Davis v. Berwind Corp.

FORD ELLIOTT, Judge,

dissenting:

I must respectfully dissent from the majority’s conclusion that the trial court erred in refusing to grant appellant’s motion for judgment n.o.v. In reaching this conclusion, the majority states:

We hold that where a product endures substantial alteration after leaving the manufacturer’s door, such as removal of a safety device, and where that alteration is against the warnings of the manufacturer, the alteration rises to the level of an intervening or superceding cause of the injury, breaking the chain of causation and relieving the manufacturer of liability.

Majority opinion at 363.

I find that such a holding serves to eliminate “foreseeability” from the test utilized to determine manufacturer liability for injuries caused, at least in part, by post-sale modifications *364 and that such a holding is contrary to established law in this Commonwealth.

The majority, citing federal case law, frames the applicable test as follows: “Pursuant to Pennsylvania law, courts have held that a manufacturer or seller is not liable for injuries caused by a defective product if the defect was created by a substantial alteration in the product amounting to a supervening or intervening cause of the plaintiffs injuries.” (Majority opinion at 357, citing Smith v. Hobart Manufacturing Co., 302 F.2d 570 (3d Cir.1962).)

Unfortunately, the majority’s recitation of the test falls short of setting forth both parts of the test. Foreseeability is also an integral part of the test, as this court made clear in several Pennsylvania cases including Thompson v. Motch & Merryweather Machinery, 358 Pa.Super. 149 , 516 A.2d 1226 (1986). Thompson , as with the present case, was a post-sale modification case. The manufacturer, in Thompson , argued that the question of substantial alteration should not have been submitted to the jury. This court disagreed, noting that the test for determining when a manufacturer is relieved of liability for a post-sale modification is as follows:

If the alteration could not reasonably have been foreseen by the manufacturer and if it were a superseding cause of the user’s injury, the manufacturer would be relieved of liability even if there had been design defects existing at the time the press was delivered to the purchaser.

Thompson at 155 , 516 A.2d at 1229 (emphasis added). Clearly, foreseeability is the first part of this two-part, conjunctive test. Furthermore, in Thompson and several other cases, this court has continuously noted that the question of foreseeability is generally a matter for the trier of fact to decide.

... [t]he test in such a situation is whether the manufacturer could have reasonably expected or foreseen such an alteration [in its product]; such a determination is for the fact-finder unless the inferences are so clear that a court can say as a matter of law that a reasonable manufacturer could not have foreseen the change.

*365 Eck v. Powermatic Houdaille, 364 Pa.Super. 178, 190 , 527 A.2d 1012, 1018 (1987), quoting from D’Antona v. Hampton Grinding Wheel Co., 225 Pa.Super. 120, 310 A.2d 307 (1973).

Presently, the majority’s opinion endorses a test that totally eliminates foreseeability in post-sale modification cases. I find such a conclusion inconsistent with prior holdings of this court in Sweitzer v. Dempster Systems, 372 Pa.Super. 449 , 539 A.2d 880 (1988); Eck, supra; Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444 , 467 A.2d 615 (1983); and DAntona, supra. Those cases clearly indicate that foreseeability is a key component of the test and that issues concerning foreseeability should, in most instances, be resolved by a jury. For example, Sweitzer, supra, also involved a situation where an employer modified a product by removing a safety device. The injured employee maintained that the removal of the safety device, known as a container lock, was foreseeable by the manufacturer. The employee contended that the manufacturer should have equipped the emptying mechanism with an interlock system which would have prevented the operation of the lifting mechanism if the container lock was removed or not in place. The trial court failed to charge the jury that the manufacturer could be liable for injuries relating to post-sale modifications, when those modifications were foreseeable.

On appeal, the Sweitzer court recognized that foreseeability is an integral part of post-sale modification cases. After reviewing the evidence presented at trial, the Sweitzer court concluded that “[t]he jury should have been instructed that foreseeability was a factor to be considered in determining whether Dempster would be held responsible for injuries resulting from postsale product modification.” Sweitzer, 372 Pa.Super. at 455 , 589 A.2d at 883.

