Merriweather v. E. W. Bliss Co.

• Decision Date: 10 December 1980
• Docket Number: No. 80-1454,80-1454
• Citation: 636 F.2d 42
• Parties: Robert C. MERRIWEATHER, Appellant, v. E. W. BLISS COMPANY, Gulf & Western Manufacturing Company and Gulf & Western Industries, Inc. v. GENERAL ELECTRIC COMPANY.
• Court: U.S. Court of Appeals — Third Circuit

Page 42

636 F.2d 42

Robert C. MERRIWEATHER, Appellant, v. E. W. BLISS COMPANY, Gulf & Western Manufacturing Company and Gulf & Western Industries, Inc. v. GENERAL ELECTRIC COMPANY.

No. 80-1454.

United States Court of Appeals Third Circuit.

Argued Oct. 16, 1980.

Decided Dec. 10, 1980.

Stanley B. Gruber, Freedman & Lorry, Philadelphia, Pa., for appellant.

Austin Hogan, Krusen, Evans & Byrne, Philadelphia, Pa., for appellee.

Before GIBBONS and ROSENN, Circuit Judges, and WEBER, ^* District Judge.

OPINION OF THE COURT

WEBER, Chief Judge.

This is an appeal from a trial court order denying the plaintiff's motion for a new trial in a products liability case. In this appeal we are called upon to determine whether the district judge correctly charged the jury on the doctrine of substantial change under § 402A of the Restatement (Second) of Torts, as that doctrine is interpreted by the courts of Pennsylvania. ¹ Because we believe that the trial judge erred in his application of Pennsylvania law in this diversity case we will reverse and remand for a new trial.

On January 14, 1975 the appellant, plaintiff below, was severely injured when the jaws of the 45 ton press he was operating descended, crushing his hands. At the time of the accident the appellant had been attempting manually to remove some fabric from the bottom die of the press. While he was attempting to remove this fabric, the appellant's foot inadvertently came into contact with the electric foot switch which operated the press, causing that press to descend and injure him.

This power press had been manufactured by E. W. Bliss Company some nineteen years earlier. At the time of its manufacture the press had been equipped to operate by means of a mechanical foot treadle. At that time it was also the practice of E. W. Bliss Company to manufacture and deliver these presses without any point of operation guards whatsoever.

After its delivery to the appellant's employer, General Electric Corporation, several modifications were made to this press by General Electric. First, the mechanical foot treadle was removed and the press was equipped with electric operating controls. These controls permitted the press to operate in one or two ways, by either: (1) simultaneously pressing two palm buttons, one by each hand; or (2) pressing an electric foot switch. In addition General Electric installed hairpin or finger guards around the pinch points of the press. However, these guards could be removed by the operator or adjusted in such a manner as to enable the operator to place his hands under the ram of the press.

Following his injury the appellant brought this action against E. W. Bliss Company in the United States District Court. At trial the appellant proceeded under the theory that Bliss was strictly liable for his injury because Bliss' failure to install adequate point of operation guards rendered the press unsafe for its intended use at the time it left the manufacturer's hands.

In its defense Bliss relied principally upon the doctrine of substantial change, as set forth in § 402A(1)(b) of the Restatement (Second) of Torts. According to Bliss it could not be held liable for the injuries suffered by Mr. Merriweather because the press in question had been substantially changed by General Electric after it had left Bliss' control.

Because of the nature of the defense raised by Bliss the trial court, in its charge to the jury, referred extensively to the concept of substantial change. The court refused, however, to charge that reasonably foreseeable changes in a product would not absolve the manufacturer of liability for injuries caused by that product. Instead, over the appellant's objections, the court instructed the jury on substantial change without any reference to reasonable foreseeability. Given these instructions, the jury returned with a verdict for the defendant.

In its motion for new trial the appellant raised the arguments which are made here: (1) that any reference to the doctrine of substantial change in a jury instruction was barred by the Pennsylvania Supreme Court's decision in Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978); (2) that, in this case, the question before the jury was one of proximate cause and not of substantial change; and, (3) that, if instructions were given on the question of substantial change, then those instructions must also discuss the foreseeability of such change. Appropriate requests for instructions and objections to the charge were timely made by appellant. The trial court denied this motion and the instant appeal followed.

