Brandimarti v. Caterpillar Tractor Co.

• Citation: 527 A.2d 134,364 Pa.Super. 26
• Parties: , 56 USLW 2027 Phillip R. BRANDIMARTI, Appellant, v. CATERPILLAR TRACTOR CO. and Towmotor, Inc., Affiliated Corporations, and Beckwith Machinery Company. 00970 Pitts. 1986
• Decision Date: 03 June 1987
• Court: Pennsylvania Superior Court

Page 134

527 A.2d 134

364 Pa.Super. 26, 56 USLW 2027

Phillip R. BRANDIMARTI, Appellant, v. CATERPILLAR TRACTOR CO. and Towmotor, Inc., Affiliated Corporations, and Beckwith Machinery Company.

00970 Pitts. 1986

Superior Court of Pennsylvania.

Argued Jan. 21, 1987.

Filed June 3, 1987.

Anthony P. Picadio, Pittsburgh, for appellant.

George Yokitis, Pittsburgh, for appellees.

Before BROSKY, DEL SOLE and CERCONE, JJ.

DEL SOLE, Judge.

The underlying action in the instant case was initiated by Appellant based upon a theory of strict liability. Appellant sought damages for the injuries he suffered when the forklift he was operating overturned. Named as defendants were the manufacturer of the forklift, Towmotor, Inc., Towmotor's parent company, Caterpillar Tractor Company, and the seller of the forklift, Beckwith Machinery Co. Appellant alleged that the forklift was defectively designed and came equipped with inadequate warnings. After testimony in the case was concluded, the trial court directed a verdict in favor of Caterpillar Tractor Company. The case was subsequently submitted to the jury which returned a verdict in favor of the remaining defendants. Appellant's timely filed post-trial motions were denied by the court and this appeal ensued.

On appeal, Appellant seeks review of the court's charge to the jury, the court's ruling on several evidentiary matters and the court's directed verdict in favor of Caterpillar Tractor Company. For the reasons which follow, we find it necessary to rule that the jury was improperly charged and order a retrial. Because of our decision on the merits of this first issue, we decline to consider whether the court's evidentiary rulings were proper. We have, however, reviewed the court's action which directed a verdict in favor of Caterpillar Tractor Company and find it must also be reversed.

Appellant advances before this court a claim that the charge to the jury contained serious misstatements of the law. It is averred that the jury was instructed to balance social policy considerations which were inappropriate and that negligence, misuse, abuse and abnormal use concepts were erroneously included in the jury charge. ¹

The primary duty of a trial judge in charging the jury is to clarify the issues so that the jury may comprehend the questions that they are to decide. Easton Nat. Bank & Trust Co. v. Union Nat. Bank & Trust Co. of Souderton, 237 Pa.Super. 316, 352 A.2d 544 (1975). As long as the trial judge chooses a form of expression which adequately and clearly covers the subject, the judge is not required to use the exact language of a requested point. McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980). Where the accuracy of the charge is an issue on appeal, the appellate court must review it, not to determine whether certain portions taken out of context appear erroneous, but whether the charge in its entirety, against the background of the evidence in the particular case, demonstrated that error was committed which was prejudicial to the complaining party. Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority, 507 Pa. 204, 489 A.2d 1291 (1985). After review of the charge applying these standards, we conclude that the instructions given to the jury were, indeed, improper.

Although the trial judge began by correctly outlining for the jury the roles and duties imposed upon manufacturers in Pennsylvania, the following language was employed regarding whether a product should be found defective:

In making your determination of whether the lift truck was sold in a defective condition, you should consider the following factors:

The utility and benefits of the lift truck to the operator, plaintiff's employer and to the public in general as compared to the risks of injury, including the likelihood of injury and the seriousness of such injury;

The availability of a substitute product which would meet the same need and involve less risk, considering the effects that the substitute product would have on the user, plaintiff's employer and the public as a whole;

Tow Motor's ability to eliminate the alleged defect of the lift truck without impairing its usefulness, creating other risks of injury or making the lift truck too expensive to maintain its utility;

The operator's ability to avoid danger by the exercise of care in the use of the lift truck;

The operator's awareness of the dangers associated with the use of the lift truck, and their ability to know such dangers, because of the general public's knowledge of the dangers or the obviousness of such dangers, or the employer's ability to eliminate the dangers through training;

The mechanical feasibility of a different design and the economic consequences of a different design; and

The adverse consequences of, including safety hazards created by, a different design of the operator, the employer and the public generally.

