Hammond v. International Harvester Co.

• Decision Date: 19 November 1982
• Docket Number: No. 81-2720,81-2720
• Citation: 691 F.2d 646
• Parties: 11 Fed. R. Evid. Serv. 1468 HAMMOND, Ruth L., Administratrix of the Estate of James B. Hammond, Sr., and Ruth L. Hammond, in her own right v. INTERNATIONAL HARVESTER CO., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 646

691 F.2d 646

11 Fed. R. Evid. Serv. 1468

HAMMOND, Ruth L., Administratrix of the Estate of James B.

Hammond, Sr., and Ruth L. Hammond, in her own right v. INTERNATIONAL HARVESTER CO., Appellant.

No. 81-2720.

United States Court of Appeals, Third Circuit.

Argued Sept. 13, 1982.

Decided Oct. 26, 1982.

Rehearing and Rehearing In Banc Denied Nov. 19, 1982.

William V. Coleman, Thomas J. Finarelli, Liebert, Short, Fitzpatrick & Lavin, Philadelphia, Pa., for appellant.

Edward F. Silva, Feinberg & Silva, Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, and GARTH and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This case presents a narrow question for review: where a knowledgeable purchaser of farm equipment instructs the manufacturer of that equipment prior to delivery to remove a safety device incorporated as a standard feature in its product design, and an experienced employee of the purchaser who operates the equipment loses his life in an accident which probably would not have occurred if the standard safety device had been in place, may the manufacturer be held liable for the employee's death under Pennsylvania products liability law?

Plaintiff, as administratrix of the decedent's estate and in her individual capacity, instituted this diversity action ¹ in the United States District Court for the Eastern District of Pennsylvania, and the case was tried to a jury. The jury returned a verdict in favor of the plaintiff on the issue of liability, the parties having previously agreed to an amount for damages. The defendant, International Harvester Co. (manufacturer), appealed. We affirm.

I.

The events giving rise to this diversity action occurred on a Tyrone, Pennsylvania, dairy farm owned by Lois Peck and managed by John Newlin. James Hammond, Sr. (Hammond), a tenant farmer and employee of Ms. Peck, lived on the farm with his teenage son, Ronald Hammond (Ron), and his wife Ruth L. Hammond, the plaintiff in this case.

Newlin, the farm manager, was responsible for ordering equipment for the farm. In the time that he managed the Peck farm he purchased two skid loader tractors (tractors or skid loaders) for use primarily in moving manure. Newlin purchased the second tractor in 1976. It was an International Harvester Front End Skid Loader-Series 3300. ² That model comes equipped with a roll over protective structure and side screens (ROPS), which prevent the driver from leaning or falling out of the operator's seat area. Newlin requested the dealer to remove the ROPS from the farm's second tractor prior to delivery. Newlin, who died before trial, wanted the ROPS removed apparently because the tractor would have difficulty moving through a low barn door with the ROPS attached.

Jim Hammond operated the second tractor for approximately eight months without mishap. Then, on April 18, 1977, the fatal accident occurred. Hammond and his son Ron were attempting to put a metal leg stand under a manure conveyor. Hammond drove the tractor up to a hill where the manure conveyor was resting, and picked up the conveyor with the bucket of the loader so that Ron could put the support legs under the conveyor. As Ron was attempting to get the legs under the conveyor, his father stood up on the knee guard of the tractor, apparently to get a better view. As Hammond stood on the knee guard, he evidently slipped and in his fall, inadvertently released the boom arm by striking the foot pedal. The boom arm descended suddenly, crushing his upper torso which was then extended over the side of the tractor. Hammond died pinned beneath the boom arm.

The manufacturer concedes that this fatal accident would not have occurred had the tractor been equipped with a ROPS. The jury could have inferred that had a ROPS been attached, its side screens would have broken Hammond's fall and kept him within the safety zone of the operator's seat. Thus, his body would not have extended over the side of the tractor and would not have been crushed by the boom arm.

The plaintiff brought this action on a products liability theory. She claimed that the Series 3300 loader tractor delivered to the Peck farm was defective in design because, inter alia, it lacked a ROPS and screens.

II.

