has implicitly overruled Lewis/Gaudio just because our Supreme Court disavowed the strict separation of negligence concepts from strict products liability law.
A final and important observation. In Tincher, after overruling Azzarello, our Supreme Court remanded the case to the trial court with instructions to reconsider the post-trial motions pursuant to
Under the above-quoted provision of the
The fundamental problem with a state of the art [industry standard] defense is that it is all about the character of the manufacturer/distributor’s conduct, not the product’s safety. In essence, it boils down to an assertion by the defendant roughly to this effect: “Sure, the product may be dangerous, but we did everything we reasonably could to make it safe, everything that was done by other manufacturers/distributors in our industry. Our product was as good as it could be given the state of the art at the time.” This is a due care defense, pure and simple, and it sounds in negligence. It deflects attention away from the condition of the product toward the conduct of the defendant. Like many due care arguments, it relies on compliance with industry standards or custom (that is, the “state of the art“) as a means of showing due care. It is entirely inconsistent with Section 402A’s principle that a product can be defective, even if a manufacturer/distributor exercised “all possible care” in its creation and sale. A defendant who asserts compliance with the “state of the art” is simply maintaining that the defendant has exercised reasonable (or perhaps, though not necessarily, all possible) care with respect to the product’s design, but under the governing principles of Section 402A that clearly should not be an available defense.
Ellen Wertheimer & Mark C. Rahdert, The Force Awakens: Tincher, Section 402a, and the Third Restatement in Pennsylvania, 27 Widener Commonwealth
F.
Returning to this appeal, it is important to remember that what is involved is not a negligence concept but whether the trial court erred in excluding evidence - a function that is well within its sound discretion and one which we will not question unless it was manifestly unreasonable. While we agree with Webb that our Supreme Court may allow industry and governmental standards in a manner suggested by the
Manufacturer next contends that the trial court erred in instructing the jury that it could not consider whether Sullivan was negligent in determining defectiveness or causation. By so instructing, Manufacturer asserts, the trial court prevented it from arguing that Sullivan was the sole cause of the accident. Manufacturer insists that the trial court should have allowed them to argue that Sullivan was negligent for failing to properly seat the platform within the side rails and engage the deck pins, as this is the only explanation for how the accident could have happened.11
Accordingly, there are limited exceptions to when the plaintiff’s conduct may be relevant, including “evidence of a plaintiff’s voluntary assumption of the risk, misuse of a product, or highly reckless conduct is admissible insofar as it relates to the element of causation.” Clark v. Bil-Jax, Inc., 763 A.2d 920, 923 (Pa. Super. 2000) (quoting Charlton v. Toyota Industrial Equipment, 714 A.2d 1043, 1047 (Pa. Super. 1998)).
In their brief, Manufacturer reviews much of this same precedent in arriving at the conclusion that Pennsylvania’s strict products liability law, even before Tincher, allowed a manufacturer to argue that a plaintiff’s negligence was the sole proximate cause of his injuries.12 Manufacturer contends that it should have been allowed to argue that Sullivan was solely responsible for causing the accident by negligently failing to properly assemble the scaffold and seat the platform within the side rails with the deck pins engaged.13
To illustrate, in Madonna, the plaintiff crashed while riding a motorcycle and sued under a theory of strict product’s liability, alleging that a bolt on the front wheel’s brake was defective. Madonna, 708 A.2d at 508. At trial, defendant Harley Davidson offered evidence that plaintiff was intoxicated at
In contrast, in Charlton, the plaintiff was injured when a coworker backed over his foot with a forklift. Plaintiff sued the forklift’s manufacturer and claimed that it was defective because its gas tank obstructed the driver’s rear view, lacked rear view mirrors and had no alarm system for when the forklift was in reverse. Charlton, 714 A.2d at 1045. During trial, the court allowed the defendant manufacturer to admit evidence that plaintiff and the forklift’s driver failed to pay attention to each other. Id. at 1047. We found that this was not enough to allow defendant to argue that plaintiff’s negligence was the sole cause of his injuries. Significantly, we noted, defendant could not show that plaintiff’s injures resulted solely from his and the driver’s “careless conduct” rather than the alleged defects in the forklift. Id. at 1048.14
Accordingly, the trial court did not err in preventing Manufacturer from arguing that Sullivan’s conduct was the sole cause of the accident. We also find the trial court did not abuse its discretion in instructing the jury it could not consider Sullivan’s conduct, as it accurately explained the law based on its holding as to negligence.
