Dambacher by Dambacher v. Mallis

Decision Date27 November 1984
Citation485 A.2d 408,336 Pa.Super. 22
PartiesJoann DAMBACHER, A Minor By Her Parents and Natural Guardians, William J. DAMBACHER and Joann Dambacher, and William J. Dambacher and Joann Dambacher In Their Own Right, v. Nicholas J. MALLIS, Jr., and Sears, Roebuck & Company and Commonwealth of Pennsylvania Department of Transportation. Appeal of SEARS, ROEBUCK & COMPANY.
CourtPennsylvania Superior Court

Argued Oct. 17, 1983. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Bernard J. Smolens, Philadelphia, for appellant.

Gustine J. Pelagatti, Philadelphia, for appellees.


SPAETH President Judge:

This is a products liability case arising out of an automobile accident. The product in question is a radial tire, and the allegations are that the tire was defective because it was not embossed with a warning not to mix it with non-radial tires, and that the accident occurred because the tire was mixed with non-radial tires.

Appellees, Joann Dambacher and her parents, were the plaintiffs, and appellant, Sears, Roebuck and Company, the supplier of the tire, was one of the defendants. A jury returned a verdict in favor of appellees. The trial court denied appellant's motion for judgment n.o.v. or in the alternative for a new trial, and granted appellees' motion for a new trial limited to damages. There are two principal issues. The first issue is whether the trial court erred in ruling that certain of appellees' witnesses were qualified to express an opinion that in fact the accident did occur because the tires were mixed. We hold that the court did err, and we therefore order a new trial generally. The second issue concerns what instructions the trial court should give the jury at the new trial. We hold that the court should instruct the jury in accordance with Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). This means that the court should not instruct the jury to determine whether appellant's radial tire was "unreasonably dangerous" because it was not embossed with a warning not to mix it with non-radial tires. Nor should the court otherwise instruct the jury in negligence terms. Instead, the court should instruct the jury in terms of appellant's liability as a guarantor, responsible if the user of its product--the radial tire--was injured as a result of a defect in the product. The court should explain that if the jury finds that when the tire left appellant's control it lacked the warnings necessary to make it safe for its intended use, then the tire was defective, and appellant is liable for the harm caused by the defect.

Although the legal issues presented will require extended discussion, [1] the underlying facts may be briefly stated. On November 6, 1977, Nicholas Mallis, a sixteen year-old high school student, discovered that the right front tire of his grandfather's 1971 Plymouth Fury was flat. He replaced the flat tire with a Sears radial tire. The other tires on the Plymouth were non-radial tires. The next day Nicholas gave seven fellow students a ride home from school in the Plymouth. One of the students was Joann Dambacher. As the youngsters left school, it was drizzling and the highway was wet, with leaves on the surface. Nicholas, driving at about 20 to 25 miles per hour, failed to negotiate an S-curve. He testified:

As I went through the right-hand turn I braked. I went through the right hand turn, started going into the left hand turn, and the back of the car slid out. The back slid to the right ... It happened quick. As best I remember, the car slid a little sideways and towards the left lane, and it went off the embankment, into a tree.

R.R. 586a.

Joann suffered a fractured dislocation of the cervical spine, and was rendered a quadriplegic who will be confined to a wheelchair for life.

Joann's parents, William J. Dambacher and Joann Dambacher, on Joann's behalf and in their own right, sued Nicholas and his grandfather in negligence and Sears, in strict liability. Sears joined the Commonwealth of Pennsylvania, Department of Transportation, as an additional defendant on the theory that the S-curve was unsafe. Before trial, the Department of Transportation settled with the Dambachers for $87,500. The trial was before a jury, from May 6 to May 20, 1980. After a non-suit was entered in favor of Nicholas's grandfather, the jury returned a verdict in favor of Joann in the amount of $800,000, and in favor of her parents in the amount of $10,000, apportioning responsibility under the Pennsylvania Comparative Negligence Act 50% to Nicholas, 45% to Sears, and 5% to the Department of Transportation. Sears filed a motion for judgment n.o.v. or in the alternative for a new trial, and the Dambachers filed a motion for a new trial as to damages. The trial court, sitting en banc, denied Sears's motions, granted the Dambachers', and entered judgment against Sears as to liability, with delay damages. [2] Sears then filed this appeal, and only its liability is at issue, for the Department of Transportation has settled, as mentioned, Nicholas has not appealed, and the propriety of the nonsuit in favor of Nicholas's grandfather is not questioned. For convenience, in the discussion that follows we shall usually refer to Sears as appellant and to the Dambachers as appellees, without distinguishing between Joann and her parents.

