Toth v. Economy Forms Corp.
| Decision Date | 01 March 1990 |
| Citation | 391 Pa.Super. 383,571 A.2d 420 |
| Parties | Schree TOTH, Surviving Wife of Joseph Patrick Toth, Deceased, as Trustee ad Litem, and Mary Bridget Toth, Executrix of the Estate of Joseph Patrick Toth, Deceased, Appellants, v. ECONOMY FORMS CORPORATION. |
| Court | Pennsylvania Superior Court |
Argued Jan. 25, 1990.
Michael J. Colarusso, Pittsburgh, for appellants.
Mary J. Bowes, Pittsburgh, for appellee.
Before CAVANAUGH, TAMILIA and JOHNSON, JJ.
This is an appeal from the Order of court denying appellants' motion to remove nonsuit entered July 27, 1989 following the trial court's granting of appellee's motion for a compulsory nonsuit.
On December 8, 1983, Joseph Patrick Toth, a laborer employed by Cameron Construction Company, was killed in a construction accident. He stepped on a wooden plank supported by scaffolding. The scaffolding was attached to concrete forming equipment, which was manufactured, sold and supplied by appellee, Economy Forms, to Cameron Construction. The plank, supplied by Mellon Stuart Company to Cameron, thereupon broke away, causing the decedent to fall to his death.
Appellants Schree Toth, surviving widow, and Mary Bridget Toth, as Executrix of the Estate of Mr. Toth, contend Economy Forms corporation designed, manufactured, sold and supplied a defective concrete forming/scaffolding system which supported the plank that broke and this defective system was the proximate cause of Mr. Toth's death. Economy denied liability for Mr. Toth's death.
Following extensive discovery, the case proceeded to trial. Appellants presented the liability aspects of their case, which consisted of the testimony of their expert witness, Ben Lehman, and an offer of proof from a liability witness who could not be found. Economy Forms thereafter made an oral motion for a compulsory nonsuit, which the trial court granted based on its finding Economy had no connection with the product that caused the injury, i.e. the planking. Appellants subsequently filed a motion to remove the compulsory nonsuit, which was denied. This appeal followed.
The sole issue on appeal is whether the trial court properly granted Economy Forms' motion for a compulsory nonsuit. When a motion for compulsory nonsuit is filed, the plaintiff appellant here, must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from the evidence, and any conflict in the evidence must be resolved in favor of the plaintiff. Coatesville Contractors v. Borough of Ridley Park, 509 Pa. 553, 559, 506 A.2d 862, 865 (1986). Furthermore, when the trial court is presented with a choice between two reasonable inferences, the case must be submitted to the jury. Hawthorne v. Dravo Corp., Keystone Div., 313 Pa.Super. 436, 460 A.2d 266 (1983). However where it is clear a cause of action has not been established, a compulsory nonsuit is proper. Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61, 63 (1988).
At trial, appellants sought recovery based on two theories of liability--product liability under § 402A of Restatement (Second) of Torts or, in the alternative, negligence. Section 402A R.2d Torts states:
§ 402 A. Special liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Our Supreme Court adopted § 402A in Webb v. Zern, 422 Pa 424, 220 A.2d 853 (1966). In order to succeed under this section, a plaintiff must establish all of the following: 1) a product; 2) the sale of that product; 3) a user or consumer; 4) the product defect which makes the product unreasonably dangerous; and 5) the product defect was the proximate cause of the harm. See Ellis v. Chicago Bridge & Iron Co., 376 Pa.Super. 220, 238, 545 A.2d 906, 916 (1988) (Popovich, J., concurring); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). In order for liability to attach in a products liability action such as this, the plaintiff must show the injuries suffered were caused by a product of the particular manufacturer or supplier. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190-91, 544 A.2d 50, 52 (1988). Appellants concede the wooden plank that broke and caused Mr. Toth to fall to his death was not supplied or manufactured by appellee (Brief for Appellants, p. 4). There is no legal authority supporting appellants' attempt to hold a supplier liable in strict liability for a product it does not even supply. We believe, under this theory of recovery, appellant...
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