Berrier v. Simplicity Mfg Inc

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

4-21-2009

Berrier v. Simplicity Mfg Inc

Precedential or Non-Precedential: Precedential

Docket No. 05-3621

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No: 05-3621

WAYNE BERRIER; BRENDA GREGG, in their own right

and as parents and natural guardians of Ashley Berrier, a

minor,

Appellants

v.

SIMPLICITY MANUFACTURING, INC.,

Third-Party Plaintiff

v.

SUSIE SHOFF;

MELVIN SHOFF,

Third-Party Defendants

Appeal from the United States District Court

for The Eastern District of Pennsylvania

(Civil Action No. 04-cv-00097)

District Court: Hon. Legrome D. Davis

Argued: January 8, 2007

Before: McKEE, AMBRO, and FISHER

Circuit Judges

(Opinion filed: April 21, 2009)

_____________________

ALAN M FELDMAN, ESQ. (Argued)

DANIEL J. MANN, ESQ.

Feldman, Shepherd, Wohlgelernter,

Tanner, & Weinstock

1845 Walnut Street, 25th Floor

Philadelphia, PA 19103

Attorneys for Plaintiffs - Appellants

SHANIN SPECTER, ESQ. (Argued)

DAVID J. CAPUTO, ESQ.

Kline & Specter

1525 Locust Street, 19th Floor

Philadelphia, PA 19102

Attorneys for Amicus Curiae

The Pennsylvania Trial Lawyers

Association

NANCY SHANE RAPPAPORT, ESQ. (Argued)

JAMES M. BROGAN, ESQ.

DLA Piper Rudnick Gray Cray US, LLP

2

One Liberty Place, Suite 4900

1650 Market Street

Philadelphia, PA 19103

DONALD H. CARLSON, ESQ.

Crivello, Carlson & Mentkowski

710 North Plankinton Avenue, Suite

Milwaukee, WI 53203

Attorneys for Appellee Simplicity Manufacturing, Inc.

JAMES M. BECK, ESQ.

Dechert

2929 Arch Street, 18th Floor, Cira Centre

Philadelphia, PA 19104

HUGH F. YOUNG, JR., ESQ.

Of Counsel:

Product Liability Advisory Council, Inc.

1850 Centennial Park Drive, Suite 501

Reston, VA 22091

Attorneys for Amicus Curiae Product Liability

Advisory Council

JOHN F. LEWIS, ESQ.

Swartz Campbell

50 South 16th Street

Two Liberty Place, 28th Floor

Philadelphia, PA 19102

Attorney for Third Parties - Appellees Susie Shoff and

Melvin Shoff

3

OPINION

McKEE, Circuit Judge.

The primary issue in this appeal is whether

Pennsylvania’s strict products liability law extends to a child

who was injured when her grandfather backed over her foot

while using a riding mower that lacked “back-over”

protection. The Pennsylvania Supreme Court has never

expressly determined if one who is merely a bystander and

not a user of a product can bring a products liability claim

against a manufacturer to recover for injuries that occur while

an intended user is using the manufacturer’s product. We

predict that if the Pennsylvania Supreme Court were

confronted with this issue, it would adopt the Restatement

(Third) of Torts, §§ 1 and 2, and thereby afford bystanders a

cause of action in strict liability under the circumstances

here.1 Accordingly, we will reverse the district court’s grant

of summary judgment in favor of the manufacturer on the

strict products liability claim. We will also reverse the district

court’s grant of summary judgment in favor of the

manufacturer on the plaintiffs’ negligence claim.

1

For convenience, we will frequently refer to the

Pennsylvania Supreme Court as the “Supreme Court,” or the

“Court.”

4

I. FACTS

A. The Accident

Wayne Berrier and Brenda Gregg are the parents of

Ashley Berrier, a minor. On May 7, 2003, Ashley was

visiting her grandparents at their home in Honeybrook,

Pennsylvania. Her grandfather, Melvin Shoff, was mowing

his yard with his Simplicity Regent Model riding mower.

Shoff had purchased the mower new from a retailer in 1994.

According to Shoff, Ashley came into the yard and

attempted to hand him a flower while he was mowing. Shoff

disengaged the mower blades and told her to go inside.

Believing she had done as instructed, Shoff then re-engaged

the blades and placed the mower in reverse to turn the mower

around. As he was backing up with the blades engaged, he

backed over Ashley’s left leg. Although Ashley received

prompt medical attention at a prominent children’s hospital,

her left foot had to be amputated.

Thereafter, Ashley’s parents brought this action in their

own right and on Ashley’s behalf (plaintiffs are collectively

referred to as the “Berriers”) against Simplicity. They argued

that Simplicity was liable for negligently designing the mower

and also strictly liable because the design was defective.

Both claims centered on the absence of any back-over

protection, such as a “no mow in reverse” device or roller

barriers.

The Simplicity mower Shoff was using was a Regent

5

12 HP Hydrostatic lawn tractor, model number 1692403. It

had been manufactured in 1994 and was equipped with a 36-

inch steel mower deck that housed two rotating blades. The

mower was intended to be operated only by an adult and

designed accordingly. The operator could control the

mower’s movement and blade engagement. The operator

could therefore move the mower forward or in reverse, with

or without the blades engaged. The blades could be engaged

or disengaged using a “PTO [power take off] lever” on the

left side of a control panel. No physical barriers obstructed

the operator’s view. Information that accompanied the mower

clearly warned that it should not be operated while anyone

was within the mower’s area of operation.

Simplicity equipped the mower with three electrical

safety systems to prevent the engine from starting unless the

transmission and blade controls are in “stopped” positions.

This stopped the engine and blades if the operator left the seat

without disengaging the blades, and the configuration

automatically stopped the engine if the operator left the seat

without first setting the parking brake. However, the mower

was not equipped with any “no mow in reverse” (“NMIR”)

device nor any kind of roller barrier at the rear of the mowing

deck.2

2

The NMIR is a general category of devices that are

broadly defined as mechanisms that would either: (a) prevent

a mower’s blades from remaining on if the mower is shifted

into reverse; (b) stop the engine and/or blade(s) when the

mower is changed to reverse; or (c) prevent reverse motion

when the mower blade is engaged. See App. at 732 (Berrier’s

6

The mower came equipped with warnings and

instructions printed in bold black letters against a yellow

background, located at the operator’s position on the machine

that warned of “serious injury or death” that could occur if the

machine was operated “WHEN CHILDREN OR OTHERS

ARE AROUND.” Additional warnings and safety rules

pertaining to the danger of amputation and the risk of accident

were placed on the deflector shield. Similar warnings were

also printed in the Operator’s Manual, and Shoff admitted that

he read and understood them.

B. History of Back-Over Protection

on Riding Mowers

In the 1970's and 80's, a series of studies warned about

the extreme dangers associated with operating riding mowers

in reverse with blades engaged. These studies were

conducted by the Consumer Product Safety Commission

(“CPSC”)3 and others. The studies cited back-over blade

contact accidents, comprising between nine and eleven

percent of reported accidents involving riding mowers, as the

most tragic type of lawnmower accidents. These accidents

Expert Report); see also App. at 576 (Simplicity inter-office

correspondence regarding NMIR standard). Roller barriers

provide an alternative method for back-over protection. They

are described more fully below.

3

The CPSC is the government agency charged with

protecting the public from unreasonable risks of serious injury

or death from various types of consumer products.

7

almost always involved children under the age of five, and

almost always resulted in amputation or death. Calculations

based on these studies demonstrated that back-over accidents

happened at a rate of more than 100 per year, and one such

accident occurred for each 5-6,000 riding mowers sold in the

United States. App. 550, 555. In December of 1974, a study

commissioned by the CPSC recommended that all riding

mowers be equipped with a mechanism that would

automatically stop the blade while the mower was in neutral

or reverse. The Consumers’ Union of the United States

(“CU”) echoed the call for this requirement in a proposed

standard issued on July 17, 1975.4

In 1977, the CPSC published a “Proposed Safety

Standard” in the Federal Register that would have required all

riding mowers to include back-over protection in the form of

a device that would disengage the blades while the mower

was in reverse. In 1984, following requests from the

industry trade association, certain sections of the proposed

mandatory CPSC requirements were withdrawn. The

withdrawn sections included the requirement that an NMIR

device be incorporated into the design of riding mowers. The

withdrawal was premised on the CPSC’s belief that a

voluntary standard developed by the industry with comment

and assistance by the CPSC would be “a more efficient use of

the commission’s resources.” App. 575.

4

The Consumer’s Union is a nonprofit consumer research

organization that is probably best known for its publication of

“Consumer Reports Magazine.”

8

Nonetheless, the CPSC continued to recognize that

“based on engineering judgment, riding mowers meeting

these requirements [including reverse operations with the

blade disengaged] should be safer than those that do not.”

App. 576. Accordingly, the CPSC sent a letter to the Outdoor

Power Equipment Institute (“OPEI”) requesting that an NMIR

feature with an option for manual override be included in any

revised American National Standards Institute (“ANSI”)

standard for riding mowers. 5 The Commission’s rationale

included the following statement:

These provisions offer a reasonable means to

begin to address young children backed over

during reverse mowing. While these accidents

are infrequent, the population at risk and the

severe mental trauma to the child’s family fully

support the need to take immediate steps . . . .

Overall, the requirement can address the serious

back up hazard while still permitting maximum

freedom to designers.

App. 548-49.

In 1994, the CPSC further articulated industry

concerns regarding the efficacy of NMIR devices, including

issues relating to how fast the blade should stop to avoid

blade contact injuries, whether consumers would accept a

mower that does not mow while backing up, and whether the

5

The OPEI is the industry trade group that drafted the

ANSI safety specifications for riding mowers. App. 209.

9

safety change could be incorporated into the product without

diminishing customer satisfaction. Those and similar

concerns ultimately lead to the defeat of attempts to

incorporate a mandatory NMIR design into riding mowers.

C. The Effectiveness of Back-Over

Protection Devices

In the wake of discussions about lawn mower design,

different types of NMIR devices have been designed to

prevent the motor from powering the blade if an operator

shifts a riding mower into reverse.6 In fact, in 1976,

Simplicity received two patents for mechanical and electrical

interlocks that prevent blades from spinning while a riding

mower is backing up. App. 588-89.

NMIR devices often include an “override” feature that

conditions reverse mowing upon a series of maneuvers (e.g.,

an override button) that compel the operator to focus his/her

attention on backing up and take some action to power the

blades while the mower is operating in reverse. However,

even with such an option, the blades will automatically stop

6

These devices include: (1) a blade brake which stops the

blades each time the mower is shifted into reverse; (2)

automatically stopping the engine if the mower is shifted into

reverse without the operator disengaging the blades; (3)

automatically locking the wheels if the blade is still spinning

while the mower is shifted into reverse; and (4) an interlock

which prevents the mower from being shifted into reverse if

the blades are spinning. App. 556-58.

10

when the mower is shifted into reverse in normal operation.

App. 557.

In 2003, the new ANSI standards, drafted by OPEI,

required an NMIR design. App. 578-80. Thereafter, in

September 2004, Simplicity incorporated NMIR devices into

its riding mowers.7

7

Rule 56 of the Federal Rules of Civil Procedure requires

that only admissible evidence be offered in summary

judgment proceedings. Evidence of subsequent remedial

measures is not admissible to prove negligence, culpable

conduct, a defect in a product, a defect in a product’s design,

or a need for a warning or instruction. Fed. R. Evid. 407.

