Bunn v. Caterpillar Tractor Co., Civ. A. No. 74-637.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Citation415 F. Supp. 286
Docket NumberCiv. A. No. 74-637.
PartiesRuth H. BUNN, Executrix of the Estate of Clair V. Bunn, Deceased, Plaintiff, v. CATERPILLAR TRACTOR COMPANY, a corporation, Defendant, v. ACE DRILLING COAL COMPANY, a corporation, Third-Party Defendant.
Decision Date16 June 1976

John Evans, Jr., Evans, Ivory & Evans, Pittsburgh, Pa., for plaintiff.

Robert Grigsby, Thompon, Rhodes & Grigsby, Pittsburgh, Pa., for defendant.

Carl W. Brueck, Jr., Brueck, Walker & Brueck, Pittsburgh, Pa., for third-party defendant.

OPINION

SNYDER, District Judge.

Presently before the Court is Plaintiff's Motion for New Trial for alleged errors which occurred during the Trial and in the Court's Charge. The Motion will be denied.

I. BACKGROUND.

This action arises out of a claim for damages for the death of Clair V. Bunn on October 11, 1973. Bunn, a supervisor for Ace Drilling Company (Ace), was directing coal loading operations at Ace's Lilly Loading Dock when he was run over by a Caterpillar 988 Front Wheel Loader, manufactured by the Defendant, Caterpillar Tractor Company (Caterpillar). The machine was originally sold to Cecil I. Walker Company of West Virginia on January 28, 1969, but at the time of the accident it was owned by South Fork Equipment Company, who had leased it to Ace.

Ruth H. Bunn, wife of the deceased, brought this action alleging that the 988 was defectively designed at the time it was sold by Caterpillar since it was not equipped with adequate safety devices (specifically, rear view mirrors and a backup alarm) and the exhaust pipe and air precleaner mounted behind the driver's seat obstructed the view of the driver to the rear.

The case was tried before a jury which answered the first special interrogatory1 as follows:

"1. Was the Caterpillar 988 Wheel Loader in a defective condition at the time it was sold by Caterpillar Tractor Company to Cecil I. Walker Company, West Virginia, on January 28, 1969?
ANSWER `YES' OR `NO': NO "
II. DISCUSSION.
A. THE "BERKEBILE" CONTENTION.

Plaintiff contends that this Court erred in not using the language of the Pennsylvania Supreme Court in Berkebile v. Brantly Helicopter Corp., Pa., 337 A.2d 893 (1975), deleting "unreasonably dangerous" from Section 402A.2 Plaintiff contends that decision, written by two Justices and in which three other Justices concurred with the result only, and two other Justices filed separate concurring opinions, changed the Pennsylvania law on 402A so that a plaintiff need not prove a defective product was unreasonably dangerous.

This Court charged the jury as follows:

"Now, the principle applies where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer which would be unreasonably dangerous to him." (T. 80)
* * * * * *
"Now, the whole matter of defective condition arises when you can find either by design or manufacture — and there is no evidence about manufacturing defects in this case — that the product itself was designed in a way to make it unreasonably dangerous to the user or consumer." (T. 82)
* * * * * *
"Again, to summarize, by defective condition we mean a condition not contemplated by the ultimate user and which condition is unreasonably dangerous to him and which presents a hazard . . .." (T. 82)
* * * * * *
"Now, the Plaintiff has the burden of establishing that the defective condition existed and that that defective condition was unreasonably dangerous . . .." (T. 84)

At the hearing on this Motion, Plaintiff's counsel strenuously argued that this Court deliberately ignored Pennsylvania law as expressed in Berkebile by holding the Plaintiff to the burden of proving that this 988 Wheel Loader was unreasonably dangerous to the user or consumer.

This Court followed the lead of Judge Daniel H. Huyett, III in Beron v. Kramer-Trenton Co., 402 F.Supp. 1268 (E.D.Pa. 1975), in which he stated (at p. 1277):

". . . the views expressed in Chief Justice Jones' opinion in Berkebile are not the law of Pennsylvania, and that it is proper to instruct a jury that it must find a defective condition be unreasonably dangerous to the user or consumer."

