# Davis v. Berwind Corp.

> Supreme Court of Pennsylvania · February 24, 1997 · 547 Pa. 260

URL: https://www.frixlaw.com/law-library/cases/9702792

## Case

- **Full name:** Kimberly DAVIS, Appellant, v. BERWIND CORPORATION, Bepex Corporation, and Boldt Industries, Inc., Appellees
- **Court:** Supreme Court of Pennsylvania
- **Decided:** February 24, 1997
- **Citations:** 547 Pa. 260; 690 A.2d 186; 1997 Pa. LEXIS 446
- **Precedential status:** Published
- **Opinion:** Dissent by Cappy
- **Judges:** Nix, Flaherty, Zappala, Cappy, Castille, Newman, Nigro
- **Cited by:** 97 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Questioned by Minick v. MTD Products Inc., 75 Pa. D. & C.4th 225 (2005).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9702792

## How later opinions describe it (automated extraction)

- holding that if a “product has 8 reached the user or consumer with substantial change,” liability depends upon “whether the manufacturer could have reasonably expected or foreseen such an alteration of its product.”
- holding that if a “product has reached the user or consumer with substantial change,” liability depends upon “whether the manufacturer could have reasonably expected or foreseen such an alteration of its product.”
- explaining that, to prevail intiff must establish: (1) that the product was defective; (2
- holding that a manufacturer may be held strictly liable for foreseeable alterations to an otherwise safe product

## Opinion text

CAPPY, Justice,
dissenting:
As I am unpersuaded by the majority’s reasoning concerning both issues raised in this case, I must respectfully dissent.
First, I cannot agree with the majority that Appellant’s failure to warn claim must fail as a matter of law. To establish that a product was defective due to a failure to warn, a plaintiff must show that the product was “distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product.” Mackowick v. Westinghouse Electric, 525 Pa. 52, 56 , 575 A.2d 100, 102 (1990). Furthermore, the warnings will be considered insufficient if they do not warn of unobvious dangers. Id.
In the matter sub judice, the danger was that the blades in the blender would continue to rotate a full ten seconds after power to the machine had been terminated. I believe that such a danger is not readily obvious. 1 Absent a simple warning of this danger, a user of the product would be reasonably justified in believing that once the power had been shut off, the blades would cease rotating and the machine would no longer pose a threat to its user.
Yet, the majority holds that because Appellees placed the warning “DANGER, KEEP FINGERS OUT OF DOOR OPENINGS” on the blender, then Appellees are relieved of liability in this instance. Although the existence of this warning is undeniable, the perception of this warning as being adequate is not. The warning provided by Appellees did nothing to inform the user of the hidden danger that the blades would continue to rotate ten seconds after the power had been terminated. This warning did not apprise the user *271 that the machine was a danger regardless of whether the power needed to operate the machine was, in fact, utilized. In my view, it is unacceptable to conclude that in today’s mechanized world, a machine which, in fact, poses a danger to its user even when power is not being supplied to it, should not be the subject of a specific warning. I suspect that anyone would conclude that if the machine was not receiving the power needed for its operation, then the latent danger which was the subject of the warning given would be obviated. In a mechanized world, it is clear to me that based on the experience an average person collects during his or her life and the warning that was placed on the machine, any user would conclude that the danger in the machine is directly related to the machine being in operation. I would hold that where a machine poses a danger when it is turned off, then that danger is an unobvious one against which the user needs to be specifically warned. Thus, I am unable to agree with the majority that the warning here, as a matter of law, was adequate and that Appellees are entitled to a j.n.o.v. on this basis.
I am also unable to join that portion of the majority’s opinion which discusses the issue of superseding causation for two reasons. First, I believe that the majority’s analysis of the superseding cause issue is unnecessary as it is dicta. The majority concludes that as a matter of law, Appellees cannot be held liable because the product was not defective. Thus, any need to analyze whether Appellees’ liability was severed by a superseding cause has been eliminated.
Second, I respectfully suggest that the majority’s reasoning in dicta is flawed. At common law, a superseding cause is “[t]hat occurrence or force which not only intervenes, but which also breaks the chain of causation between the initial occurrence and the ultimate effect ...,” thus relieving the defendant of liability. Black’s Law Dictionary 152 (6th ed. 1991). In Pennsylvania, this court has declared that the proper focus in determining whether an intervening act is a superseding cause is “on whether the act was so extraordinary as not to be reasonably foreseeable.” Powell v. Drumheller, *272 539 Pa. 484, 495 , 653 A.2d 619, 624 (1995). “A determination of whether an act is so extraordinary as to constitute a superseding cause is normally one to be made by the jury.” Id.
As this court is reviewing a j.n.o.v., the standard here is whether Appellees are entitled to a judgment as a matter of law on this point even with all factual inferences decided adverse to Appellees. Moure v. Raeuchle, 529 Pa. 394, 402-403, 604 A.2d 1003, 1007 (1992). When taken in the light most favorable to Appellant, the evidence shows that Equity’s removal of the safety device was not so “extraordinary as not to be reasonably foreseeable.” First, the controls for the interlocking safety device were shipped separately from the unit and had to be installed separately by the purchaser. R.R. 354a, 396a. This certainly raised the possibility that the blenders would be operated without the safety device. Second, the blender’s manuals contained a specific warning not to remove or to operate the blender without the interlocking device, thereby indicating that the blender could operate without the safety device. R.R. 927a. Third, Appellees’ engineer stated that Appellees had a concern that the safety device might be tampered with and that concern is what precipitated the warning in the manual. R.R. 939a-940a.
This evidence was clearly sufficient for the jury to decide that the alteration was foreseeable and, by the verdict it rendered, it determined that the removal of the safety device was foreseeable by Appellees. The majority fails to provide a persuasive explanation as to why it holds that the determination by the jury that Equity’s act was not a superseding cause must be wrested from that jury in violation of the concepts articulated by Powell .
For the foregoing reasons, I respectfully dissent.
NEWMAN, J., joins this dissenting opinion.
. I note that even Appellees’ product engineering manager would agree with me on this point. At trial, he testified that he thought it would be appropriate to place a warning on the blender that the blades would not cease rotating immediately upon termination of power. R.R. at 277a-278a.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9702792. Public record. Not legal advice.