Berkebile v. Brantly Helicopter Corp.

• Decision Date: 19 May 1975
• Citation: 462 Pa. 83,337 A.2d 893
• Parties: Catherine K. BERKEBILE, Executrix Under the Will of Cloyd C. Berkebile v. BRANTLY HELICOPTER CORPORATION, Appellant.
• Court: Pennsylvania Supreme Court

337 A.2d 893

462 Pa. 83

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

Supreme Court of Pennsylvania.

May 19, 1975.

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Sidney L. Wickenhaver, Montgomery, McCracken, Walker & Rhoads, Philadelphia, for appellant.

Laurence H. Eldredge, San Francisco, Cal., for appellee.

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

JONES, Chief Justice.

This case is before us on a grant of allocatur. ^[1] The Superior Court reversed a verdict for the defendant-appellant in the trial court. We affirm.

Cloyd Berkebile was killed on July 9, 1962 when the helicopter he was piloting crashed while in climbing flight. The executrix wife brought this wrongful death and survival action against Brantly Helicopter Corporation, the manufacturer of the helicopter. The plaintiff relied upon the theory of strict liability. Restatement (Second) of Torts, § 402A. ^[2] Several significant issues of importance in the growing area of strict liability recovery are presented in this multifaceted appeal. To avoid further confusion we find it necessary to clarify the concepts of strict liability under Pennsylvania law.

Brantly manufactured the small, two-person, B-2 model helicopter in October of 1961. Addressing itself to the general aviation market, the advertising described the helicopter as 'safe, dependable,' not 'tricky to operate,' and one that 'beginners and professional pilots alike agree . . . is easy to fly.' Brantly had experienced some difficulties in designing its rotor blades and autorotation in the development stage and modified the system to some degree prior to its distribution. In January, 1962, Mr. Berkebile, a businessman, purchased the helicopter from defendant's distributor. Mr. Berkebile flew alone on July 9, and while in climbing flight the seven-foot outboard section of one of the three main rotor blades separated. The helicopter crashed on a wooded hillside, killing Mr. Berkebile.

Plaintiff proposed four grounds for recovery at the second trial: (1) The design of the rotor system of the helicopter was defective because the average pilot had insufficient time to place the helicopter in autorotation in an emergency power failure in climbing flight; (2) The rotor blade was defectively manufactured and designed; (3) The defendant rendered the helicopter defective as a result of the inadequate warnings regarding the possible risks and inherent limitations of one of the systems of the helicopter; and (4) The defendant misrepresented the safety of the helicopter in its advertising brochures.

The defendant, denying the existence of any defective condition in its product, theorized that the helicopter's rotor blade had fractured due to an abnormal use brought about by power failure resulting from fuel exhaustion, followed by a failure on decedent's part to push down the collective pitch in time to go into autorotation and to effect a proper emergency landing.

Plaintiff contends on appeal that the trial court erred in charging the jury on the law to be applied to these facts and erred in several of its evidentiary rulings. A review of the record and of the court's charge in particular, when taken as a whole, demonstrates a basic confusion concerning the principles of strict liability in torts. Despite the diligent efforts of the trial judge to conform his charge to the law, this case has been tried twice and, regretfully, must be tried for the third time. Although we have recognized strict liability recovery since our decision in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), it is apparent that the lack of clearly articulated standards has generated much misinterpretation.

The law of products liability developed in response to changing societal concerns over the relationship between the consumer and the seller of a product. The increasing complexity of the manufacturing and distributional process placed upon the injured plaintiff a nearly impossible burden of proving negligence where, for policy reasons, it was felt that a seller should be responsible for injuries caused by defects in his products. See Restatement (Second) of Torts § 402A, comment C. We therefore held in Webb v. Zern, Supra, that the seller ^[3] of a product would be responsible for injury caused by his defective product even if he had exercised all possible care in its design, manufacture and distribution. We emphasized the principle of liability without fault most recently by stating that the seller is 'effectively the guaranter of his product's safety,' in Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974).

'Our courts have determined that a manufacturer by marketing and advertising his product impliedly represents that it is safe for its intended use. We have decided that no current societal interest is served by permitting the manufacturer to place a defective article in the stream of commerce and then to avoid responsibility for damages caused by the defect.'

Strict liability requires, in substance, only two elements of requisite proof: the need to prove that the product was defective, and the need to prove that the defect was a proximate cause of the plaintiff's injuries. ^[4] Thus, the plaintiff cannot recover if he proves injury from a product absent proof of defect, such as developing diabetic shock from eating sugar or becoming intoxicated from drinking whiskey. Neither can plaintiff recover by proving a defect in the product absent proof of causation, as where plaintiff sustains eye injury while not wearing defective safety glasses. Also, plaintiff must prove that the defect causing the injury existed at the time the product left the seller's hands; the seller is not liable if a safe product is made unsafe by subsequent changes. See Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968). See also, Restatement (Second) of Torts, § 402A(1)(b). The trial court correctly identified these as pertinent issues in a strict liability case.

The crucial difference between strict liability and negligence is that the existence of due care, whether on the part of seller or consumer, is irrelevant. The seller is responsible for injury caused by his defective product even if he 'has exercised all possible care in the preparation and sale of his product.' Restatement (Second) of Torts, § 402A(2)(a). As we declared in Salvador, supra, 457 Pa. at 32, 319 A.2d at 907, the seller 'may not preclude an injured plaintiff's recovery by forcing him to prove negligence in the manufacturing process.' What the seller is not permitted to do directly, we will not allow him to do indirectly by injecting negligence concepts into strict liability theory. In attempting to articulate the definition of 'defective condition' and to define the issue of proximate cause, the trial court here unnecessarily and improperly injected negligence principles into this strict liability case.

Section 402A recognizes liability Without fault and properly limits such liability to defective products. The seller of a product is not responsible for harm caused by such inherently dangerous products as whiskey or knives that despite perfection in manufacture, design or distribution, can cause injury. See Restatement (Second) of Torts, § 402A, comment I. At first glance, however, it would appear that the section does impose a contradictory burden of proof in that the defect also be 'unreasonably dangerous.' An examination of comment I indicates that the purpose of the drafters of the clause was to differentiate those products which are by their very nature unsafe but not defective from those which can truly be called defective. ^[5] The late Dean Prosser, the reporter of the Restatement (Second) of Torts, has suggested that the only purpose for the clause was to foreclose any argument that the seller of a product with inherent possibilities for harm would become 'automatically responsible for all the harm that such things do in the world.' Prosser, Strict Liability to the Consumer in California, 18 Hast.L.J. 9, 23 (1926). Commentators and courts, attempting to define 'defective condition' have suggested tests based upon the negligence-oriented 'reasonable man' that have further diluted the strict liability concept. ^[6] The purpose of the 'unreasonably dangerous' clause would appear to be best served by its inclusion in the issue of proximate cause. Those courts in the van-guard of products liability law, in doing away with this distinction, have adopted this analysis. The California Supreme Court, after reviewing the purpose of the 'unreasonably dangerous' clause, said:

'The result of the limitation . . . 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 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 proximate 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 (1972); In accord, Glass v. Ford Motor Co., 123 N.J.Super. 599, 304...