Presently, I find that the facts in this case likewise warranted submission of the issue of foreseeability to the jury, and the trial court correctly declined to disturb those findings. There was certainly sufficient competent evidence from which the jury could have concluded that it was foreseeable the safety feature could be by-passed. For example, the manufacturer, in its instruction manual, warned against removing the inter *366 lock safety device. Such a warning presumes the possibility that the device could be removed. The manufacturer also placed a warning label on the machine which read: DANGER, KEEP FINGERS OUT OF DOOR OPENINGS. Again, such a warning would indicate that there were circumstances which would bring a person’s fingers in contact with the blades. Additionally, the jury was presented with evidence that the controls for the interlocking electropneumatic safety device were shipped separately from the unit and had to be installed by the employer. This certainly raises the possibility that the safety device may not be utilized.

In sum, all of these facts provide a sufficient basis for reasonable jurors to conclude that the modification to appellant’s blender was foreseeable. It is then left for the jury to determine whether, in light of the foreseeable, post-sale modification, appellant’s blender was defective for failing to contain a warning that the blades continued to rotate even after the power was shut off.’ The jury obviously concluded that the product was defective for failing to warn about the continued rotation of the blades. Given that a judgment n.o.v. may only be granted in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper, I find the majority’s decision clearly erroneous. There are facts of record to support a finding of foreseeability by the jury. Once foreseeability was established, it was not unreasonable for the jury to conclude that the blender was defective for failing to warn of the continued rotation of the blades. 1

*367 In Eck, supra, this court was requested to review a jury instruction on post-sale alterations. 2 The import of the challenged charge was strikingly similar to the majority’s holding in this case. The jury charge in question in Eck read as follows:

A seller, manufacturer or distributor is responsible only for such defects as exists [sic] at the time the product leaves its control. The seller, manufacturer or distributor is not liable for defective conditions created by substantial changes in the product occurring after the product has been sold. So even if you find the saw in question was defective it is for you, the Jury, to then decide whether the defect originated at the time of the sale by the Defendant, Powermatic and Hermanee or whether the defect originated as a result of the actions of Ernest L. Shumbat Company in removing the guard or failing to supply the manuals, and adding the shim. And I am going to read that again because I think you should hear it in a cohersive [sic] manner. Even if you find the saw in question is defective it is for you, the Jury, to decide whether that defect originated at the time the sale was made by the Defendant, Powermatic and Hermanee, or whether the defect resulted as a result of the actions of Ernest L. Shumbat and Company by removing the guard, failing to supply the manuals and adding the shim. If you find that the shim was permanently fastened to the fence of the saw by Ernest L. Shumbat Company, Inc. or that its agents or employees ... constituted substantial change in *368 the condition of the saw before it reached the Plaintiff then Hermanee Machine Company and Powermatic are not liable to the Plaintiffs injuries. In other words, if you find that the fastening of the shim to the saw by Shumbat was a substantial change in the condition of the saw then the Defendants would not be liable. If you find that the removal of the guard and the failure to supply the guard to Barry Eck by Ernest L. Shumbat Company, Inc. constituted a substantial change in the condition of the saw before it reached Barry Eck then the Defendants Hermanee and Powermatic are not liable for the Plaintiffs injuries if the Plaintiffs injuries were caused by the failure to have a guard. If you find the shim was permanently fastened to the fence of the saw by Ernest L. Shumbat or its agents or done in an improper manner then such alteration of the saw could constitute a substantial change in the condition of the saw.

Eck, 364 Pa.Super. at 182-83 , 527 A.2d at 1014-15 .

Noticeably absent from this jury charge, as with the majority’s holding, is the concept of foreseeability. Both the jury charge in Eck and the majority holding in the instant case absolve a manufacturer of liability upon a showing of a substantial modification to the product and a cause-and-effect relationship between the modification and the injury. Both are silent as to foreseeability. In analyzing the jury charge, the Eck court found the charge erroneous because it lacked the foreseeability component. The issue was framed in light of Eck’s motion for a new trial as follows:

Eck filed a motion for new trial in which he contended that the charge of the trial court on the issue of substantial change had been erroneous. He asserted specifically that the court should have instructed the jury that the defendants would not be relieved of liability if the alterations made by Shumbat to the saw were foreseeable.

Id. at 186 , 527 A.2d at 1016 . After analyzing several Pennsylvania cases involving liability for post-sale modifications, the Eck court recognized that “[tjhese decisions suggest that the concept of ‘foreseeability’ is a significant factor in determining *369 whether a manufacturer or seller will be held responsible for injuries resulting after post-sale modifications of a product have been made.” Id. at 190 , 527 A.2d at 1018 (emphasis added). Accordingly, because of the significance of the concept of “foreseeability” in post-sale modification cases, the Eck court concluded that a charge which did not contain that concept was erroneous as an incorrect statement of the law of Pennsylvania. Id.

