Hadar v. Avco Corp.

• Decision Date: 21 September 2005
• Citation: 886 A.2d 225
• Parties: Charles HADAR, Appellant, v. AVCO CORPORATION and J & M Machinery Company, Inc. Appellee, v. Margaret Basista, Appellee.
• Court: Pennsylvania Superior Court

886 A.2d 225

Charles HADAR, Appellant, v. AVCO CORPORATION and J & M Machinery Company, Inc. Appellee, v. Margaret Basista, Appellee.

Superior Court of Pennsylvania.

Argued May 18, 2004.

Filed September 21, 2005.

Bradley S. Tupi, Pittsburgh, for Hadar, appellant.

Michael J. Kearney Jr., Pittsburgh, for AVCO Corp.

Kenneth T. Newman, Pittsburgh, for J & M Machinery.

BEFORE: ORIE MELVIN, TODD, and McCAFFERY, JJ.

OPINION BY McCAFFERY, J.:

¶ 1 Appellant, Charles Hadar ("Hadar"), appeals from the order entered in the Court of Common Pleas of Westmoreland County granting summary judgment in favor of Appellees, Avco Corporation ("Avco") and J & M Machinery Company, Inc. ("J & M"). Upon thorough review, we conclude that a material issue of fact remains concerning whether Hadar fully appreciated the specific risk involved in operating an Avco New Idea Model 300 corn picker, such as to preclude summary judgment. Accordingly, we reverse and remand for proceedings consistent with this opinion.

¶ 2 The pertinent facts and procedural history underlying this appeal are as follows.¹ On January 18, 2000, Hadar was seriously injured while operating a corn picker manufactured by Avco in 1962, thirty-eight (38) years earlier. Hadar was picking corn as a favor for a neighbor, Margaret Basista, on Basista's property. Basista had purchased the corn picker in a "used" condition in 1991, approximately nine (9) years earlier, from J & M. Hadar was "somewhat" familiar with the operation of a mechanical corn picker.² (Hadar Deposition Testimony ("D.T."), 11/5/02, at 51, R.R. at 143a). He had operated Basista's corn picker on one occasion prior to the day of the accident after someone else had picked the majority of the corn.³

¶ 3 On the day he was injured, Hadar had been operating the corn picker for approximately twenty to thirty minutes when he noticed there was no corn coming out from the back of the corn picker and going into the wagon. He got off of the tractor without turning off the power to the corn picker because, Hadar reasoned, if he had shut down the power takeoff, he would not have been able to detect the problem as the corn picker would not have been running. The intake or "snapping" rollers in the front of the corn picker appeared to be working fine. When Hadar walked in between the wagon and the corn picker, however, he noticed that the corncobs were bunched up and stuck instead of moving through the "husking" rollers. Hadar then picked a cornstalk more than three feet in length and started to push on the corncobs on top of the "husking" rollers in order to straighten them out. Hadar believed he could let go if the cornstalk got stuck and that he was safe using a three-foot plus cornstalk to push the ears. Unfortunately, when the corncobs broke loose, the "husking" rollers pulled the cornstalk Hadar was holding, as well as his hand up to his wrist, into the corn picker. Rescue personnel had to cut the machinery and use jacks to split the rollers apart in order to remove Hadar's arm from the machine. (Hadar D.T. at 51, 62-64, 86-97, 123; R.R. at 143a, 154-56a, 178-89a, 284a).

¶ 4 Hadar initiated a products liability lawsuit against Avco and J & M alleging strict liability in Count I and negligence in Counts II and III. (Hadar Amended Complaint, filed 2/10/03). In Count I, Hadar alleged theories of manufacturing defect, design defect, and inadequate warnings. (Id. at ¶¶ 31-35). Avco later filed a complaint joining Basista as an additional defendant. Following discovery, all defendants filed motions for summary judgment asserting, inter alia, that Hadar had assumed the risk of injury. After permitting additional discovery, the trial court granted the motion, and dismissed Hadar's complaint with prejudice. The court reasoned that "Hadar voluntarily assumed the risk of the specific injury he suffered when he attempted to unclog the corn picker by using the 3-foot corn stalk and by [sic] doing so while the tractor was still in operation with the power takeoff engaged." (Trial Court Opinion, dated November 4, 2003, at 6). Hadar timely appealed, raising the following issue for our review:

DID APPELLANT CHARLES HADAR ASSUME THE RISK OF HIS INJURIES BY ATTEMPTING TO CLEAR THE HUSKING ROLLS OF A MECHANICAL CORN PICKER BY USING A THREE FOOT-PLUS CORNSTALK?

(Hadar's Brief at 4).

