The opinion of the court was delivered by: DITTER
The question in this case is whether a manufacturer is responsible for harm caused by the improper use of its products. The suit is one of many arising out of an explosion in which six children were killed or injured. Before the court is defendant's motion for summary judgment.
In the latter portion of 1969, in response to an advertisement in Popular Mechanics, Gregory Kranyak, a minor, ordered a fireworks assembly kit from Christie. Three or four months later, Kranyak ordered a second kit. Both were sold in violation of the injunctions against Christie.
On July 4, 1970, Kranyak took his fireworks kits into a park in Chester, Pennsylvania, abandoning a portion of them in a bottle. Two days later, someone threw a match into the bottle and it exploded, killing two children and injuring four others. Plaintiffs are these children or their personal representatives.
In their complaint, plaintiffs contend that Hummel is liable on any of three theories: first, on the grounds of common law negligence in that Hummel was reckless and careless because it sold hazardous and dangerous materials to Christie which Hummel knew or should have known were to be used for sale in violation of the injunction against Christie; second, under Section 388 of the Second Restatement of Torts for having supplied chattel which it knew was likely to be dangerous for the intended use; and third, because strict liability is imposed for abnormally dangerous activities.
In a motion for summary judgment under F.R.C.P. 56(b), all plaintiffs' well-pleaded material allegations must be taken as true. Moreover, the court should give plaintiffs the benefit of all favorable inferences that might reasonably be drawn from the evidence, placing the burden on defendant of proving the absence of any issue of fact. Janek v. Celebrezze, 336 F.2d 828 (3d Cir. 1964). Finally, judgment for the movant can only be granted if he is clearly entitled to it as a matter of law. Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S. Ct. 486, 488, 7 L. Ed. 2d 458 (1962); Bland v. Norfolk & S.R.R., 406 F.2d 863, 866 (4th Cir. 1969); 10 C. Wright & Miller, Federal Practice and Procedure § 2725, at 498 (1973).
The issues presented by this case must be determined by the application of Pennsylvania law. See Gross v. McDonald, 354 F. Supp. 378 (E.D. Pa. 1973); Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970). Because there are no precise Pennsylvania precedents, it is necessary for me to predict what the Pennsylvania Supreme Court would rule if these issues came before it. Quinones v. United States, 492 F.2d 1269, 1273 (3rd Cir. 1974).
Plaintiffs first allege that Hummel was negligent when it sold chemicals to Christie knowing that Christie would package the chemicals and ship fireworks assembly kits in interstate commerce in violation of various injunctions, thus "creating a threat of injury to the children of this country."
Conduct is recognized as negligent in Pennsylvania if the likelihood of harm could have been reasonably foreseen and prevented by the exercise of reasonable care. Lerro v. Thomas Wynne, Inc., 451 Pa. 37, 41, 301 A.2d 705 (1973).
See Quinones v. United States, supra. Before a party may recover for negligence, under Pennsylvania law, he must prove, inter alia, the existence of a duty owed to him and a breach thereof. Peatross v. Southwark Minit-Man Corp., 415 Pa. 129, 132, 202 A.2d 102 (1964); Evans v. Liberty Mutual Ins. Co., 398 F.2d 665, 667 (3d Cir. 1968). As the Supreme Court of Pennsylvania has observed:
Boyce v. United States Steel Corp., 446 Pa. 226, 230, 285 A.2d 459 (1971).
In this instance, plaintiffs have failed to show the existence of any duty which Hummel owed to them. Hummel simply supplied Christie with various nondangerous chemicals, which in themselves could do no harm. It was only after Christie assembled the separate components into a kit that defendant's products became an instrumentality that could injure children -- and in this instance, the injury came only when the fireworks had been improperly abandoned and were then negligently ignited.
To hold that Hummel could be liable to these plaintiffs would be to extend the concept of duty far beyond the limit that any Pennsylvania case suggests. What plaintiffs are really contending is that a manufacturer must police those who purchase his products to be sure that their products, even if improperly used, will not have the potential to do harm. Thus, a supplier of metal would have to be sure that if he sells to a manufacturer of wrenches, each wrench will be made in such a way that it will not shatter on impact because wrenches are sometimes improperly used as hammers. Or, if he sold to a cartridge company, the supplier of metal would have ...