However, subsequent remedial measures need not be

excluded if, as here, they are introduced for the purpose of

demonstrating the feasibility of the design. Id. The district

court did not discuss this evidence, nor explain why it was not

considered.

The Product Liability Advisory Council, Amicus

Curiae in support of Simplicity, contends in a footnote that

Berrier’s evidence of subsequent design changes as well as

subsequent (ANSI) industry standards, is inadmissible to

show negligence and strict liability. It cites Duchess v.

Langston Corp., 769 A.2d 1131, 1145 (Pa. 2001) (recognizing

that the general proscription against the admission of evidence

of subsequent remedial measures precludes use of a

subsequent design change as substantive evidence of a

product defect in a strict products liability case), and Lewis v.

Coffing Hoist Division, 528 A.2d 590, 594 (Pa. 1987)

(industry standards are inadmissible in strict liability), in

11

support of its position.

However, there are several reasons why this evidence

can be considered. First, the Council is correct that

Pennsylvania law generally prohibits the admission of

evidence of subsequent remedial measures, including the use

of a subsequent design change as substantive evidence of a

product defect in a strict products liability case. See Duchess

at 1145. However, like the Federal Rule governing

admissibility, where the machine manufacturer places

feasibility in issue, exceptions in the rule governing

subsequent remedial measures are admissible to establish the

feasibility of the alternate design. Id. at 1150; see also Pa. R.

Evid. 407 (excepting from the rule evidence that proves

controverted matters including feasibility of precautionary

measures).

Second, the “industry standard” evidence excluded in

Lewis was offered by the defendants as part of their defense to

a strict liability claim. See LaBelle ex rel. LaBelle v. Philip

Morris, Inc., 243 F. Supp. 2d 508, 520 (D.S.C. 2001)

(distinguishing Lewis, 528 A.2d 590). Lewis does not address

whether industry standard evidence is inadmissible in a design

defect claim based on a negligence theory, nor does it hold

that the safety designs available at the time of manufacture

have no relevance to a strict liability design defect claim. For

the Berriers to sustain their negligence claim, they must show

that Simplicity failed to exercise due care. Evidence of

alternate designs is admissible to refute Simplicity’s claim

that NMIR devices would decrease the social utility of the

mower, see Pa. R. Evid. 407, as well as to show the “state of

the art” of safety design at the relevant time. See Phatak v.

12

D. Alternative Designs Suggested

by the Berriers

The Berriers suggest several alternative designs that

could have been incorporated into Simplicity’s mower. The

first is an NMIR feature that prevents the blades from being

powered by the motor when the mower is shifted into reverse.

App. 374. However, even with loss of power, momentum

causes the blades to continue to spin for a short time as the

mower is backing up. Id. The feature requires disengagement

and re-engagement of the blades each time the mower

reverses direction. App. 35. This design was being used by

one lawn mower manufacturer, MTD Products Inc., when

Shoff’s mower was manufactured.8 App. 767.

The Berriers also suggest an NMIR feature that utilizes

the aforementioned “override” switch that would allow the

operator to choose to mow in reverse as needed or for an

entire mowing session. (“Override Device”) App. 375. This

design is now required by the 2003 ANSI standards. App.

579.

The final alternative design suggested by the Berriers

United Chair Co., 756 A.2d 690, 693 (Pa. Super. 2000). The

evidence may be similarly relevant to the Berriers’ strict

liability theory.

8

We will therefore refer to this feature as the “MTD

design.”

13

is roller-guards on the back of the mowing deck. They create

a barrier that greatly reduces the risk of any “foreign object”

slipping under the deck (i.e. blade housing) as the mower is

backing up. A Simplicity engineer and the Berriers’ design

expert both testified that roller-barriers reduce injuries. App.

593-96, 553-54. In fact, Simplicity asked OPEI to adopt this

design based on testing it had conducted that supported the

effectiveness of the roller-barrier in preventing back-over

injuries.9 App. 593-94, 597-98.

II. DISTRICT COURT PROCEEDINGS

Following Ashley’s injury, the Berriers filed this action

against Simplicity in the Court of Common Pleas of

Philadelphia County. The complaint contained one count of

strict products liability based on Section 402A of the

Restatement (Second) of Torts (Count I), and a second count

sounding in negligence (Count II). As noted earlier, both

counts alleged a cause of action based on an allegedly

defective design.10

9

Roller barriers function much the same way as the old

“cow catcher” that used to be designed into the front of

railroad locomotives to sweep any foreign objects from

railroad tracks in advance of the engine to which it was

attached.

10

The complaint also asserted that the warnings on the

mower were defective. The district court wrote that it

“fail[ed] to understand what additional warnings would be

more effective in preventing back-over accidents.” Berrier v.

14

Simplicity removed the case to the district court based

on diversity of citizenship, 28 U.S.C. § 1332, and filed an

answer. Sometime thereafter, Simplicity filed a third-party

complaint against Mr. and Mrs. Shoff, which was later

amended, alleging claims of negligent supervision and of

failure to follow instructions. Simplicity’s third-party

complaint sought contribution from the Shoffs in the event

that it was found liable.

In time, Simplicity and the Shoffs, the third-party

defendants, filed motions for summary judgment. Simplicity

sought summary judgment on the strict liability and

negligence claims. The Shoffs sought partial summary

judgment on the negligent supervision and failure to follow

instructions contribution claims.

The district court granted summary judgment to

Simplicity on both counts and dismissed the Berriers’

complaint. Berrier v. Simplicity Corp., 413 F. Supp.2d 431

(E.D. Pa. 2005). The court ruled that Pennsylvania strict

products liability law does not permit recovery for injuries to

anyone other than the intended user. Because Ashley was a

bystander and not an intended user of the mower, she could

not recover in an action against Simplicity. Id. at 437-43.

Simplicity Corp., 413 F. Supp.2d 431, 446 (E.D. Pa. 2005).

Indeed, it noted that the Berriers’ own expert testified at his

deposition that additional warnings, both in the manual and on

the mower, would not, standing alone, be effective in

preventing future accidents. Id. The Berriers do not assert in

this appeal that the warnings were defective.

15

Since the court also concluded that, under Pennsylvania law,

Simplicity did not owe a duty to bystanders, it dismissed the

negligence claim as well. Id. at 443-49.

The court also ruled that the award of summary

judgment “moots the contribution claim against [the Shoffs],

and, hence, the need to resolve [the Shoffs’] motion for

summary judgment.” 413 F. Supp.2d at 449. Nonetheless, it

decided the Shoffs’ motions “in the event plaintiffs are

successful on a motion for reconsideration or on appeal, and

because Simplicity has not argued for dismissal based on

mootness.” Id. The court then denied the Shoffs’ motion for

summary judgment on Simplicity’s negligent supervision

claim, but granted summary judgment in favor of Mrs. Shoff

only on Simplicity’s failure- to-follow-instructions claim. Id.

at 449-52.

This appeal followed.

III. JURISDICTION & STANDARD OF REVIEW

The district court had diversity jurisdiction pursuant to

28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. “The standard of review applicable to the District

Court’s order granting summary judgment is plenary.” Kautz

v. Met-Pro Corp., 412 F.3d 463, 466 (3d Cir. 2005). We

apply “the same test employed by the District Court under

Federal Rule of Civil Procedure 56(c).” Id. The non-moving

party “is entitled to every favorable inference that can be

drawn from the record.” Id. At the summary judgment stage,

“the judge’s function is not . . . to weigh the evidence and

16

determine the truth of the matter, but to determine whether

there is a genuine issue for trial.” Equimark Commercial

Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141,

144 (3d Cir. 1987).

IV. DISCUSSION

A. Bystander Recovery Under Pennsylvania’s

Strict Products Liability Law.

The district court relied primarily upon Phillips v.

Cricket Lighters, 841 A.2d 1000 (Pa. 2003), in holding that

Ashley could not recover in strict liability under Pennsylvania

law because she was not an intended user of the mower.

However, as we discuss in detail below, we believe the

district court’s reliance on Phillips was misplaced because

bystander liability was not an issue in that case; moreover, no

other decision of the Court specifically addresses the issue.

In the absence of a controlling decision by the

Pennsylvania Supreme Court, a federal court applying that

state’s substantive law must predict how Pennsylvania’s

highest court would decide this case.11 See Nationwide

Mutual Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000).

“In predicting how the highest court of the state would resolve

11

Because we are sitting in diversity, we must apply

Pennsylvania’s law to the facts of this case. Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938). All parties agree that

Pennsylvania law governs this suit and the district court

applied Pennsylvania law in granting summary judgment.

17

the issue, [we] must consider ‘relevant state precedents,

analogous decisions, considered dicta, scholarly works, and

any other reliable data tending convincingly to show how the

highest court in the state would decide the issue at hand.’”12

Id. (quoting McKenna v. Ortho Pharm Corp., 622 F.2d 657,

663 (3d Cir. 1980)). Although the Pennsylvania Supreme

Court has not yet expressly recognized a bystander’s right to

recover under products liability law, it has not expressly

rejected such a claim either.

The “modern era” of products liability law in

Pennsylvania began with Webb v. Zern, 220 A.2d 853 (Pa.

1966). There, Webb’s father bought a keg of beer from Zern

(a beer distributor), and Webb’s brother subsequently tapped

the keg and drew beer from it. Webb was injured when the

keg exploded. Id. at 426. Webb relied on a theory of

“exclusive control” to sue both Zern, the brewer who filled

the keg, and the manufacturer of the keg. The trial court

dismissed the action pursuant to the defendants’ demurrers.

That court ruled that the doctrine of exclusive control did not

apply because Webb had not joined his father and brother and

either or both of them could have done something that caused

the explosion.

On appeal, the Supreme Court adopted the Restatement

12

The district court did not conduct a prediction analysis.

However, we can do a prediction analysis because, had the

district court conducted such an analysis, our review of that

analysis would be plenary. Nationwide Mutual Ins. Co. v.

Bufetta, 230 F.3d 634, 637 (3d Cir. 2000)

18

(Second) Torts, Section 402A as a “new basis of liability.” Id.

at 426-27. Section 402A provides:

(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.13

Restatement (Second) of Torts § 402A.

The Court did not fully explain its rationale for

adopting Section 402A. Rather it simply referred to the

concurring and dissenting opinions in Miller v. Preitz, 221

A.2d 320 (Pa. 1966), which was issued the same day as Webb,

13

The term “seller” includes the “manufacturer” of a

product. Restatement (Second) of Torts, § 402A, cmt. f.

19

stating: “[o]ne will . . . find there citations to modern case law

and commentaries which extend and recommend the

extension of the law of strict liability in tort for defective

products.” 220 A.2d at 854.

In his concurring and dissenting opinion in Miller,

Justice Jones recited the history of product liability law in

Pennsylvania prior to Webb. Miller, 221 A.2d at 328-35

(Jones, J., concurring in part and dissenting in part). He

explained that a person injured by a defective product could

sue either in negligence or in assumpsit based upon a breach

of implied warranty arising from the sale of an allegedly

defective product. Id. at 329. However, under either theory

the injured person was required to establish privity, id. at 329,

330, and, in a negligence action, the injured person had to

prove the specific acts of negligence by the manufacturer. Id.

at 330.

In his recitation, Justice Jones noted that following the

landmark case of MacPherson v. Buick Motor Co., 111 N.E.

