Suchomajcz v. Hummel Chemical Co., Newark, New Jersey

• Decision Date: 24 September 1975
• Docket Number: No. 74-2216,74-2216
• Citation: 524 F.2d 19
• Parties: Norman I. SUCHOMAJCZ, Administrator of the Estate of Norman Suchomajcz, a minor, et al., Appellants, v. HUMMEL CHEMICAL COMPANY, NEWARK, NEW JERSEY, et al.
• Court: U.S. Court of Appeals — Third Circuit

Page 19

524 F.2d 19

Norman I. SUCHOMAJCZ, Administrator of the Estate of Norman Suchomajcz, a minor, et al., Appellants, v. HUMMEL CHEMICAL COMPANY, NEWARK, NEW JERSEY, et al.

No. 74-2216.

United States Court of Appeals, Third Circuit.

Argued May 12, 1975.

Decided Sept. 24, 1975.

Joseph Lurie, Galfand, Berger, Senesky, Lurie & March, Philadelphia, Pa., for appellants.

John J. Tinaglia, Lisa J. Holzsager, Philadelphia, Pa., for Hummel Chemical Co.

Before ADAMS, ROSENN and HUNTER, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

The use of firecrackers has its fascinations but also involves serious risks to participants and public. The primary issue raised on this appeal is whether a supplier of a fireworks component, harmless in itself, sustains liability when he sells the component to a fabricator of fireworks assembly kits who he knows sells the kits contrary to law and in violation of a court injunction, and when children are injured by an accidental explosion of a kit abandoned by its purchaser.

Plaintiffs, six minor children, have instituted this wrongful death and survival action in the United States District Court for the Eastern District of Pennsylvania against Hummel Chemical Company (Hummel), a New Jersey manufacturer. Their complaint alleged that Hummel sold some of its chemical products to Edwin C. Christie, Christie Industries, Inc., and Ecco Products (Christie), notwithstanding it knew or had reason to know that Christie would use the chemicals to manufacture and ship firecracker assembly kits in violation of federal law and several federal injunctions forbidding him from shipping the kits through interstate commerce. See United States v. Christie Indus., Inc., 465 F.2d 1002 (3d Cir. 1972).

In 1969, in response to an advertisement in Popular Mechanics, Gregory Kranyak, a minor, ordered a firecracker assembly kit from Christie. Several months later Kranyak ordered a second kit. Both kits were sold by Christie in violation of the injunctions. On July 4, 1970, Kranyak abandoned a portion of the kits in a bottle in a park in Chester, Pennsylvania. Two days later, someone threw a match into the bottle, causing an explosion which killed two of the minor plaintiffs and injured the other four.

In their complaint, plaintiffs contended that Hummel was liable (1) on the ground of common law negligence in that Hummel was reckless and careless in selling hazardous and dangerous materials to Christie, which Hummel knew or should have known were for use in the sale of firecracker assembly kits in violation of the federal injunctions; (2) under section 388 of the Restatement (Second) of Torts for supplying without adequate warning a chattel which Hummel knew was likely to be dangerous for its intended use; and (3) under a theory of strict liability for abnormally hazardous activities. Upon a motion by Hummel for summary judgment, the district court held that the alleged facts did not establish liability on the part of Hummel under any of these theories. 385 F.Supp. 1387 (E.D.Pa.1974).

With respect to the negligence claim, the court found that plaintiffs were contending in effect "that a manufacturer must police those who purchase his products to be sure that their products, even if improperly used, will not have the potential to do harm." Id. at 1390. The court concluded that no such duty exists under Pennsylvania law. The court rejected plaintiffs' claim under section 388 of the Torts Restatement holding that the section applies only to dangerous substances and that Hummel's chemicals were not dangerous in themselves. The court also noted that section 388 imposes liability only if the persons harmed by the use of the chattel were those for whose use the chattel was supplied, and if the chattel was used in the manner intended by the manufacturer. Here, plaintiffs' injuries resulted from a third party throwing a match into a bottle in which the chemicals were abandoned. Finally, the court rejected plaintiffs' theory of strict liability for abnormally dangerous activities on the ground that Pennsylvania does not apply this theory to the discharge of fireworks. Plaintiffs appeal; we reverse the judgment of the district court.

I.

The parties have assumed that Pennsylvania law applies to the instant case. Although we agree, the question warrants brief discussion.