IV.
Finally, Manufacturer raises two challenges to the trial testimony of Rasnic, who, as we explained earlier in our facts section, was Sullivan’s
A.
Before addressing whether Rasnic’s opinion lacked a factual foundation, we address whether Manufacturer waived this claim as Sullivan contends in his brief. As noted earlier, Manufacturer filed a pretrial motion to bar Rasnic’s expert opinion testimony. Manufacturer argued that Rasnic’s opinion - that the platform collapsed after the deck pins must have become disengaged - was impermissibly speculative and lacking factual support. Manufacturer presented this argument on the first day of trial, but the trial court was unpersuaded and denied the motion.
THE COURT: Well, there’s the absence of any other -- and again, this all goes to weight, in the absence of other obvious reasons. And given the fact that even your witnesses concede it could happen, I think that’s enough to allow it to go to the jury, but we’ll see later on.
[MANUFACTURER]: Okay.
THE COURT: So, that motion is denied.
N.T., 4/29/19, at 16-17.
Manufacturer did not renew their objection later during trial when Rasnic testified. Consequently, Rasnic testified with no objection that the scaffold was defective and caused the accident based on Sullivan’s testimony of what
Pennsylvania Rule of Evidence 103 addresses waiver of issues raised in pretrial motions.
Rule 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or motion in limine; and
(B) states the specific ground, unless it was apparent from the context
* * *
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
We find no waiver based on Manufacturer’s failure to reassert its pretrial objection to Rasnic’s expert opinion. While remarking that “we’ll see later on,” the trial court denied the motion in limine after stating that it ultimately felt Manufacturer’s arguments went more to weight than admissibility. Despite Manufacturer not renewing their objection during trial, the trial court elected not to find waiver in its subsequent
Manufacturer believes that Rasnic’s opinion had no factual foundation because there was no evidence that the deck pins became disengaged or that the platform became unseated from the side rails. Manufacturer believes that trial court erred in allowing Rasnic to offer the following opinions.
Q: Mr. Sullivan testified a little bit more in detail during the trial on Monday, and I just want to have you assume he testified as follows: That when he assembled the scaffold, he believed that the platform was fully seated into the side rails, that the deck pins were fully engaged. He then went [on to] perform tasks associated with his job duties that day, which included climbing the scaffold, receiving materials that were slid to him in front of him by a coworker, walking on the platform from end-to-end to
take measurements and install sheeting to metal studs. Then climbing down the scaffold, relocating it after unlocking the wheels, [setting] it up in its new location and locking the wheels, and then climbing back onto it. There was testimony that that happened, all of those steps happened with repetition at least three times before his accident. First off, do you have an opinion within a reasonable degree of engineering certainty that what I just described for you is a foreseeable use of Werner’s SRS 72 scaffold?
A: I do.
Q: Do you have an opinion within a –
A: Excuse me, and the answer is yes.
Q: Thank you for catching that. Do you have an opinion within a reasonable degree of engineering certainty that this foreseeable use that I just described for you could lead to a situation where the platform becomes dislodged resulting in the platform falling through along with the user, like Mr. Sullivan?
A: I do. The answer is yes.
Q: Do you have an opinion within a reasonable degree of engineering certainty that the defective condition that you highlighted for the jury, I should say defective conditions … was the proximate cause of Mr. Sullivan’s June 26, 2015 accident?
A: I do, and the answer is yes.
N.T., 5/1/19, at 148-49.
It is well settled that expert testimony is incompetent if it lacks an adequate basis in fact. The expert is allowed only to assume the truth of testimony already in evidence. While an expert’s opinion need not be based on an absolute certainty, an opinion based on mere possibilities is not competent evidence. This means that expert testimony cannot be based solely upon conjecture or surmise. An expert must do more than guess. His ... assumptions must be based upon such facts as the jury would be warranted in finding from the evidence.
