Klages v. General Ordnance Equipment Corp.

• Decision Date: 13 July 1976
• Citation: 367 A.2d 304,240 Pa.Super. 356
• Parties: , 19 UCC Rep.Serv. 22 John R. KLAGES v. GENERAL ORDNANCE EQUIPMENT CORPORATION, Appellant (two cases). John R. KLAGES v. MARKL SUPPLY COMPANY v. GENERAL ORDNANCE EQUIPMENT CORPORATION, Appellant (two cases).
• Court: Pennsylvania Superior Court

Page 304

367 A.2d 304

240 Pa.Super. 356, 19 UCC Rep.Serv. 22

John R. KLAGES v. GENERAL ORDNANCE EQUIPMENT CORPORATION, Appellant (two cases).

John R. KLAGES v. MARKL SUPPLY COMPANY v. GENERAL ORDNANCE EQUIPMENT CORPORATION, Appellant (two cases).

Superior Court of Pennsylvania.

Argued Nov. 20, 1975.

Decided April 22, 1976.

Application for Allocatur Denied July 13, 1976.

Charles J. Duffy, Jr., Pittsburgh, for appellant.

Peter J. Mansmann, Thomas F. Weis, Pittsburgh, for appellee in Nos. 530 and 531.

Peter J. Mansmann, Pittsburgh, for appellee in Nos. 529 and 532.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

HOFFMAN, Judge:

The instant case presents a question of first impression in Pennsylvania: Is the Restatement (Second) of Torts § 402B the law of this Commonwealth?

The facts are not in dispute. The appellee, John R. Klages, was employed as a night auditor ¹ at Conley's Motel on Route 8, Hampton Township. He worked from eleven o'clock at night until seven o'clock in the morning, five days a week. On March 30, 1968, at approximately one-thirty in the morning, two individuals entered the motel and announced 'This is a stickup. Open the safe.' The appellee indicated that he was unable to open the safe because he did not know the combination. One of the individuals then pointed a gun at the appellee's head and pulled the trigger. Fortunately for the appellee, the gun was a starter pistol and he was not seriously injured.

The next day Klages and a fellow employee, Bob McVay, decided that they needed something to protect themselves against the possibility of future holdups. After reading an article concerning the effects of mace, McVay suggested that they investigate the possibility of using mace for their protection. McVay secured four leaflets describing certain mace weapons from the Markl Supply Company. The leaflets were distributed to retail outlets by the appellant manufacturer, General Ordnance Equipment Corporation. The literature indicated that three different types of mace weapons were available. Two of the weapons were too large for Klages' and McVay's purposes, but the third, the MK--II, was easily concealable and otherwise appeared to meet their requirements. ² The literature contained, in pertinent, part, the following description of the mace's effectiveness: 'Rapidly vaporizes on face of assailant effecting Instantaneous incapacitation . . .. It will Instantly stop and subdue entire groups . . . Instantly stops assailants in their tracks . . . an attacker is Subdued--instantly, for a period of 15 to 20 minutes . . .. Time Magazine stated the Chemical Mace is 'for police the first, if not the final, answer to a nationwide need--a weapon that Disables as effectively as a gun and yet does no permanent injury' . . .. The effectiveness is the result of a unique, Incapacitating formulation (patent pending), projected in a shotgun-like pattern of heavy liquid droplets that, upon contact with the face, cause extreme tearing, and a Stunned, winded condition, often accompanied by dizziness and apathy.' (Emphasis Supplied). After reading and discussing the literature with their employer, McVay purchased a MK--II mace weapon from Markl Supply Company. ³

At approximately 1:40 a.m., on the morning of September 22, 1968, while the appellee was on duty, two unknown individuals entered the motel office and requested a room. After the appellee had placed a registration form in front of one of the men and had turned to secure a room key, the individuals announced a stickup. One of the intruders took out a gun and directed the appellee to open the safe. Klages, planning to use the mace before the intruder used the gun, moved from the counter to the cash register where the mace was kept. Using the cash register as a shield, Klages squirted the mace, hitting the intruder 'right beside the nose'. Klages immediately ducked below the register, but the intruder followed him down and shot him in the head. The intruders immediately departed and Klages called the police. The bullet wound caused complete loss of sight in the appellee's right eye.

