Appeal from order of Court of Common Pleas of Bucks County, Sept. T., 1968, No. 368, in case of Mary A. Oehler and Joseph Oehler v. Andy Davis and Puppy Palace Enterprises, Inc.
Arthur W. Hankin, with him Meyer, Lasch, Hankin & Poul, for appellants.
Richard P. McBride, with him William B. Moyer and Power, Bowen & Valimont, for defendant, appellee.
Frederick E. Smith, with him Smith & Toner, for additional defendant, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Dissenting Opinion by Cercone, J. Hoffman and Spaulding, JJ., join in this dissenting opinion.
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The progress of the law in extending liability without fault to product suppliers should not be in disregard of fundamentals pertaining to the tort law of causation. In negligence cases there has been the modern admixture of foreseeability and causation to determine the existence of liability.*fn1 If in a negligence case foreseeability and cause are to be examined to determine the scope of liability, it would seem that the same should be true in a case of unintentional conduct involving liability without fault.*fn2
The application of the concepts of foreseeability and legal cause to products liability makes it manifest there should be no arbitrary limitation of liability to only purchasers and their families. In this respect we are of the view that product liability may extend to persons not in privity or unconnected with the original transaction.
This case turns on the question of whether there should be liability for injury resulting from the playfulness of a dog when normally there is no such liability to a person injured thereby. Should there be liability on the part of one who, without fault, enables such a dog to wander? In the physical or philosophical sense the supplying of a defective ring that was supposed to hold the dog was a cause of the injury. That,
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however, is not a sufficient basis for liability.*fn3 The determination should be whether that was only a "but for" cause and not a legal cause. The answer in this case should be no different from that in a negligence case. If the owner had left his dog with a friend while on vacation, would there be liability for a similar injury if the friend had carelessly permitted the dog to leave the premises?*fn4
There appears to be no significant body of law involving causation as applied to product liability cases, but the situation is otherwise with respect to negligence cases. The Restatement 2d Torts, § 430, states the necessity of an adequate causal relation as follows: "In order that a negligent actor shall be liable for another's harm, it is necessary not only that the actor's conduct be negligent toward the other, but also that the negligence of the actor be a legal cause of the other's harm." In more detailed analysis, Comment b of that section points out that the duty to protect some persons does not extend to other persons: "So too, if the actor is under a duty to take positive steps for the protection of particular classes of persons only, his failure to take such steps subjects him to liability only to such persons and cannot subject him to liability to third persons to
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whom he owes no such duty." Learned Hand, J., in Sinram v. Pennsylvania R.R., 61 F. 2d 767, 770 (2d Cir. 1932), pointed out: "But so long as it is an element of imposed liability that the wrongdoer shall in some degree disregard the sufferer's interests, it can only be an anomaly, and indeed vindictive, to make him responsible to those whose interests he has not disregarded."
If a vicious dog escaped and bit one or more persons, the existence of a duty to protect those persons would not mean that there was a duty to protect a person hurt by a non-vicious dog.*fn5 Magruder, C. J., in Marshall v. Nugent, 222 F. 2d 604, 610 (1st Cir. 1955), pointed out: "Back of the requirement that the defendant's culpable act must have been a proximate cause of the plaintiff's harm is no doubt the wide-spread conviction that it would be disproportionately burdensome to hold a culpable actor potentially liable for all the injurious consequences that may flow from his act, i.e., that would not have been inflicted 'but for' the occurrence of the act."
Although § 402A of Restatement 2d on Torts sets forth the modern rule of products liability, it has no provision dealing with the problem of legal causation. That issue is referred to collaterally in Comment a to § 435B, which deals with unintended consequences of intentional invasions, as follows: "The rule stated in this Section affects only the measure of damages for a tort, but is based upon the principle which underlies both rules, namely, that responsibility for harmful consequences should be carried further in the case of one who does an intentionally wrongful act than in the
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case of one who is merely negligent or is not at fault." Comment e of § 430, which deals with the necessity of adequate causal relation provides: "Although the rule stated in this Section is stated in terms of the actor's negligent conduct, the necessity that the conduct be a legal cause of the harm is equally applicable where the conduct is intended to bring about the harm, or where it is such as to result in strict liability. The applicable rules as to what constitutes legal cause are not, however, entirely the same as those for negligent conduct. See § 870, ...