Cornell Drilling Co. v. Ford Motor Co.
| Decision Date | 28 June 1976 |
| Citation | 359 A.2d 822,241 Pa.Super. 129 |
| Parties | CORNELL DRILLING COMPANY, a corporation, Appellant, v. FORD MOTOR COMPANY, a corporation, and Null Ford Sales, Inc., a corporation. |
| Court | Pennsylvania Superior Court |
John R. Walters, Jr., Janet N. Valentine Thomson, Rhodes & Grigsby, Pittsburgh, for appellant.
Joseph R. Rygiel, Uniontown, Randall J. McConnell, Jr., Dickie McCamey & Chilcote, Pittsburgh, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.
This appeal presents the question of whether appellant introduced sufficient evidence to have the issue of liability based on § 402A of the Restatement (Second) of Torts (1965) [1] submitted to the jury. The court below held that appellant's evidence was deficient and entered a compulsory nonsuit in favor of appellees at the conclusion of appellant's case. We disagree with this decision and remand for a new trial.
Appellant's complaint in trespass alleged Inter alia the following facts: On August 12, 1968, appellant purchased from Null Ford Sales, Inc., (hereinafter referred to as 'Null') a new 1968 truck manufactured by Ford Motor Company (hereinafter referred to as 'Ford'); seventeen days later the Ford truck suddenly caught fire so as to damage and destroy the interior of the cab, the engine, and certain other parts of the truck; the fire resulted from a defective condition in the truck that existed at the time it was sold by Ford and also from the negligence of Ford's employees and Null's employees. [2]
After several subsequent pleadings were filed, the case proceeded to trial where the following testimony was introduced into evidence: Kenneth W. Emory testified that he was employed by appellant on the day the truck caught fire. He was one of two men who operated the truck that day. On the day in question, he and another of appellant's employees were at the site of a strip mine drilling holes in which dynamite was later to be placed. The truck was used to transport the drill from hole to hole. Somewhere between the tenth and fifteenth holes that were drilled that day the drill broke. Emory and his partner then decided to leave the area and travel to town in a pickup truck (not the Ford) to obtain the part needed to fix the drill. Emory testified that when they left the area the truck engine was turned off, its doors were closed, the windows were up, there was no one else in the area, and there was no evidence of any fire at that time. Approximately one hour after they were gone, they received word over their two-way radio that the Ford truck was on fire back at the mine. When they returned, Emory noticed that the Ford truck was in the same position as it had been when they left and the doors were still closed. However, the cab of the truck was burned to such an extent that the glass had melted. Emory did not have occasion to examine under the hood of the truck to determine the extent of the fire in that area. However, Emory did notice that certain jumper cables kept behind the seat in the cab had not come in contact with a reserve battery that was kept on the floor board in the cab and was still covered. Emory's testimony also made it clear that the Ford truck had been functioning properly prior to the fire.
Wayne Layhue, Emory's working partner, was the next witness to testify for appellant. His testimony reaffirmed the fact that the truck had been operating normally that morning and that there was no evidence of any fire when he and Emory departed for town. According to Layhue, the truck had been turned off a half hour before they had left for the parts. Layhue substantially made the same observations testified to by Emory. Layhue also added that he did not do anything to cause the fire.
J. R. Cornell, owner of appellant corporation, testified that he had purchased the Ford truck new from Null and that it had only 35 miles on its odometer when it caught fire. He agreed with the two prior witnesses that there had been no trouble with the truck up to the time it caught fire. According to Cornell, nothing had been altered on the truck by appellant although Null had extended the truck's chassis several inches prior to delivering it to appellant. Cornell testified that the interior of the cab had been burnt more severely than the area under the hood. Cornell admitted that he did not know the cause of the fire.
The final witness, Norman Sharp, the service manager of Null, was called by appellant. Because appellant failed to list Sharp as an expert in its pre-trial statement, the court refused to permit Sharp to give his opinion that the electrical system on this type of truck was insufficiently fused. However, Sharp was allowed to testify that he could not determine the cause of the fire because 'everything was burnt beyond the possibility of the identification of it.' Notes of Testimony at 69--70. Sharp further testified that there was no evidence of any fire in the rear area of the truck but that the fire basically was confined to the area of the cab and under the hood. According to Sharp, no one at Null ever checked the fuses in the truck's electrical system and he did not know if the proper fuses were at the proper circuits on the truck. Sharp also noted that after the fire the fuse box in the truck was completely destroyed.
To eliminate the necessity of appellant's calling another witness the parties stipulated that, if called, Ford's expert, a Mr. McDonald, would testify that 'there was no evidence of an external cause for the fire, that there was no evidence that the drilling rig . . . caused the fire, that there is no evidence that the extension of the chassis . . . caused the fire, and that there is no evidence that the battery terminals or the cables which are attached to the battery terminals . . . caused the fire.' Notes of Testimony at 79.
Appellant then rested on the issue of liability. The court entertained Ford's and Null's motion for a compulsory nonsuit and after argument granted it. The court en banc affirmed the trial judge's order granting the nonsuit. The basis for the lower court's decision was that appellant had failed to prove a defective condition unreasonably dangerous to the user or consumer or its property as required by § 402A of the Restatement (Second) of Torts (1965). The court found that appellant's evidence only established a fire in a truck that was not in operation. '(H)ad the truck caught fire for unexplained reasons while it was in operation,' reasoned the lower court, 'evidence of a malfunction (might have been) presented.' Printed Record at 119a. But because there was no evidence of a specific defect nor evidence of a malfunction during the normal operation of the truck, the court below found that the jury would be forced to speculate over the cause of the fire from the almost limitless range of possibilities that existed.
Paul v. Hess Bros., 226 Pa.Super. 92, 94--95, 312 A.2d 65, 66 (1973) (citations omitted). In a trespass case, a plaintiff need not exclude every other reasonable possibility that could have caused the accident. 'It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability.' Jones v. Treegoob, 433 Pa. 225, 230, 249 A.2d 352, 355 (1969).
As correctly observed by the lower court, for appellant to submit his case to the jury on the theory of strict liability under § 402A of the Restatement (Second) of Torts (1965), it was necessary to 'prove that the product was defective, and . . . that the defect was a proximate cause of the plaintiff's injuries.' Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93, 337 A.2d 893, 898 (1975). What is a defective product? According to comment (g) of § 402A a defective condition exists when 'the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.' Dean Prosser has noted that '(t)he prevailing interpretation of 'defective' is that the product does not meet the reasonable expectations of the ordinary consumer as to its safety.' W. Prosser, Law of Torts, 659 (4th ed. 1971) (footnote omitted). Another definition is that 'a product is defective if it fails to match the average quality of like products.' Traynor, 'The Ways and Meanings of Defective Products and Strict Liability,' 32 Tenn.L.Rev. 363 (1965).
Although it is helpful for a plaintiff to have direct evidence of the defective condition which caused the injury or expert testimony to point to that specific defect, such evidence is Not essential in a strict liability case based on § 402A. See Bialek v. Pittsburgh Brewing Co., 430 Pa 176, 242 A.2d 231 (1968); MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676, Allocatur refused, 214 Pa.Super. Xl (1969). In Bialek our Supreme Court stated that lay testimony demonstrating that a beer bottle exploded spontaneously when it was picked up by plaintiff was sufficient without expert testimony to present a jury question on liability. Similarly, in MacDougall our Court indicated that plaintiff's testimony that her car failed to handle properly was sufficient without expert testimony to permit the liability question to go to the jury. '(P)roof of...
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