Because we believe that the appellant is correct on the last of these three contentions we will reverse and remand for a new trial.

The appellant has argued vigorously that the concept of substantial change has no place in Pennsylvania's law of products liability following Azzarello v. Black Bros. Co. Inc., supra. As the appellant reads it, Azzarello purports to condemn broadly the use in product liability cases of any concept which "rings of negligence". Because the question of substantial change is often framed in terms of reasonable foreseeability, the appellant argues that it is essentially a negligence concept. Therefore, under the appellant's reasoning, Azzarello precludes any reference to substantial change in jury instructions in product liability cases.

We disagree. In our opinion, the appellant's reliance on Azzarello is misplaced in this case. As we view it, that decision simply concluded that the phrase "unreasonably dangerous" was inconsistent with the policy of consumer protection underlying § 402A because it unnecessarily diverted the jury's attention from the factual question of whether a "defective condition" existed; instead, the phrase focused jury attention on the legal question, necessarily informed by a balancing of social policy considerations, whether the alleged defective condition was one that would warrant recovery on a strict liability theory. See 480 Pa. at 556, 558, 391 A.2d at 1025, 1026. At no point, however, does the court in Azzarello, either directly or by implication, strike the concept of substantial change from § 402A.

Since the adoption by Pennsylvania's courts of § 402A the doctrine of substantial change has been an integral part of that state's law of products liability. See e. g. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 331-37, 319 A.2d 914, 921-23 (1974); Webb v. Zurn, 422 Pa. 424, 427, 220 A.2d 853, 855 (1966); D'Antona v. Hampton Grinding Wheel Co., 225 Pa.Super. 120, 125, 310 A.2d 307 (1973). Furthermore in this state the question of whether a post-delivery modification constitutes a substantial change in a product has typically been submitted to the jury as a matter for its determination. See e. g., Takach v. B. M. Root Co., --- Pa.Super. ---, 420 A.2d 1084 (1980), (Lipez, J., concurring and dissenting); D'Antona v. Hampton Grinding Wheel Co., supra. Moreover, we have, in this court, concluded that, under Pennsylvania law, the question of substantial change is properly one for the jury's consideration. See e. g., Heckman v. Federal Press Co., 587 F.2d 612, 616 (3d Cir. 1979); Capasso v. Minister Machine Products Co., Inc., 532 F.2d 952, 955 (3d Cir. 1976). In fact, in our review of Pennsylvania law on this issue we have failed to find any appellate decisions, either prior to or following Azzarello, which have challenged the propriety of this practice. Accordingly we must conclude, in the absence of any clear precedent to the contrary, that the concept of substantial change remains part of the law of Pennsylvania under § 402A.

We also conclude that the trial judge acted correctly in this case in choosing to instruct the jury on the doctrine of substantial change. In its brief the appellant argued that an instruction on substantial change is only appropriate when that change occurs before the product reaches its ultimate user. Therefore, changes in a product occurring after that product reaches its user do not raise questions of substantial change but rather present problems of causation. See e. g., Dennis v. Ford Motor Co., 471 F.2d 733 (3d Cir. 1973); Kuisis v. Baldwin-Lima-Hamilton Corp., supra.

In this case it is clear that the modifications of the power press occurred after it reached General Electric. Therefore, given this fact, the appellant argues that E. W. Bliss is not entitled in this case to an instruction on substantial change.

Again we feel compelled to disagree. The appellant's argument in this case assumes that a substantial change instruction is inappropriate because the press was already in the hands of its user, General Electric Corporation, at the time the modifications took place. Underlying this assumption is the premise that, for the purposes of liability under § 402A, the "user" of the press is General Electric. We feel, however, that this premise is incorrect. In Hanlon v. Cyril Bath Co., 541 F.2d 343, (3d Cir. 1975) this court concluded, in a similar factual...