OPINION AND ORDER
MARSH, District Judge.
This is a diversity personal injury case arising under the law of Pennsylvania. The defendant, Kroger Company, brought in Sidney H. Evans and his corporation as third-party defendants. Evans and his corporation brought in Lowenstein and Sons, Inc. as a fourth-party defendant. During the trial Mr. Evans and his corporation moved to discontinue their fourth-party action against Lowenstein and Sons, Inc., who made no objection, and the motion was granted. Rule 41(a)(2), Fed.R.Civ.P.
The case was submitted to the jury who returned verdicts in favor of John Jeff LaGorga, the minor plaintiff, and his parents, on which judgments were entered.
The jury returned a special verdict in favor of the third-party defendants on which judgment was entered.
In the main case Kroger moved for judgments notwithstanding the verdicts and joined a motion for a new trial. In the third-party action Kroger moved for a new trial. In our opinion, all Kroger's motions should be denied.
The complaint, basing liability on breach of warranty and negligence, alleged that Kroger, while engaged in the business of selling foods and clothing, sold a child's jacket to Mildred M. Lettieri, a relative of the minor plaintiff, who gave it to him; that this jacket, its fabrics and its component parts were dangerous and highly flammable; that due to this condition, the jacket became ignited while being worn by the minor plaintiff, resulting in injuries to him and damages to his parents.
Strict liability in tort became the law of Pennsylvania when the Supreme Court adopted § 402A of the Restatement, Torts 2d (1965). Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).
Strict liability evolved from the action for breach of warranty (originally a tort action, Vanleer v. Earle, 26 Pa. 277, 279), but shorn of the verbiage and complications of warranty law;
strict liability reduces the difficulty of injured victims in proving negligence of sellers of products and shifts the risk of loss for defective products from the ultimate user to those who put such products on the market. Strict liability is a vehicle of social policy.
The main case was tried as a strict liability action inasmuch as we thought there was insufficient evidence to support the negligence counts,
and the count for breach of warranty was eliminated on the ground of lack of privity.
In the third-party action the court ruled that only one issue of fact would be tried, i.e., whether or not the manufacturer of the jacket involved was Sidney H. Evans and his corporation. Rule 42(b), Fed.R.Civ.P.; R., pp. 995-996, 998-999, 1015.
Motion for Judgment N.O.V.
Accepting as true all the facts and reasonable inferences to be drawn therefrom in the light most favorable to the plaintiffs, as required, we think the plaintiffs proved a case of strict liability against Kroger. Several arguments advanced by Kroger appear to be predicated on a view of the evidence most favorable to it, which is contrary to the established rule. Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S. Ct. 409, 88 L. Ed. 520 (1944); Ferraro v. Ford Motor Company, 423 Pa. 324, 223 A.2d 746 (1966); Hardiman v. Pittsburgh Rys. Co., 339 Pa. 79, 14 A.2d 72 (1940).
The evidence reveals that on April 26, 1963, around 4:00 o'clock in the afternoon, three small children, including the minor plaintiff, were on the premises of a public school in North Versailles Township, Allegheny County, Pennsylvania, playing around a metal barrel in which school refuse was burning. The school employee who started the fire had left the premises without extinguishing it.
John Jeff was wearing one of three jackets which Mrs. Lettieri in the fall of 1962 had purchased for $2.98 each at Kroger's Food Store No. 193 in McKeesport, and which she had sent to him as a Christmas present. The jacket was not packaged and was displayed on a table with other similar unpackaged jackets in the store. The jacket was not labeled; there was no identity of the fabrics used in its outer shell, interlining or padding, and inner lining;
there was no warning that it had not been treated with flame retardant. Mrs. Lettieri, a long-time employee of Kroger Company, at the time she purchased the jacket was the chief cashier at its store No. 193 in McKeesport.
The jacket was designed with a cotton shell, interlining or padding of mill waste comprised of 50% acrylic fibers and 50% unknown material interspersed with air pockets, and an acetate inner lining. It had a hood of the same components and a zipper down the front.
On the day of the accident, John Jeff, Linda Lenart, and another child were poking sticks through holes in the metal barrel. Linda testified that a spark started to burn a nickelsize hole on the front of John Jeff's jacket. She tried to extinguish the burning fabric by rubbing dirt on it; failing, she tried to pull down the zipper, but it stuck. In panic, John Jeff ran a short distance toward his home. As he ran he was observed, eventually thrown to the ground, and with considerable difficulty the fire was extinguished. An ambulance was called and he was taken to the hospital where miraculously he survived burns covering 80% of his body, 40% of which were third-degree burns.
Linda also ran home in panic, telling her father that sparks flew out of the barrel onto John Jeff's clothes and a spark started a fire on his jacket. She told her mother that she could not get the zipper down because "it was stuck".
Darryl Roher and William Popovich, aged about 14 at the time of the event, observed John Jeff running from the school yard toward his home. Darryl testified: "You could see the flames shooting out the back of the jacket * * * as if he was a jet, because there was a big flame shooting out the back of the jacket." He testified: "Well, they got a blanket around him, I remember, and Mr. Samosky would reach under this blanket and pull out a handful of coat that was burning, and he would throw it. And, it seemed like as soon as it hit the ground, that it would go up in flames again, or as soon as it hit the air it would start to flame." He testified that a coat and a throw pillow used by others in an attempt to extinguish the fire were practically consumed.
