Hollinger v. Wagner Min. Equipment Co.

• Decision Date: 15 January 1982
• Docket Number: No. 81-1359,81-1359
• Citation: 667 F.2d 402
• Parties: Patricia A. HOLLINGER, Administratrix of the Estate of Germaine S. Hollinger, Deceased, Appellant, v. WAGNER MINING EQUIPMENT COMPANY, A Division of Paccar, Inc.
• Court: U.S. Court of Appeals — Third Circuit

Page 402

667 F.2d 402

Patricia A. HOLLINGER, Administratrix of the Estate of Germaine S. Hollinger, Deceased, Appellant, v. WAGNER MINING EQUIPMENT COMPANY, A Division of Paccar, Inc.

No. 81-1359.

United States Court of Appeals, Third Circuit.

Argued Sept. 21, 1981.

Decided Dec. 22, 1981.

Rehearing Denied Jan. 15, 1982.

Paul J. Senesky (argued), Galfand, Berger, Senesky, Lurie & March, Philadelphia, Pa., for appellant.

David L. Grove (argued), Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for appellee; David N. Hofstein, Philadelphia, Pa., of counsel.

Before ALDISERT, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. Issue

This is an appeal from the grant of summary judgment in favor of the defendant, Wagner Mining Equipment Co. (Wagner). In this diversity action plaintiff seeks damages for the death of her decedent, Germaine S. Hollinger (Hollinger), who was killed on May 27, 1977 at an underground mine operated by Bethlehem Mines Corp. (Bethlehem) in Morgantown, Pennsylvania, after being struck by a scooptram ¹ operated by another Bethlehem employee, Irvin Hartz. The scooptram was manufactured by Wagner in 1969 and was put into operation in November of that year by Bethlehem.

Plaintiff's claim, which evolved in its present form during discovery, is that the scooptram was sold in an unsafe condition as defined by section 402A of the Restatement (Second) of Torts ² because it was not equipped with an automatic warning device at the time of its sale. Wagner moved for summary judgment, essentially contending that the undisputed facts prove that the alleged defect did not cause Hollinger's death. The district court granted summary judgment to Wagner, finding that no genuine issue exists as to the material fact that "the decedent saw and heard the approaching scooptram," and therefore that "the presence or absence of any audible or visual device, whose sole function would have been to alert the decedent that the scooptram was coming, could not have caused the accident...." Hollinger v. Wagner Mining Equipment Co., 505 F.Supp. 894, 899 (E.D.Pa.1981). The court held in the alternative that even if causation could be established, there could be no liability imposed on the manufacturer under section 402A(1)(b) of the Restatement (Second) of Torts because Bethlehem had removed the operative manual horn with which the scooptram was originally sold, thereby effecting a "substantial change" in the scooptram's condition. Id. at 900-02. We find that summary judgment on either of these grounds was inappropriate on the record before the district court and remand.

II. Facts

The following facts are not in dispute. At the time of the accident, Hollinger and his helper, Rump, were working in the "607 East Production Drift" of the Bethlehem mine along with Hartz, who was operating the scooptram. The diagram in the record of this portion of the drift shows a main tunnel at least 10 feet wide, off the north side of which were three entries, numbered, from west to east, 03, 02 and 01. More than 50 feet east of entry 01 was another small entry in which was located an explosive storage box. To the farthest east was the water valve from which the scrubber tank of the scooptram was filled. Across the tunnel from entry 01 (i.e. to the south of that entry) was a water drainage manway. It was a common practice to assign three persons to work in one production drift.