1050 (N.Y. 1916), Pennsylvania had eliminated the

requirement of privity in negligence actions for damages

arising from a defective product. Id. at 329. However, in an

assumpsit action based on a breach of warranty, privity was

still required. Id. at 330. As a result of the privity

requirement, a manufacturer’s liability in a breach of warranty

action was limited to his immediate purchaser, who was

generally a retailer who sold the product directly to the

consumer. Id. at 332. The retailer was therefore normally

only liable to the actual purchaser and not to subsequent users

of the product. Id. at 332-33. Therefore, Justice Jones

20

recommended abolishing the privity requirement, adopting

Section 402A, and thereby allowing product liability actions

in tort. Id. at 333. He explained that the adoption of Section

402A would protect the consuming public by forcing

manufacturers to “stand behind their products,” and make the

“burden of injuries caused by defects in . . . products fall upon

those who make and market the products.” Id. at 334.

Although the Supreme Court in Webb did not expressly

recognize a distinct cause of action for bystanders under

Section 402A, Webb can be read as standing for the

proposition that, under Pennsylvania law, there is a distinct

cause of action for bystanders under Section 402A.14 Webb

was a bystander who simply had the misfortune of being in

the same room as the keg when it exploded. Of course, it is

possible that the Court viewed Webb as a user or consumer

since he may well have walked into the room to draw beer

from the keg. However, the Court did not rely upon any such

status in allowing Webb to amend his complaint to include a

cause of action under Section 402A, and nothing in the

opinion suggests that the Court was concerned with whether

Webb was a user of the keg.15

14

A caveat to Section 402A states, in relevant part, that the

American Law Institute “expresses no opinion as to whether

the rules stated in this Section may not apply . . . to harm to

persons other that users or consumers.”

15

No further history of the case is available. Accordingly,

we do not know what (if any) defenses were asserted on

remand, nor do we know the ultimate outcome of the case.

21

Eight years after Webb, the Court decided Salvador v.

Atlantic Steel Boiler Co., 319 A.2d 903 (Pa. 1974). There, an

employee was severely injured when a steam boiler exploded

at his place of work. He brought an assumpsit action against

his employer, the retailer of the boiler and its manufacturer.

Id. at 904. The trial court dismissed the complaint because

the employee had not alleged a contractual relationship with

the defendants and thus horizontal privity was lacking.16 Id.

On appeal, the Pennsylvania Superior Court reversed, and the

16

“Privity of contract is that connection or relationship

which exists between two or more contracting parties.”

Salvador, 319 A.2d at 904 n.1. “Vertical privity refers to the

relationship between those who are in the distributive chain of

a product.” Black’s Law Dictionary 1200 (6th ed. 1990).

“Horizontal privity”. . . “is not, in reality, a state of privity

but rather one of nonprivity. The term refers to those who are

not in the distributive chain of a product but who, nonetheless,

use the product and retain a relationship with the purchaser,

such as a member of the purchaser’s family.” Id. at 1199.

In Miller v. Preitz, supra, the Pennsylvania Supreme

Court reaffirmed the requirement of vertical privity in an

action for breach of warranty in an action for injuries suffered

through a breach of warranty. However, Miller was

overruled by Kassab v. Central Soya, 246 A.2d 848 (Pa.

1968), which noted that the adoption of Section 402A in

Webb v. Zern, supra, obliterated any logical basis for

retaining the demand for vertical privity. In Salvador, the

Pennsylvania Supreme Court abolished the requirement for

horizontal privity in breach of warranty actions. 319 A.2d at

907-08.

22

Supreme Court subsequently affirmed the reversal. Id.

The Supreme Court noted that its earlier adoption of

Section 402A in Webb eliminated the necessity of horizontal

privity in breach of warranty cases. The Court explained:

Today . . . a manufacturer by

virtue of section 402A is

effectively the guarantor of his

product’s safety. Our courts have

determined that a manufacturer by

marketing and advertising his

product impliedly represents that

it is safe for its intended use. We

have decided that no current

societal interest is served by

permitting the manufacturer to

place a defective article in the

stream of commerce and then to

avoid responsibility for damages

caused by the defect. He may not

preclude an injured plaintiff’s

recovery by forcing him to prove

negligence in the manufacturing

process. Neither may the

manufacturer defeat the claim by

arguing that the purchaser has no

contractual relation to him. Why

then should the mere fact that the

injured party is not himself the

purchaser deny recovery?

23

Id. at 907 (citations omitted).

Significantly, although the action was for breach of

warranty, the Court focused on the safety of the product rather

than the status or the contractual relationship of the parties.17

It reasoned that because Pennsylvania products liability law

“has progressed,” the demands of public policy “as well as

legal symmetry compel” the conclusion that lack of horizontal

privity did not bar the employee’s action against the

manufacturer for breach of warranty. Id. at 907-08 (emphasis

added). Essentially, the Court held that relief available in

breach of warranty claims should be as broad as that available

under Section 402A.

Salvador involved an employer-employee relationship,

and Section 402A treats an employee as a user of a product.

See Restatement (Second) of Torts, § 402A, cmt. l.

However, as in Webb, the Court in Salvador neither

discussed the employee’s status nor suggested that his status

as an employee was determinative.18 Rather, the Court

17

It is not clear why the action was brought in assumpsit

rather than tort, as § 402A had been the law in Pennsylvania

for eight years.

18

The Superior Court expressly acknowledged the

employer-employee context of the dispute. It wrote: “We

believe that the injured employee stands in the shoes of his

employer and that his cause of action is based on implied

warranty and is not barred by the shield of privity. The

manufacturers know that most businesses are carried on

24

focused on the safety of the product.19

Nevertheless, these Supreme Court cases do not

specifically address a bystander’s ability to sue under Section

402A. Accordingly, “[w]e give ‘due regard’ to the decisions

of Pennsylvania’s intermediate appellate courts as ‘indicia of

how the state’s highest court would decide [the issue].’”

Nowak v. Faberge USA Inc., 32 F.3d 755, 759 (3d Cir. 1994)

(citation omitted).

The Pennsylvania Superior Court allowed a bystander

to sue in strict liability in Pegg v. General Motors Corp., 391

A.2d 1074 (Pa. Super. 1978). Pegg was injured when riding

in a car driven by a co-worker. Unbeknownst to Pegg, the co-

worker had placed a chemical used to sanitize swimming

pools in the car. Pegg was injured when the chemical

spontaneously ignited, id. at 1077, and he sued the

manufacturer of the chemical (among others) under theories

through employees who will actually use the product

purchased by their employers.” Salvador v. I.H. English of

Phila., Inc., 307 A.2d 398, 402 (Pa. Super. 1973).

19

The Berriers contend that a third Supreme Court case,

Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914 (Pa.

1974), allows bystander recovery under Section 402A. There,

an employee sued after being injured by objects falling from a

crane at the job site. However, the manufacturer/seller there

conceded that Kuisis was a “user” of the crane within the

meaning of Section 402A. Id. at 919. The case therefore did

not involve a “bystander.”

25

of negligence and strict liability. The Pennsylvania Superior

Court held that he could recover even in the absence of

privity. The court based liability on whether the

manufacturer “place[d] a defective article in the stream of

commerce.” Id. at 1079 (quoting Salvador, 319 A.2d at 970).

Liability did not turn on the relationship between Pegg and

the manufacturer.

However, since the Superior Court’s decision in Pegg,

the Supreme Court has issued opinions which appear to limit

recovery under Section 402A to intended users. In Azzarello

v. Black Bros. Co., Inc., 391 A.2d 1020 (Pa. 1978), an

employee’s right hand was injured when it was pinched

between two hard rubber rollers in a coating machine owned

by her employer. The employee sued the manufacturer

asserting only a cause of action for strict liability under

Section 402A, and the manufacturer joined the employer as an

additional defendant arguing that the employer’s negligence

caused the accident in whole or in part. The trial resulted in a

verdict in favor of the manufacturer and the employee moved

for a new trial, asserting, inter alia, that the trial judge

incorrectly instructed the jury that her burden of proof under

Section 402A required a showing that the machine was

“unreasonably dangerous.” Id. at 1022. On appeal to the

Supreme Court, the employee won a new trial. The Court

held that the trial court’s use of “unreasonably dangerous” in

the jury instructions had improperly introduced negligence

concepts into the proceeding. Id. at 1025. The erroneous

instruction

burdened the injured plaintiff with proof of an element

26

which rings of negligence. As a result, if, in the view

of the trier of fact, the “ordinary consumer” would

have expected the defective condition of a product, the

seller is not strictly liable, regardless of the

expectations of the injured plaintiff . . . .

Id. at 1025 (citation and quotation marks omitted).

The Court conceded that limiting liability to defects

that are “unreasonably dangerous” “may . . . serve the

beneficial purpose of preventing the seller from being treated

as the insurer of its products.” Id. (citation omitted).

However, the Court thought that objective could better be

achieved by requiring proof of “a defect in the manufacture

or design of the product, and that such defect was a (legal)

cause of the injuries.” Id. (citation omitted) (parentheses in

original).

The Court observed:

The development of a sophisticated and complex

industrial society with its proliferation of new products

and vast changes in the private enterprise system has

inspired a change in legal philosophy from the

principle of caveat emptor which prevailed in the early

nineteenth century market place to the view that a

supplier of products should be deemed to be the

guarantor of his products’ safety. The realities of our

economic society as it exists today forces the

conclusion that the risk of loss for injury resulting from

defective products should be borne by the suppliers,

27

principally because they are in a position to absorb the

loss by distributing it as a cost of doing business. In an

era of giant corporate structures, utilizing the national

media to sell their wares, the original concern for an

emerging manufacturing industry has given way to the

view that it is now the consumer who must be

protected.20

Id. at 1023-24 (citation and internal quotation marks omitted).

The Court explained the evolution of Section 402A and

the tension between strict liability and a common law cause of

action for negligence. The Court noted that Section 402A

initially applied “only to foodstuffs and the requirement was

that the food be in a condition dangerous to the consumer.”

Id. at 1025 n.10. However, the present text of Section 402A

was substituted for “dangerous” because of concerns “about

liability for a product like whiskey, . . . because a jury might

find that all whiskey is unreasonably dangerous to the

consumer.” Id. Accordingly, “[t]he word ‘defective’ was

added to ensure that it was understood that something had to

be wrong with the product.” Id. Then, quoting from

Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 902 (Pa.

1975), the Court declared: “[t]he seller must provide the

product with every element necessary to make it safe for the

intended use.” 391 A.2d at 1027. The Court concluded that,

“[f]or the term guarantor to have any meaning in this context

20

Although the Court referred to “the consumer,” given

the context of that statement, it does not appear that the Court

intended to limit that term to “users.”

28

the supplier must at least provide a product which is designed

to make it safe for the intended use.” Id. at 1027. However,

since a jury could confuse that concept if instructed that the

product must be “unreasonably dangerous,” the Court agreed

that the jury instructions were misleading. Id.

The Court also explained that “unreasonably

dangerous,” has no independent significance, but is a term of

art that “merely represent[s] a label to be used where it is

determined that the risk of loss should be placed upon the

supplier.” Id. at 1025. Moreover, the determination of

whether the risk should be placed upon the supplier was a

legal question that must be resolved by a court, not by the fact

finder. Id. at 1025-26.