The history of Pennsylvania's modern law of products liability begins with Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). In that case, the Pennsylvania Supreme Court adopted section 402A of the Restatement of Torts Second. That section reads in pertinent part:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if ... (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Two years after its adoption of section 402A in Webb, the Pennsylvania Supreme Court held that "lack of proper safety devices can constitute a defective design for which there may be recovery." Bartkewich v. Billinger, 432 Pa. 351, 354, 247 A.2d 603, 605 (1968). The Bartkewich rule has been followed repeatedly by federal courts applying Pennsylvania law in diversity. See Heckman v. Federal Press Co., 587 F.2d 612 (3d Cir. 1978); Schell v. AMF, Inc., 567 F.2d 1259 (3d Cir. 1977).

In the course of the 1970's, a trilogy of Pennsylvania Supreme Court cases further developed the law of products liability in that state. In the first of these cases, Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974), the Pennsylvania Supreme Court permitted an employee, who was injured when a defective steam boiler purchased by his employer exploded, to proceed against the manufacturer of the boiler. Salvador abolished Pennsylvania's horizontal privity requirement which had prevented ultimate consumers injured by a defective product from recovering against a manufacturer with whom they had no contractual relationship. The Salvador court explained its decision to do away with the horizontal privity requirement thus:

Today, as the Superior Court correctly recognized, a manufacturer by virtue of section 402A is effectively the guarantor of his products' safety. See Webb v. Zern, supra; Kassab v. Central Soya, (432 Pa. 217, 246 A.2d 848). Our courts have determined that a manufacturer by marketing and advertising his product impliedly represents that it is safe for its intended use. We have decided that no current societal interest is served by permitting the manufacturer to place a defective article in the stream of commerce and then to avoid responsibility for damages caused by the defect. He may not preclude an injured plaintiff's recovery by forcing him to prove negligence in the manufacturing process. Webb v. Zern. Neither may the manufacturer defeat (a breach of warranty) claim by arguing that the purchaser has no contractual relation to him. Kassab v. Central Soya. Why then should the mere fact that the injured party (in a products liability action) is not himself the purchaser deny recovery?

457 Pa. at 32, 319 A.2d at 907.

Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), a plurality opinion of the Pennsylvania Supreme Court, followed one year after Salvador. While Salvador addressed the question of who might sue the manufacturer of a defective product, Berkebile examined the concept of defectiveness itself. Berkebile defined defectiveness broadly. "A 'defective condition,' " the court held, "is not limited to defects in design or manufacture. The seller must provide with the product every element necessary to make it safe for use." Id. at 100, 337 A.2d at 902. Furthermore, defectiveness denotes an objectively definable condition inherent in the product itself, and has nothing to do with the manufacturer's negligence. "The seller," the Berkebile court opined, "is responsible for injury caused by his defective product even if he 'has exercised all possible care in the preparation and sale of his product.' " Id. at 94, 337 A.2d at 899 (quoting Restatement (Second) of Torts § 402A-(2)(a)).

Berkebile rejects any suggestion that the use of the phrase "unreasonably dangerous" in the text of Restatement § 402A brings issues of fault and negligence back into Pennsylvania products liability law. The court explains that the words "unreasonably dangerous" appear in the text only to ensure that liability is limited to defective products, so that manufacturers of innately dangerous products such as whiskey and knives are not " 'automatically (held) responsible for all the harm that such things do in the world.' " 462 Pa. at 95, 337 A.2d at 899 (quoting Prosser, Strict Liability to the Consumer in California, 18 Hast. L.J. 9, 23 (1966)).

The 1978 case of Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020, completes the Pennsylvania trilogy. Azzarello, a unanimous opinion of the Pennsylvania Supreme Court, clarifies the plurality opinion in Berkebile. The phrase "unreasonably dangerous" used in Restatement § 402A, the court explains, is not utterly without meaning. Although the phrase has "no independent significance," it does "represent a label to be used where it is determined that the risk of loss should be placed upon the supplier." 480 Pa. at 556, 391 A.2d at 1025. This issue of whether the risk of loss should be placed on the supplier is a question of law for the court to decide with an eye toward the "social policy" underlying Pennsylvania products liability law. Id. at 558, 391 A.2d at 1026. The trial court must exercise its own judgment in determining whether the facts alleged by plaintiff, if true, would justify imposition of strict liability. Only after the court answers this question in the affirmative may it turn the case over to the jury for a determination as to whether the facts alleged are true. Id. ³

Azzarello concludes by reemphasizing the high standards to which...