William Popovich testified that he saw Mr. Samosky pulling parts of the jacket out from underneath a blanket. He said: "* * * [They] were smoldering. When they hit the air, they would start burning again. * * * Well, first they would burn rapidly, and then they would taper off, and then they would smolder." In response to the question: "Had you ever seen any cloth that burned like that before?", he answered: "Nothing like that."
When the burning boy was thrown to the ground, the frantic efforts by adults to extinguish the burning jacket were frustrating. A coat thrown over him, a pillow and a blanket were ineffective to prevent the jacket from being practically consumed.
Mrs. Dellinger heard John Jeff screaming and saw him running in her direction. She went to his aid. She testified: "Well, as I ran towards him, the flame was shooting out from the front jacket. * * * I wrapped or threw my coat around him. * * * [The fire] was shooting out in front of him. * * * It was very intense. * * * I didn't think cloth would burn like that, not the way the fire just shot out, I would say, about a foot and a half from his chest. * * * From what I saw, it was terrific. That is the one thing that sticks in my mind, when he was coming towards me and that fire was shooting out."
Mr. Samosky, a retired volunteer fireman of 25 years' experience, while looking through a window saw "* * * somebody coming down the street full blaze, up over his head, just like a ball of fire coming down." He went to the boy's aid with a throw pillow. He testified: "I hit him with that pillow right across the stomach. But, that didn't phase the fire. That pillow, when I hit him, sounded like a blow torch, just like putting air into a blow torch. It would just go zoom. * * * [It] looked like the blazes was up over his head." Mr. Samosky eventually succeeded in throwing the boy to the ground and with his bare hand "got a handful of that stuff, and it all gave away. * * * And, I throwed that down on the ground, and it ignited again and come up about that high off the ground." He indicated a foot or a foot and a half. "Just a handful of that stuff. And, the only way that it loosened up was because the top cloth was already burnt, and I got the stuff inside, and that was ignited. So, that is why I just glanced at it and seen it coming right up." A baby blanket was provided by someone and Mr. Samosky covered the boy with it, but the fire came out from underneath the blanket. He testified that the jacket was entirely burned; that in his experience as a fireman "no cloth that I have seen burned like that. * * * It was a hot and large flame."
From the lay evidence the jury could have found that the burning behavior and characteristics of this particular jacket were unusual and dangerous; that it was made of flammable materials which ignited easily, burned rapidly and intensely with a high degree of heat, and were difficult to extinguish. The lay evidence supports the finding of the jury that the jacket was unreasonably dangerous. None of its remains were tested by the parties. Cf. Knab v. Alden's Irving Park, Inc., 49 Ill.App.2d 371, 199 N.E.2d 815 (1964). It was stipulated by all parties that the jacket conformed to or was not in violation of the Federal Flammable Fabrics Act, 15 U.S.C.A. §§ 1191 et seq., which stipulation was some evidence that the design was not unreasonably dangerous. See: Commentary on Flammable Fabrics Act by Maurine B. Neuberger, Consumer Consultant, Department of Labor, Trial, April/May, 1967, p. 44.
The plaintiffs' expert, Dr. Beroes, who tested a "similar" jacket (Ex. 4), established that the synthetics used in the exhibit tend to melt rather than burn to ash and produce high temperatures; also, that when ignited and not immediately extinguished, severe and deep burns are inflicted upon the body of the wearer.
Since there was doubt that Exhibit 4 was made by the manufacturer of the LaGorga jacket, the former's burning characteristics were not necessarily those of the latter.
We think it is no answer to say that the burning characteristics of John Jeff's jacket were generic to all other jackets made for children by various sellers. There was no proof that jackets designed by all other manufacturers had the same burning characteristics as the jacket here involved. No one tested "other jackets" on the market under the precise conditions which attended the burning of John Jeff's jacket. There was evidence that 80%-90% of cotton fabric is treated with flame retardant substances, but the cotton outer shell of this jacket was not so treated. The evidence showed that treatment of the cotton outer shells of jackets with flame retardant would add to their cost only a few cents (R., pp. 715, 775-776), and their usefulness would not have been impaired.
In addition, even if the LaGorga jacket was generic with other jackets of the same composition and design, such would not warrant granting the motion for judgments n.o.v. As quoted in Pritchard v. Liggett & Myers Tobacco Company, 295 F.2d 292, 297 (3d Cir. 1961), and in Lavelle v. Grace, 348 Pa. 175, 34 A.2d 498, 502, 150 A.L.R. 366 (1943):
"'[What] usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.' Texas & Pacific Ry. Co. v. Behymer, 1903, 189 U.S. 468, 470, 23 S. Ct. 622, 47 L. Ed. 905 * * *."
And in MacDougall v. Pennsylvania Power & Light Co., 311 Pa. 387, 166 A. 589, 593 (1933):
"* * * [A] person while he may take counsel of custom should also take counsel of his common sense and of his judgment. In the long run usage must conform to reason."