Defendant Ford Motor Company now moves the Court to vacate the judgment entered and to enter judgment in its favor, asserting that there was not sufficient evidence to support the jury's finding of a defective product; that the evidence establishes plaintiff Rhoads' negligence as the sole proximate cause of the accident; and that the negligence of Rhoads bars recovery by him, either individually or as representative of his deceased wife and her survivors.
Third-Party Plaintiff Ford moves in the alternative, under Rule 59 of the Federal Rules of Civil Procedure, that judgment be entered against Woodrow F. Rhoads, Third-Party Defendant, in contribution, for one-half the amount of the damages awarded to the Estate of Mary Matthews Rhoads under the Survival Act and one-half the damages in favor of the survivors of Mary Matthews Rhoads under the Wrongful Death Act.
There was ample evidence adduced at trial to warrant a finding that the steering mechanism of the vehicle involved was dangerously defective, that the negligence of Rhoads was not a superseding cause of the accident and that it was, at most, a concurrent cause of his injuries and his wife's death. For the reasons hereinafter stated, Rhoads' concurrent negligence does not insulate Ford against liability for the consequences ensuing its sale of a defective product.
The motion for judgment n.o.v. will be denied.
With respect to the more challenging issues presented, the road to their resolution has not been clearly charted, but the pronouncements of the Supreme Court of Pennsylvania have set sufficient guideposts leading to the right of a negligent user to recover his own damages as well as his responsibility vel non to share with the seller of a dangerously defective product the damages accruing to a third person from their concurrent causation.
Pennsylvania law recognizes § 402A claims as actions ex delicto. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Although strict product liability may be viewed as a mere extension of the doctrine of implied warranty of fitness for the use intended by the simple removal of the requirement of privity of contract between seller and user, Pennsylvania courts have assigned such liability to the field of torts. Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603 (1968); Burbage v. Boiler Engineering and Supply Co., 433 Pa. 319, 249 A.2d 563 (1969); Woods v. Pleasant Hills Motor Company, 454 Pa. 224, 309 A.2d 698 (1973). Consideration of contributory negligence on the part of an injured user as a bar to recovery and his concurrent negligence as a basis of liability under the Uniform Contribution Among Joint Tortfeasors Act, 12 P.S. § 2082 et seq. is, therefore, required.
§ 402A imposes upon the marketer of goods the burden of reparation for damages brought about by a defectively dangerous condition of his product. Whether this liability -- manifestly a consumer-protection measure -- is based upon the unequal risk-bearing ability between seller and user or the seller's superior expertise and opportunity to ameliorate the risk of harm, it must be treated as a social-policy principle in which the seller-protector and the protected user are not in aequali juri. Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968) n. 6 at 854.
Accordingly, Pennsylvania courts have adopted and consistently applied the principles stated in Comment n of the Restatement of Torts to § 402A. They have spoken repeatedly of the voluntary assumption of a known risk as a defense and of the passive form of contributory negligence described in the Comment as a non-defense. They have also remained silent on the subject of active user negligence in cases where recovery was permitted under circumstances which clearly indicated an issue involving negligent conduct on the part of an injured consumer.
In Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966), the Court comments on Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966) as follows:
"The question was not reached or ruled upon therein, as to whether or not contributory negligence or assumption of risk by the buyer would constitute a defense in such actions. After studied consideration, it appears to us that if the buyer knows of the defect and voluntarily and unreasonably proceeds to use the product or encounter a known danger, this should preclude recovery and constitute a complete defense to the action even in cases of strict liability. . . . We, therefore, adopt this as the law of Pennsylvania as a supplement to our ruling in Webb v. Zern, supra."