DeSantis v. Frick Co.

• Decision Date: 23 December 1999
• Citation: 1999 Pa. Super. 329,745 A.2d 624
• Parties: Hope D. DeSANTIS, Executrix of the Estate of Angela L. DeSantis, Deceased, Appellants v. FRICK COMPANY, now by merger, York International Corporation and the Pennsylvania Defense Institute, Appellees.
• Court: Pennsylvania Superior Court

745 A.2d 624

1999 Pa. Super. 329

Hope D. DeSANTIS, Executrix of the Estate of Angela L. DeSantis, Deceased, Appellants v. FRICK COMPANY, now by merger, York International Corporation and the Pennsylvania Defense Institute, Appellees.

Superior Court of Pennsylvania.

Argued June 10, 1999.

Filed December 23, 1999.

Reargument Denied February 24, 2000.

Tim Riley, Erie, James A. Henderson, Ithaca, NY, and Aaron D. Twerski, Brooklyn, NY, for appellant.

James R. Fryling, Erie, for Frick, appellee.

Before JOHNSON, LALLY-GREEN, and HESTER, JJ.

LALLY-GREEN, J.

¶ 1 Appellant, Hope DeSantis, appeals an order of the Court of Common Pleas of Erie County granting summary judgment to Appellee, Frick Company, in this products liability action. We affirm.

¶ 2 The trial court made the following findings of fact:

In 1964, the Frick Company manufactured and sold an industrial freezer to Rich Products Corporation. It also installed the unit in the company's manufacturing plant to such an extent that the parties agree it constituted an "improvement to real property" within the meaning of 42 Pa.C.S. § 5536, generally referred to as the "Statute of Repose".

Angela DeSantis, [a] Rich Products employee, was killed as a result of inhaling anhydrous ammonia while working in the plant in 1993. The ammonia was released into the workplace because a valve on the freezer ruptured from "hydraulic shock," a condition which sometimes occurs when liquid ammonia used as a refrigerant condenses and accumulates in a freezer coil during manual defrosting. Frick stopped manufacturing this kind of freezer system in the late 1960's. No valve on the system installed at Rich had previously failed in this manner.

In the mid to late 1980's, manufacturers of industrial freezers of the type at issue in this case began installing a "liquid drainer," which prevented condensed liquid and ammonia from accumulating and reduced the chance of hydraulic shock. In addition, in the early 1990's, a device known as a "scrubber" was developed which had the effect of dissipating inordinate pressure which would build up behind the valves as a result of the accumulation of liquid ammonia in freezer coils. Information concerning the use of these devices was disseminated throughout the freezer industry and Frick would have been aware of it through trade publications or other means. Frick did not advise Rich or other freezer customers of their utilization. Had one or both of these devices been installed on Rich's freezer system, the likelihood that the valve in question would have ruptured would have been significantly diminished.

Trial Court Opinion, 10/27/98, at 1-3. (Footnote omitted).

¶ 3 Appellant, the mother of Angela DeSantis, filed a complaint on June 6, 1997, after the death of her daughter on May 9, 1996. The complaint alleged wrongful death and survival actions. Counts I and II were based on strict products liability under Section 402A of the RESTATEMENT (SECOND) OF TORTS ("SECTION 402A"). Counts III and IV alleged negligence in design and manufacture. Counts V and VI sounded in strict products liability as to Frick's breach of its post-sale duty to warn.

¶ 4 On November 5, 1997, Frick filed a motion for summary judgment alleging Appellant's cause of action for wrongful death was barred by the statute of limitations and that the remaining survival claims were barred by the statute of repose. At argument on the motion for summary judgment, Appellant conceded that Counts I, II, III, and IV, were barred by the statute of repose but argued that Counts V and VI, the post-sale duty to warn claims, were not so barred. N.T., 8/26/98, at 3.

¶ 5 The trial court granted Frick's summary judgment motion, concluding that Appellant's cause of action for post-sale duty to warn was barred because Pennsylvania law does not recognize a cause of action for a post-sale duty to warn. This appeal followed.

¶ 6 Appellant raises two issues on appeal:

1) Whether the trial court erred in granting summary judgment on the basis that Pennsylvania law does not recognize a manufacturer's post-sale duty to warn of safety hazards inherent in the continued use of the product and technological improvements which minimize such hazards?