¶ 5 When reviewing the propriety of an order granting summary judgment, this Court must determine whether the record (1) establishes that the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury. Pa.R.C.P. 1035.2 Note. Summary judgment should be entered only in those cases which are clear and free from doubt that the moving party is entitled to judgment as a matter of law. Bullman v. Giuntoli, 761 A.2d 566, 569 (Pa.Super.2000) (quotation omitted); Dansak v. Cameron Coca-Cola Bottling Co., 703 A.2d 489, 492 (Pa.Super.1997) (quotation omitted). "[W]here there is evidence that would allow a jury to find in the non-moving party's favor, summary judgment should be denied and the case should proceed to trial." Porter, 872 A.2d at 848-49. We are not bound by the trial court's conclusions of law. Grandelli v. Methodist Hospital, 777 A.2d 1138, 1144 (Pa.Super.2001) (quotation omitted). Our scope of review is plenary, and we apply the same standard of review as the trial court. Id.

¶ 6 In the case sub judice, Hadar proffers that the inquiry whether a plaintiff has assumed the risk of his injuries should not be decided as a matter of law except where it is beyond question that he voluntarily and knowingly proceeded in the face of an obvious danger. Specifically, he asserts that "attempting to clear a husking machine with a three[-] foot-plus cornstalk does not translate into assuming the risk that the cornstalk will become entangled in the husking rolls and pulled with such force that one would be unable to release his grip on it." (Hadar's Brief at 19). We agree.

¶ 7 Well-settled law in this Commonwealth provides that a manufacturer or seller will be held "strictly liable if a defect in its product causes injuries to a user. A product is defective if it is unsafe for its intended use." Burch v. Sears, Roebuck and Company, 320 Pa.Super. 444, 467 A.2d 615, 618 (1983) (citations omitted). To ultimately prevail in a products liability case, a plaintiff must prove that (1) the product is defective, (2) the defect existed when it left the defendant's hands, and (3) the defect caused the plaintiff's injury. Schindler v. Sofamor, Inc., 774 A.2d 765, 771 (Pa.Super.2001) (citation omitted); see also RESTATEMENT (SECOND) OF TORTS, § 402A (1965). The threshold question of whether the product is defective may be shown in two ways: proof of a manufacturing defect or proof of a design defect. Schindler, supra.

"A subcategory of design defect includes inadequate warning, to the user or consumer, of the defect or dangerous propensity of the product." Ellis v. Chicago Bridge & Iron Company, 376 Pa.Super. 220, 545 A.2d 906, 909 (1988) (citation omitted).

¶ 8 An affirmative defense in a products liability action is that the plaintiff assumed the risk of his injury. Assumption of the risk has been defined as an apprehension of a specific danger, "followed by a conscious decision to tempt fate and accept what fate may bring, which then occasions injury," and it is a complete bar to recovery. Bullman, supra at 570. "[O]ne of the problems in an assumption of risk analysis is determining what the plaintiff knew and whether the plaintiff's course of action was voluntarily and deliberately taken." Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107, 1110 (1993).

Preliminary and deliberate conduct done with an awareness of the specific risks inherent in the activity is a proper basis for implying assumption of risk. Conduct close in time and place to the accident, on the other hand, while it may contain an element of voluntary risk-taking, does not demonstrate a deliberate abandonment of the right to complain [as in an assumption of risk case], but rather is better judged by its reasonableness, that is, by negligence principles.

Id. at 1110, n. 7 (quotation omitted) (emphasis added).⁴ If the defendant asserts assumption of the risk as a defense, that defendant has the burden of showing the subjective awareness of the defect by the injured plaintiff. Ellis, supra at 915 (citing Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 527 A.2d 140 (1987) (emphasis added)).

¶ 9 Pennsylvania appellate decisions "reflect a reluctance to find assumption of the risk applicable unless it is quite clear that the specific risk that occasioned injury was both fully appreciated and voluntarily accepted." Bullman, supra at 571 (collecting cases).⁵ "[T]o grant summary judgment on the basis of assumption of the risk it must first be concluded, as a matter of law, that the party consciously appreciated the risk that attended a certain endeavor, assumed the risk of injury by engaging in the endeavor despite the appreciation of the risk involved, and that the injury sustained was, in fact, the same risk of injury that was appreciated and assumed." Id. at 573 (emphasis added). The appreciation of a general risk is not sufficient to prevent a case from going to the jury. Id. at 572. Rather, "the risk of injury from the transaction that actually took place must be so immediately apparent as to be equivalent to an appreciation and acceptance of that risk and a relinquishment of the right to complain." Id. (citing Long v. Norriton Hydraulics, Inc., 662 A.2d 1089 (Pa.Super.1995)).

¶ 10 In the case sub judice, Hadar concedes that he did not want to place his hands near the "husking" rollers as he knew this to be dangerous. He argues, however, that this general risk, of which he admits knowledge, is not the specific risk he eventually encountered. Indeed, when asked at his...