Berkebile v. Brantly Helicopter Corp.

• Decision Date: 19 September 1973
• Citation: 225 Pa.Super. 349,311 A.2d 140
• Parties: Catherine K. BERKEBILE, Executrix under the Will of Cloyd G. Berkebile, Appellant, v. BRANTLY HELICOPTER CORPORATION.
• Court: Pennsylvania Superior Court

Page 140

311 A.2d 140

225 Pa.Super. 349

Catherine K. BERKEBILE, Executrix under the Will of Cloyd G Berkebile, Appellant, v. BRANTLY HELICOPTER CORPORATION.

Superior Court of Pennsylvania.

Sept. 19, 1973.

[225 Pa.Super. 350] Laurence H. Eldredge, Philadelphia, for appellant.

Sidney L. Wickenhaver, Philadelphia, for appellee.

Before WRIGHT, President Judge, and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and SPAETH, JJ.

HOFFMAN, Judge:

This is an appeal from a judgment in favor of the appellee, Brantly Helicopter Corporation. Appellant cites numerous grounds for reversal, each of which will be discussed below.

On July 9, 1962, Cloyd G. Berkebile was killed when the Brantly B-2 helicopter he was piloting crashed near Franklin, Pennsylvania. Decedent's executrix brought a wrongful death and survival action against the manufacturer of the helicopter, Brantly Helicopter Corporation, based on a theory of strict liability. The case was tried before a jury and a verdict was returned for the defendant. On appeal, this Court granted plaintiff a new trial. ¹ In the second trial before the Honorable Earl Chudoff and a jury, the jury again returned a verdict for the defendant. From a denial of appellant's post trial motions, this appeal has followed.

I HISTORY OF CASE

In January of 1962, Mr. Berkebile purchased a small helicopter from Brantly's distributor. There is no dispute that the On July 9, 1962, Mr. Berkebile flew to Chess Lamberton Airport in Franklin and asked for 100 octane gasoline. Finding that fuel was unavailable, Mr. Berkebile took off in the direction of Oil City. Minutes later, when he was only two miles from the airport and while in climbing flight, a seven foot-long piece of one of the three rotor blades separated from the copter and flew off. The helicopter crashed, killing Mr. Berkebile.

helicopter was regularly checked and serviced during the six months from the date of purchase.

Prior to the purchase of the helicopter, Mr. Berkebile had never flown a helicopter. Defendant's advertising brochure, which was primarily directed to the non-professional flier read: 'The versatile B--2 is America's lowest priced helicopter designed specifically for non-professional use. Tricky to operate? Not at all. Beginners and professionals alike agree that the Brantly is easy to fly with or without experience in conventional aircraft.'

At the second trial, plaintiff sought recovery on the following theories: (1) that the design of the rotor system was such that in the event of emergency power failure in climbing flight the pilot had only one-third second to get into autorotation which was not enough time to enable a reasonable man to save his life; (2) the rotor blade was defective; (3) that defendant, in its advertising brochure, misrepresented the safety of the helicopter; (4) the defendant gave no adequate warnings of the need for instantaneous reaction in emergency power failure.

Defendant denying the existence of a defect, theorized that the blade fractured because of abnormal use brought about by greatly reduced rotor speed due to power failure from fuel exhaustion and failure of the decedent to push down the 'collective pitch stick' in time to go into autorotation. Defendant further contended that there was sufficient time for the reasonable man to go into autorotation and that adequate warnings and instructions were supplied to do so.

Appellant contends that numerous errors were committed by the trial court in its evidentiary rulings and in its charge to the jury on the applicable law.

An examination of the trial court's charge discloses that the trial judge properly charged the jury on appellant's first two theories. Appellant sought to establish the existence of a defective Condition in either the rotor blade or the emergency mechanism of the autorotational system. Charging directly from language in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966) and its progeny, the trial court ably instructed the jury on the law with regard to strict liability in tort for a defective condition in a product, as first set out in the Restatement of Torts, 2d, § 402A. Furthermore, the trial judge added that in sustaining his burden of proof, the plaintiff 'need not show proof of the specific defect . . . In order to show this defective condition, the plaintiff need only show a malfunction of the machinery in the absence of abnormal use and need not prove the specific defect.' This charge was consistent with our opinion in MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969).

