Bunn v. Caterpillar Tractor Co., Civ. A. No. 74-637.
Court | United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania) |
Citation | 415 F. Supp. 286 |
Docket Number | Civ. A. No. 74-637. |
Parties | Ruth 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 Date | 16 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.
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.
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 ( and the exhaust pipe and air precleaner mounted behind the driver's seat obstructed the view of the driver to the rear. , rear view mirrors and a backup alarm)
The case was tried before a jury which answered the first special interrogatory1 as follows:
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:
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:
"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.
Plaintiff contends that the Court should have approved the following Points for Charge which were submitted:
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.
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):
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):
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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