McKay v. Sandmold Systems, Inc.
| Decision Date | 14 September 1984 |
| Citation | 333 Pa.Super. 235,482 A.2d 260 |
| Parties | William A. McKAY, Appellant, v. SANDMOLD SYSTEMS, INC., Jeltema Electrical, Inc., Beardsley & Piper, Inc. and Pettibone Corporation. |
| Court | Pennsylvania Superior Court |
Argued Jan. 26, 1984.
Barry M. Simpson, Pittsburgh, for appellant.
Louis C. Long, Pittsburgh, for appellees.
Before WIEAND, TAMILIA and POPOVICH, JJ.
In a product liability case involving an alleged defect in the design of industrial machinery, how shall a jury be instructed? What standard shall be applied to determine whether the injury producing machinery was defectively designed? These are the issues presented by the present appeal. They are complex issues and not easily answered. In recent years, the development of the law of products liability in design defect cases has "turned into a swampy quagmire." J. Wade On Product "Design Defects" and Their Actionability, 33 Vand.L.Rev. 551, 557 (1980).
William A McKay, the appellant, was injured by the rotating plow blades of a muller when a fellow foundry worker pushed a starter button and started the machine while McKay was inside the plow area. In an action against Beardsley & Piper, Inc., the manufacturer of the muller, McKay contended that the muller had been defectively designed because it failed to contain an interlock or limit switch which would have made it impossible to start the muller while the inspection door was in an open position. McKay had entered the plow area of the muller through the inspection door to make repairs. He pulled a disconnect button when he entered and the door remained open. He assumed that the supply of electricity would thus be disconnected, but he did not "lock out" the disconnect or test the muller to verify that the electrical supply had been properly disconnected. A short time later, the operator of the muller activated the muller in order to make use of it as a part of the foundry's sand return system. The operator was unaware that McKay had entered the plow area for maintenance purposes. A jury found that the muller had not been defectively designed and returned a verdict for Beardsley & Piper, Inc., the appellee. [1] Post-trial motions were denied, and judgment was entered on the verdict.
The trial court left it to the jury to determine whether the muller had been designed defectively. It told the jury that appellee was a guarantor of the safety of its product. It said the appellant "must prove to your satisfaction that the product which was sold by the manufacturer was defective at the time it was sold" because it "did not have a limit switch on the door through which the plaintiff entered on the occasion of this accident." The court did not otherwise define "defective" and provided the jury with no standard which it should apply in determining whether the muller had been defectively designed. The trial court rejected specific points for charge submitted by appellant as follows:
2. The Manufacturer of a product is the guarantor of its safety. The product must, therefore, be provided with every element necessary to make it safe for use, and without any condition that makes it unsafe for use.
3. If you find that the muller, at the time it left Beardsley & Piper's control, lacked any element necessary to make it safe for use or contained any condition that made it unsafe for use, then the muller was defective, and Beardsley & Piper is liable for all harm caused by the defect.
Appellant contends that this was error.
In Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978), the Supreme Court said:
It is a judicial function to decide whether, under plaintiff's averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint.
Id. at 558, 391 A.2d at 1026. We read this as a reaffirmation of the traditional role of a trial court in determining the adequacy of a plaintiff's evidence to require submission of the cause to a jury. It is the same determination which a trial court makes in response to a defense motion for compulsory nonsuit or for directed verdict. See: Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 467 A.2d 615 (1983).
The Azzarello court then proceeded to fashion a test to be used in determining those instances in which liability should attach in "design defect" cases. It quoted from its decision in Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974) that a manufacturer "is effectively the guarantor of his product's safety ..." and "impliedly represents that it is safe for its intended use." Azzarello v. Black Brothers Co., supra, 480 Pa., at 558-559, 391 A.2d at 1026. It also quoted from Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 100, 337 A.2d 893, 902 (1975) that "[t]he seller must provide with the product every element to make it safe for use." Then, the Court concluded:
For the term guarantor to have any meaning in this context the supplier must at least provide a product which is designed to make it safe for the intended use. Under this standard, in this type case, the jury may find a defect where the product left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use. It is clear that the term "unreasonably dangerous" has no place in the instructions to a jury as to the question of "defect" in this type of case.
Azzarello v. Black Brothers Co., supra, 480 Pa., at 559, 391 A.2d at 1027 (footnotes omitted). In a footnote the Court suggested that an adequate charge to a jury, which would express the concept of "defect" while avoiding interjection of negligence concepts, would be as follows:
The [supplier] of a product is the guarantor of its safety. The product must, therefore, be provided with every element necessary to make it safe for [its intended] use, and without any condition that makes it unsafe for [its intended] use. If you find that the product, at the time it left the defendant's control, lacked any element necessary to make it safe for [its intended] use or contained any condition that made it unsafe for [its intended] use, then the product was defective, and the defendant is liable for all harm caused by such defect.
Id. at 559-560 n. 12, 391 A.2d at 1027 n. 12.
This is the instruction which appellant requested in the instant case. The decision in Azzarello suggests that it was error for the trial court to refuse to charge the jury as requested by appellant. This error requires that a new trial be granted.
However, because the instruction proposed by the Azzarello court has been subjected to such sharp criticism and because a literal use thereof will move Pennsylvania beyond "strict liability" for defective products and create "absolute liability" for harm caused by manufactured products, we choose to examine more closely the instructions to be given juries in design defect cases in the hope that it will be helpful in the developing law of products liability in this Commonwealth.
Professor James A. Henderson, Jr., of Boston University, is most outspoken in his criticism of the test announced in Azzarello. He writes:
Read literally, this definition constitutes a radical departure from the growing consensus that cost-benefit analysis is the appropriate analytic method for determining the design defect issue in close cases. The element that distinguishes this new test from the emerging consensus, of course, is the apparently deliberate elimination of the modifier "reasonable" in connection with the adjective "safe." Taken literally, this test condemns as defective any product design that exposes its users to risks, regardless of whether those risks are justified in light of associated benefits.
Combining the several aspects of this unusual decision, a two-step approach emerges: First, the trial judge must screen the adequacy of the plaintiff's averments in the complaint, somehow employing a cost-benefit analysis to determine the unreasonableness of the design-related risks as a matter of law. Then, assuming that the case is appropriate for jury consideration, the court must instruct the jury to decide the liability issue on the basis of whether the design could possibly (rather than reasonably) have been made safer for its intended use. Viewed most charitably, such an approach to the design defect issue is confused and unworkable. Viewed realistically, the new test announced in Azzarello encourages juries to impose liability merely because plaintiffs have somehow been injured while using defendant's products.
J. Henderson, Renewed Judicial Controversy over Defective Product Design: Toward the Preservation of an Emerging Consensus, 63 Minn.L.Rev. 773, 801 (1979) (emphasis added).
Writing critically of the jury instruction suggested in Azzarello, Sheila L. Birnbaum, Professor of Law at New York University Law School, says:
Is there any product that cannot be made safer in some way? This instruction calls forth fantastic cartoon images of products, both simple and complex, laden with fail-safe mechanism atop fail-safe mechanism....
....
... The only function left for the jury under Azzarello is to determine whether the product left the supplier's control lacking any element necessary for its intended use or possessing any feature that renders it unsafe for the intended use. Thus, the question of reasonableness may not be considered by the jury even in a closely contested case.
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