Bugosh v. I.U. North America, Inc.
Decision Date | 16 June 2009 |
Docket Number | No. 7 WAP 2008.,7 WAP 2008. |
Citation | 971 A.2d 1228 |
Parties | Judith R. BUGOSH, Administratrix of the Estate of Edward J. Bugosh, Deceased and Judith R. Bugosh, In Her Own Right v. I.U. NORTH AMERICA, INC., as Successor by Merger to the Garp Company, formerly known as the Gage Company, formerly known as Pittsburgh Gage and Supply Company, E.W. Bowman, Inc., Emhart Glass Inc., formerly known as Emhart Manufacturing Company, formerly known as Hartford Empire, F.B. Wright Company, Surface Combustion, Inc., Taylored Industries, Inc. Appeal of I.U. North America, Inc. |
Court | Pennsylvania Supreme Court |
BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.
Appeal dismissed as having been improvidently granted.
Justice SAYLOR files a dissenting statement in which Chief Justice CASTILLE joins.
Appeal was allowed to consider whether, in product liability actions in Pennsylvania, to move from Section 402A of the Second Restatement of Torts to Section 2 of the Third Restatement of Torts: Product Liability, thus substantially altering the liability scheme grounded on the seminal decision in Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978). I reiterate my belief that Azzarello is severely deficient, particularly when measured against developed understanding and experience, and necessary adjustments are long overdue. Thus, I cannot support the decision to dismiss this appeal and permit another opportunity to go by the wayside.
This is an appeal from a verdict favorable to the plaintiff in a product liability action based on asbestos exposure litigated against a non-manufacturer distributor. Appellee and her husband, now deceased, pursued recovery on a strict-liability, failure-to-warn theory under Section 402A of the Second Restatement. During the trial, Appellant, the defendant, sought the application of Section 2 of the Third Restatement by way of a motion in limine, which was denied in light of this Court's well-established precedent adopting Section 402A of the Second Restatement. The verdict was affirmed by the Superior Court, again based on this Court's settled precedent. See Bugosh v. Allen Refractories Co., 932 A.2d 901, 911 (Pa.Super.2007) ().
Nearly six years ago, the state of products liability law in Pennsylvania was discussed extensively in Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003) (plurality).1 The lead opinion in Phillips strongly adhered to the course set by Azzarello, which held that, in the application of Section 402A of the Second Restatement, which imposes liability upon "[o]ne who sells any product in a defective condition unreasonably dangerous," the concept of "unreasonably dangerous" (or conversely due and reasonable safety) has no place before a jury. See Azzarello, 480 Pa. at 555-56 & n. 9, 391 A.2d at 1025 & n. 9. Azzarello's chief concern was with the protection of consumers exposed to mass marketing. See id. at 553, 391 A.2d at 1023-24. The Court sought to advance this aim in actions litigated under Section 402A by broadly couching manufacturers as guarantors of their products' safety, and by strictly forbidding consideration by jurors of reasonableness conceptions. See id. at 559, 391 A.2d at 1027.
Echoing Azzarello, the Phillips lead reiterated that "strict liability affords no latitude for the utilization of foreseeability concepts" grounded in negligence theory. Id. at 655, 841 A.2d at 1006 ( ). This is so, the lead Justices explained, because in a strict-liability action the product itself is on trial, and not the manufacturer's conduct. Id. ( ). Nevertheless, the lead opinion confessed error on the part of the Court in its own use of negligence concepts within the strict-liability arena. Id. at 655-56, 841 A.2d at 1006-07 .2 After indicating it would be imprudent to reverse all strict-liability decisions utilizing negligence terms, the lead opinion stated, "we can, and do, reaffirm that in this jurisdiction, negligence concepts have no place in strict liability law." Phillips, 576 Pa. at 656, 841 A.2d at 1007.
In concurrence, three Justices noted the incongruity in abiding the numerous accretions of negligence theory into strict-liability doctrine, while at the same time pronouncing they have no place there. Phillips, 576 Pa. at 664, 841 A.2d at 1012 (Saylor, J., joined by Castille, J., and Eakin, J.). Furthermore, it was noted, strict-liability theory at its core, as it has been applied in Pennsylvania, incorporates the principle of risk-utility (or cost-benefit) balancing, derived from negligence theory. See id. at 667-68 & n. 5, 841 A.2d at 1013-14 & n. 5 ( ).3 The concurrence also developed that, in design-defect cases,4 the distinction between the character of a product and the conduct of the manufacturer in designing it is tenuous. See id. at 669, 841 A.2d at 1015 ( . The concurrence explained that Pennsylvania's attempt to isolate strict-liability theory in its entirety from negligence theory: was not supported by the author of the seminal article on which the Court had relied, see Phillips, 576 Pa. at 666, 670, 841 A.2d at 1014-15;5 has led to risk-utility balancing by trial courts on facts most favorable to the plaintiff (to avoid entangling the trial judge in determining factual questions assigned to the jury under Azzarello); and has yielded minimalistic jury instructions (to insulate the jury from negligence terminology) which lack essential guidance concerning the key conception of product defect. See id. at 672-74, 841 A.2d at 1017-18.
The concurring Justices found that the Third Restatement approach illuminates the most viable route to providing essential clarification and remediation, by: preserving traditional strict liability for manufacturing defects; endorsing a reasonableness-based, risk-utility balancing test as the standard for adjudging the defectiveness of product designs; and relegating the cost-benefit analysis to the jury, guided by appropriate instructions (where sufficient evidence has been presented to preclude summary judgment or a directed verdict). See Phillips, 576 Pa. at 675-79, 841 A.2d at 1019-21; see also DGS v. United States Mineral Prods. Co., 587 Pa. 236, 254, 898 A.2d 590, 601 (2006) (...
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