Azzarello v. Black Bros. Co., Inc.

• Decision Date: 05 October 1978
• Parties: Orca C. AZZARELLO v. BLACK BROTHERS COMPANY, INC., a corporation, Appellant, Parts Processing, Inc., a corporation, Additional Defendant.
• Court: Pennsylvania Supreme Court

Page 1020

391 A.2d 1020

480 Pa. 547

Orca C. AZZARELLO v. BLACK BROTHERS COMPANY, INC., a corporation, Appellant, Parts Processing, Inc., a corporation, Additional Defendant.

Supreme Court of Pennsylvania.

Argued Sept. 27, 1977.

Decided Oct. 5, 1978.

[480 Pa. 549] George M. Weis, Weis & Weis, Pittsburgh, for appellant.

John E. Evans, Jr., Evans, Ivory & Evans, Pittsburgh, for Orea C. Azzarello.

William A. Pietragallo, Meyer, Darragh, Buckler, Bebenek & Eck, for Parts Processing, Inc.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.

OPINION OF THE COURT

NIX, Justice.

This appeal raises the question of the appropriate form of jury instruction in products liability cases in this Commonwealth. In the instant case, Azzarello's right hand was pinched between two hard rubber rolls in a coating machine manufactured and sold by the defendant, Black Brothers, Inc. Azzarello brought this suit against Black Brothers Company, Inc., the manufacturer-appellant relying solely on [480 Pa. 550] the theory of strict liability under Section 402A of the Restatement Second of Torts. ¹ The manufacturer, by joining appellee's employer, Parts Processing, as an additional defendant, injected into appellee's strict liability case the issue of whether the negligence of the employer was the sole or contributing cause of her injuries. Accordingly, the trial court below was faced with the difficult problem of devising instructions for the jury which required a clear exposition of the law of strict liability upon which appellee exclusively relied, and also explaining with clarity the interrelationship of the more traditional and familiar jury instructions sounding in fault and negligence, necessitated by manufacturer-appellant's theory of the case. In so doing, the trial court repeatedly instructed the jury using the phrase "unreasonably dangerous" taken verbatim from the formulation provided by Restatement Second of Torts. ²

[480 Pa. 551] The trial resulted in a verdict in favor of the manufacturer and against the additional defendant, appellee's employer, in the sum of One Hundred Twenty-Five Thousand Dollars ($125,000.00). The appellee thereupon moved for a new trial asserting Inter alia that the trial judge incorrectly instructed the jury that the appellee's burden of proof under Section 402A strict liability required a showing that the machine was "unreasonably dangerous."

The motion for a new trial was granted by the court En banc. That court held that the opinion announcing the judgment of the Court in the case of Berkebile v. Brantley Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975) should be followed, and that the use of the phrase "unreasonably dangerous" in the charge required the grant of a new trial. ³

I

In granting appellee's motion for a new trial, the court En banc found that this issue had not been waived and was properly before that court for resolution. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1975). We agree. The propriety of the grant of a new trial on the basis of a subsequent decision in a civil case is not a question of first impression in this Commonwealth. In the Estate of Riley, 459 Pa. 428, 329 A.2d 511 (1974), Cert. denied, 421 U.S. 971, 95 S.Ct. 1966, 44 L.Ed.2d 462 (1975), this Court affirmed a lower court's grant of a motion for reconsideration and reargument of its order based on a decision of a federal district court's declaration that a District of Columbia Mortmain statute, analogous to Pennsylvania's Mortmain statute, had been held to be unconstitutional. It cannot, of course, be asserted that a federal district court's opinion as to the constitutional validity of a foreign statute is a binding precedent, but the case was sufficiently relevant to the proper resolution of the matter at issue that the lower court was commended in our per curiam affirmance for its attempt to insure the just and comprehensive resolution of the case. In Estate of Riley, supra. In the instant case, appellee's counsel made timely request for a new trial based on the subsequent decision of this Court in Berkebile, supra, which the court En banc granted to insure a just and comprehensive resolution of the case. This view does not undercut the rationale articulated by this Court in our decision in Dilliplaine v. Lehigh Valley Trust Co., supra. One of the principle considerations in reaching our result in Dilliplaine, supra, was the need to afford the trial court an opportunity to correct alleged error. An earlier objection to the "unreasonably dangerous" language would have been unavailing at the time of the trial because the instruction as given tracked the language of Section 402A of the Restatement. This Court expressly embraced Section 402A in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). It was not until after the filing of the Berkebile decision that appellee was provided with a basis for the averment of error. Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966). In any event the court below had the opportunity to consider and to rectify the error and the question was not raised on appeal for the first time.