Therefore, the appropriate inquiry after Azzarello was

whether the supplier had designed the product with every

element necessary to make it safe for use. Id. at 1027. Under

that standard, “a 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.” Id. The Court also

reaffirmed that the trial court must decide if “the utility of a

product outweigh[s] the unavoidable danger it may pose.” Id.

at 1026. Thus “[r]estated, the phrases ‘defective condition’

and ‘unreasonably dangerous’ as used in the Restatement

formulation are terms of art invoked [by a court] when strict

liability is appropriate.” Id.

It is therefore clear that, after Azzarello, strict liability

under Section 402A involves a two-prong inquiry. As we

29

explained in Nowak:

Initially, the question of whether a

product is defective, given the facts as alleged

by the plaintiff, is a question of law to be

answered by the trial judge. If the judge

determines as a matter of law that

Pennsylvania’s social policy supports placing

the risk of loss on the manufacturer in the

situation alleged by the plaintiff, then the case

goes to the jury for a determination as to

whether the facts alleged by the plaintiff are

true.

32 F.3d at 757 (internal quotation marks and citation omitted).

Although Azzarello assists our inquiry, it does not

resolve it because it does not tell us the Court’s view of who

the product must be safe for, and that is the primary issue

here. The Court addressed that issue in Phillips v. Cricket

Lighters, 841 A.2d 1000 (Pa. 2003). There, a majority of the

Supreme Court held that a product must be made safe only for

its intended user.

In Phillips, a two-year-old child accidentally started a

fire after removing a butane lighter from his mother’s purse

and setting fire to some linens. The fire spread throughout the

family’s apartment, and resulted in the deaths of the two-year

old child, his mother, and another minor. Id. at 1002-03.

One child managed to escape through an open window and

survived. Id. at 1003. The administratrix of the decedents’

30

estates, who was also the guardian of the child who survived,

sued the manufacturer and distributor of the lighter, alleging,

inter alia, strict liability for a defective design under Section

402A, as well as negligent design, because the lighter was not

equipped with “childproof features.” Id. The trial court

granted summary judgment to the manufacturer on the

Section 402A claim because the manufacturer only intended

its lighter to be used by adults, and it was perfectly safe for

use by adults.21 Id.

The Superior Court reversed based on its belief that a

product must be safe for anyone who uses it.22 Id. at 1004.

The Superior Court concluded that Cricket’s lighter was

defective because it was not equipped with a child safety

feature that would have prevented a child from starting a fire.

In the Superior Court’s view, that defect exposed intended

users to grave risk of harm. Id. The Supreme Court granted

allocatur and reversed because it agreed with the trial court.

21

The trial court granted the defendants’ motion for

summary judgment on the negligent-design-defect claim,

holding that when a product is found not defective for strict

liability purposes, a negligent-design defect must also fail.

841 A.2d at 1003.

22

As to the negligent-design defect claim, the Superior

Court held that since it had found the trial court’s decision on

the strict liability claim to be error, it had to reverse the entry

of summary judgment on the negligent-design defect claim.

841 A.2d at 1004. However, we are not concerned here with

such a claim.

31

The majority in Phillips began by observing that

Azzarello “did not answer . . . whether the ‘intended use’

doctrine necessarily encompasses the requirement that the

product need be made safe only for its ‘intended user.’” Id. at

1005. The majority explained that, although it had never

faced that question in a strict liability design defect case, it

had faced it in Mackowick v. Westinghouse Electric Corp.,

575 A.2d 100 (Pa. 1990), a case alleging strict liability for

failure to warn. 841 A.2d at 1005.

In Mackowick, an electrician had sued to recover

injuries caused by arcing electricity in a high voltage

capacitor. He alleged that the capacitor was defective because

it did not warn of the dangers of exposed electrical wires.

The Mackowick Court “rejected that argument . . .[,]

reason[ing] that a product need only be made safe for its

intended user.” Phillips, 841 A.2d at 1005 (citing

Mackowick, 575 A.2d at 102, 103). The “electrical capacitor

was intended to be accessed and used only by qualified

electricians, and not general members of the public. As

experienced electricians are aware of the dangers of live

exposed electrical wires, [the Mackowick court] concluded

that the product was safe for its intended user even absent a

[specific] warning.” Id. at 1005.

In applying the holding of Mackowick, the majority in

Phillips reasoned:

While Mackowick was a failure to warn

case, . . . we cannot perceive how it could be

confined exclusively to the failure to warn

32

context. Mackowick stands for the proposition

that a product is not defective so long as it is

safe for its intended user. Whether the product

is allegedly defective due to a lack of warnings,

or because it was ill-conceived, the standard that

the product need be made safe only for the

intended user appears to be equally applicable.

Id.

The administratrix/appellee in Phillips argued that the

lighter’s design was defective because it was reasonably

foreseeable that a child might play with it, and therefore the

manufacturer should be liable under Section 402A whether

the user was the intended adult or the foreseeable child.

Although the majority conceded that the argument had “some

visceral appeal,” it noted that the visceral appeal “has been

memorialized in our tort law as a negligence cause of action.”

Id. at 1006.

By the time Phillips was decided, the Court had drawn

a clear distinction between negligence actions based on

notions of foreseeability and a cause of action based on a

theory of strict liability. The Court had often declared that

“negligence concepts have no place in a case based on strict

liability.” Id. (quoting Lewis v. Coffing Hoist Div., Duff-

Norton Co., Inc., 528 A.2d 590, 593 (Pa. 1987)).

Nonetheless, the majority in Phillips conceded that

even though the Court had “remained steadfast in . . .

proclamations that negligence concepts should not be

33

imported into strict liability law, [it had] muddied the waters

at times with the careless use of negligence terms in the strict

liability arena.” Id. at 1006-07 (citing Davis v. Berwind

Corp., 690 A.2d 186, 190 (Pa. 1997).23

The Phillips majority sought to clarify the law by

clearly stating that a plaintiff bringing a claim for strict

liability based on defective design under Section 402A “must

[only] establish that the product was unsafe for its intended

user.” Id. at 1007 (emphasis added). “We also explicitly state

that a manufacturer will not be held strictly liable for failing

to design a product that was safe for use by any reasonably

foreseeable user, as such a standard would improperly import

negligence concepts into strict liability law.” Id.

The Court reiterated the distinction between negligence

concepts and strict products liability in Pennsylvania Dept. of

General Services v. United States Mineral Products Co., 898

A.2d 590 (Pa. 2006) (“Mineral Products”). There, a fire

damaged an office building which used building materials

containing polychlorinated biphenyls (“PCBs”) manufactured

by the defendant. The building housed the offices of several

agencies of the Commonwealth of Pennsylvania. Following

the fire, the Commonwealth made a decision to demolish the

building because of the presence of PCBs, and it was replaced

with a new building. The Commonwealth thereafter brought

an action against several parties, including the manufacturer

23

In Davis, the Court held that a manufacturer could be

held strictly liable for subsequent changes that made its

product unsafe if those changes were reasonably foreseeable.

34

of the product containing the PCBs, seeking damages for

negligence and strict products liability to recover the cost of

constructing a new building as well as the loss of personal

property contained in the old building. The case went to the

jury “solely on a strict liability theory,” and the jury returned

a verdict against the manufacturer without specification of the

particular theories/and or claims that were accepted. Id. at

594. The trial court’s instruction had “explicitly or implicitly

authorized [the jury] to evaluate the evidence to determine

whether the fire could be considered to have been a

reasonably foreseeable event against which the

[manufacturer] should have guarded.” Id. at 600.

On appeal, the Supreme Court held that the jury

instruction was error because Pennsylvania does not

recognize a strict products liability cause of action arising

from an unintended use even when the unintended use is

foreseeable. Id. (citing Phillips, 841 A.2d at 1007).

Accordingly, a “foreseeable misuse of a product [i.e., the fire]

will not support a strict liability claim.” Id. (citing Phillips, at

1007). The Court acknowledged that it was “reasonably

foreseeable that building materials may be subject to

consumption in a fire, and therefore, [there was] an argument

that safety . . . should be deemed to encompass . . . the event

of . . . combustion.” Id., at 601. Notwithstanding the logic of

that argument, the Court rejected it because it “contravenes

the strong admonition in the lead opinion in Phillips . . . to the

effect that foreseeability considerations have no place in the

setting.” Id.

For our purposes, it is important to note that in

35

rejecting the trial court’s “foreseeability charge,” the Court

observed: “given the conclusion of [the three concurring

Justices in Phillips] that there are substantial deficiencies in

present strict liability doctrine, it should be closely limited

pending an overhaul by the Court.” Id. (citing Phillips, 841

A.2d at 1018 (Saylor, J., concurring)).

In the portion of Justice Saylor’s concurring opinion in

Phillips that is cited in Mineral Products, Justice Saylor

discussed the tension between “foreseeability” in negligence

and strict products liability under Section 402A. He stated: “I

BELIEVE, HOWEVER, that the . . . summation of

Pennsylvania law demonstrates a compelling need for

consideration of reasoned alternatives, such as are reflected in

the position of the Third Restatement.” 841 A.2d at 1018

(upper case in original, italics added). Justice Saylor went on

to discuss the application of the Restatement (Third) of Torts

at some length. See id. at 1019-22.

We believe that Justice Saylor’s concurring opinion in

Phillips foreshadows the Pennsylvania Supreme Court’s

adoption of §§ 1 and 2 of the Third Restatement’s definition

of a cause of action for strict products liability.

The Restatement (Third) of Torts provides in relevant

part as follows:

§ 1. Liability Of Commercial Seller or

Distributor For Harm Caused By Defective

Products

36

One engaged in the business of selling or

otherwise distributing products who sells or

distributes a defective product is subject to

liability for harm to persons or property caused

by the defect.24

Restatement (Third) of Torts: Products Liability, § 1.

Section 2 provides, in relevant part:

§ 2. Categories Of Product Defect

A product is defective when, at the time

of sale or distribution, it contains a

manufacturing defect, is defective in design, or

is defective because of inadequate instructions

or warnings. A product:

(a) contains a manufacturing defect when the

product departs from its intended design even

though all possible care was exercised in the

preparation and marketing of the product;

(b) is defective in design when the foreseeable

risks of harm posed by the product could have

been reduced or avoided by the adoption of a

reasonable alternative design by the seller or

24

Under Section 1, “[o]ne engaged in the business of

selling or otherwise distributing” applies to “manufacturers.”

Restatement (Third) of Torts: Products Liability, § 1, cmt. c.

37

other distributor, or a predecessor in the

commercial chain of distribution, and the

omission of the alternative design renders the

product not reasonably safe;

(c) is defective because of inadequate

instructions or warnings when the foreseeable

risks of harm posed by the product could have

been reduced or avoided by the provision of

reasonable instructions or warnings by the seller

or other distributor, or a predecessor in the

commercial chain of distribution, and the

omission of the instructions or warnings renders

the product not reasonably safe.

Restatement (Third) of Torts: Products Liability, § 2.

As is readily apparent from this text, the Third

Restatement does not limit a strict liability cause of action to

the “user or consumer,” and broadly permits any person

harmed by a defective product to recover in strict liability.

See Restatement (Third) of Torts: Products Liability, § 1; see

also Am. L. Prod. Liab. 3d § 16:56 (2004) (“The drafters thus

appear to be sanctioning claims by all foreseeable persons

affected by a defective product, an interpretation as broad as

that given to the Second Restatement by the courts . . . . The

prevailing view as to bystander recovery is that the theory of

strict liability in tort may be applied to a mere bystander, as

distinguished from a user or consumer.”) (emphasis added).

