Kupetz v. Deere & Co., Inc.

Decision Date15 December 1994
Citation435 Pa.Super. 16,644 A.2d 1213
Parties, Prod.Liab.Rep. (CCH) P 14,044 Carol S. KUPETZ, Individually and as Administratrix of the Estate of Joseph J. Kupetz, Deceased, Appellant, v. DEERE & COMPANY, INC. and Troyer Construction Equipment Company, Inc., Appellees.
CourtPennsylvania Superior Court

Gary Eiben, Erie, for appellant.

Theresa Homisak, Pittsburgh, for appellee Deere & Co.

Sue Beck, Erie, for appellee Troyer Const.

Before CAVANAUGH, TAMILIA and KELLY, JJ.

KELLY, Judge:

In this opinion, we are called upon to determine whether the "crashworthiness" or "second collision" doctrine is recognized as a valid theory of recovery under Pennsylvania law in a products liability action. We are also called upon to determine whether assumption of risk maintains its viability as a complete defense in an action brought pursuant to the "crashworthiness" or "second collision" doctrine. We hold that the "crashworthiness" or "second collision" doctrine is merely a subset of a products liability action and as such is a recognizable theory of recovery under Pennsylvania law. We also hold that assumption of risk is a complete defense to an action brought pursuant to the "crashworthiness" or "second collision" doctrine. Thus, we affirm.

The relevant facts and procedural history are as follows. The decedent, Joseph J. Kupetz, together with his brother, James Kupetz, established a company known as Kupetz Brothers in 1964. Kupetz Brothers was engaged in the business of paving, topsoil and materials work. Joseph Kupetz operated all of the various machines that Kupetz Brothers utilized in their business. In June of 1971, the Kupetz Brothers purchased a John Deere 350 bulldozer/crawler (JD 350) from Troyer Construction Equipment, Inc. (Troyer). The JD 350 was manufactured by Deere and Company (Deere) in 1970. At the time of its purchase, the JD 350 was not equipped by Deere with a rollover protection system (ROPS) as a standard part of the machine. The function of ROPS is to minimize the extent of bulldozer rollover and to protect the operator if a rollover occurs. The decedent and his brother were offered the option by Troyer of purchasing ROPS at an additional cost to them, but the brothers declined to purchase the optional ROPS for their JD 350. Troyer included with the JD 350 an operator's manual which was read by both brothers.

In August of 1988, the Kupetz Brothers purchased some topsoil from the Pennsylvania Department of Transportation (PennDOT) which they were required by the terms of the contract to remove from PennDOT's Peach Street Yard in Erie. The topsoil was piled on a large, steeply sloped, irregularly shaped mound that was overgrown with weeds. On August 18, 1988, Joseph Kupetz appeared at the PennDOT yard to pay for the topsoil. An employee of Kupetz Brothers, Dale Smith, was then sent by either James Kupetz or the decedent to the PennDOT yard with a front-end loader and a dump truck to remove the topsoil; however, because the topsoil was too heavily compacted, he was unable to remove it with a front-end loader. Smith then radioed his predicament to the Kupetz Brothers' office. A short time later, the decedent arrived at the PennDOT yard with the JD 350. The decedent began assisting Smith to remove the topsoil by pushing it downward off the top of the mound into the front-end loader. The decedent would then back the JD 350 up the steeply sloped topsoil mound while Smith deposited the topsoil in the dump truck. The decedent and Smith continued to work in this manner for approximately one-half hour when after placing a topsoil load in the dump truck, Smith saw the JD 350 lying upside down on the back side of the topsoil mound. Smith ran to the place where the decedent and the JD 350 were located. Smith then shut off the engine and ran for help. The decedent was removed from the overturned JD 350 and was taken to the hospital where he died two days later. There were no eyewitnesses to the actual accident.

The decedent's widow, Carol S. Kupetz (appellant), individually and as executrix of the decedent's estate, filed a three-count complaint against Deere and Troyer. An amended complaint was subsequently filed by Ms. Kupetz on July 31, 1990. In Count I of her amended complaint, Ms. Kupetz asserted a products liability action alleging that the JD 350 was defectively designed, manufactured and delivered to the decedent by Deere and Troyer in an unreasonably dangerous and defective condition due to the absence of ROPS which rendered the machine uncrashworthy. In Count II of her amended complaint, Ms. Kupetz asserted that Deere and Troyer were negligent in the design, manufacture, marketing and sale of the JD 350 without ROPS. In Count III, Ms. Kupetz, in addition to the other damages claimed in Counts I and II, sought to recover punitive damages from Deere and Troyer.