Because I find the majority’s holding as set forth on page 363 of the majority opinion an indistinguishable statement of the law as set forth in the charge specifically disapproved by Eck , I find the majority opinion to be inconsistent with the current state of the law in Pennsylvania.

Additionally, I note that the majority states that its holding comports with the guidelines of Azzarello v. Black Bros. Co., Inc., 480 Pa. 547 , 391 A.2d 1020 (1978), and sound social policy considerations. “These efforts to contain the Commonwealth’s product liability doctrine within the framework provided by Azzarello and the limits imposed by section 402A are consistent with sound social policy.” (Majority opinion at 363.) Again, I must disagree.

Any implication by the majority that its holding is somehow guided or mandated by Azzarello is misleading. Azzarello in no way calls for a limitation of or removal of the foreseeability concept in post-sale modification cases. Such an argument was raised and squarely rejected by this court in Eck .

The defendant-appellees argue, however, that the viability of this line of authority has been undercut by the subsequent decision of the Pennsylvania Supreme Court in Azzarello v. Black Brothers Co., 480 Pa. 547 , 391 A.2d 1020 (1978). Their argument, stated syllogistically, is as follows: Azzarello precludes the injection of negligence principles into strict product liability actions; ‘reasonable foreseeability’ is a negligence concept; therefore, under Azzarello , the concept of foreseeability may not be used in a strict liability action to elucidate the responsibility of a manufacturer for injuries caused by a product which has undergone substantial alteration after leaving the manufacturer’s control.

*370 A similar argument was rejected by the United States Court of Appeals for the Third Circuit in Merriweather v. E.W. Bliss Co., 636 F.2d 42 (3d Cir.1980). There, the trial court had refused to charge the jury that reasonably foreseeable changes in a product would not absolve the manufacturer of liability for injuries caused by that product. Instead, the jury was instructed on the issue of substantial change without any reference to reasonable foreseeability. In finding this instruction to be erroneous under Pennsylvania law, the Third Circuit stated:

The court below ... apparently felt that Azzarello had, by implication, overruled [D'Antona and Kuisis [v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321 , 319 A.2d 914 (1974)] and federal decisions which had followed them] and that, under Azzarello , a jury charge on substantial change could not be framed in terms of reasonable foreseeability. We disagree. As we previously noted, the Pennsylvania Supreme Court’s decision in Azzarello simply deleted the phrase ‘unreasonably dangerous’ from jury instructions in product liability cases. It did not purport to address the question of substantial change at all. Moreover, following Azzarello this court has specifically approved jury charges in product liability cases which were framed in terms of reasonable foreseeability. See, Baker v. Outboard Marine Corp., 595 F.2d 176, 183-184 (3d Cir.1979), (approving an instruction on superseding cause in a product liability case which incorporates reasonable foreseeability). See also, Heckman v. Federal Press Co., [ 587 F.2d 612 (3d Cir.1978)]. Therefore we find no precedential basis for the district court’s conclusion that Azzarello has implicitly deleted the phrase reasonably foreseeable from jury instructions on substantial change.

But more fundamentally, we find that the trial court’s instruction was in error because it directly contradicted the policies underlying the Pennsylvania Supreme Court’s decision in Azzarello. In Azzarello the court eschewed the use of the phrase unreasonably dangerous *371 in large part because it felt that that phrase improperly de-emphasized the duty of the manufacturer to act as the guarantor of his product’s safety. See Azzarello, supra, 480 Pa. at 559 , 391 A.2d at 1027 . Were we to adopt the approach to the substantial change doctrine accepted by the district court in this case we would significantly undercut this policy. If the manufacturer is to effectively act as the guarantor of his product’s safety, then he should be held responsible for all dangers which result from foreseeable modifications of that product. Yet under the view taken by the court below this would not occur. Rather, once the modification of the product was shown to be substantial the manufacturer would be excused from all liability for injuries caused by that product, even if that modification was clearly foreseeable. As a practical matter, therefore, the district court’s decision broadens considerably the scope of the substantial change defense. Because the broadening of this defense is inconsistent with the concept of the manufacturer as the guarantor of his product, we feel that the charge given by the district court is in direct conflict with Azzarello.

Id. at 45-46.

