Brown v. Caterpillar Tractor Co.

• Decision Date: 10 September 1984
• Docket Number: No. 83-5707,83-5707
• Parties: Robert Allen BROWN and Lola V. Brown, wife, Appellants, v. CATERPILLAR TRACTOR COMPANY, a corporation.
• Court: U.S. Court of Appeals — Third Circuit

Page 656

741 F.2d 656

Robert Allen BROWN and Lola V. Brown, wife, Appellants, v. CATERPILLAR TRACTOR COMPANY, a corporation.

No. 83-5707.

United States Court of Appeals Third Circuit.

Argued May 24, 1984.

Decided Aug. 13, 1984.

Rehearing and Rehearing In Banc

Denied Sept. 10, 1984.

John M. Tighe (argued), Tarasi & Tighe, Pittsburgh, Pa., for appellants.

Robert S. Grigsby, Carl E. Harvison, Michael D. Heintzman (argued), Grigsby, Gaca & Davies, P.C., Pittsburgh, Pa., for appellee.

Before GARTH and SLOVITER, Circuit Judges, and FISHER, District Judge ^*.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. INTRODUCTION

In August 1978, Robert Brown became a member of the United States Army Reserve and, as part of his training, began learning how to operate a tractor-bulldozer. Initially, the training involved observation from the "buddy" seat to the right and forward of the operator's seat, which was not equipped with a protective canopy. While the tractor-bulldozer was being used to clear land--specifically, to push a pile of materials that included two trees--one of the trees came over the blade and over the top of the vehicle and struck him. Brown sustained severe crush injuries from the blow, which was of such force that it broke the seat as well.

Brown alleges that his injuries were caused by the defective design and inadequate warnings of the tractor-bulldozer, which was manufactured by Caterpillar Tractor Company for the Department of the Army. Using diversity of citizenship as the basis for federal jurisdiction, he sued Caterpillar under Pennsylvania law on theories of negligence, breach of express and implied warranties, and strict liability. The district court entered summary judgment for Caterpillar on the grounds that the bulldozer was not defective as a matter of law and that the company was insulated from liability by the "government contractor defense" because it had built the bulldozer to government specifications. 554 F.Supp. 1269.

On appeal from summary judgment, however, this court concluded that there were genuine issues of material fact bearing on both issues and, accordingly, held that summary judgment was inappropriate. 696 F.2d 246 (3rd Cir.1982) (Brown I ). In our opinion in Brown I, we also addressed, inter alia, the threshold question of the scope of the government contractor defense. We concluded that the defense exists in Pennsylvania and is available against all of Brown's claims. 696 F.2d at 251-53.

On remand, Brown limited his theory of liability to strict liability under section 402A of the Restatement (Second) of Torts, and the case was bifurcated and tried as to liability. The trial court asked the jury to answer six special verdict questions, including whether the bulldozer was (1) defectively designed because it was sold without a protective device over the passenger seat and (2) defective when sold because Caterpillar failed to provide adequate warnings of the danger to occupants in land-clearing and tree removal operations. In its instructions to the jury, the trial court said, among other things, that there could be no liability for failure to warn if the Army was aware of the dangers involved in clearing land without a canopy and that there could be no liability for defective design if Caterpillar had offered to "retrofit" the bulldozer with a protective device. The trial court also refused Brown's request to instruct the jury that Caterpillar must prove that it had "carefully" executed the government contract and specifications in order successfully to invoke the government contractor defense. The jury found that the bulldozer had not been proved defective, as to either design or adequacy of warnings, and consequently did not reach the remaining four questions, which concerned proximate cause, strict compliance with the government contract, the Army's awareness of the danger, and whether Caterpillar had warned the Army about the danger.

On appeal, Brown contends that the trial court's instructions to the jury were erroneous and prejudicial. Brown also maintains that the trial judge erred in repeatedly refusing to allow him to state his objections during cross-examination, and that certain remarks made by the trial judge in the presence of the jury gave the impression that the court favored the defendant and are grounds for a mistrial.

II. BACKGROUND

The tractor-bulldozer was manufactured and sold to the government by Caterpillar pursuant to a military contract and accompanying military specifications. It is not disputed that the specifications did not include a canopy or other protective device. However, the specifications did require the tractor to be "equipped with instruction plates or diagrams, including warnings and cautions, describing any special or important procedures to be followed in assembling, operating, or servicing the tractor...." App. at 571a.