The appellee commenced separate actions in both trespass and assumpsit against the Markl Supply Company and the General Ordnance Equipment Corporation. The Markl Supply Company also joined the General Ordnance Corporation as an additional defendant in each of its cases. On October 26, 1973, the cases were consolidated for trial. A jury trial commenced on March 4, 1974, and the jury returned a verdict in the amount of $42,000.00, in favor of Klages against the appellant, General Ordnance Equipment Corporation, and a verdict in favor of the Markl Supply Company. This appeal followed.

The appellant raises five grounds for reversal: (1) the lower court erred in charging the jury on misrepresentation of a material fact under § 402B of the Restatement (Second) of Torts; (2) the lower court erred in charging the jury on breach of express warranty under § 2--313 of the Uniform Commercial Code, 12A P.S. § 1--101 et seq.; ⁴ (3) the lower court erred in refusing to charge the jury on the defense of assumption of the risk; (4) the lower court erred in charging the jury on proximate and legal cause; (5) the lower court erred in charging the jury that if they found the retailer, Markl Supply Company, liable, they must also find the manufacturer, General Ordnance Equipment Corporation, liable to the seller.

I. SECTION 402B OF THE RESTATEMENT (SECOND) OF TORTS

⁵

Section 402B of the Restatement (Second) of Torts provides as follows: 'One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though (a) it is not made fraudulently or negligently, and (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.'

The courts of this Commonwealth have dealt sparingly with § 402B. In Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 337 A.2d 893 (1975), ⁶ our Supreme Court did not decide whether § 402B is the law of Pennsylvania, because the advertisements amounted only to 'puffing' and, therefore, were not within the proscription of § 402B. We must determine, therefore, if § 402B represents the law of this Commonwealth.

The concept that manufacturers should be held liable to consumers who purchase their products for express misrepresentations made about the products' safety or quality was orginated by the Supreme Court of Washington in Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409, 15 Pa.2d 1118, 88 A.L.R. 521 (1935), on second appeal, 179 Wash. 123, 35 P.2d 1090 (1934). In Baxter, the plaintiff, relying on representations in the manufacturer's sales literature tht all new Fords had 'shatter-proof glass windshields', purchased a new Ford from a retail dealer. While the plaintiff was driving, a pebble struck the windshield and shattered the glass, causing blindness to one of the plaintiff's eyes. Initially, the Supreme Court of Washington held that the plaintiff had a right to rely on the manufacturer's representations on the theory of breach of express warranty. On second appeal, however, the court relied on the concept of misrepresentation, holding that if the plaintiff relied on the misrepresentation, the fact that the manufacturer did not know that the representations were false was immaterial.

Prior to Baxter v. Ford Motor Co., supra, a consumer did not have a direct cause of action in tort against the manufacturer for the failure of the product to conform to the manufacturer's representations. The sole cognizable claim, therefore, was for breach of the express warranty created by the manufacturer's representations. This cause of action, however, was uniformly dismissed because the manufacturer and the consumer were not in privity of contract. Thus the consumer was left with direct rights only against his immediate seller.

Because of modern merchandising techniques, however, several courts determined that the consumer should be allowed to sue the manufacturer directly: 'The world of merchandising is, in brief, no longer a world of direct contract; it is, rather, a world of advertising, and, when representations expressed and disseminated in the mass communications media and on labels (attached to the goods themselves) prove false and the user or consumer is damaged by reason of his reliance on those representations, it is difficult to justify the manufacturer's denial of liability on the sole ground of absence of technical privity. Manufacturers make extensive use of newspapers, periodicals and other media to call attention, in glowing terms, to the qualities and virtues of their products, and this advertising is directed at the ultimate consumer or at some manufacturer or supplier who is not in privity with them. Equally sanguine representations on packages and labels frequently accompany the article throughout its journey to the ultimate consumer and, as intended, are relied upon by remote purchasers. Under these circumstances, it is highly unrealistic to limit a purchaser's protection to warranties made directly to him by his immediate seller. The protection he really needs is against the manufacturer whose published representations caused him to make the purchase . . .' Randy Knitwear Inc. v American Cyanamid Company, 11 N.Y.2d 5, 226 N.Y.S.2d 363, 367, 181 N.E.2d 399, 402 (1962). (Footnotes omitted).

Furthermore, many manufactured products are shipped in sealed containers by the manufacturer and the retailer is, in effect, merely an outler or conduit through which the manufacturer distributes his goods. The manufacturer unquestionably intends and expects that consumers...