Bugosh v. I.U. North America, Inc.

• Decision Date: 16 June 2009
• Docket Number: No. 7 WAP 2008.,7 WAP 2008.
• Citation: 971 A.2d 1228
• Parties: Judith R. BUGOSH, Administratrix of the Estate of Edward J. Bugosh, Deceased and Judith R. Bugosh, In Her Own Right v. I.U. NORTH AMERICA, INC., as Successor by Merger to the Garp Company, formerly known as the Gage Company, formerly known as Pittsburgh Gage and Supply Company, E.W. Bowman, Inc., Emhart Glass Inc., formerly known as Emhart Manufacturing Company, formerly known as Hartford Empire, F.B. Wright Company, Surface Combustion, Inc., Taylored Industries, Inc. Appeal of I.U. North America, Inc.
• Court: Pennsylvania Supreme Court

971 A.2d 1228

Judith R. BUGOSH, Administratrix of the Estate of Edward J. Bugosh, Deceased and Judith R. Bugosh, In Her Own Right v. I.U. NORTH AMERICA, INC., as Successor by Merger to the Garp Company, formerly known as the Gage Company, formerly known as Pittsburgh Gage and Supply Company, E.W. Bowman, Inc., Emhart Glass Inc., formerly known as Emhart Manufacturing Company, formerly known as Hartford Empire, F.B. Wright Company, Surface Combustion, Inc., Taylored Industries, Inc Appeal of I.U. North America, Inc.

No. 7 WAP 2008.

Supreme Court of Pennsylvania.

Argued December 2, 2008.

Decided June 16, 2009.

Appeal No. 7 WAP 2008 from the Order of the Superior Court entered July 18, 2007 at No. 997 WDA 2006 affirming the judgment of the Court of Common Pleas of Allegheny County, Civil Division, entered April 28, 2006 at No. GD04-018310, Terrence W. O'Brien.

Jennifer E. Watson, Esq., Robert B. Lawler, Willbraham, Lawler & Buba, P.C., Philadelphia, Susan Regrut Mitchell, Esq., Willbraham, Lawler & Buba, P.C., Pittsburgh, for I.U. North America, Inc.

Matthew R. Wimer, Esq., Wimer Law Offices, P.C., Oakmont, for Taylored Industries, Inc.

Janice Marie Savinis, Esq., Savinis, D'Amico & Kane, L.L.C., Pittsburgh, Clifford Alan Rieders, Esq., Pamela L. Shipman, Esq., Rieders, Travis, Humphrey, Harris, Waters & Waffenschmidt, Williamsport, for Judith R. Bugosh.

James J. Mulhall, Esq., Frank Stanek, Esq., for Surface Combustion, Inc.

Andrew Frank Adomitis, Esq., Leo Gerard Daly, Esq., Grogan Graffam, P.C., Pittsburgh, for F.B. Wright Company.

Thomas Joseph Jezewski, Esq., L. John Argento, Esq., Swartz Campbell, L.L.C., Pittsburgh, for Emhart Glass Inc.

Nancy L. Winkelman, Esq., Samuel William Silver, Esq., Stephen Andrew Fogdall, Esq., Schnader Harrison Segal & Lewis, L.L.P., Philadelphia, for amicus curiae Washington Legal Foundation (WLF).

Michael Lee Martinez, Esq., Crowell & Moring, L.L.P., for amicus curiae Pennsylvania Chamber of Business and Industry et al.

John Edward Iole, Esq., Charles H. Moellenberg, Jr., Esq., Laura E. Ellsworth, Esq., Margaret Caitlin Gleason, Esq., Jones Day, Pittsburgh, for amicus curiae Sherwin-Williams Company.

James Michael Beck, Esq., Dechert L.L.P., Philadelphia, for amicus curiae Product Liability Advisory Counsel.

Edward Michael Koch, Esq., Jerrold Paul Anders, Esq., James Wright Scott, Jr., Esq., White and Williams, L.L.P., Philadelphia, for amicus curiae Pennsylvania Defense Institute and the Insurance Federation of Pennsylvania.

James Joseph Pettit, Esq., Gene Locks, Esq., Jonathan W. Miller, Esq., Mitchell S. Cohen, Esq., Locks Law Firm, Philadelphia, for amicus curiae United Union of Roofers, Waterproofers, and Allied Workers, etc., et al.

Jeffrey VanVoorhis Mansell, Esq., Goldberg, Persky & White, P.C., Pittsburgh, for amicus curiae United Steelworkers.

Rosalind T. Kaplan, Esq., Jarve Kaplan Granato, L.L.C., for amicus curiae American Association for Justice, et al.

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.

ORDER

PER CURIAM.

Appeal dismissed as having been improvidently granted.

Justice SAYLOR files a dissenting statement in which Chief Justice CASTILLE joins.

Justice SAYLOR, dissenting.

Appeal was allowed to consider whether, in product liability actions in Pennsylvania, to move from Section 402A of the Second Restatement of Torts to Section 2 of the Third Restatement of Torts: Product Liability, thus substantially altering the liability scheme grounded on the seminal decision in Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978). I reiterate my belief that Azzarello is severely deficient, particularly when measured against developed understanding and experience, and necessary adjustments are long overdue. Thus, I cannot support the decision to dismiss this appeal and permit another opportunity to go by the wayside.