Appellant argued that the charge inadequately stated the issue of strict liability with regard to the design of the autorotational system. That portion of the charge was correct. Since experts differed on the time a pilot needs to go into autorotation, Judge Chudoff instructed the jury in the following manner:

'. . . There is testimony that in this helicopter the pilot would have one second, less than a second or more than a second, depending on which witness you believe. This leads to the question that you must decide, that is, was any of these times sufficient to allow Mr. Berkebile to get into autorotation.' From the tenor of the entire charge, we believe that the charge with respect to a defective Condition

or Design in the aircraft itself was sufficient.

II THE ADEQUACY OF WARNINGS

A. The Law

Appellant has alleged that the erroneous charge and evidentiary rulings informed the jury to base its determination solely on the presence of a defective condition in the aircraft itself. Appellant argues that the court neglected his secondary theory of recovery that there were inadequate warnings and/or misrepresentations of the quality and safety of the copter to the nonprofessional pilot. While the trial judge outlined these contentions, the charge emphasized the alleged defects in the rotor blade and in the autorotational system. In fact, when confronted with this problem by counsel, the trial judge remarked: 'I think that (the defect in the rotor blade) is the whole plaintiff's case.' With this evaluation of the case, the trial judge refused a number of appellant's points for charge on the question of warnings. We believe, the jury was not properly instructed on its duty to consider the adequacy of the warnings in determining whether a defective 'condition' existed. As a matter of law, a product that is marketed without adequate directions or warnings as to its use is unreasonably dangerous, and in a defective condition. Restatement of Torts, 2d §§ 402A, comments j and k; 388.

It is imperative that a jury hearing a case of strict liability in tort be aware of its duty to find liability where inadequate warnings exist, even in the absence of a defect in the design, manufacture, or preparation of the product. As the Court of Appeal for the Third Circuit has said, applying Pennsylvania law: 'If the manufacturer owes a duty to use care in making his products, he owes also the companion duty to warn of the latent limitations of even a perfectly made article, the use of which, however, is dangerous if the user is ignorant of those limitations and the manufacturer has no reason to believe that he will recognize the danger.' Tomao v. A. P. De Sanno & Son, 209 F.2d 544, 546 (3d Cir. 1954); Hopkins v. E. I. DuPont De Nemours & Co., 199 F.2d 930 (3d Cir. 1952).

In construing the requirements of the Restatement ( § 402A), the Ninth Circuit has been even more explicit: 'At the outset we reject appellee's contention that the rule applies only where unreasonable danger results because of an ascertainable 'defect' or 'impurity' in the product, and that since this product was precisely what it was intended to be there was no such defect . . ..

'Comment j recognizes that to prevent a product from being unreasonably dangerous, direction or warnings as to its use Must be given in appropriate cases.' Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. 1968) (Emphasis added). See also, O. S. Stapley Co. v. Miller, 103 Ariz. 556, 447 P.2d 248, 252 (1968); Toole v. Richardson-Merrell, Inc., 251 Cal.App. 689, 60 Cal.Rptr. 398, 413-414 (1967); Yarrow v. Sterling Drug, Inc., 263 F.Supp. 159 (D.S.D.1967); 408 P.2d 307 (Oklahoma, 1965).

Even prior to the incorporation of § 402A of the Restatement of Torts, 2d, into our case law, and beginning with the landmark cases of Ebbert v. Philadelphia Electric Co., 330 Pa. 257, 198 A. 323 (1938), and Maize v. Atlantic Refining Co., 352 Pa. 51, 41 A.2d 850 (1945), our courts have recognized an affirmative duty on the part of a vendor to warn against dangers arising from the use of its product. As our Supreme Court said in Thomas v. Arvon Products Co., 424 Pa. 365, 369, 227 A.2d 897 (1967):

'Our law is eminently clear that a manufacturer of a potentially dangerous substance owes a duty to the user to exercise reasonable care and to give adequate warning of the dangerous nature of the substance.'

In response to the hazards and risks of flight, the Federal Aviation Agency sets down strict safety standards for all aircraft. Anticipating the possibility that inadequate directions and warnings would nullify the effect of compliance with the FAA standards of design and construction, the FAA has promulgated a number of Civil Air Regulations (CAR) specifically to guard against that possibility. Two applicable regulations provide, as follows:

' § 6.700(b). The operating limitations, together with any other information concerning the rotorcraft found necessary for safety during operation Shall be included in the Rotorcraft Flight Manual ( § 6.740), Shall be expressed as markings and placards, ( § 6.730) and shall be made available by such other means as will convey the information to the crew members.

' § 6.730(c). Additional information, placards and instrument markings having a direct and important bearing on safe operation of the rotorcraft shall be required when unusual design, operating, or...