2) Assuming Pennsylvania law imposes the post-sale duty to warn alleged by Appellant, whether Pennsylvania's statute of repose applies to and bars her claim?

Appellant's Brief at 1.

¶ 7 This Court's review of a trial court's granting of summary judgment is well settled:

[W]hen reviewing the propriety of a trial court's order granting summary judgment, we must view the record in the light most favorable to the non-moving party and determine whether the moving party has established that there exists no genuine issue of material fact and that it is therefore entitled to judgment as a matter of law. Skipworth v. Lead Industries Assoc., 547 Pa. 224, 230, 690 A.2d 169, 171 (1997). The non-moving party is entitled to all reasonable inferences. Any doubts as to the existence of a factual dispute must be resolved in the non-moving party's favor and summary judgment is appropriate only in the clearest of cases. Kingston Coal Co. v. Felton Mining Co., Inc., 456 Pa.Super. 270, 277, 690 A.2d 284, 287 (Pa.Super.1997).

Roman Mosaic & Tile Co. v. Aetna Casualty & Surety Co., 704 A.2d 665, 668 (Pa.Super.1997). Summary judgment is appropriate:

when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact. The moving party has the burden of proving the non-existence of any genuine issue of fact. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings.... Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law.

Merriweather v. Philadelphia Newspapers, Inc., 453 Pa.Super. 464, 469-72, 684 A.2d 137, 140 (1996) (citations omitted).

¶ 8 Appellant first argues that Pennsylvania should adopt Section 10 of the RESTATEMENT (THIRD) OF TORTS ("Section 10"),¹ and thereby recognize that a manufacturer has an independent post-sale duty to warn about risks and risk-avoidance measures that occur after the time of the original sale irrespective of whether the product was defective at the time of the original sale. Specifically, Appellant alleges that the 1964 refrigeration system became defective at some point between 1985 and 1993 when Frick failed to advise Rich Products that use of liquid float drainers or "snubbers" were being recommended.

Section 10 provides:

Liability of Commercial Product Seller or Distributor for Harm Caused by Post-Sale Failure to Warn

(a) One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller's failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller's position would provide such a warning.

(b) A reasonable person in the seller's position would provide a warning after the time of sale if:

(1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and

(2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; and

(3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and

(4) the risk of harm is sufficiently great to justify the burden of providing a warning.² ¶ 9 Comment a to Section 10 states that the seller's duty to warn of a product-related risk after the time of sale applies "whether or not the product is defective at the time of original sale." Section 10 premises a post-sale duty upon a finding that each and every one of the four enumerated factors in Section 10(b) is demonstrated. See Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 409 (N.D. 1994)

.

¶ 10 A manufacturer's post-sale duty to warn is derived from the doctrine of strict products liability pursuant to Section 402A. Walton v. Avco Corp., 530 Pa. 568, 575-76, 610 A.2d 454, 458 (1992). Section 402A imposes strict liability on the seller of any product "in a defective condition unreasonably dangerous to the consumer."³

¶ 11 Our Supreme Court adopted Section 402A and the doctrine of strict products liability as the law of Pennsylvania three decades ago. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). The doctrine was addressed in Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975) and, more recently, in Walton v. Avco Corp., 530 Pa. 568, 575-76, 610 A.2d 454, 458 (1992).⁴

¶ 12 In Berkebile, the Supreme Court addressed the strict liability concept under Pennsylvania law with respect to warnings and instructions. There, the estate of Cloyd Berkebile brought a wrongful death and survival action on behalf of Berkebile who was killed while piloting a helicopter manufactured by Brantly Helicopter Corporation. 462 Pa. at 90, 337 A.2d at 897. The estate asserted four grounds of recovery: defective design; defective manufacture; inadequate warnings; and misrepresentation. Id. at 91, 337 A.2d at 897. A jury found for Brantly and Berkebile's estate appealed. Id. at 83, 337 A.2d at 893. On appeal, the Superior Court reversed, and the Supreme Court affirmed. Id.

¶ 13 The Supreme Court first addressed the requirement to prove a cause of action grounded in strict liability:

Strict liability requires, in substance, only two elements of requisite proof: the need to prove that the product was defective, and the need to prove that the defect was a proximate cause of the plaintiff's injuries.... Also, plaintiff must prove that the defect causing the injury existed at the time the product left the seller's hands; the seller is not liable if a product is made unsafe by subsequent

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