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March 28, 1969

Roger TAYLOR, Plaintiff,

The opinion of the court was delivered by: SHERIDAN

 In this diversity action plaintiff seeks to recover from defendant for personal injuries resulting from an accident. The jury returned a verdict for defendant. Plaintiff has moved for a new trial.

 Plaintiff, a longshoreman and forklift operator, was employed by Atlantic & Gulf Stevedores, Inc. He sustained an injury to his leg while working on Pier 98, South Wharves, Philadelphia, Pennsylvania, when a forklift manufactured by defendant, The Allis-Chalmers Manufacturing Company, and leased to Atlantic, suddenly moved backward and pinned him against another forklift. The forklift was inoperative due to a bad battery, and it was during an attempt to start it that it moved backward.

 Plaintiff presented three theories of liability: (1) negligence in designing and in maintaining the forklift; (2) breach of an express warranty that the forklift would not move unless the operator was seated on the seat; and (3) strict liability because defendant leased a forklift which was unreasonably dangerous to the user.

 There were two charges of negligence: (1) the gearshift mechanism was improperly designed since it did not contain a blockout, and as a result vibration and gravity caused the gears to shift from neutral into reverse when the forklift started; and (2) either the hydraulic seat valve was improperly adjusted or there was improper synchronization between the detents in the selector place on the steering wheel and the detents in the gear mechanism below, and this improper adjustment or lack of synchronization was the result of defendant's failure periodically to inspect, maintain, and repair.

 Plaintiff's expert testified there should have been a blockout and that the combination of vibration and gravity caused the forklift to move backward. Defendant denied there was any negligent design and introduced evidence that it had built in four safety features. One was a hand brake. If the hand brake had been on, it would have stalled the engine. The second was that the forklift could not be started unless the gearshift was in neutral because an electrical current was broken when it was in any other gear. The third was that the forklift could not move backward unless it was in reverse. The fourth was a seat valve which required some weight in addition to the weight of the seat before the forklift could move.

 The defendant produced evidence that none of the manufacturers of forklifts have blockouts on the selector mechanism because the operator must operate several levers with his right hand to lift and tilt the fork. The left hand is needed on the steering wheel. If a blockout were installed, the operator would have to take his left hand off the steering wheel to operate the blockout.

 Plaintiff asserted that defendant breached an express warranty in its operational manual -- that the forklift could not move unless the operator was on the seat. The battery was located underneath the seat which was fastened on one side by hinges. The seat in down position rested against a hydraulic valve which actuated the clutch when the operator was on the seat, thus permitting the forklift to move. Defendant answered that the statement in its manual meant that any weight, not necessarily the weight of the operator, would actuate the clutch, and that in this case the seat either fell or was slammed to the down position and it was the force from this which actuated the clutch.

 The third theory was based on improper design with liability predicated on Section 402A of Restatement 2d Torts, which imposes liability, under certain conditions, on one supplying a product in a defective condition unreasonably dangerous to the user, aside from any question of negligence or breach of warranty.

 The case was submitted on a special verdict. The jury found in defendant's favor on all three theories.

 Plaintiff contends that the court erred in refusing to permit him to read into evidence admissions made by counsel in defendant's pretrial memorandum. There was no pretrial conference. Defendant, as required by the Rules in this district, filed a pretrial memorandum in which, under Section A dealing with facts and contentions, stated:

"The Defendant, Allis-Chalmers Manufacturing Company designs, assembles, and markets a variety of industrial equipment including lift trucks known colloquially as 'chisels'. Under a contract with Atlantic & Gulf Stevedores, Inc., the defendant leased some of these chisels for use by Atlantic & Gulf in its stevedoring work. Minor maintenance was performed by employees of the lessee while major maintenance was performed by the lessor, either on notice from the lessee that the particular equipment was not performing properly, or on a preventive maintenance schedule, whichever occurred first. * * *" (Emphasis supplied.)

 Plaintiff argues that this is an admission that defendant was responsible for major maintenance; and that its exclusion was prejudicial because defendant argued to the jury that Atlantic was responsible for maintenance.

 There is nothing in the Standing Order of October 23, 1958, as amended, relating to pretrial conferences in this district, or in Rule 16 of the Federal Rules of Civil Procedure relating to pretrial conferences in general, which would sanction the use of this statement as an admission. The Standing Order provides that a party's pretrial memorandum will specify in Section A a brief statement of facts and contentions; Section E provides for stipulations, including designation of any documents for which counsel seeks agreement on admissibility at time of trial. This clearly implies a conference at which matters sought to be admitted ...

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