I. Background

This is an appeal from a verdict favorable to the plaintiff in a product liability action based on asbestos exposure litigated against a non-manufacturer distributor. Appellee and her husband, now deceased, pursued recovery on a strict-liability, failure-to-warn theory under Section 402A of the Second Restatement. During the trial, Appellant, the defendant, sought the application of Section 2 of the Third Restatement by way of a motion in limine, which was denied in light of this Court's well-established precedent adopting Section 402A of the Second Restatement. The verdict was affirmed by the Superior Court, again based on this Court's settled precedent. See Bugosh v. Allen Refractories Co., 932 A.2d 901, 911 (Pa.Super.2007) ("Until and unless our Supreme Court alters its approach to strict liability, we will continue to adhere to established principles.").

Nearly six years ago, the state of products liability law in Pennsylvania was discussed extensively in Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003) (plurality).¹ The lead opinion in Phillips strongly adhered to the course set by Azzarello, which held that, in the application of Section 402A of the Second Restatement, which imposes liability upon "[o]ne who sells any product in a defective condition unreasonably dangerous," the concept of "unreasonably dangerous" (or conversely due and reasonable safety) has no place before a jury. See Azzarello, 480 Pa. at 555-56 & n. 9, 391 A.2d at 1025 & n. 9. Azzarello's chief concern was with the protection of consumers exposed to mass marketing. See id. at 553, 391 A.2d at 1023-24. The Court sought to advance this aim in actions litigated under Section 402A by broadly couching manufacturers as guarantors of their products' safety, and by strictly forbidding consideration by jurors of reasonableness conceptions. See id. at 559, 391 A.2d at 1027.

Echoing Azzarello, the Phillips lead reiterated that "strict liability affords no latitude for the utilization of foreseeability concepts" grounded in negligence theory. Id. at 655, 841 A.2d at 1006 (citing Lewis v. Coffing Hoist Div., Duff-Norton Co., 515 Pa. 334, 341, 528 A.2d 590, 593 (1987) ("[N]egligence concepts have no place in a case based on strict liability.")). This is so, the lead Justices explained, because in a strict-liability action the product itself is on trial, and not the manufacturer's conduct. Id. (citing Kimco Dev. Corp. v. Michael D's Carpet Outlets, 536 Pa. 1, 7, 637 A.2d 603, 605-06 (1993), and Spino v. John S. Tilley Ladder Co., 548 Pa. 286, 292, 696 A.2d 1169, 1172 (1997)). Nevertheless, the lead opinion confessed error on the part of the Court in its own use of negligence concepts within the strict-liability arena. Id. at 655-56, 841 A.2d at 1006-07 ("While we have remained steadfast in our proclamations that negligence concepts should not be imported into strict liability law, we have muddied the waters at times with the careless use of negligence terms in the strict liability arena." (footnote omitted)).² After indicating it would be imprudent to reverse all strict-liability decisions utilizing negligence terms, the lead opinion stated, "we can, and do, reaffirm that in this jurisdiction, negligence concepts have no place in strict liability law." Phillips, 576 Pa. at 656, 841 A.2d at 1007.

In concurrence, three Justices noted the incongruity in abiding the numerous accretions of negligence theory into strict-liability doctrine, while at the same time pronouncing they have no place there. Phillips, 576 Pa. at 664, 841 A.2d at 1012 (Saylor, J., joined by Castille, J., and Eakin, J.). Furthermore, it was noted, strict-liability theory at its core, as it has been applied in Pennsylvania, incorporates the principle of risk-utility (or cost-benefit) balancing, derived from negligence theory. See id. at 667-68 & n. 5, 841 A.2d at 1013-14 & n. 5 (citing, inter alia, Surace v. Caterpillar, Inc., 111 F.3d 1039, 1044-45 (3d Cir.1997) (recognizing the "long hegemony" of cost-benefit analysis under Pennsylvania law)).³ The concurrence also developed that, in design-defect cases,⁴ the distinction between the character of a product and the conduct of the manufacturer in designing it is tenuous. See id. at 669, 841 A.2d at 1015 ("[M]anufacturers consciously choose how to design their products. Asking whether the product is reasonable tends to circle back to asking whether the manufacturer used due care in designing it." (quoting Richard L. Cupp, Jr. and Danielle Polage, The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis, 77 N.Y.U.L. REV. 874, 893 (2002))). The concurrence explained that Pennsylvania's attempt to isolate strict-liability theory in its entirety from negligence theory: was not supported by the author of the seminal article on which the Court had relied, see Phillips, 576 Pa. at 666, 670, 841 A.2d at 1014-15;⁵ has led to risk-utility balancing by trial courts on facts most favorable to the plaintiff (to avoid entangling the trial judge in determining factual questions assigned to the jury under Azzarello); and has yielded minimalistic jury instructions (to insulate the jury from negligence terminology) which lack essential guidance concerning the key conception of product defect. See id. at 672-74, 841 A.2d at 1017-18.

The concurring Justices found that the Third Restatement approach illuminates the most viable route to providing essential clarification and remediation, by: preserving traditional strict liability for manufacturing defects; endorsing a reasonableness-based, risk-utility balancing test as the standard for adjudging the defectiveness of product designs; and relegating the cost-benefit analysis to the jury, guided by appropriate instructions (where sufficient evidence has been presented to preclude summary judgment or a directed verdict). See Phillips, 576 Pa. at 675-79, 841 A.2d at 1019-21; see also DGS v. United States Mineral Prods. Co., 587 Pa. 236, 254, 898 A.2d 590, 601 (2006) (referencing the position of the Phillips...