Childers v. Power Line Equipment Rentals, Inc.

• Court: Superior Court of Pennsylvania
• Citation: 452 Pa.Super. 94,681 A.2d 201
• Parties: , Prod.Liab.Rep. (CCH) P 14,733 Sharon V. CHILDERS, Administratrix of the Estate of Willard E. Childers, Deceased v. POWER LINE EQUIPMENT RENTALS, INC., a Corporation; Kenneth W. Joseph, T/D/B/A Sunrise Equipment and Supply Company and Sunrise Equipment and Supply Company; Ohio Edison, a Corporation; General Motors Corporation; Pitman Manufacturing Company; A.B. Chance Company, a Corporation; and Emerson Electric Company, a Corporation; Dana Corporation; Sandra L. Simpson T/D/B/A E & S Service & Repair and E & S Service and Repair v. The HOWARD P. FOLEY COMPANY, INC. Appeal of PITMAN MANUFACTURING COMPANY; A.B. Chance Company, a Corporation; and Emerson Electric Company, a Corporation.
• Decision Date: 24 July 1996

Page 201

681 A.2d 201 452 Pa.Super. 94, Prod.Liab.Rep. (CCH) P 14,733 Sharon V. CHILDERS, Administratrix of the Estate of Willard
E. Childers, Deceased
v.
POWER LINE EQUIPMENT RENTALS, INC., a Corporation; Kenneth
W. Joseph, T/D/B/A Sunrise Equipment and Supply Company and
Sunrise Equipment and Supply Company; Ohio Edison, a
Corporation; General Motors Corporation; Pitman
Manufacturing Company; A.B. Chance Company, a Corporation;
and Emerson Electric Company, a Corporation; Dana
Corporation; Sandra L. Simpson T/D/B/A E & S Service &
Repair and E & S Service and Repair
v.
The HOWARD P. FOLEY COMPANY, INC.
Appeal of PITMAN MANUFACTURING COMPANY; A.B. Chance
Company, a Corporation; and Emerson Electric
Company, a Corporation. Superior Court of Pennsylvania. Argued May 1, 1996.
Filed July 24, 1996.

Page 205

[452 Pa.Super. 102] Robert S. Grigsby, Pittsburgh, for appellants.

Francis J. Carey, Pittsburgh, for Sharon V. Childers, appellee.

Paul J. Malak, Pittsburgh, for Power Line Equipment, appellee.

Kenneth S. Robb, McKeesport, for Kenneth W. Joseph, appellee.

Joseph M. Ramirez, Pittsburgh, for General Motors, etc., appellees.

Before POPOVICH, EAKIN and HESTER, JJ.

Page 206

POPOVICH, Judge:

Willard E. Childers was crushed to death while standing at the operator's station of a Pitman Polecat digger-derrick truck. While Mr. Childers was operating the truck from behind, the truck jerked forward, then rolled back crushing him between the truck and a flatbed trailer. In subsequent [452 Pa.Super. 103] death actions, the administratrix of his estate proceeded upon a theory of strict products liability contending that the digger-derrick truck had been defectively designed, manufactured, assembled and sold by the defendants. Defendants denied these allegations. The case was submitted to a jury which returned a verdict of $1.1 million in favor of Mr. Childers' estate. Subsequent to the jury's verdict, the trial court molded the verdict in favor of Mr. Childers' estate and all other defendants, ¹ and against Pitman Manufacturing Company, A.B. Chance Company and Emerson Electric Company (appellants). Appellants' timely filed post-trial motions were denied by the trial court and this appeal followed. ²

On appeal, appellants contend that a new trial is warranted for the following reasons: 1) The trial court improperly refused to admit evidence on the issue of causation as it related to decedent's conduct; 2) The trial court improperly limited the testimony of John Frank, appellants' expert witness; 3) The trial court improperly limited appellants' cross-examination of Jo Ellis Davidson and Professor John W. Wiss, [452 Pa.Super. 104] plaintiff's expert witnesses; 4) The trial court improperly granted General Motor Corporation's (General Motors) motion for a directed verdict; 5) The trial court improperly denied Emerson Electric Company's motion for a directed verdict. In the alternative, appellants argue that if a new trial is not warranted, this Court must determine that the trial court erred in refusing to submit to the jury the issue of contribution as it related to appellees Sunrise Equipment and Supply Company and Power Line Equipment Rentals, Inc. We affirm.

[At the outset of our analysis, we note that] [o]ur standard of review of the trial court's denial of a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or constituted an abuse of discretion. The appellant[s] bear a heavy burden in persuading this Court that such an error occurred. In considering all of the evidence in the light most favorable to appellee[s] we must, to reverse the trial court, conclude that the verdict would be changed if another trial were granted. [Moreover], when the basis of the request for a new trial is the lower court's ruling[s] on evidence, to constitute reversible error, such ruling[s] must be shown not only to have been erroneous but harmful to the part[ies] complaining. Evidentiary ruling[s] which did not affect the verdict will not provide a basis for disturbing the jury's judgment.