The Third Circuit approved that decision in Bair v. American Motors Corporation, 535 F.2d 249, p. 250 (decided May 17, 1976), stating:

"Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968), declined to follow a prior opinion representing the views of only two justices; the Supreme Court of Pennsylvania there reasoned that an opinion `joined by only one other member of this Court has no binding precedential value.' Ibid. at 260, 248 A.2d at 35. Applying the rationale of Little to the Berkebile situation, we are constrained to accept the reasoning set forth in the Beron case, supra. . . ."

"Unreasonably dangerous" is still the law in Pennsylvania in this type of litigation, and we believe the Plaintiff here was rightfully held to that burden.

B. THE POINTS FOR CHARGE.

Plaintiff contends that the Court should have approved the following Points for Charge which were submitted:

"3) The defendant manufacturer-seller is required to provide every element necessary to make its product safe for use."
"4) The defendant manufacturer-seller is effectively the guarantor of the safety of its product."
"5) If the Caterpillar 988 Loader, at the time it was sold, did not contain adequate safety devices for the protection of persons working around the machine, the jury must find that the product was defective."
"10) The plaintiff Executrix is entitled to recover against defendant Caterpillar if she shows sufficient facts to allow the jury to infer that the Caterpillar 988 Loader was not equipped with adequate safety devices at the time it was sold by Caterpillar, and that this was a substantial factor in producing Clair V. Bunn's fatal injuries."

The Restatement 2d of Torts, § 402A, adopted in Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), reads:

"One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer. . . ."

Plaintiff's Points 3 and 10 ignore the fact that the test to determine liability of the seller is not whether the product is safe, but rather, according to 402A, whether it is "unreasonably dangerous". Point 4, although it follows the language in Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974), is taken out of context and if read to the jury as submitted by the Plaintiff, would fail to properly instruct the jury that the product must be sold "in a defective condition" for the seller to be liable. Restatement of Torts § 402A. Point 5 also fails to instruct the jury that the lack of adequate safety devices must be such that the machine must be "unreasonably dangerous" for the seller to be liable for its defect.

C. THE DEFINITION OF "UNREASONABLY DANGEROUS".

Plaintiff objects to the inclusion of the language defining defective condition in terms of "unreasonably dangerous" in the Court's Charge to the jury. In speaking of defective condition, the Court charged as follows (T. 82):

"Now, the whole matter of defective condition arises when you can find either by design or manufacture — and there is no evidence about manufacturing defects in this case — that the product itself was designed in a way to make it unreasonably dangerous to the user or consumer. And counsel has stated to you, and correctly so, that the lack of a proper safety device can, if you so find, constitute a design defect, but it is for you to say whether or not the Plaintiff has in fact established by a fair preponderance of the evidence that there was a designed defect on those particular aspects alleged in the claim in this case. Again, to summarize, by defective condition we mean a condition not contemplated by the ultimate user and which condition is unreasonably dangerous to him and which presents a hazard beyond that which would be contemplated by the ordinary consumer who purchases it and with the ordinary knowledge common to the user community as to its characteristics. . . ."

Plaintiff contends that this language is the kind that "rings in negligence" and is therefore inappropriate in strict liability cases. We direct Plaintiff's attention to the language in Beron v. Kramer-Trenton Company, supra (at pp. 1273-1274):

". . . First, an examination of Pennsylvania appellate decisions interpreting § 402A reveals that the text and the comments, including in particular comments g, h and i, have been solidly engrafted into Pennsylvania law without reservation. In the absence of an unequivocal rejection of any specific aspect of § 402A by a majority of the Pennsylvania Supreme Court we hesitate to impute such an intention to that Court, sitting as we do in our capacity as a federal diversity court interpreting Pennsylvania law. Second, we believe that the phrase `defective condition unreasonably dangerous to users' is a unitary concept and that the purpose of the draftsmen would be frustrated by severing from it `unreasonably dangerous' without substituting another suitable phrase which tends to clarify the meaning of `defective condition.' In our view the inclusion of `unreasonably dangerous' serves two overlapping functions in the § 402A formulation of strict liability. We believe it denotes that the draftsmen of the Restatement intended to foreclose the possibility that `defective condition' might be construed to include any characteristic of a product capable of inflicting injury. In addition, is sic signifies that jurors should not resort to their intuitive understanding of `defective condition' but rather that they should be guided by an objective standard based on community expectations of product safety." Error in original Footnote omitted

The language used in the Charge was given in an effort to provide the jury with an objective criteria for...

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