On appeal, Brown does not argue that the lack of a canopy was a violation of the contract or specifications but argues that failure to affix warnings to the vehicle was such a violation. Brown, who had had no previous experience operating a bulldozer, testified at trial that he was not aware that it was dangerous to ride in the unguarded passenger's seat while the bulldozer was being used to push felled trees during a land-clearing operation and that he was not warned by his superiors or co-workers. He also testified that there were no warnings or instructions about this danger on the machine or in an operator manual produced by the Army on the use of the bulldozer in land-clearing operations.

An expert witness for Brown, Dr. James Romualdi, testified as to his conclusion that the bulldozer was defective for the reasons that it did not have a canopy to protect occupants from rollovers--a Rollover Protective Shield (ROPS)--or from falling objects--a Falling Object Protective Shield (FOPS); it did not have a protective device to deflect objects; and it was not equipped with a warning that the machine should not be used in certain circumstances without such protective devices. Charles Jefferson, an engineer employed by Caterpillar, testified that the tractor-bulldozer was not defective, and that neither a ROPS nor a FOPS would have prevented the type of injury sustained by Brown.

Paul Hopler, a civilian engineer and procurement officer for the United States Army, was a defense witness and testified that the Army was aware of the availability of protective structures and rejected them because of transportation, visibility and maintenance problems. Hopler said that the specification accompanying the contract did not call for any kind of protective structure. There was conflicting testimony as to whether the bulldozer had had a protective structure that the Army removed before the incident at issue. There was also testimony for Caterpillar that in 1977, before the accident, it had in fact offered to "retrofit" the bulldozer with a protective device, in particular, a ROPS.

III. FAILURE TO WARN

The court instructed the jury that if it found the Army knew of the danger involved in operating the bulldozer without an appropriate protective device, then Caterpillar could not be held liable for Brown's injuries on a theory of failure to warn. ¹ Brown argues on appeal that it is irrelevant whether the Army, as Brown's employer, knew of the danger because Brown, the ultimate user of the product, did not know and was not warned. Thus we are presented squarely with the question whether under Pennsylvania law a warning must be directed to the ultimate user.

As this court has previously observed, the Pennsylvania Supreme Court has not definitively held that a supplier is required as a matter of law to provide specific warnings to all users into whose hands a product may fall. See Price v. Inland Oil Co., 646 F.2d 90, 97 (3d Cir.1981). Nevertheless, we find some telling indications that it would hold that the sufficiency of warnings in a product liability case must be evaluated with regard to the ultimate user. In Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), a plurality of the Pennsylvania Supreme Court said:

Where warnings or instructions are required to make a product non-defective, it is the duty of the manufacturer to provide warnings in a form that will reach the ultimate consumer and inform of the risks and inherent limits of the product. The duty to provide a non-defective product is non-delegable.

Id. at 103, 337 A.2d at 903 (emphasis added); see also Neal v. Carey Canadian Mines, 548 F.Supp. 357, 368 (E.D.Pa.1982) (citing Berkebile for proposition that in Pennsylvania under Sec. 402A knowledge of employer does not relieve manufacturer of duty to provide warnings to employee as ultimate consumer).

Even if Berkebile is not binding upon us because it was not signed by a majority of the justices, the same view has since been adopted by the Pennsylvania Superior Court. In Pegg v. General Motors Corp. 258 Pa.Super. 59, 391 A.2d 1074 (1978), the court stated: "[I]t would seem that the concern of the [Pennsylvania Supreme] Court is that manufactured products be free of defect as of the time of manufacture, regardless of whose hands they subsequently fall into." Id. at 69, 391 A.2d at 1078 (holding that even a thief has a cause of action in strict liability for defective design or failure to warn against manufacturer who places a defective article in stream of commerce). See also id. at 76-78, 391 A.2d at 1082-83.

A holding that the manufacturer's responsibility runs to the ultimate consumer is in accordance with Pennsylvania's justification for the imposition of strict liability, namely, risk-spreading, see, e.g., Azzarello v. Black Brothers Co., 480 Pa. 547, 553, 391 A.2d 1020, 1025 (1978). The risk remains with the manufacturer, unless actually assumed by the user.

The issue whether knowledge of the Army, or knowledge of Brown's supervisors, could be imputed to Brown is similar...