The change in the Restatement (Third) of Torts is

38

consistent with the law in many states, including Wisconsin,

California, Mississippi, Arizona, Missouri, Michigan, Iowa,

Alabama, Utah, and Vermont.25 These jurisdictions allow

25

See, e.g., Wasik v. Borg, 423 F.2d 44, 47 (2d Cir. 1970)

(Vermont would permit innocent bystanders to recover under

§ 402A.); Beaver v. Howard Miller Clock Co., Inc., 852 F.

Supp. 631, 635 (W.D. Mich. 1994) (“The Michigan Supreme

Court has held that a manufacturer of a product owes a legal

obligation of due care to a bystander affected by the use of its

product.”); Rivers v. Great Dane Trailers, Inc., 816 F. Supp.

1525, 1531 (M.D. Ala. 1993) (noting Florida Supreme Court

recognizes that “doctrine of strict liability applies when harm

befalls a foreseeable bystander who comes within the range of

danger.”); Lovelace v. Astra Trading Corp., 439 F. Supp. 753,

760 (S.D. Miss. 1977) (noting “the general consensus

therefore appears to favor extension of the strict liability

doctrine to provide relief to bystanders.”); Caruth v. Mariani,

463 P.2d 83, 85 (Ariz. Ct. App. 1970) (“The doctrine of strict

tort liability . . . should be available to bystanders as well as to

the user or consumer . . . . All states which have adopted the

theory of strict tort liability have extended the theory to the

bystander when called upon to do so.”); Elmore v. American

Motors Corp., 70 Cal.2d 578, 586 (Cal. 1969) (holding

“doctrine [of strict liability] may not be limited on theory that

no representation of safety is made to the bystander.”);

Haumersen v. Ford Motor Co., 257 N.W.2d 7, 16 (Iowa

1977) (“We now bear out the [8th Circuit] Court of Appeals’

prediction and extend the doctrine of strict liability to the

protection of bystanders.”); Howes v. Deere & Co., 201 N.W.

2d 825, 828 (Wis. 1972) (permitting recovery in strict liability

39

bystander liability using the very negligence concepts and

foreseeability analysis that the majority opinion in Phillips

rejected. See, e.g., Elmore v. American Motors Corp., 451

P.2d 84, 89 (Cal. 1969) (“[i]njury to a bystander is often a

perfectly foreseeable risk of the maker’s enterprise . . . . If

anything, bystanders should be entitled to greater protection

than the consumer or user where injury to bystanders from the

defect is reasonably foreseeable.”).

The Third Restatement therefore eliminates much of

the confusion that has resulted from attempting to quarantine

negligence concepts and insulate them from strict liability

claims. As Justice Saylor argues in the heading to Section III

of his concurring opinion in Phillips: “The Restatement’s

considered approach illuminates the most viable route to

providing essential clarification and remediation.” 841 A.2d

at 1019.

[T]he [Third] Restatement’s conception of

defective design is more nuanced, to

accommodate the wider range of scenarios that

for bystander injured by riding mower. “There is no essential

difference between injured user or consumer and the injured

bystander.”); Giberson v. Ford Motor Co., 504 S.W.2d 8, 12

(Mo. 1974) (“We extend any rights flowing from the rule of

strict liability in tort . . . to include a bystander.”); Straub v.

Fisher & Paykel Health Care, 990 P.2d 384, 390 (Utah 1999)

(“Manufacturers and sellers are strictly liable for the usual,

foreseeable consequences of the risks presented by the defects

in their products.”)

40

may face injured consumers and

manufacturers/suppliers. As a general rule, a

product is deemed defective in design when the

foreseeable risks could have been reduced or

avoided by the use of a reasonable alternative

design, and when the failure to utilize such a

design has caused the product to be not

“reasonably safe.”

Id. (citing Restatement (Third) of Torts: Products Liability §

2(b)).

Justice Saylor criticized the Phillips majority’s

ritualistic approach to products liability as follows:

the lead Justices retrench the Court's periodic

admonishment to the effect that negligence

concepts have no place in a strict liability

action. A decided majority of courts and

commentators, however, have come to

recognize that this proposition cannot be justly

sustained in theory in relation to strict products

liability cases predicated on defective design;

moreover, it is demonstrably incongruent with

design-defect strict liability doctrine as it is

currently implemented in Pennsylvania trial

courts and in federal district courts applying

Pennsylvania law. Furthermore, while the

parties to the litigation underlying this appeal

may not have expressly developed the approach

of the products liability segment of the Third

41

Restatement . . ., the Restatement position

represents a synthesis of law derived from

reasoned, mainstream, modern consensus.

Particularly in view of pervasive ambiguities

and inconsistencies in prevailing Pennsylvania

jurisprudence in this area, I view this appeal as

an opportunity to examine the range of readily

accessible, corrective measures. In my

judgment, the Restatement's considered

approach illuminates the most viable route to

providing essential clarification and

remediation, at least on a prospective basis.

Ultimately, I join the majority disposition on the

strict liability and negligence claims under

present law.

841 A.2d at 1012.

Our examination of appellate decisions in

Pennsylvania that have discussed products liability convinces

us that Justice Saylor was correct in recognizing that

“[c]entral conceptions borrowed from negligence theory are

embedded in strict products liability doctrine in

Pennsylvania.” Id. In fact, Justice Saylor went so far as to

criticize the Phillips’ majority’s “adherence to the position

that negligence concepts have no place in strict liability” as a

“common aphorism in the developmental stages of strict

liability doctrine . . . .” Id. at 1014-15. As noted earlier, the

majority drew that distinction based upon its view that

negligence focused on the conduct of the manufacturer

whereas products liability focused on the product. However,

42

Justice Saylor pointed out: “most courts and commentators

have come to realize that in design cases the character of the

product and the conduct of the manufacturer are largely

inseparable.” Id. at 1015.26

Justice Saylor also noted that “the term ‘defective’

gives an illusion of certainty” because it suggests a specific

meaning “rather than a term connoting a standard involving

the weighing of factors.” Id. at 1018 (citation omitted). We

agree that it is difficult (if not impossible) in practice to

determine if a product is safe for an intended use by an

intended user without any consideration of foreseeability. Id.

Accordingly, as Justice Saylor believed, “integration of the

‘reasonably foreseeable use’ alternative into strict products

liability doctrine may reflect the greater consensus and better

reasoned view, in the landscape of our law as it presently

exists . . . .” Id.27 The result achieved from the approach of

26

Indeed, Justice Saylor recognized that it is the

manufacturer who designs the product. It is therefore

exceedingly difficult to ignore the manufacturer’s conduct

and focus only on the design that resulted from it.

27

Despite the admonitions in Phillips and Mineral Products

that liability under Section 402A is focused on intended users

and intended uses and that negligence and foreseeability

concepts have no place under strict products liability law, the

decisions of the Pennsylvania Superior Court continue to

struggle with the harsh consequences that the “intended user

doctrine” can sometimes have. See, e.g., Kiak v. Crown

Equipment Corp., A.2d , 2009 WL 377166 (Pa. Super.

43

the Third Restatement is consistent with the modern trend of

Feb. 17, 2009) (employee/non-user of forklift injured by co-

worker operating the forklift permitted to proceed against

manufacturer of forklift under Section 402A); Schmidt v.

Boardman Co., 958 A.2d 498 (Pa. Super. 2008) (bystanders

who witnessed relatives killed and/or injured by defective

product allowed to recover under Section 402A for emotional

distress even though they suffered no physical injuries).

However, in Bogush v. Allen Refractories Co., 932

A.2d 901, 910 (Pa. Super. 2007), the Superior Court refused

to grant a new trial to a supplier of asbestos products based on

the supplier’s argument that that trial court erred in failing to

apply the Restatement (Third) of Torts, § 2, instead of Section

402A, to plaintiff’s strict liability claim. The supplier argued

that it was entitled to a new trial because a miscarriage of

justice had occurred when the trial court applied Section

402A rather than the reasoning of Justice Saylor’s

concurrence in Phillips. Id. The Superior Court refused to

adopt the reasoning of the concurrence in Phillips, stating that

“[u]nless and until our Supreme Court alters its approach to

strict liability, we will continue to adhere to established

principles.” Id.

The supplier filed a petition for allowance of appeal

with the Pennsylvania Supreme Court, which granted the

petition on February 27, 2008. Bugosh v. I.U. North America,

Inc., 942 A.2d 897 (Pa. 2008) (per curiam). The

Pennsylvania Supreme Court framed the issue as follows:

“Whether this Court should apply § 2 of the Restatement

(Third) of Torts in place of § 402A of the Restatement

(Second) of Torts.”

44

law as well as the evolving policy considerations discussed in

Webb that lead to the adoption of the Section 402A in the first

place.

Justice Saylor authored the Court’s majority opinion in

Mineral Products. There, he was joined by now Chief Justice

Castille, and Justices Nigro and Eakin, as well as then Chief

Justice Cappy. Justice Newman wrote a concurring and

dissenting opinion that was joined by Justice Baer. In Section

II of his majority opinion, Justice Saylor discussed the

plaintiff’s strict liability claim. He noted that, although “it is

reasonably foreseeable that building materials may be

[consumed] by fire,” and therefore building materials that

cause damage when burned could be deemed defective, that

“argument contravenes the strong admonition in the lead

opinion in Phillips. . . to the effect that foreseeability

considerations have no place in [strict liability].” 898 A.2d at

601.

Justice Newman dissented from Justice Saylor’s

discussion of strict liability in Mineral Products. Joined by

Justice Baer, Justice Newman stressed that Phillips should not

have governed the analysis in Mineral Products because

“there was no Majority [in Phillips] to conclude that

foreseeability considerations never have a place in a strict

liability case. Instead, the overriding principle set forth in

Phillips is that strict liability should be limited to a very small

range of cases . . . [and] cases involving an unintended user

[i.e., Phillips] are outside the scope of the strict liability

doctrine.” Id. at 615. (emphasis in original). She further

explained:

45

As in Phillips, an argument concerning the

Third Restatement of Torts is not before us. I

recognize the apparent and possible appeal in

the more progressive approach adopted by the

Third Restatement, in particular, in cases such

as this involving a known dangerous chemical

where a risk-utility test would be a just measure

of a manufacturer's liability for the product.

However, I will proceed to analyze the present

matter pursuant to our existing caselaw and the

Second Restatement of Torts.

Id. at 616 n. 2.

Thus, it is clear from the discussions of Justice Saylor

in Phillips and Justice Newman in Mineral Products that

there is substantial support on the Court to adopt the Third

Restatement’s approach to product liability in an appropriate

case.28 We believe that this is such a case.

28

Phillips was decided by six Justices. We view the

relevant portion of the opinion as a two-justice majority

because then Chief Justice Cappy authored the decision, but

only Justice Newman expressly joined the portion of the

opinion which held that the strict liability claim must fail

because the lighter was not unsafe when used by adults, and

that concepts of negligence have no place in strict products

liability cases. Phillips, 841 A.2d at 1023. Justice Saylor

filed a concurring opinion joined by Justices Castille and

Eakin. Id. at 1012 (Saylor, J., concurring). Justice Newman

filed a concurring and dissenting opinion which expressed her

46

The unintended user doctrine is not implicated by

Berrier’s claim. Accordingly, there is little logic and much

sophistry in reflexively applying cases discussing intended

uses and users to determine liability for defective design

under the circumstances here. See Aetna Life & Cas. Co. v.