Dougherty v. Edward J. Meloney, Inc., 443 Pa.Super. 201, 661 A.2d 375, 387 (1995) (citations omitted).

Page 207

Appellants' first contention is that the trial court erred in refusing to admit evidence on the issue of causation as it related to decedent's conduct. The law is clear that in order to recover in a strict products liability action decedent's estate had to demonstrate that there was a defect in the truck and that the defect caused the accident. Dietrich v. J.I. Case Company, 390 Pa.Super. 475, 568 A.2d 1272 (1990). During trial, appellants repeatedly attempted to introduce evidence that Mr. Childers' method of operating the truck, and not the design or manufacture of the truck, was the proximate cause of the accident. Appellants argued that the decedent's failure [452 Pa.Super. 105] to take the truck out of reverse, his failure to apply the parking brakes, his failure to chock the wheels and his act of parking the truck perpendicular to the flatbed trailer were relevant to show misuse or that his conduct was the cause of the accident. Because the administratrix was proceeding solely on the theory of strict products liability, the trial court concluded that such evidence was only relevant in showing contributory negligence, and, therefore, excluded it. Appellants contend that this was error. We disagree.

Throughout the development of strict products liability, our supreme court has been adamant that negligence concepts have no place in a strict liability action. Kimco Development v. Michael D's Carpet, 536 Pa. 1, 637 A.2d 603 (1993); McCown v. International Harvester Company, 463 Pa. 13, 342 A.2d 381 (1975). In Kimco, our supreme court specifically addressed the issue of whether comparative negligence should constitute a defense to a strict products liability action. The court unequivocally held that it would not extend negligence concepts, and particularly the defense of comparative negligence, into the area of strict products liability. Kimco, supra. The supreme court stated the following reasons for declining to extend negligence concepts to the area of strict products liability:

Our position is not based solely on the problem of the conceptual confusion that would ensue should negligence and strict liability concepts be commingled, although that concern is not negligible. Rather, we think that the underlying purpose of strict product liability is undermined by introducing negligence concepts into it. Strict product liability is premised on the concept of enterprise liability for casting a defective product into the stream of commerce.

The deterrent effect of imposing strict product liability standards would be weakened were we to allow actions based upon it to be defeated, or recoveries reduced by negligence concepts.

Kimco, 637 A.2d at 606-607.

In Smith v. Weissenfels, Inc., 441 Pa.Super. 328, 657 A.2d 949 (1995), this Court applied the rules enunciated in Kimco to [452 Pa.Super. 106] a strict products liability claim. There, we specifically held that "[w]here a defendant is found liable to a plaintiff under principles of strict liability, the comparative negligence of the plaintiff is irrelevant and may not be used to reduce the responsibility of a strictly liable defendant for the entire damage award." Smith, 657 A.2d at 953 (citations omitted).

While appellants acknowledge that evidence of a plaintiff's contributory negligence is ordinarily inadmissible in a strict products liability proceeding, they argue that it is admissible when, as is alleged here, the evidence is used to rebut the "causation prong" of a products liability claim. As appellants correctly argue, our supreme court has never held that evidence of a plaintiff's conduct is irrelevant or inadmissible in a strict products liability action for every purpose. Rather, our supreme court has permitted defendants to introduce evidence that a plaintiff voluntarily assumed the risk or misused a product in a strict products liability action. Moreover, this Court has held that defendants may introduce evidence that a plaintiff engaged in highly reckless conduct to defeat a strict products liability claim. Under these limited theories, the appellate courts of this Commonwealth have held that an inquiry as to a plaintiff's use of a product is relevant as it relates to causation. However, after a careful review of the record, we find that in this case there is insufficient evidence to show that decedent voluntarily assumed the risk of the truck's defects, that he misused the truck, or that he engaged in

Page 208

highly reckless conduct. Rather, we find that the evidence which appellants wished to introduce tended to show that decedent was careless in his use of the truck, and, therefore, the evidence was properly excluded.

In Robinson v. B.F. Goodrich Tire Company, 444 Pa.Super. 640, 664 A.2d 616 (1995), we acknowledged the supreme court's holding in Kimco and held that a plaintiff cannot be precluded from recovery in a strict products liability case because of his own negligence. However, we further held the following:

452 Pa.Super. 107] Voluntary assumption of the risk ... is an affirmative defense in a [strict] products liability case. Before the theory may be submitted to a jury, the defendant must produce evidence that the plaintiff fully understood the specific risk, and yet voluntarily chose to encounter it. Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness to accept it. A plaintiff has voluntarily assumed the risk where he fully understands it and voluntarily chooses to encounter it. A plaintiff's knowledge and understanding of the risk may be shown by circumstantial evidence

It has been said that assumption of the risk and contributory negligence may sometimes overlap because certain conduct may exhibit the elements...