relying upon the fact that “the issue in Matsko was not design changes to the unit, but post-accident manufacturer recall of the unit which injured plaintiff’
How later courts described this case
- relying upon the fact that “the issue in Matsko was not design changes to the unit, but post-accident manufacturer recall of the unit which injured plaintiff’
- subsequent design charges inadmissible while repairs and recalls are admissible
Written by the judges who cited it.
The opinion
OLSZEWSKI, Judge,
dissenting:
The majority relies upon Gottfried v. American Can Co., 339 Pa.Super. 403 , 489 A.2d 222 (1985), for the proposition *72 that evidence of subsequent design changes are inadmissible in a strict products liability case. Gottfried does appear to stand for that principle; however, I believe that the Gottfried holding is inconsistent with its own fact pattern, and consequently the similar fact pattern presented here. The Gottfried court noted that when it is alleged that a product has been defectively designed, a jury is required to determine whether the product lacked any safeguard necessary to make it for normal use. Id., 339 Pa.Super. at 410 , 489 A.2d at 226 (citations omitted). In such cases, the state of the art at the time of the design/manufacture is relevant. Id. (citations omitted). These are accurate statements of the applicable law with which I have no quarrel. My objection lies in the application of those principles to the fact pattern at issue in Gottfried and the case at bar.
In Gottfried , the plaintiffs were allowed to introduce evidence that other cans had certain safety design features in 1977, the year the can in question was manufactured. The court, however, prevented the plaintiffs from introducing evidence that American Can Co. had incorporated some of those same safety features, available in 1977, in their products in 1981. Id., 339 Pa.Superior Ct. at 409, 489 A.2d at 225-226 . The Gottfried court stated: “Design improvements made four years after an injury has occurred are not relevant to show the state of the art at the time the injury occurred.” Id., 339 Pa.Superior Ct. at 410, 489 A.2d at 226 (emphasis added). While this may or may not be an accurate statement of the law as to the relevance of design improvements first made after the manufacture of the product in question, and so, not probative of compliance with the state of the art at the time of manufacture, it simply is not factually applicable to either Gottfried , or the case at bar. These are not design improvements first occurring after the time of design/manufacture of the product in question. Both cases present instances of safety features already available at the time of manufacture; in fact, both cases show evidence that the defendants’ competitors had already incorporated those safety features when *73 the product alleged to be defective was manufactured. It is highly relevant to the question of defective product that a manufacturer subsequently incorporates safety features available at the time of manufacture. This evidence shows that a manufacturer chose to produce an item which was not as safe as it could be considering the state of the art at the time of production. Further, the same manufacturer now considers these same safety features worthy of incorporation into the product in question.
The factual scenario to be presented to the jury is as follows: ALPHA, the product in question, was manufactured by defendant in year 1 without safety features X, Y and Z which were available in year 1. Competitors of defendant manufactured their product, BETA, in year 1 incorporating those safety features X, Y and Z. The plaintiff was injured while using ALPHA, manufactured in year 1 without safety feature X, Y and Z. In year 5, defendant incorporated safety features X, Y and Z, which had been available in year 1, into his product, ALPHA. These facts are obviously relevant to the question: was ALPHA defective when manufactured in year 1 without safety features X, Y and Z which were available at the time?
I question the viability of Gottfried , which I believe materially misstates the factual posture of the case. The public policy underlying the exclusion of subsequent repairs in negligence cases is not applicable to strict liability. Leaphart v. Whiting Corp., 387 Pa.Super. 253, 265 , 564 A.2d 165, 173 (1989), alloc. denied, 525 Pa. 619 , 577 A.2d 890 (1990); Wilkes-Barre Iron v. Pargas of Wilkes-Barre, 348 Pa.Super. 285 , 293 n. 2, 502 A.2d 210 , 214 n. 2 (1985); Matsko v. Harley Davidson Motor Co., Inc., 325 Pa.Super. 452, 454-462 , 473 A.2d 155, 156-159 (1984). Exclusion of such evidence is no longer necessary to avoid discouraging remedial acts by defendants:
[T]he ... economic realities .. .-—among others, the growing market share of the mass manufacturer, the well-nigh universality of insurance, the escalation of government regulation—-undermine any assumption that it is neces *74 sary to pay the price of sheltering defendants in strict products liability litigation from evidentiary use of their product changes in order to persuade them to make improvements ...
manufacturers realize that liability insurance companies will not continue to insure the further production of known defective products ... manufacturers are well aware of the marketing impact which adverse publicity can have on future sales ...
Matsko, supra, 325 Pa.Superior Ct. at 459-60, 473 A.2d at 158 -159 [quoting, Caprara v. Chrysler Corp., 52 N.Y.2d 114, 125, 436 N.Y.S.2d 251, 256 , 417 N.E.2d 545, 550 (1981) and Davis, Evidence of Post-Accident Failures, Modifications and Design Changes in Products Liability Litigation, 6 St. Mary’s L.J. 792, 798-799 (1975) (footnote omitted) ].
I believe that the subsequent incorporation of a safety design feature available at the time of manufacture qualifies as a subsequent remedial measure and is therefore admissible in a strict products liability case. In such a case, the manufacturer is held liable for manufacturing a product lacking a safeguard, available at the time of manufacture, necessary to make it safe for normal usage. Of course, the manufacture, remains free to introduce evidence that the particular safety features he subsequently incorporated were not available at the relevant time, or, perhaps, that the safety features available at the time of manufacture were incompatible with his product and so, in effect, unavailable to him.
Nor am I convinced that the actions of Mr. Connelly were so reckless that exclusion of this evidence was harmless error. The safety features at issue here would have prevented this unfortunate occurrence despite Mr. Connelly’s placing his hand into the chute of the snowblower. Clearly, the industry was aware that individuals using snowblowers occasionally placed their hands in the chute. Without the evidence indicating Roper Corporation had subsequently decided to incorporate the then existing safety features, the jury could not properly determine whether Mr. Connelly *75 “would have been injured despite the curing of any defect”, or whether his conduct was “so extraordinary and unforeseeable as to constitute a superseding cause.” Gottfried, supra, 339 Pa.Super. at 409 , 489 A.2d at 225 [quoting, Burch v. Sears Roebuck & Co., 320 Pa.Super. 444, 452 , 467 A.2d 615, 619 (1983) (citations omitted)]. Accordingly, I would remand this case for a new trial.
I respectfully dissent.