All the facts that Rasnic assumed were true came from Sullivan’s trial testimony. First, Sullivan testified that he assembled the scaffold like he had done “hundreds” of times before. N.T., 4/29/19, at 102. After doing so, he was satisfied that he had assembled everything correctly, which included ensuring that “the platform was appropriately secured by resting in the side rail lips and the deck pins engaged.” Id. at 104. After rolling the scaffold to the wall, Sullivan performed the necessary tasks for installing the sheathing. This included climbing up the scaffold’s rungs, having Bentzley slide up the DensGlass pieces, and then walking on the platform’s surface to take the measurements. Id. at 110-115. After doing this, Sullivan would climb back down the scaffold and do it again two times before installing the third piece. Id. at 116-17. Rasnic concluded that these actions - all of which Sullivan testified to - could lead to the deck pins being rotated off and the platform then becoming unseated.
As a result, all the facts that supported Rasnic’s opinion were supported by Sullivan’s testimony; whether that opinion was incredible was a matter left to the jury to decide rather than the trial court, which did not abuse its discretion in deciding to allow Rasnic to give his expert opinion. Thus, we find that the first challenge to Rasnic fails.
Finally, Manufacturer contends that the trial court erred in allowing the jury to view the videotape of Rasnic’s testing of an exemplar scaffold in his workshop. “Generally, demonstrative evidence is admissible if its probative value outweighs the likelihood of improperly influencing the jury.” Pascale v. Hechinger Co. of Pa., 627 A.2d 750, 755 (Pa. Super. 1993) (citations omitted). “Conditions must be sufficiently close to those involved in the accident to make the probative value of the demonstration outweigh its prejudicial effect.” Id.
First, as we briefly described earlier, the video shows an already-assembled Werner SRS-72 scaffold set at its top height. After unlocking the wheels, Rasnic unseats the platform and shows the weld protrusion on the platform’s corner. He shakes the scaffold several times with the platform unseated and the deck pins rotated off, showing that the platform remains out of the frame. He then does the same thing but after engaging the deck pins, showing again that the platform remains unseated after being jarred. With the platform still unseated in one corner, Rasnic climbs a ladder and gets on the platform while holding onto the ceiling. Right after kicking off one deck pin, the platform collapses when he steps on it. Rasnic does the same thing a second time, but has to apply much more force while hanging from the ceiling.
Based on our review, the trial court did not abuse its discretion in allowing the jury to view the videotape of Rasnic’s testing. First, Manufacturer focuses only on those aspects of the testing that conflict with their theory of what happened, ignoring the probative aspects that supported Sullivan’s theory of how the accident happened. To this end, the video shows how the weld protrusion on the one corner could prevent the platform from being seated in the side rails after it became unseated. The testing also showed how a user could unknowingly disengage the deck pins and unseat the platform, which would then collapse when the user steps on it. This result is particularly evident in the depiction of the first collapse in the video. All of this was probative to rendering Rasnic’s testimony more comprehensible to the jury, which is one of the purposes of demonstrative evidence. Here, the
Nor do we find that the likelihood of the video improperly influencing the jury outweighed its probative value. Manufacturer’s main argument is that the testing was not close enough to the conditions of the accident. While Manufacturer raises several salient points about how the testing did not depict what they believe happened, they raised and developed all those points during their thorough cross-examination. Thus, to the extent there were differences between the testing and Sullivan’s description of what happened, Manufacturer could develop those differences through cross-examination and then implore the jury to discount the videotape’s value in depicting what happened.
Accordingly, the trial court did not abuse its discretion in permitting Sullivan to show the videotape as part of Rasnic’s testimony, and for the foregoing reasons, the judgment is affirmed.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2021
Notes
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
In connection with liability for defective design or inadequate instructions or warnings:
(a) a product’s noncompliance with an applicable product safety statute or administrative regulation renders the product defective with respect to the risks sought to be reduced by the statute or regulation; and
(b) a product’s compliance with an applicable product safety statute or administrative regulation is properly considered in determining whether the product is defective with respect to the risks sought to be reduced by the statute or regulation, but such compliance does not preclude as a matter of law a finding of product defect.
Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015) (internal citations and quotation marks omitted).Our standard of review regarding jury instructions is limited to determining whether the trial court committed a clear abuse of discretion or error of law which controlled the outcome of the case. Error in a charge occurs when the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Conversely, a jury instruction will be upheld if it accurately reflects the law and is sufficient to guide the jury in its deliberations.
The proper test is not whether certain portions or isolated excerpts taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.
In other words, there is no right to have any particular form of instruction given; it is enough that the charge clearly and accurately explains the relevant law.