Sherk v. DAISY-HEDDON, ETC.

HUTCHINSON, Justice,

concurring.

I join in Justice Roberts’ Opinion and concur in his view that plaintiff has failed to show causation. Specifically, plaintiff has failed to establish any causal connection between the asserted inadequacy of defendant’s warning and the tragic death of plaintiff’s decedent. However, I wish to make clear my view that the issue we are dealing with in *604 this case is causation in fact, not the legal concept of proximate cause. Taking the evidence, as we must, in the light most favorable to the verdict winner, it is clear the person firing the fatal shot was well aware of the substantial risk of death or serious injury involved in pointing this gun at decedent’s head and pulling the trigger. Whatever false expectations of safety the Daisy logo gave the community regarding this high powered air gun, the record shows the youth firing the shot knew the risks a warning would have alerted him to and acted without regard to them. The imposition of liability in any products case, including one based on Section 402A strict liability, requires a showing that the plaintiff’s injury was caused by some defect in the product. Thus, where a finding that the product is defective within the meaning of section 402A is predicated on the theory that the manufacturer failed to provide adequate warnings of the dangerous propensities of the product the plaintiff must prove the failure to warn caused plaintiff’s injury. See Annot., 13 A.L.R.3d 1085 (1967). Regardless of whether Daisy’s warnings were inadequate, rendering the product defective under section 402A, plaintiff failed to establish causation because Saenz and his parents knew the risks which an adequate warning would have described and acted without regard to them. See Restatement (Second) of Torts, § 402A comment n (1965), See also Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir. 1976). Given that circumstance, the trial court’s refusal to admit testimony of the Community’s perception of the non-deadly nature of Daisy-Heddon air rifles, as that perception related to the adequacy of the warnings, was correct.

It is as if a man fell overboard into the ocean, immediately sinking without a trace. The failure to have a lifeboat ready is not a cause of death. See Prosser, Law of Torts § 41 (1971) citing Ford v. Trident Fisheries Co., 232 Mass. 400 , 122 N.E. 389 (1919). But, c.f. Kirincich v. Standard Dredging Co., 112 F.2d 163 (3d Cir. 1940) (where there was evidence that the drowning man might have been saved). Whatever the warning furnished by Daisy, it would have *605 been ineffective in deterring the Saenz youth’s conduct. Therefore, any inadequacy in that warning, in the sense it was not aptly designed to overcome the community’s failure to appreciate the deadly nature of this particular air gun did not in fact cause plaintiff’s decedent’s death.

Issues of proximate cause, with its sub sets of intervening or superseding cause, involve the policy decision of selecting a cutoff limit, beyond which the law will not impose liability for the ever expanding but constantly declining force of an act setting in motion a risky set of events. They should not be reached until cause in fact is shown.

The liability imposed on manufacturers of defective products is denominated strict, or without fault, because the usual requirement that plaintiff show a breach of duty has been eliminated, or attenuated to the point of elimination. In such cases, under the principles of section 402A of the Restatement (Second) of Torts, a plaintiff is not required to prove the defendant failed to discharge his duty of care. In addition it either is assumed his duty extends to all users of the product, or that harm from the defect is foreseeable to all users. 2 Dooley, Modern Tort Law § 32.55 (1977). Thus the manufacturer may be liable to any person suffering harm even if he exercised all due care. See Berkebile v. Brantly Helicopter Corp., 462 Pa. 83 , 337 A.2d 893 (1975) (plurality opinion). However, plaintiff must prove a defect existed in the product at the time of the accident and that this defect was the proximate cause of plaintiff’s injuries. See Kuisis v. Baldwin-Lima-Hamilton Corp., 451 Pa. 321 , 319 A.2d 914 (1974). If the policy issues relevant to proximate cause are analyzed in terms of foreseeability, distinct notions relating to cause can be easily confused with those relating to duty in the sense of scope of the risk. Extension of the duty to manufacture a product free of defects to all users may then be incorrectly thought to eliminate the requirement of proximate cause.

On the facts of this case we do not reach the issue of whether a failure to provide adequate warning was the forseeable or proximate cause of plaintiff’s injuries because *606 such failure was not a cause in fact. Accordingly, I do not share the dissent’s view that we have “overruled an entire body of Pennsylvania law concerning causation (substantial factor, proximate cause, intervening cause and superseding cause) ...” See supra at 637 (Larsen, J., dissenting).

Strict liability for failure to warn is a means of protecting users of products from generally unrecognized risks in unavoidably dangerous useful products. By bringing the hidden risk home to the user it protects against a use in a manner likely to create that risk. Thus, the product is defective under the doctrine of strict liability if it is unreasonably dangerous without an adequate warning and no such warning is provided. Where the actor knows risk is present and still chooses to act without regard to it, the warning serves no purpose in preventing the particular harm. Imposing liability in such a case cannot be based on any connection between the failure to warn and the harm incurred. It can only follow from the assumption that a manufacturer is an insurer against all harm resulting from use of his product. Such an assumption must either be based on the inarticulated notion that no degree of social utility in a unavoidably dangerous but not defective product can prevent liability, even for fully recognized dangers; or that the degree of utility must be balanced against the nature of the risk by the fact finder. The former view makes all manufacturers insurers against all harm their products cause. The latter leaves to a jury the issue of whether the Daisy pump rifle’s deadly propensities outweighed its utility. Neither seems required by our case law.

The dissent argues Daisy’s marketing of the pump rifle constituted a substantial factor in causing the injury. That argument, which is superficially appealing, assumes a lethal weapon cannot be marketed without liability for all harm it causes, including harm from an unreasonable use, regardless of the nature and quality of the warnings accompanying it. Accepting this argument would eliminate the requirement that the product be defective and impose liability for harm from unavoidably dangerous propensities regardless of *607 warning, or knowledge, of those dangers. On that theory, Daisy’s marketing of the rifle would constitute a substantial factor in causing the death of the Sherk child, when coupled with Saenz’ foreseeable negligence. Such a theory was not advanced at trial, is not supported by the cases and has no relevance to the issue of admissibility of evidence of the community’s perception of the deadly nature of Daisy’s pump rifle. The proffered testimony was offered on the issue of the adequacy or inadequacy of Daisy’s warnings. The arguable absence of adequate warnings plainly did not “cause” plaintiff’s injury within any meaning of the word.