Hollinger and his helper were drilling and blasting oversized chunks of ore which had been placed in the 03 entry. The third employee, Hartz, the scooptram operator, was drawing muck from the 01 and 02 entries and dumping it at a point west of the 03 entry. Hollinger left his helper in the 03 entry and walked east in the direction of the 01 entry and the water drainage manway located directly across the tunnel from the 01 entry. At roughly the same time, Hartz noticed that the scrubber tank of the scooptram was empty. In order to refill the tank, he proceeded towards the water valve, located approximately 102 feet east of the 01 entry. As he was proceeding east in the tunnel, Hartz saw Hollinger standing at the entrance to the water drainage manway on the right side of the tunnel across from the 01 entry. Hartz testified that Hollinger turned to face the scooptram, that he saw the light on Hollinger's helmet, and that such a turn was in accordance with standard mine practice. Hollinger then stepped into the water drainage manway. At the time of this sighting, the scooptram was at a point between the 02 and 03 entries, approximately 100 to 150 feet away from the entrance to the water drainage manway. The scooptram was moving at approximately five miles per hour. Hartz was unable to see Hollinger or the entrance to the drainage manway again as he proceeded further down the tunnel due to the fact that the driver's seat was located on the left side and the large scoop obscured his vision of the right side of the vehicle. As he passed the 01 entry, Hartz felt that the scoop was dragging and he consequently lifted the bucket a few inches and proceeded to the water valve. Upon reaching the water valve, Hartz looked back and saw Hollinger's body lying in the drift.

III.

A. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that a trial court may enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." We have characterized summary judgment as " 'a drastic remedy' ", and have made clear "that courts are to resolve any doubts as to the existence of genuine issues of fact against the moving parties." Ness v. Marshall, 660 F.2d 517 at 519 (3d Cir. 1981) (quoting Tomalewski v. State Farm Life Insurance Co., 494 F.2d 882, 884 (3d Cir. 1974)). Moreover, "(i)nferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). "On review the appellate court is required to apply the same test the district court should have utilized initially." Id.

B. Proximate Cause

The first basis for the district court's grant of summary judgment was that the absence of an automatic warning device could not have caused the accident "because the decedent saw and heard the approaching scooptram." 505 F.Supp. at 899. The primary basis for this finding was the court's apparent inference that since there was evidence that Hollinger was aware of the scooptram's approach shortly before the accident, he remained aware of it up until the moment of impact. At his deposition, Hartz testified that when the scooptram was passing the 03 entry, he saw Hollinger across from the 01 entry and he saw him turn and acknowledge the scooptram's approach. However, there was also testimony, apparently uncontradicted, that the distance between the scooptram and Hollinger at this point was 100 to 150 feet. Weik Dep. at 29. Hartz testified that he was traveling at no more than five miles per hour at the time, Hartz Dep. at 34-35; thus, at least 14 to 20 seconds must have elapsed between the time of sighting and the time of impact. Therefore, even if Hartz' testimony establishes that Hollinger was aware of the scooptram when it was 100 to 150 feet away, it fails to establish conclusively that Hollinger was aware of the scooptram immediately before the impact.

Other evidence may suggest a different inference. The exact point of impact is unknown, but it is undisputed that Hollinger's body and effects were found in the tunnel east of the 01 entry, in the vicinity of the explosives storage box. Although Hollinger did not say anything to his co-worker before leaving the 03 entry, a possible inference from the evidence is that Hollinger was going for more blasting powder from the explosive storage box, located between the 01 entry and the water valve. Bethlehem Accident Report; Weik Dep. at 16, 23-24. ³ It is also apparently undisputed that the scooptram's route on this occasion proceeding past the 01 entry and on to the water valve, was a deviation from its previous pattern of turning into the 02 or 01 entry to continue its mucking operations. ⁴ MESA Report, App. at 81a; Weik Dep. at 17, 35-36. In view of this evidence, a jury might reasonably conclude that even if Hollinger had seen the scooptram when it was passing the 03 entry, he assumed that it was going to turn into the 02 or 01 entry as it had previously done, and therefore he continued to walk east towards the explosives storage box ⁵ with his back to the scooptram. Even if Hollinger heard the scooptram's continued approach, he may have been unaware of its exact location and unconcerned if he believed that it was going to turn off before reaching him.

The district court also stressed the evidence that the scooptram "lit up like a Christmas tree" and had a noise level comparable to a diesel truck, ⁶ and that Hollinger "had no known hearing or seeing problems." 505 F.Supp. at 899. This apparently led the district court to conclude that a reasonable jury must necessarily infer that the noise and light generated by the scooptram in normal operation would by itself have been sufficient to have alerted Hollinger to its approach.

However, there was testimony by plaintiff's expert, Lewis Barbe, that the normal operating noise of the scooptram, while loud, was "subconsciously nullified by people in mines," who "don't pay any attention because they assume the operator can see them." This was the basis for Barbe's conclusion that "(s)ome type of a biodirectional alarm," set at a different decibel rating or frequency so as to...