Eck, 364 Pa.Super. at 190-92 , 527 A.2d at 1018-19 (emphasis added). Applying this reasoning from the federal court, this court in Eck held that “[AJzzarello had no effect upon the established rule of law which requires consideration of ‘foreseeability’ in connection with a ‘substantial change’ defense.” Id. at 192 , 527 A.2d at 1019 .

Interestingly, the language from Merriweather v. E.W. Bliss Co., 636 F.2d 42 (3d Cir.1980), quoted favorably by the Eck court, clearly indicates that any analytical approach to post-sale modification cases which eliminates or diminishes the “foreseeability” concept, runs counter to the policy considerations underlying Azzarello and 402A in general. That notion is reinforced by the Sweitzer court, which noted:

The role of foreseeability in a product liability case is consistent with the broad and sound social policy underlying § 402A; that is, as between an innocent user of a product *372 and a manufacturer or seller who is engaged in the business of manufacturing or selling a product, risk of loss for injuries resulting from the use of a defective product shall be borne by the manufacturer and/or seller.

Id., 372 Pa.Super. at 453 , 539 A.2d at 882 . Thus, it would seem to me that the majority’s analysis is inconsistent with Azzarello and the social policies underlying 402A.

Finally, I do recognize that there must be concern for the bounds of manufacturer liability in product liability cases. We want to continue to encourage manufacturers to make safety improvements and warn of potential hazards. Furthermore, I wholeheartedly agree that in many workplace injuries it is the employer, not the manufacturer, that is the culpable party. 3 However, I cannot agree with the majority’s statement that “[w]here a third party [i.e., employer] seriously interferes with the original design of the product, the risk of loss cannot be shifted to the manufacturer.” (Majority opinion at 363.) This court, in cases such as Eck , has already balanced the inequities of a situation where a third party modifies a product after it is sold. That balance has resulted in the development of a test which encompasses the component of “foreseeability,” and leaves questions relating thereto in the hands of the jury in most cases. This test serves to promote the social policies of strict products liability under 402A, chief among them being allocation of loss attendant the manufacture and use of unreasonably dangerous products. I agree with the majority that *373 this case presents a difficult issue as to liability. However, this issue was resolved by the jury applying the appropriate test under applicable Pennsylvania law. That test includes foreseeability.

The analysis offered by the majority has “substantially altered” this test.

Accordingly, I dissent.

. It is important to note that Davis’ claim against appellants is premised upon a failure to warn of the continued rotation of the blades. Davis alleged that she turned off the power to the machine and then attempted to clear meat from the opening of the discharge chute. Because of the modification made by her employer, which enabled the discharge doors to remain open, the continuing rotation of the blades allowed Davis’ hand to be "sucked up" into the blades. Appellants have argued that even if it was reasonable for the jury to determine the modification to the blender was foreseeable, any additional warning about the continuing rotation of the blades would not have prevented the accident in that it would not have altered Davis' conduct. Appellants’ argument is completely contradicted by Davis’ testimony at trial wherein she unequivocally stated that had she known the blades contin *367 ued to rotate, after the power was shut off, she would have never put her hand anywhere near the discharge door. The jury obviously found Davis’ testimony credible. This court is in no position to reassess Davis’ credibility.

. The post-sale modifications in Eck included the removal of a safety guard on the saw and the addition of a “shim” to the fence of the saw. While the changes to the saw in Eck were more substantial than those made to the blender in the case at bar, the Eck court still determined that foreseeability was a vital component of analyzing and determining a manufacturer’s liability. Thus, while the removal of a safety feature alone can itself be considered a substantial change, such an alteration can oftentimes be considered foreseeable by the manufacturers particularly if such changes allow the equipment to better meet the production goals of the user.

. In my opinion, the most fundamentally sound approach to allocating loss in post-sale modification cases, where the employer modifies the product either by-passing or removing safely features, would be to allow employers to be joined, in tort actions by employees, for such acts. As the majority notes in footnote 5 of its opinion, "thirty-nine percent of product alterations result from the conduct of employers.” Obviously, it is the conduct of employers which social policy should seek to modify. However, under the current state of the law in this Commonwealth which provides a broad interpretation of the exclusivity provision of the Workmen’s Compensation Act, employers suffer no liability even for intentionally removing, or by-passing, safety equipment. See generally, Poyser v. Newman & Co., 514 Pa. 32 , 522 A.2d 548 (1987). If an employee is injured, the employer’s liability is limited to compensation payments (a fraction of wages). There is no exposure for tort damages. The loss must then be borne by either the injured employee or the manufacturer.