Fitzpatrick v. Madonna

• Citation: 424 Pa.Super. 473,623 A.2d 322
• Parties: , Prod.Liab.Rep. (CCH) P 13,574 Christine FITZPATRICK, Individually and as Administratrix of the Estate of Kevin Fitzpatrick, Deceased, and Lisa Fitzpatrick, v. Michael MADONNA and Outboard Marine Corporation. Appeal of OUTBOARD MARINE CORPORATION.
• Decision Date: 29 April 1993
• Court: Superior Court of Pennsylvania

Page 322

623 A.2d 322

424 Pa.Super. 473, Prod.Liab.Rep. (CCH) P 13,574

Christine FITZPATRICK, Individually and as Administratrix of the Estate of Kevin Fitzpatrick, Deceased, and Lisa Fitzpatrick, v. Michael MADONNA and Outboard Marine Corporation Appeal of OUTBOARD MARINE CORPORATION.

Superior Court of Pennsylvania.

Argued May 14, 1992.

Filed Feb. 23, 1993.

Reargument Denied April 29, 1993.

Harry A. Short, Jr., Philadelphia, for appellant.

Stephen R. Bolden, Philadelphia, for appellee.

Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.

WIEAND, Judge:

In this action to recover damages for the death of a swimmer who was struck by a carelessly operated motorboat, the principal issue is whether the outboard motor on the boat was defective because it lacked a propeller guard or shield. After careful review of the evidence in this case, we conclude that there was no basis for finding the motor defective.

On the afternoon of August 10, 1980, while swimming with his sister and several friends at Pat Cong Creek Cove, near Ocean City, New Jersey, sixteen year old Kevin Fitzpatrick was struck and killed by a motorboat operated by Michael Madonna. Fitzpatrick and a friend, Lisa Wolfington, were swimming in fairly deep water when the motorboat, which was being accelerated to permit "skipping" along the water's surface by friends of Madonna, ¹ passed over the area in which Fitzpatrick was swimming. As it did the sound of the motor deepened and Fitzpatrick's body momentarily came to the surface. There, Lisa Wolfington attempted unsuccessfully to hold a bleeding Fitzpatrick above water. When his body was found approximately fifteen minutes later, mouth-to-mouth resuscitation was unsuccessful, and upon removal to a nearby hospital, Fitzpatrick was declared dead.

His mother, Christine Fitzpatrick, as administratrix of her deceased son's estate, commenced wrongful death and survival actions against Michael Madonna, the operator of the boat, and against Outboard Marine Corporation (OMC), the manufacturer of the 1978 outboard motor used to propel the boat through the water. The decedent's sister, Lisa Fitzpatrick, who witnessed the accident, filed a separate count to recover for her emotional distress. Prior to trial, the claims against Michael Madonna were settled for the sum of one million, two hundred twenty-five thousand ($1,225,000.00) dollars. ² During a subsequent trial, a jury found that Madonna (40%) and OMC (60%) were both negligent in contributing to Fitzpatrick's death and that OMC was also liable strictly for a defectively designed outboard motor. The motor was defective, the jury determined, because the propeller blades were not encased in a protective guard. Damages of one million ($1,000,000.00) dollars were awarded in the survival action and $15,316.99 in the wrongful death action. A separate award of ninety thousand ($90,000.00) dollars was made to Lisa Fitzpatrick for her individual claim of emotional distress. Post-trial motions were denied, and OMC appealed from the judgment entered on the verdict.

In Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978), the Supreme Court of Pennsylvania wrote the law applicable in this Commonwealth to strict liability claims for defectively designed products. The Court held that "[i]t is a judicial function to decide whether, under plaintiff's averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint." Id. at 558, 391 A.2d at 1026. The initial issue, therefore, is a question of law whose resolution depends upon social policy. Id., 391 A.2d at 1026. When a judicial determination has been made that recovery would be justified, a "jury may find a defect where the product left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use." Id. at 559, 391 A.2d at 1027. See also: Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 46-53, 485 A.2d 408, 420-424 (1984), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985). ³