After extensive discovery occurred, the parties filed pretrial motions in limine seeking to exclude certain evidence. The trial court held pre-trial argument on the parties' respective motions in limine. As a result of this pre-trial argument, the trial court excluded from evidence the fact that ROPS was offered to buyers at the time the JD 350 was sold to the decedent and his brother. The trial court also excluded from evidence the fact that the decedent had stated to Troyer's salesman, Robert C. Brown, that Kupetz Brothers intended to use the JD 350 for flat terrain, low clearance work inside ships, and for grading residential driveways and garages. Additionally, the trial court precluded evidence regarding the fact that the decedent had available another bulldozer, a Caterpillar D-3 bulldozer with ROPS, that he chose not to use on the day of the accident. Finally, the trial court excluded from evidence that the Kupetz Brothers had removed ROPS from another bulldozer they owned. The trial court, however, denied Ms. Kupetz's request to exclude from evidence a photograph of the Kupetz Brothers' Caterpillar D-3 bulldozer that was equipped with ROPS. During the course of argument on the pre-trial motions in limine, Ms. Kupetz dropped her negligence cause of action and her claims for punitive damages and the case proceeded to trial solely on the products liability cause of action.

At trial, the court refused to admit testimony offered on behalf of Deere and Troyer from other experienced heavy equipment operators regarding their knowledge of the risk of using heavy machinery on dirt piles such as the one presented in the instant case. The trial court also refused to admit the entire operator's manual for the JD 350 which included information that ROPS was available as safety equipment and provided safety suggestions for using the JD 350 as offered by Deere and Troyer. The trial court, instead, only allowed into evidence a single page of the owner's manual which stated never drive the JD 350 close to the edge of a ditch or excavation.

At the close of the trial, the following special interrogatories were issued to the jury for their consideration:

1. Did the Plaintiff prove that the John Deere bulldozer in question was

defective when sold to Kupetz Bros.?

                                     YES_______________             NO_______________
                

2. Did the Plaintiff prove that such defect as you found to exist in the John

Deere bulldozer at the time of its sale to Kupetz Bros. was a substantial

factor in bringing about the death of Joseph Kupetz?

                                     YES_______________             NO_______________
                

If your answer is "NO", inform the tipstaff that you have reached a verdict; if

your answer is "YES" go on to Interrogatory No. 3.

3. Did the Defendants prove that the decedent, Joseph Kupetz, voluntarily

assumed the risk of injury and death in the manner in which his injury and

death occurred?

                                    YES_______________             NO_______________
                

If your answer is "YES", inform the tipstaff that you have reached a verdict;

if your answer is "NO" go on to Interrogatory No. 4.

IF YOU HAVE ANSWERED QUESTIONS 1 AND 2 "YES" AND QUESTION

3 "NO" THEN PROCEED TO ASSESSMENT OF DAMAGE QUESTION

BELOW.

4. What is the total dollar amount of your verdict?

                                     WRONGFUL DEATH                 $__________________________
                                     SURVIVAL ACTION                $__________________________
                

(Official Record # 92, Reproduced Record 190A-191A). The jury responded in the affirmative to the first three special interrogatories, finding that while the JD 350 was defective without ROPS and a substantial cause of the decedent's fatal injuries, the decedent assumed the risk for his fatal injuries. Thus, the jury returned a verdict in favor of Deere and Troyer. Post-trial motions were filed by Ms. Kupetz requesting the entry of judgment in her favor, or, in the alternative, a new trial. Troyer and Deere also filed post-verdict motions questioning several of the trial court's pre-trial and trial rulings to exclude certain evidence. All post-verdict motions were denied by the trial court. The trial court, however, granted Ms. Kupetz's motion to discontinue her case against Troyer. Ms. Kupetz then filed a timely appeal which was followed by the timely cross-appeals of Troyer and Deere. 1

We will begin by addressing the issues raised by Ms. Kupetz in her appeal from the judgment in favor of Troyer and Deere. In her appeal, Ms. Kupetz raises the following issues for our review:

I. DOES ASSUMPTION OF THE RISK RETAIN ITS VIABILITY AS A DEFENSE IN PRODUCTS LIABILITY ACTIONS WHEREIN THE PLAINTIFF'S CLAIM IS BASED UPON A LACK OF CRASHWORTHINESS OF A VEHICLE?

II. IS ASSUMPTION OF THE RISK AVAILABLE AS A DEFENSE TO A LACK OF CRASHWORTHINESS CLAIM IN A CASE WHERE THE EVIDENCE ALLEGEDLY SUPPORTING ASSUMPTION OF THE RISK IS NOT DISTINGUISHABLE FROM COMPARATIVE NEGLIGENCE?

III. WAS THERE SUFFICIENT...

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