Barthelemy 33 F.3d 189, 193 (3d Cir. 1994) (“Where stops

the reason, there stops the rule.”).

District courts in Pennsylvania have no doubt

recognized that lack of logic and abundance of sophistry

because they have allowed bystanders to recover in strict

products liability under Section 402A under Pennsylvania law

just as Justice Saylor explained in Phillips.29 Even though

support of Chief Justice Cappy’s opinion, as well as her

disagreement that the negligence causes of action should be

permitted to go forward. Id. at 1023 (Newman, J., concurring

and dissenting). Justice Nigro concurred in the result, but did

not write separately or join either concurrence. See id. at

1012. Justice Zappala did not participate in the decision. Id.

at 1011.

Although Justice Newman is no longer on the

Pennsylvania Supreme Court, Justice Baer remains. The fact

that he joined Justice Newman’s opinion means that four of

the current seven Justices have voiced support for adopting

the Third Restatement.

29

See, e.g., Fedorchick v. Massey-Ferguson, Inc., 438 F.

Supp. 60, 62-63 (E.D. Pa. 1997), aff’d, 577 F.2d 725 (3d Cir.

47

those cases were decided before Phillips and Mineral

Products, we do not believe that the result in those cases is

altered by the Court’s subsequent decisions because, as

Justice Newman explained in Mineral Products, Phillips is a

narrow holding that only addresses “unintended users,” and

Mineral Products did not involve bystanders at all.

Moreover, we implicitly recognized the right of

bystanders to recover in strict products liability under

Pennsylvania law in Parks v. AlliedSignal, Inc., 113 F.3d

1327 (3d Cir. 1997), and Surace v. Caterpillar, Inc., 111 F.3d

1039 (3d Cir. 1997). We decided those cases within two

1978) (Table) (“[Section] 402A provides coverage for a

person who suffers harm proximately caused by a defective

and unreasonably dangerous product, regardless of whether

that person used or consumed the product.”); see also Stratos

v. Suer Sagless Corp., 1994 WL 709375 at *5 (E.D. Pa.

December 21, 1994) (permitting administrator of seventeen

month old daughter’s estate to bring strict liability claim

against manufacturer of allegedly defective bed even though

the decedent was “non-user of the product who wandered into

the product’s danger zone”); Herman v. Welland Chemical,

Ltd., 580 F. Supp. 823, 829 (M.D. Pa. 1984) (volunteer

fireman struck by car while directing traffic following

chemical spill on highway permitted to bring Section 402A

claim). But see Van Buskirk v. West Bend Co., 100 F.

Supp.2d 281, 285 (E.D. Pa. 1999) (guardians of child burned

by an allegedly defective fryer denied recovery on a strict

liability theory, in part, because the child was “not an

intended user” of the fryer).

48

months of each other, but before the Pennsylvania Supreme

Court’s decisions in Phillips and Mineral Products. Parks

and Surace nevertheless demonstrate the difficulties of

employing a rigid bar to preclude bystander recovery under

Section 402A.

In Parks, the manufacturer of an excavating machine

was sued by the spouse of an employee who was killed when

he was struck by a counterweight attached to the machine’s

excavating arm. The spouse claimed that the design of the

machine was defective because it did not provide sufficient

visibility for the operator to see her husband. The jury

returned a verdict in favor of the manufacturer, and plaintiff

appealed arguing, inter alia, that the district court had erred in

instructing the jury about contributory negligence and

causation. The jury had concluded that the design of the

machine was defective but “presumably” based its verdict on

a finding that “the defect was not ‘a substantial factor’

causing the death.” 113 F.3d at 1330.30

We reversed because the jury charge did not explain

that the decedent’s own conduct could only have been the

“‘legal cause of the accident’ if [that conduct] was . . .

extraordinary or unforeseeable.” 113 F.3d at 1337. We

30

The argument was actually phrased in terms of

causation. Appellant argued that the court should have

instructed the jury that “if [her husband’s] conduct were

foreseeable, such conduct could not have broken any chain of

causation linking the alleged defect to his death.” 113 F.3d at

1330.

49

reached that conclusion based on “[t]he centrality of

foreseeability to Pennsylvania’s strict products liability law. .

. .” Id.

Thus, as we said in Parks, the “manufacturer [was] . . .

responsible for making the product safe for all foreseeable

uses.” 113 F.3d at 1332.

The facts in Surace v. Caterpillar, Inc., 111 F.3d 1039

(3d Cir. 1997), are very similar to the facts before us here.

There, a construction worker was injured when his foot was

run over by paving equipment. He brought an action for

damages under Section 402A, alleging that the machine’s

design was defective because it did not prevent the machine

from operating in reverse unless activated by someone on the

ground. The district court granted summary judgment to the

manufacturer.

On appeal, we held that the district court erred by not

first performing a risk utility analysis as required by

Azzarello, and we suggested that the “multi-factor list

developed by Dean John Wade [could] be employed in doing

so.” 111 F.3d at 1042 (citing John Wade, On the Nature of

Strict Tort Liability for Products, 44 Miss.L.J. 825, 837-38

(1973)).31 As we suggested earlier, our remand to allow the

31

The “Wade factors” for conducting a risk utility analysis

are:

(1) The usefulness and desirability of the product . . . to the user

and to the public as a whole; (2) The . . . likelihood that it will

cause injury, and the probable seriousness of the injury; (3) The

50

trial court to conduct a risk utility analysis implicitly

recognized the right of the plaintiff/bystander to recover under

Section 402A. We did so while stressing that “the

Pennsylvania Supreme Court eschews the use of negligence

concepts in a strict liability case.” 111 F.3d at 1050 (citing

Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590,

593 (Pa. 1987) and Kimco Dev. Corp. v. Michael D's Carpet,

637 A.2d 603, 606 (Pa. 1993)).

Our discussion in Surace included an example

suggested by Dean Wade:

[T]he dangers of a hoe or an axe are both

matters of common knowledge and fully

apparent to the user. But it is not necessarily

sufficient to render a product duly safe that its

dangers are obvious, especially if the dangerous

condition could have been eliminated. A rotary

lawn mower, for example, which had no

housing to protect a user from the whirling

availability of a substitute product which would meet the same

need and . . . be [safe]; (4) The manufacturer's ability to

eliminate the unsafe character of the product without impairing

its usefulness or making it too expensive . . . ; (5) The user's

ability to avoid danger by the exercise of care . . . ; (6) The

user's anticipated awareness of the dangers inherent in the

product and their avoidability. . . ; and (7) The feasibility, on the

part of the manufacturer, of spreading the loss [or] setting the

price of the product or carrying liability insurance.

111 F.3d at 1046 (citations omitted).

51

blade[,] would not be treated as duly safe,

despite the obvious character of the danger.

111 F.3d at 1052 (quoting Wade, supra at 842-43) (brackets

in original).

We agree, and we do not think anything that the Court

has since held is to the contrary. Nor do we think the policy

behind strict products liability is served by declaring that the

design of Dean Wade’s hypothetical mower is only defective

if the spinning blade injures the user. Yet, that is the result of

artificially restricting strict products liability to “intended

users” based upon concerns of contaminating a strict liability

claim with considerations of foreseeability. We believe that

the same policy demands that were first articulated in Webb

require placing the risk of loss on the manufacturer whether

the person injured by Dean Wade’s hypothetical mower is

operating the mower or standing near it.

Similarly, we find nothing in Pennsylvania law to

suggest that the Supreme Court would deny recovery under a

strict liability theory to spectators at a sporting event who are

injured by an airplane that crashes into the stadium because a

wing was defectively designed. We do not think the policy

considerations that have been recognized since Webb would

allow strict liability claims to the passengers but deny it to the

spectators simply because they happened to be underneath the

falling debris and not inside of it. Sections 1 and 2 of the

52

Third Restatement avoid such illogical results.32 Section 2 of

the Third Restatement takes a “more progressive view,” and

far more realistic approach to strict liability when

“bystanders” are involved.

We therefore conclude, as Justice Saylor proclaimed in

Phillips, that “the time has come for this Court . . . to

expressly recognize the essential role of risk-utility balancing,

a concept derived from negligence doctrine, in design defect

litigation.” 841 A.2d at 1015-16 (Saylor, J., concurring).

Justice Saylor has recognized that “[the] Commonwealth’s

products liability litigation jurisprudence is far too confusing

for another opinion to be laid down that rhetorically eschews

negligence concepts in the strict liability arena, while the

Court nevertheless continues to abide and/or endorse their

actual use in the liability assessment.” Id. at 1016.

This case would allow the Supreme Court an

32

Yet another hypothetical further illustrates the point. If a

car manufacturer’s design resulted in a car with a passenger

compartment impervious to the force of any impact, but

which caused the wheels to fly off when the car approached

20 mph, pedestrians struck by the wheel should certainly be

able to argue that the design was defective (and not merely

negligent). It is incomprehensible to us that the policy

considerations underlying products liability law in

Pennsylvania would preclude such a suit merely because the

pedestrian/plaintiff was a “bystander” and not an

occupant/user of the car.

53

opportunity to acknowledge that the Third Restatement

“represents a synthesis of law derived from reasoned,

mainstream, modern consensus.” Id. at 1012 (Saylor, J.

concurring). We believe that, if addressing this issue, a

majority of the Supreme Court would agree that “the [Third]

Restatement’s considered approach illuminates the most

viable route to providing essential clarification and

remediation, at least on a prospective basis.” Id.

We realize that Justice Saylor’s comments focused on

Section 2(b) of the Third Restatement of Torts, and that

section only addresses when a product is defectively designed.

Id. at 1019-1021. As we explained earlier, the issue here

involves who the manufacturer is liable to because of a

defectively designed product. That question is addressed in

section 1 of the Third Restatement, not section 2.

The concurring opinion in Phillips did not discuss

Section 1. However, Justice Saylor did recognize that Section

2(b), the section describing when a product is defective, is

“generally a negligence standard,” id. at 1020, and he

ostensibly recognized that integrating negligence principles

into a strict liability design defect claim, including the

replacement of the intended user doctrine with a “reasonably

foreseeable use” standard, “may reflect the greater consensus

and better reasoned view.” Id. at 1018. We think it highly

likely that the Justices who would adopt section 2 would

adopt as well as section 1 rather than trying to parse the

applicable provisions of the Third Restatement and thereby

supplant some of the provisions of the Second Restatement

54

and not others.33

We therefore hold that the district court should not

have relied on the “intended user” doctrine in granting

summary judgment to Simplicity on the Berriers’ claim for

strict products liability based on the allegedly defective design

of Simplicity’s lawn mower. We will therefore vacate on that

claim and remand for proceedings consistent with this

opinion.34

33

On January 17, 2008, pursuant to Third Circuit LAR

MISC. 110 and Internal Operating Procedure 10.9, this panel

certified the following question to the Pennsylvania Supreme

Court:

Whether, under Pennsylvania law a plaintiff

minor child may pursue a strict liability claim

for injuries caused by a riding lawnmower,

where the child is neither an intended user nor

consumer of the mower.

However, on October 17, 2008, the Pennsylvania Supreme

Court entered an order respectfully declining the panel’s

petition for certification.