II

The development of a sophisticated and complex industrial society with its proliferation of new products and vast changes in the private enterprise system has inspired a change in legal philosophy from the principle of caveat emptor which prevailed in the early nineteenth century market place to the view that a supplier of products should be deemed to be "the guarantor of his products' safety" Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974). The realities of our economic society as it exists today forces the conclusion that the risk of loss for injury resulting from defective products should be borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business. In an era of giant corporate structures, utilizing the national media to sell their wares, the original concern for an emerging manufacturing industry has given way to the view that it is now the consumer who must be protected. Courts have increasingly adopted the position that the risk of loss must be placed upon the supplier of the defective product without regard to fault or privity of contract. ⁴

While this expansion of the supplier's responsibility for injuries resulting from defects in his product has placed the supplier in the role of a guarantor of his product's safety, it was not intended to make him an insurer of all injuries caused by the product. ⁵ It is this distinction that rests at the core of the problem raised in this appeal. Although the expansion of the supplier's liability has been developed through a breach of warranty analysis ⁶ as well as that of tort, the Restatement elected strict liability in tort as an explanation for imposing this liability. ^6a We must focus upon two requirements set forth in Section 402A for liability (physical injury) that the product be "in defective condition" and that it be "unreasonably dangerous." it is the propriety of instructing the jury using the term of "unreasonably dangerous" which forms the basis of appellee's objection to the jury instructions given below.

In an effort to assure that a supplier of chattels would not become an insurer, the authors of the Restatement described the characteristic which would justify the imposition of liability in terms of a "defect." However, this word is not limited to its usual meaning i. e., a fault, flaw or blemish in its manufacture or fabrication. Rather, the critical factor under this formulation is whether the product is "unreasonably dangerous." ⁷ Under the Restatement approach a product may be deemed to be "defective" even though it comports in all respects to its intended design. One difficulty arises from the fact that the term, "unreasonably dangerous" tends to suggest considerations which are usually identified with the law of negligence. The California Supreme Court expressed this problem as follows:

"The result of the limitation . . . (unreasonably dangerous) has not been merely to prevent the seller from becoming an insurer of his products with respect to all harm generated by their use. Rather, it has burdened the injured plaintiff with proof of an element which rings of negligence. As a result, if, in the view of the trier of fact, the 'ordinary consumer' would have expected the defective condition of a product, the seller is not strictly liable, regardless of the expectations of the injured plaintiff . . ."

"We recognize that the words, 'unreasonably dangerous' may . . . serve the beneficial purpose of preventing the seller from being treated as the insurer of its products. However, we think that such protective end is attained by the necessity of proving that there was a defect in the manufacture or design of the product, and that such defect was a (legal) cause of the injuries."

Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 132-33, 104 Cal.Rptr. 433, 441, 501 P.2d 1153, 1161, 1162 (1972); In accord, Glass v. Ford Motor Co., 123 N.J.Super. 599, 304 A.2d 562 (1973). ⁸

It must be understood that the words, "unreasonably dangerous" have no independent significance and merely represent a label to be used where it is determined that the risk of loss should be placed upon the supplier. It is for this reason that a mere change in terminology does not supply the answer to the basic question as to what instructions should be given to the jury. ⁹ The answer to the proceeding question rests upon the more fundamental question whether the determination as to the risk of loss is a decision to be made by the finder of fact or by the court. While a lay finder of fact is obviously competent in resolving a dispute as to the condition of a product, an entirely different question is presented where a decision as to whether that condition justifies placing liability upon the...