Phillips v. A-Best Products Co.

• Decision Date: 18 October 1995
• Docket Number: A-BEST
• Citation: 542 Pa. 124,665 A.2d 1167
• Parties: , Prod.Liab.Rep. (CCH) P 14,385 Floyd PHILLIPS and Kathryn G. Phillips, his wife, Appellants, v.PRODUCTS COMPANY, in its own right and as successor-in-interest to Asbestos Products Company; A.P. Green Refractories Company, Allegheny Sand, Inc., Allied Glove Corporation; Armstrong World Industries, Inc., in its own right and as successor-in-interest to Armstrong Cork Company and Armstrong Contracting and Supply Co.; The BOC Group, Inc. in its own right and as successor-in-interest to Airco Welding Products Co.; Carey-Canada, Inc., in its own right and as successor-in-interest to Carey Canadian Mines, Ltd. and Quebec Asbestos Corporation; The Celotex Corporation, in its own right and as successor-in-interest to The Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing Company and/or Panacon Corporation, Combustion Engineering, Inc.; Dixon Ticonderoga Company, and its division New Castle Refractories Co.; Dresser Industries, Inc., and its division Harbison-Walker Refractories; Eagle-Picher Industries, Inc.; Foseco, Inc.; GAF Corporation, in its own right and as successor-in-interest to The Ruberoid Company; The Gage Company, formerly Pittsburgh Gage and Supply Co., General Refractories Company, H.K. Porter Company, Inc., in its own right and as successor-in-interest to Southern Textile Company, formerly Southern Asbestos Company, Hedman Mines, Ltd.; Insul Company, Inc.; J.H. France Refractories Company; Kaiser Aluminum & Chemical Corporation; and its division Kaiser Refractories, Keene Corporation, in its own right and as successor-in-interest to Baldwin Hill Co., Baldwin-Ehret-Hill, Inc., Ehret Magnesia Manufacturing Company, the Insulation Division of Mundet Cork Company, Mundet Company, and to Keene Building Products Corporation; The Lincoln Electric Company; New Jersey Pulverizing Company, Inc.; Nicolet, Inc.; in its own right and as successor-in-interest to Nicolet Industries, Inc., and to the Industrial Products Division of Keasbey &
• Court: Pennsylvania Supreme Court

Page 1167

665 A.2d 1167

542 Pa. 124, Prod.Liab.Rep. (CCH) P 14,385

Floyd PHILLIPS and Kathryn G. Phillips, his wife, Appellants, v. A-BEST PRODUCTS COMPANY, in its own right and as successor-in-interest to Asbestos Products Company; A.P Green Refractories Company, Allegheny Sand, Inc., Allied Glove Corporation; Armstrong World Industries, Inc., in its own right and as successor-in-interest to Armstrong Cork Company and Armstrong Contracting and Supply Co.; The BOC Group, Inc. in its own right and as successor-in-interest to Airco Welding Products Co.; Carey-Canada, Inc., in its own right and as successor-in-interest to Carey Canadian Mines Ltd. and Quebec Asbestos Corporation; The Celotex Corporation, in its own right and as successor-in-interest to The Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing Company and/or Panacon Corporation, Combustion Engineering, Inc.; Dixon Ticonderoga Company, and its division New Castle Refractories Co.; Dresser Industries, Inc., and its division Harbison-Walker Refractories; Eagle-Picher Industries, Inc.; Foseco, Inc.; GAF Corporation, in its own right and as successor-in-interest to The Ruberoid Company; The Gage Company, formerly Pittsburgh Gage and Supply Co., General Refractories Company, H.K. Porter Company, Inc., in its own right and as successor-in-interest to Southern Textile Company, formerly Southern Asbestos Company, Hedman Mines, Ltd.; Insul Company, Inc.; J.H France Refractories Company; Kaiser Aluminum & Chemical Corporation; and its division Kaiser Refractories, Keene Corporation, in its own right and as successor-in-interest to Baldwin Hill Co., Baldwin-Ehret-Hill, Inc., Ehret Magnesia Manufacturing Company, the Insulation Division of Mundet Cork Company, Mundet Company, and to Keene Building Products Corporation; The Lincoln Electric Company; New Jersey Pulverizing Company, Inc.; Nicolet, Inc.; in its own right and as successor-in-interest to Nicolet Industries, Inc., and to the Industrial Products Division of Keasbey & Mattison Co.; North American Refractories Company; Oglebay Norton Company, and its division, Ferro Engineering; Owens-Corning Fiberglas Corporation Owens-Illinois, Inc.; Pennsylvania Glass Sand Corporation; Pittsburgh Corning Corporation; Quigley Company, Inc.; Raymark Industries, Inc., in its own right and as successor-in-interest to Raybestos-Manhattan, Inc.; Safety First Industries, Inc.; in its own right and as successor-in-interest to Safety First Supply, Inc.; The Sager Corporation, in its own right and as successor-in-interest to The Sager Glove Corporation; Set Products, Inc.; Theim Corporation, and its division, Universal Refractories; Turner & Newall, PLC, in its own right and as successor-in-interest to the Keasbey & Mattison Co.; TYK Refractories Company, in its own right and as successor-in-interest to Swank Refractories; Walter C. Best, Inc., and Westinghouse Electric Corporation, Appellees.

Supreme Court of Pennsylvania.

Argued March 7, 1995.

Decided Oct. 18, 1995.

Robert L. Jennings, Jr., Tybe A. Brett, Goldberg, Persky, Jennings & White, P.C., John M. Burkoff, Marcus & Shapira, Pittsburgh, for Appellants.