As a diversity court, we must look to Pennsylvania's conflict-of-laws rules to determine which state's substantive law applies. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The instant situation, in which a New Jersey manufacturer sells a product to a New Jersey fabricator ¹ knowing the fabricator will use the product as a component in firecracker assembly kits for interstate sales and Pennsylvania domiciliaries thereby are injured in Pennsylvania, has not been the subject of a Pennsylvania decision since the transformation in that state's conflicts law. This transformation dictates that we should apply the law of the predominantly concerned jurisdiction, measuring the depth and breadth of that concern by the relevant contacts each affected jurisdiction had with the specific transaction. The contacts are relevant only if they relate to the "policies and interests underlying the particular issue before the court." Griffith v. United Air Lines, Inc., 416 Pa. 1, 21, 203 A.2d 796, 805 (1964).

This balancing-of-interests test appears to have been modified somewhat when a "true conflict" exists, I. e., when the interests of the different states are of equal weight and truly in conflict. In Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970), the court was confronted with almost the converse situation as the one presented in this case. A Pennsylvania resident was injured in Delaware while riding as a guest in a car registered in Delaware and owned and operated by Delaware residents. Delaware had a guest statute; Pennsylvania did not. The court held that in this "true-conflicts" situation Delaware law should be applied since Delaware was the more concerned jurisdiction. The court, however, then noted that

it seems only fair to permit a defendant to rely on this home state law when he is acting within that state. . . . Inhabitants of a state should not be put in jeopardy of liability exceeding that created by their state's laws just because a visitor from a state offering higher protection decides to visit there. This is, of course, a highly territorial approach, but "departures from the territorial view of torts ought not be lightly undertaken." Gordon v. Parker, 83 F.Supp. 40, 42 (D.Mass.1949). . . . The very use of the term true conflict implies that there is no one correct answer, but as a general approach a territorial view seems preferable to a personal view.

Id. at 856-57 (footnote omitted). Pennsylvania's approach appears to be consistent with the view of the Restatement (Second) of Conflict of Laws §§ 145(a), 146, 156, 157 (1971) which provide that the law determining whether the actor's conduct was tortious will usually be the law of the state where the injury occurred.

If both Pennsylvania and New Jersey would apply the same substantive tort law to Hummel's activities, deciding which state's law to apply obviously is unimportant. If the two states would differ as to whether Hummel's activities are tortious, a true conflict is presented. The interest of one state in protecting its citizens against harm caused by Hummel's sales would be offset by the other state's interest in promoting its industries by not imposing liability. We believe that under these circumstances Pennsylvania would apply its tort law the law of the state where the injury occurred.

II.

As there are no precise Pennsylvania precedents to guide us, we must predict how the Pennsylvania courts would rule in a similar case. Kademenos v. Equitable Life Assurance Soc., 513 F.2d 1073 (3d Cir. 1975). We first note that summary judgment is never warranted except on a clear showing that no genuine issue of any material fact remains for trial after considering the pleadings and proof in the form of depositions, affidavits, and admissions on file. In determining the presence of a disputed issue of material fact on motion for summary judgment, "all inferences, doubts and issues of credibility" should be resolved against the moving party. Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972).

Under Pennsylvania law, no tort liability may be imposed upon a defendant not owing a duty to the injured plaintiff. See Boyce v. United States Steel Corp., 446 Pa. 226, 230, 285 A.2d 459, 461 (1971); Peatross v. Southwark Minit-Man Corp., 415 Pa. 129, 202 A.2d 102, 103 (1964). We believe that the alleged facts give rise to a jury question as to whether Hummel discharged two duties owing to the instant plaintiffs.

The first such duty rests on the responsibility each person bears to exercise care in his conduct to avoid unreasonable risk of harm to another. ² As a general rule, "anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act." Restatement (Second) of Torts § 302, comment A at 82 (1965) (hereinafter "Restatement"). See generally W. Prosser, Torts § 53 (4th ed. 1971).

The scope of Hummel's duty to avoid affirmative negligent acts appropriately may be measured by section 302(b) of the Restatement which provides that "(a) negligent act or omission may be one which involves an unreasonable risk of harm to another through . . . (b) the foreseeable action of . . . a third party." The predecessor to section 302(b) and its special applications ³ often have been cited with approval by the Pennsylvania Supreme Court. See, e. g., Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970); Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (1961); Tua v. Brentwood Motor Coach Co., 371 Pa....