34

As noted in the concurrence in Phillips, Section 2(b) of

the Third Restatement “roundly endorses a reasonableness-

based, risk-utility balancing test as the standard for adjudging

the defectiveness of product designs.” 841 A.2d at 1020

(Saylor, J., concurring) (citation omitted).

55

B. Negligence.

The district court also held that the Berriers’ negligent

design claim failed as a matter of law because “Simplicity did

not owe a duty to Ashley to design the mower in accordance

with plaintiffs’ proposed safety features.” 413 F. Supp.2d at

444. The court also rejected the claim because the Berriers

did not present any evidence “to indicate that the design of the

instant mower with additional so-called ‘safety’ features

would actually increase the safety of the mower without

impairing its social utility.” Id. at 449. The Berriers claim

that both rulings were erroneous.

To prevail in a negligence action, a plaintiff “must

show that the defendant had a duty to conform to a certain

standard of conduct, that the defendant breached that duty,

that such breach caused the injury in question, and actual loss

or damage.” Phillips, 841 A.2d at 1008 (citation and

quotation marks omitted). Whether a defendant owes a duty

of care to a plaintiff is a question of law in Pennsylvania.

Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1366 (3d

Cir. 1993).

We agree with the Berriers that the court erred in

ruling that Simplicity did not owe a duty to Ashley. In

resolving that question at the summary judgment stage, the

court should have viewed the record in the light most

favorable to the Berriers - the non-moving parties. See

Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); see also

Fed.R.Civ.P. 56(c).

56

In Pennsylvania, the determination of whether a duty

of care is owed is a policy decision that requires the trial court

to apply the “Althaus test.” That inquiry requires that the

court consider: “(1) the relationship between the parties; (2)

the social utility of the [defendant’s] conduct; (3) the nature of

the risk imposed and foreseeability of the harm incurred; (4)

the consequences of imposing a duty upon the [defendant];

and (5) the overall public interest in the proposed solution.”

Phillips, 841 A.2d at 1008 (quoting Althaus v. Cohen, 756

A.2d 1166, 1169 (Pa. 2000) (quotation marks omitted)).35

Although these factors guide the court’s inquiry “[i]n

determining the existence of a duty of care, it must be

remembered that the concept of duty amounts to no more than

the sum total of those considerations of policy which led the

law to say that the particular plaintiff is entitled to protection

from the harm suffered.” Althaus, 756 A.2d at 1168-69

(citation and internal quotation omitted). “Thus, the legal

concept of duty of care is necessarily rooted in often

amorphous public policy considerations, which may include

our perception of history, morals, justice and society.” Id. at

1169. Because the question of whether a defendant owes a

plaintiff a duty of care is a question of law, Kleinknecht v.

Gettysburg College, 989 F.2d at 1366, we have plenary

review of the district court’s determination that Simplicity did

not owe Ashley a duty of care. See American Society for

Testing & Materials v. Corrpro Companies, Inc., 478 F.3d

557, 566 (3d Cir. 2007) (“[w]e have plenary review over a

35

This inquiry is very similar to the inquiry suggested by

the “Wade factors.” See n.31, supra.

57

district court’s conclusions of law”) (citation omitted). 1.

Relationship Between the Parties

We believe that the relationship between Ashley and

Simplicity is, at best, uncertain because Ashley did not

purchase the mower. It must be remembered that the

relationship between the parties in Phillips weighed against a

duty. Although there was a relationship there between the

mother/purchaser and the manufacturers, the relationship

between the defendant lighter manufacturers and the children

who died in the fire was “less certain.” Phillips, 841 A.2d at

1009. We therefore agree with the district court that this

factor weighs against the existence of an underlying duty to

Ashley. However, it must also be remembered that “[n]o one

of these five factors is dispositive. Rather, [a duty] will be

found to exist where the balance of these factors weighs in

favor of placing such a burden on a defendant.” Id. at 1008-

09. We believe each of the remaining factors weighs in favor

of finding that Simplicity owed Ashley a duty of care.

2. Social Utility of Defendant’s Conduct

The district court’s analysis of the social utility of the

mower included the following three findings: (1) a riding

mower that cannot mow in reverse lacks social utility, (2)

Plaintiffs failed to present evidence indicating that an NMIR

device that shuts down the mower if an operator engages the

mower blades while operating in reverse would increase the

product’s safety; and (3) the additional safety mechanisms

identified by Plaintiffs, including roller barriers and an NMIR

device with an override feature, do not actually improve

58

safety by decreasing back-over injuries. 413 F. Supp.2d at

444-46. However, those findings are inconsistent with the

record.

The district court reasoned that “operators frequently

need to cut grass in reverse . To deny operators the capacity

to perform these basic maneuvers, with the mower deck

engaged, would add significant time and frustration to the

lawn-mowing task.” Berrier, 413 F. Supp. at 444. That

conclusion overlooks testimony by the defendant’s own

expert who testified that “there is rarely any reason to mow in

reverse.” App. 758. That expert explained that:

nearly all of the reverse operations on these

machines are just for maneuvering. I have seen

situations where it’s – would be easy to

understand why somebody would want to mow

in reverse when they have a very narrow

corridor and there is no room to turn around at

the end and two cutting widths will cut that

grass. But those kind of geometric situations

are kind of unusual.36

App. 758.

The court’s consideration of this factor also overlooks

the undisputed fact that, between 1982 and 1992, five leading

36

Similarly, Ashley’s grandfather put the mower in

reverse in order to turn the mower around. He was not

attempting to mow in reverse. App. 126.

59

riding mower manufacturers sold nearly two million units

which prevented the operator from mowing in reverse by

incorporating the MTD device. App. 557-58.

Second, the Berriers proffered sufficient evidence to

establish that the mower in question was safer when equipped

with the NMIR device. Their expert reported that, out of the

two million mower units just mentioned, none generated any

reports of a back-over blade accident. App. 558.

It is important to clarify that two NMIR devices are

relevant to our inquiry: the MTD Device”— used by MTD in

two million of its mowers when Shoff’s mower was

manufactured, and the “Override Device.” We consider the

social utility of each in turn.

a. NMIR

The district court concluded that the MTD device

lacked social utility because it shuts down the mower’s engine

when operated in reverse, but allows the mower to backup for

at least 4.5 feet before the engine shuts off. 413 F. Supp. 2d

at 444. This blade interlock device is the device that the

CPSC refused to require as an industry standard because of

efficacy concerns. App. 391. The CPSC found that such a

device would likely be disabled by the operator out of

frustration. Id. at 473. Moreover, the group stated it did not

have sufficient data on how many deaths or injuries would be

prevented by a NMIR feature because there was no data on

how fast the blade would have to stop to significantly reduce

injuries, or the extent to which children would be injured by

60

being backed over after the blade stopped. App. 472.

The district court was also unpersuaded by the

Berriers’ evidence of the lack of injuries caused by suitably

equipped MTD mowers. It cited evidence of four back-over

accidents involving MTD mowers—which appears to

contradict the Berriers’ evidence that the MTD device

completely eliminated all back-over accidents. 413 F.

Supp.2d at 445.

The Berriers point out, however, that all of these

incidents occurred when the operator disabled the NMIR

device.37 App. 761-63. Berriers’ counsel informed the court

of Simplicity’s admission of this fact during oral argument.

The trial court was apparently not persuaded. However, we

believe that is a relevant consideration, particularly because

this is consistent with the statement made by Gunter Plamper,

MTD’s Vice President for Product Development and Safety.

He testified about the effectiveness of the device as follows:

The no-mow-in-reverse feature will shut off

mower blades if an operator shifts into reverse

without first disengaging the mower blades.

This safety feature has successfully prevented

back-over accidents. Neither MTD, Cub Cadet,

Yard-Man, White Out Door or MTD Yard

37

This fact is disputed. Berrier claims that all four

incidents occurred when the NMIR was disabled. Simplicity

maintains that only two of the four incidents involved

disabled NMIR devices. See Simplicity’s Br. at 45-46.

61

Machines have had any reported back-over

accidents on one of their riding mowers when

the safety features were in place and

functioning as designed.

App. 581 (emphasis added).

The district court believed the fact that the device

could be disabled negated any safety advantage of the

design.38 413 F. Supp.2d at 445. The court relied in part on a

study from the 1980's that confirmed that at least 40 percent

of operators disabled NMIR features on their mowers. 413 F.

Supp. at 445 n.8. However, that statistic also means that the

majority (60%) of people operating these mowers did not

disable the feature. Accordingly, we believe that the record

establishes that the feature could have a significant impact on

38

This conclusion is in tension with the current industry

practice of including back-over protection on riding mowers.

If the protection was ineffective, and lacked any social utility,

as the district court concluded, it is difficult to understand

why other companies would incorporate this feature.

Manufactures that added NMIR devices (though it is not clear

what kind–override or the MTD original) included Toro in

1999, John Deere, Snapper and Kubota. App. 314. The only

logical reason for including an NMIR device on a riding

mower was stated by the CPSC: mowers that contain an

NMIR device are safer than those without one. App. 576.

62

reducing the risk of injury from back-over accidents.39 The

determination of whether a product was negligently designed

turns on whether “an alternative, feasible, safer design would

have lessened or eliminated the injury plaintiff suffered.”

Habecker v. Clark Equipment Co., 36 F.3d 278, 281 (3d Cir.

1994) (quotations marks and citation omitted) (emphasis in

original). The Berriers presented evidence that the NMIR

device without the override would have at least lessened the

likelihood of Ashley’s injury and may have eliminated it.

b. Override Device

The district court dismissed the efficacy of an override

device because it viewed such a device as equivalent to a

design which allowed the operator to choose whether to

engage the blades or not (“mow in reverse”). 413 F. Supp. 2d

at 446. However, the difference is significant because an

override switch requires an extra step before being able to

39

The district court was also troubled by the fact that the

Berriers’ expert had not personally conducted studies on the

rate at which NMIR systems are disabled. More importantly,

the expert had not conducted any statistical analysis to

determine the rate of back-over blade injuries between

mowers with NMIR features and those without such features;

or the rate of back-over blade injuries for mowers with a

disabled NMIR feature. 413 F. Supp.2d at 445. However, at

the summary judgment stage, the court is not entitled to weigh

the evidence; that is solely the task of the fact-finder. Rather,

the court must limit its inquiry to whether a genuine issue of

fact exists.

63

mow in reverse. In theory, the operator can not backup

without thinking; the default position disengages the blades

when the mower is put into reverse. See App. 580. On those

rare occasions when it is necessary to mow while backing up,

the extra step reminds the operator to check behind the mower

before pressing the override button. We realize that the

Berriers’ expert did not provide any data to show mowers

with this design had fewer back-over injuries. However,

ANSI’s adoption of the requirement in 2003 certainly

suggests that mowers with this design are safer.

The district court was ultimately unconvinced by

Berrier’s argument. 413 F. Supp. 2d at 446 (“[T]his Court

fails to see how a “no mow in reverse device” with an

override would prevent future back-over accidents . . . .”).40

However, the very fact that the ANSI standard has required

NMIR devices on riding mowers since 2003 undermines the

district court’s conclusion that NMIR devices do not increase

safety. That is particularly true since the court relied so

heavily on the CPSC’s initial refusal to require the MTD

device (with no override feature).

Moreover, though the CPSC did not promulgate

regulations requiring NMIR devices when Shoff’s mower was

manufactured, the CPSC did acknowledge that riding mowers

with an NMIR feature are safer than those without one. App.