Because of the aforementioned factors, you must perform a balancing test and determine whether the risk of injury, given the nature and extent of the probable injuries, is outweighted (sic) by the benefits obtained because of the lift truck to the operator, employers and the public in general.

Appellant, citing Azzarello v. Black Brothers Company, Inc., 480 Pa. 547, 391 A.2d 1020 (1978), maintains the court, by including the above language in the charge, incorrectly submitted social policy considerations to the jury to balance and improperly injected negligence concepts into a strict liability action. Appellees counter this claim by asserting "(t)he court in Azzarello was not called upon to decide by whom or the manner in which social policy is to be considered in a products liability trial". "Instead, the court in Azzarello was only asked to rule on whether the issue of defect in products liability should be defined by the phrase 'unreasonably dangerous'." Appellees' Brief at 14. Appellees reason that since the charge herein did not contain the words "unreasonably dangerous" and since it did not carry connotations of negligence, it was appropriate under Pennyslvania law. We do not subscribe to such a reading of Azzarello or to the charge in the instant case.

In Azzarello the Supreme Court was asked to consider whether it was proper to instruct the jury using the term "unreasonably dangerous" and the Court concluded that the jury should not be so instructed. The Court stated "even if we agree that the phrase 'unreasonably dangerous' serves a useful purpose in predicting liability in this area, it does not follow that this language should be used in framing the issues for the jury's consideration." Id. at 558, 391 A.2d at 1026. It continued:

"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 supplier must be made.

* * *

Should an ill-conceived design which exposes the user to the risk of harm entitle one injured by the product to recover? Should adequate warnings of the dangerous propensities of an article insulate one who suffers injuries from those propensities? When does the utility of a product outweigh the unavoidable danger it may pose? These are questions of law and their resolution depends upon social policy. Restated, the phrases 'defective condition' and 'unreasonably dangerous' as used in the Restatement formulation are terms of art invoked when strict liability is appropriate. It is a judicial function to decide whether, under plaintiff's averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint. They do not fall within the orbit of a factual dispute which is properly assigned to the jury for resolution."

Id. at 556, 558, 391 A.2d at 1025, 1026 (footnote omitted).

Courts and commentators have expressed some criticism of the principle espoused in Azzarello that public policy concerns in a strict liability case are for the courts to consider rather than the jury. See: McKay v. Sandmold Systems Inc., 333 Pa.Super. 235, 482 A.2d 260 (1984). Nevertheless, the court in McKay recognized that the present state of the law is as set forth in Azzarello and it is not within this court's province to change existing law. Id. at 245, 482 A.2d at 266. More recently, this court sitting en banc in Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984), allocatur granted, appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985), reinterated the rule of Azzarello. Therein, it was noted that it is often difficult for a court to decide whether as a matter of social policy a jury should be permitted to impose strict liability. In a footnote the court listed factors a trial judge should consider when making this social policy decision. Id. 336 Pa.Super. at 51, 485 A.2d at 423. The factors listed are strikingly similar to those mentioned herein by the trial court in its charge on defective condition. We agree with Appellant that it is for the court to balance these social policy factors when making its threshold inquiry determination that the case presents a jury question. The jury is not to be presented with the factors. See also : Schriner v. Pa. Power & Light Co., 348 Pa.Super. 177, 501 A.2d 1128 (1985). ²

Appellant also complains that included in the court's charge are negligence concepts. Appellant further asserts the charge, in part, erroneously instructed the jury that Appellant's "misuse", "abuse" or "abnormal use" of the product was a defense to his strict liability claim. While isolated comments of the trial judge in this case, which may be considered improper, may not be sufficient for us to rule that a new trial is warranted, in the instant case the charge as a whole mandates such a result. On retrial, we...