The admissibility of appellees' opinion evidence on causation

Appellees' theory of recovery against appellant was that appellant was strictly liable because the radial tire supplied to Nicholas's grandfather was not embossed with a warning not to mix it with non-radial tires. [3] In support of this theory, appellees introduced documentary evidence and the testimony of two witnesses that Nicholas's mixing of the tires caused the accident. Appellant in turn introduced evidence that if the mixing was dangerous, it was so only at high speeds, not at 20 to 25 miles per hour, the speed at which Nicholas was driving when the accident occurred.

It is settled that in a products liability case the plaintiff must prove that a defective product was the proximate cause of his injuries. Sherk v. Daisy Heddon, 498 Pa. 594, 450 A.2d 615 (1982); Agostino v. Rockwell Manufacturing Co., 236 Pa.Super. 434, 345 A.2d 735 (1975). Appellant argues that "[t]he only testimony that a mixed fitment could have caused the accident was given by two of plaintiffs' [appellees'] witnesses, ... whom the court below permitted to testify as 'experts.' These witnesses were not qualified to give opinions on causation in this case, and therefore the verdict cannot be upheld on the basis of their opinions." Brief for Appellant at 36. Because of the trial court's error in ruling that appellees' two witnesses were qualified to express an opinion on causation, appellant argues, it is entitled not simply to a new trial but to judgment n.o.v.


It will be convenient to start with appellant's argument that it is entitled to judgment n.o.v., for in considering that argument we may assume, without deciding, that appellees' witnesses were unqualified to express an opinion on causation.

When we review an order denying a motion for judgment n.o.v., we must regard the evidence in the light most favorable to the verdict winner. Evidence supporting the verdict is to be considered, with the rest rejected, Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968), and "only when the facts are such that two reasonable persons could not fail to agree that the verdict was improper," Cummings v. Nazareth Borough, 427 Pa. 14, 25-26, 233 A.2d 874, 881 (1967), should we enter judgment n.o.v. See McKnight v. City of Philadelphia, 299 Pa.Super. 327, 445 A.2d 778 (1982).

Applying these principles here, we reject the testimony of appellant's witnesses and consider, in the light most favorable to appellees, the testimony of appellees' witnesses on causation. Both of these witnesses expressed the opinion that the mixing of the radial tire with three non-radial tires was a cause of the accident. Walter VanNess Pruyn testified as follows:

Q. What is your opinion?

A. It is my opinion that this accident was precipitated by a loss of control of the vehicle by the driver.

THE COURT: What do you mean by precipitated?

THE WITNESS: Initiated, caused to occur because of a combination of circumstances triggered by the mixing of a radial tire on the right front in combination with a cross ply belted tire on the left front of the vehicle which in combination with the highway surface, highway grade, curvature, inexperience of the driver, a lack of advanced knowledge of the potentialities for loss of control, the vehicle suddenly oversteered on the left turn and at the speed at which the vehicle was traveling the driver did not have time in which to correct, to react, to recognize possible solutions and to take action in the time distance available to him from the time the oversteer condition occurred and impact with the tree.

R.R. 630a-31a.

William P. Kelly testified that with a radial on the right front and a non-radial on the left front, the chance of an accident increases. R.R. 338a. He called "ridiculous" the statement of appellant's expert witness, Sidney Bloor, that a mixed fitment of radial and non-radial tires will not cause erratic steering unless the automobile is travelling at 70 miles per hour or more, even on wet ground. R.R. 996a. Other testimony was presented regarding the weather and the condition of the road, of the tires, and of the Plymouth at the time of the accident.

This record demonstrates that appellant's argument for judgment n.o.v. has no merit. For by accepting the testimony of appellees' witnesses,...

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