It has been said that in making a products liability social policy analysis, a court must possess the qualities of both a social philosopher and a risk-utility economic analyst. See: Carrecter v. Colson Equip. Co., 346 Pa.Super. 95, 101 n. 7, 499 A.2d 326, 330 n. 7 (1985). The court in such cases must balance "the utility of the product against the seriousness and likelihood of the injury and the availability of precautions that, though not foolproof, might prevent the injury." Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 450, 467 A.2d 615, 618 (1983), citing Schell v. AMF, Inc., 567 F.2d 1259 (3d Cir.1977). In Dambacher by Dambacher v. Mallis, supra, the Court attempted to identify additional factors for a court to consider when it observed as follows:

The California Supreme Court has identified the following factors: the gravity of the danger posed by the challenged design; the likelihood that such danger would occur; the mechanical feasibility of a safer design; the financial cost of a safer design; and the adverse consequences to the product and to the consumer that would result from a safer design. Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 431, 143 Cal.Rptr. 225, 237, 573 P.2d 443, 455 (1978). Dean Wade has formulated a similar list:

(1) The usefulness and desirability of the product--its utility to the user and to the public as a whole.

(2) The safety aspects of a product--the likelihood that it will cause injury, and the probable seriousness of the injury.

(3) The availability of a substitute product which would meet the same need and not be as unsafe;

(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

(5) The user's ability to avoid danger by the exercise of care in the use of the product.

(6) The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

(7) The feasibility, on the part of the manufacturer, of spreading the loss of setting the price of the product or carrying liability insurance.

Wade, supra at 837-38 (footnote omitted).

Id., 336 Pa.Super. at 50 n. 5, 485 A.2d at 423 n. 5.

After reviewing the evidence in the instant case, it seems clear that a shroud which covers the propeller of an outboard motor will, at best, reduce one type of risk while creating other undesirable effects. For instance, a propeller guard would reduce a vessel's speed and would thereby reduce its efficient use of fuel. In addition, a propeller guard will affect the maneuverability of a boat. The plaintiff's expert said that technology may have been available prior to 1978 that would enable him to envision a feasible propeller protection device, but he conceded that, in fact, no device existed prior to 1984 that he could recommend. He said that he had reviewed sixteen patented propeller guard systems and that none of them were practical, because all had a substantial degrading effect on boat performance. He also reported on tests conducted by OMC between 1969 and 1981 on suggested propeller guards. All contained aspects which affected adversely the speed and fuel efficiency of boats moving through the water.

An outboard motor is designed to move a boat through water. It has not been designed to allow motorboats to move among swimmers. The risk inherent in such movement is readily apparent. Moreover, it cannot be said with any degree of certainty that the risk of injury will be reduced by a safety guard, for the presence of a shroud over the propeller presents its own risks to swimmers. For example, a shroud creates a larger target area. In addition, the possibility exists that human limbs may become wedged between a shroud and the propeller, exposing a swimmer to even greater injury.

From recreation to transportation, the open screw propeller has proven its utility for its intended purpose, i.e., powering a boat through the water. When used for its intended purpose, the open screw propeller functions safely and well. It must be conceded, nevertheless, that open screw propellers possess inherently dangerous qualities. The public, however, is aware of those qualities. A competent person knows that he or she must stay clear of the churning blades of an outboard motor in the same way as a person avoids airplane propellers, chain saw teeth, and lawn mower blades.

Some products, by their nature, (or, in modern parlance, by their conscious design), place both users and bystanders in some measure of danger. A knife or an axe may cut persons, as well as their intended targets. Fish hooks can wound; saws can maim, and revolving propellers can cause fearful damage.

Elliott v. Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir.1990). When a boat powered by an outboard motor is handled in a common sense manner, the likelihood that bystanders will be injured by the rotating blades of the motor is not great.

Those courts which have considered this issue have refused to impose strict liability for design defect on manufacturers that have not covered their outboard motors with a protective device. In Elliott v. Brunswick Corp., supra, the United States Court of Appeals for the 11th Circuit said:

At trial ... the experts called by both parties agreed that no feasible guard existed that could be adapted readily to existing motors. For example, one of plaintiff's witnesses, Dr. Arthur Reed, a naval architect, estimated that Mercury might develop an appropriate guard after a total of ten or eleven years of effort by biomechanical engineers, hydrodynamic engineers, structural engineers, and materials...