40

The Berriers characterize the trial court’s determination

that the safety devices they proposed were ineffective (and

presumably could not have prevented this accident) as a

judicial determination of “no causation.”

64

576. That, together with the Commission’s later adoption of

the device with an override feature (presumably, that device

addressed the Commission’s earlier concerns) supports the

Berriers’ argument that an alternative design could have

prevented Ashley’s injury and that Simplicity therefore had a

duty to adopt it. We therefore believe that the district court’s

conclusion that an NMIR with an override feature was not a

feasible and safer design is directly contradicted by the

industry’s decision to promulgate standards requiring such

devices and the subsequent compliance with this requirement.

c. Roller Devices

The district court committed a similar error in

concluding that there was no genuine issue of material fact

about whether roller barriers “would actually improve safety

by decreasing back-over injuries.” 413 F. Supp.2d at 446. In

reaching that conclusion, the court appears to have ignored

evidence that Simplicity believed so strongly in the

effectiveness of roller barriers that the company requested that

feature be considered as an acceptable alternative to the

NMIR device requirements in the ANSI 2003 standards.

App. 597-98. Moreover, Simplicity admitted that “rollers

may provide some protection against accidents and injuries”

in its responses to interrogatories. App. 151.

In reaching its conclusion to the contrary, the district

court focused on the Berriers’ expert’s refusal to testify that

the use of roller guards would make the mower “reasonably

safe” in part because he lacked information “on the

performance of rollers in preventing child back-over blade

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contact accidents.” 413 F. Supp. 2d at 446. However, when

discussing Ashley’s specific injury, E. Reed Smith, P.E., the

Berriers’ expert, confirmed in his report that rollers are

effective in pushing small children backwards and out of the

way of the spinning blades. App. 553-54. There is also

evidence of a 1997 study by Reed confirming the

effectiveness of the roller barrier. App. 519, 593-94. Reed’s

report also further stated that if the subject mower had a set of

“full-width ground-contacting rollers at the rear edge of the

mower deck, given the distance Mr. Shoff backed up on the

day of the accident, it is unlikely Ashley would have suffered

the amputation injury she did.” Reed therefore concluded that

the lack of rollers “was a cause of Ashley Berrier’s foot

amputation injuries.” App. 560.

As previously noted, Simplicity makes much of the

fact that Reed testified that roller blades alone would not

make the mower reasonably safe. However, that is a legal

conclusion. Moreover, it misstates the applicable legal

standard. That standard is whether the design “would have

lessened or eliminated the injury plaintiff suffered.”

Habecker, 36 F.3d at 281 (citation and quotation marks

omitted). Reed testified that “rollers in this particular

situation would have prevented this accident.” App. 302.

The district court also appears to have ignored

statements of Simplicity’s own lead designer, who stated: “we

think that the potential for a full roller to offer some

protection in some circumstances for – that certainly doesn’t

hurt the – the propensity for blade contact and it may offer

some protection.” App. 518. Another Simplicity engineer

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testified that the roller barrier provided back-over protection

and reduced injuries. App. 593-96. Furthermore, as

previously noted, Simplicity was so confident about the

effectiveness of the roller barrier that it asked the OPEI to

consider the roller barrier on Simplicity products as “an

acceptable barrier” in lieu of an NMIR device in the 2003

ANSI standard, which now requires back-over protection.

App. 597-98.

Accordingly, after viewing the evidence in the light

most favorable to the Berriers, we believe that the district

court erred in concluding that the social utility factor weighed

against finding that Simplicity owed a duty to the Plaintiffs.

3. Nature of the Risk and Foreseeability of Harm

The third prong of the duty inquiry balances social

utility of a design against the extent and foreseeability of the

harm that would result in its absence. Althaus, 756 A.2d at

1170. “A duty arises only when one engages in conduct

which foreseeably creates an unreasonable risk of harm to

others.” R. W. v. Manzek, 888 A.2d 740, 747 (Pa. 2005).

Here, the Berriers produced evidence that the risk of

back-over blade contact injuries exists and that this risk was

foreseeable when Shoff’s mower was manufactured; and the

district court conceded as much. Berrier, 413 F. Supp. at 447.

The Berriers’ expert testified that, based on studies published

between 1981 and 1993, one riding mower per 5,000 to 6,000

produced is involved in a back-over blade accident at some

point. Id. However, the district court concluded that this

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weighed only marginally in favor of finding a duty of care

because the CPSC had not found the risk of injury sufficiently

significant to promulgate a final regulation mandating or

recommending the addition of NMIR devices. Id.

The Berriers correctly point out that the district court

focused on CPSC’s decision not to promulgate regulations.

However, as both parties acknowledge, that decision was

based on the efficacy of mowers with NMIR devices. It was

not based on the nature of the risk and foreseeability of harm.

The CPSC and others realized that risk after a series of studies

in the 1970's and 80's. App. 544-50. Those studies

characterized back-over blade accidents as the most tragic

type of lawnmower accidents, comprising between nine and

11 percent of reported accidents involving riding mowers.

App. 721. The Berriers’ expert testified that more than 100

hospitalizations per year take place because of back-over

blade contact incidents. App. 735. Moreover, as Ashley’s

tragic injury demonstrates, the injuries that do result can be

quite serious. Indeed, the injuries are potentially fatal in the

absence of prompt medical attention and expert treatment that

may not be available everywhere riding mowers are used.

The district court acknowledged the raw data in these

studies but concluded that CPSC’s hesitation in promulgating

NMIR requirements (despite its awareness of the studies)

undermined the significance of those statistics. In doing so,

the court cited the CSPC’s statement that it lacked “sufficient

information to determine how many deaths or injuries would

be prevented by [a no-mow-in-reverse] feature.” 413 F.

Supp.2d at 447 (quoting CPSC Letter dated July 19, 1993

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(App. 472)) (internal quotation marks omitted).

However, CSPC’s decision was not based on the low

risk of accident. Rather, the CSPC did not act because

standards were already “being actively pursued by the

industry,” and the CSPC concluded that “there is usually a

high degree of conformance to this type of voluntary

standard.” App. 577.

Simplicity maintains that CPSC’s decision not to

require anti-back-over devices is consistent with the statistical

infrequency of back-over accidents when Simplicity

manufactured Shoff’s mower. Simplicity claims its position

is further strengthened by the fact that Simplicity was aware

of just two back-over accidents since 1983 with the model

that Shoff purchased. App. 72. We agree that such accidents

were infrequent. In fact, the Berriers themselves cite the

CPSC letter to the OPEI acknowledging “accidents are

infrequent.” However, the serious nature of the injuries that

do result must be factored into the equation along with the

frequency of occurrence. Accordingly, we believe the district

court did not give adequate weight to the fact that the letter

concerning adding an NMIR feature to any revised ANSI

standard stated: “the population at risk and the severe mental

trauma to the child’s family fully support the need to take

immediate steps.” App. 548-49.

We therefore conclude that the district court failed to

assign adequate weight to this factor in favor of Berriers

under the summary judgment standard.

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4. Consequences of Imposing a Duty

The district court acknowledged that the average cost

of $9.00 per mower of incorporating a NMIR device was

minimal. 413 F. Supp. 2d at 448. It certainly is. The court

nevertheless weighed this factor against the Berriers because

they “failed to propose a feasible design alternative that

would reduce the likelihood of back-over blade accidents

while maintaining the social utility of the product.” Id. at

448. Thus, in the court’s view, imposing such a duty would

be “superfluous.” Id.

However, for reasons we have already explained, we

believe that the Berriers did offer evidence of alternative

designs. The Berriers’ evidence of effective alternative

designs included: (1) the experience of other manufacturers

with NMIR devices, particularly the MTD experience; (2) the

recent OPEI/ANSI standard requiring NMIR protection; and

(3) evidence that Simplicity itself advocated roller barriers

because they provide effective back-over protection. Other

Simplicity models had the barrier, and Simplicity’s former

Vice President of Engineering from 1983 to 1999 testified

that the roller blade offers some protection. App. 518.

Given the minimal cost of adding an alternative design,

and the potentially monumental financial and human cost of

not doing so, this factor clearly weighs heavily in favor of a

duty.

5. Public Interest

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The court concluded that the public interest weighed

against the existence of a duty to alter Simplicity’s design

based on its belief that there was no genuine issue of material

fact as to the effectiveness “of the proposed features, from

rollers to an NMIR device with override,” as well as the

devalued social utility of a mower with such a device and the

resulting burden on Simplicity of becoming the insurer of its

products. 413 F. Supp. 2d at 448.

In reaching that conclusion, the court improperly

conflated a cost/benefit analysis with its consideration of the

public interest, as well as an analysis of the consequences of

imposing the duty on Simplicity. For example, the court

reasoned that imposing the duty would not only “devalue the

social utility of the mower, preventing its ability to cut grass

in a time-effective and efficient manner, but also would

transform Simplicity into an insurer of its products in

violation of Pennsylvania law.” 413 F. Supp. 2d at 448

(citing Azzarello, 391 A.2d at 1024) (emphasis added). The

court thereby incorporated its erroneous balancing of the

second and fourth factors of the Althaus test and added the

weight of those factors to the fifth factor.

Unlike the district court’s analysis, the Pennsylvania

Supreme Court’s analysis of the public interest in Phillips did

not consider cost/benefit or the consequences to the

manufacturer. Instead, the Court simply concluded that

[t]here is a strong public interest in minimizing fires

started as a result of children playing with butane

lighters. Such fires have catastrophic effects on human

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beings as well as property. Avoidance of them would

be an unquestionable boon to society. Thus, this factor

weighs in favor of finding a duty.

841 A.2d at 1010.

Nevertheless, Simplicity claims that the public interest

is not advanced by imposing an additional duty on the

manufacturer and thereby supplanting the obligation of

parental supervision. According to Simplicity, the NMIR

device has an unproven ability to reduce a risk and, if

required, would increase the risk to the operator, while

decreasing product utility. Simplicity does not, however,

explain how the risk increases for the operator, nor does it

explain why such devices became the industry standard after

2003 if it decreased the mower’s utility and increased the risk

to the operator.

The Berriers maintain that this is precisely the kind of

situation where the public interest is served by imposing a

duty of care. The marginal costs of designing a product with

an NMIR feature are coupled with the benefit of reducing

severe physical injury to children. We agree.

6. The End Result of the Balancing.

Thus, viewed in the light most favorable to the non-

moving party, we believe that four out of five of the Althaus

factors weigh in favor of finding that Simplicity owed Ashley

a duty to incorporate some kind of back-over device on

Shoff’s mower.

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We also believe that there is sufficient evidence to

create a genuine issue of material fact as to whether an

alternative design would have prevented Ashley’s injuries.

Therefore, we will vacate the district court’s order granting

Simplicity’s motion for summary judgment on the negligence

claim and remand for further proceedings.

IV. CONCLUSION

Because we have predicted that the Pennsylvania

Supreme Court would adopt the Restatement (Third) of Torts,

§§ 1 and 2, we hold that summary judgment should not have

been granted to Simplicity on the Berriers’ claim of strict

products liability. Thus, we will vacate the district court’s

order granting summary judgment to Simplicity on that claim.

Moreover, for the reasons we have explained, we will also

vacate the grant of summary judgment to Simplicity on the

Berriers’ negligence claim. We will remand both claims to

the district court for further proceedings consistent with this

opinion.

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