Michael J. Panichelli, Litvin, Blumberg, Matusow & Young, Philadelphia, for Amicus Curiae, Pennsylvania Trial Lawyers Association.

Joseph S.D. Christof, Dickie, McCamey & Chilcote, Pittsburgh, for Walter C. Best, Inc.

J.W. Montgomery, III, John D. Goetz, Jones, Day, Reavis & Pogue, Pittsburgh, for Pennsylvania Glass Sand Corporation.

Willis A. Siegfried, Patricia L. Dallacroce, Eckert, Seamans, Cherin & Mellott, Pittsburgh, for Amicus Curiae, Chemical Manufacturers Association.

James M. Beck, Pepper, Hamilton & Scheetz, Philadelphia, for Amicus Curiae, Product Liability Advisory Council, Inc.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

CAPPY, Justice.

This is an appeal by allowance from the opinion and order of the Superior Court vacating the judgment entered by the Court of Common Pleas of Cambria County, and entering a judgement notwithstanding the verdict ("j.n.o.v.") for Pennsylvania Glass Sand Corporation ("Appellee"). ¹ We granted review limited to the following two issues: first, whether the Superior Court erred in determining that Appellants' strict liability/failure-to-warn cause of action would not lie as a matter of law; second, whether the "sophisticated user" defense applied to this case. For reasons that differ from those relied upon by the Superior Court, we affirm.

Floyd Phillips ("Appellant-Husband") was employed as a foundry worker from 1951 to 1981 by United States Steel Corporation ("Employer-U.S. Steel"). Throughout his career, Appellant-Husband performed various tasks which brought him into contact with silica sand. ² Employer-U.S. Steel purchased silica sand from several different vendors, one of which was Appellee.

A chest x-ray taken March 4, 1985 revealed that Appellant-Husband had contracted silicosis. In 1986, Appellant-Husband and his wife commenced suit based on both strict liability and negligence theories of recovery. Appellants' strict liability claim against Appellee asserted that Appellee was liable because it had failed to warn Appellant-Husband that exposure to silica sand could cause silicosis.

The jury returned a verdict in favor of Appellee on the negligence count, but afforded relief to Appellants on the strict liability claim. Appellee filed a motion for post-trial relief, requesting the entry of a j.n.o.v. on the strict liability count. This motion was denied and Appellee appealed.

The Superior Court vacated the order of the trial court and entered a j.n.o.v. in favor of Appellee. The Superior Court determined that Appellee could not be held liable on the strict liability claim as a matter of law, and gave two reasons to support its determination. First, the Superior Court decided that silica sand was not an "unreasonably dangerous" product, and thus Appellee could not be held strictly liable as a matter of law. The Superior Court's second reason was that Appellee was shielded from liability by the negligence-based defense of § 388 of the Restatement (Second) of Torts, a defense which is commonly referred to as the "sophisticated user" defense. ³ The Superior Court noted that its application of § 388 to this matter was the first time that the defense had ever been applied to a § 402A case. Appellants appealed to this Court, and we granted allocatur. ⁴

In reviewing this entry of a j.n.o.v., we note that

[t]here are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor....

Moure v. Raeuchle, 529 Pa. 394, 402-403, 604 A.2d 1003, 1007 (1992) (citations omitted). In this instance, the Superior Court relied on the first basis and determined that Appellee was entitled to a j.n.o.v. as a matter of law. In examining this determination, our scope of review is plenary, as it is with any review of questions of law. See Young v. Young, 507 Pa. 40, 44, 488 A.2d 264, 265 (1985).

In this case, our first inquiry is whether the Superior Court correctly determined that Appellee, as a matter of law, cannot be held liable on the strict liability failure to warn claim. We conclude that the result reached by the Superior Court was correct, although our reasoning in support of this holding differs from that offered by the lower court.

Strict liability allows a plaintiff to recover where a product in "a defective condition unreasonably dangerous to the user or consumer" causes harm to the plaintiff. Section 402A, Restatement (Second) of Torts. See also Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (1966) (adopting § 402A). There are three different types of defective conditions that can give rise to a strict liability claim: design defect, manufacturing defect, and failure-to-warn defect. Walton v. Avco Corp., 530 Pa. 568, 576, 610 A.2d 454, 458 (1992). Only the third type, the failure- to-warn defect, was alleged in this case. A product is defective due to a failure-to-warn where the product was "distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product." Mackowick v. Westinghouse Electric, 525 Pa. 52, 56, 575 A.2d 100, 102 (1990).

As with the other two types of strict liability claims, a plaintiff raising a failure-to-warn claim must establish only two things: that the product was sold in a defective condition "unreasonably dangerous" to the user, ⁵ and that the defect caused plaintiff's injury. Walton, 530 Pa. at 576, 610 A.2d at 458. To establish that the product was defective, the plaintiff must show that a warning of a particular danger was either inadequate or altogether lacking, and that this deficiency in warning made the product "unreasonably dangerous." For the plaintiff in a failure-to-warn claim to establish the second element, causation, the plaintiff must demonstrate that the user of the product would have avoided the risk had he or she been warned of it by the seller. See Sherk v. Daisy-Heddon, 498 Pa. 594, 598 and 602, 450 A.2d 615, 617 and 619 (1982) (plurality opinion). If the plaintiff fails to establish either of these two elements, the plaintiff is barred from recovery as a matter of law. ⁶

In this matter, Appellants failed to carry their burden: regardless of whether Appellee's silica sand was defective due to a lack of a warning, Appellants cannot recover because the...