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decided: May 19, 1975.



Sidney L. Wickenhaver, Montgomery, McCracken, Walker & Rhoads, Philadelphia, for appellant.

Laurence H. Eldredge, San Francisco, California, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Pomeroy, J., filed a concurring opinion. Eagen, O'Brien and Manderino, JJ., concur in the result.

Author: Jones

[ 462 Pa. Page 90]


This case is before us on a grant of allocatur.*fn1 The Superior Court reversed a verdict for the defendant-appellant in the trial court. We affirm.

[ 462 Pa. Page 91]

Cloyd Berkebile was killed on July 9, 1962 when the helicopter he was piloting crashed while in climbing flight. The executrix wife brought this wrongful death and survival action against Brantly Helicopter Corporation, the manufacturer of the helicopter. The plaintiff relied upon the theory of strict liability. Restatement (Second) of Torts, § 402A.*fn2 Several significant issues of importance in the growing area of strict liability recovery are presented in this multifaceted appeal. To avoid further confusion we find it necessary to clarify the concepts of strict liability under Pennsylvania law.

Brantly manufactured the small, two-person, B-2 model helicopter in October of 1961. Addressing itself to the general aviation market, the advertising described the helicopter as "safe, dependable," not "tricky to operate," and one that "beginners and professional pilots alike agree . . . is easy to fly." Brantly had experienced some difficulties in designing its rotor blades and autorotation in the development stage and modified the system to some degree prior to its distribution. In January, 1962, Mr. Berkebile, a businessman, purchased the

[ 462 Pa. Page 92]

    helicopter from defendant's distributor. Mr. Berkebile flew alone on July 9, and while in climbing flight the seven-foot outboard section of one of the three main rotor blades separated. The helicopter crashed on a wooded hillside, killing Mr. Berkebile.

Plaintiff proposed four grounds for recovery at the second trial: (1) The design of the rotor system of the helicopter was defective because the average pilot had insufficient time to place the helicopter in autorotation in an emergency power failure in climbing flight; (2) The rotor blade was defectively manufactured and designed; (3) The defendant rendered the helicopter defective as a result of the inadequate warnings regarding the possible risks and inherent limitations of one of the systems of the helicopter; and (4) The defendant misrepresented the safety of the helicopter in its advertising brochures.

The defendant, denying the existence of any defective condition in its product, theorized that the helicopter's rotor blade had fractured due to an abnormal use brought about by power failure resulting from fuel exhaustion, followed by a failure on decedent's part to push down the collective pitch in time to go into autorotation and to effect a proper emergency landing.

Plaintiff contends on appeal that the trial court erred in charging the jury on the law to be applied to these facts and erred in several of its evidentiary rulings. A review of the record and of the court's charge in particular, when taken as a whole, demonstrates a basic confusion concerning the principles of strict liability in torts. Despite the diligent efforts of the trial judge to conform his charge to the law, this case has been tried twice and, regretfully, must be tried for the third time. Although we have recognized strict liability recovery since our decision in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), it is apparent that the lack of clearly articulated standards has generated much misinterpretation.

[ 462 Pa. Page 93]

The law of products liability developed in response to changing societal concerns over the relationship between the consumer and the seller of a product. The increasing complexity of the manufacturing and distributional process placed upon the injured plaintiff a nearly impossible burden of proving negligence where, for policy reasons, it was felt that a seller should be responsible for injuries caused by defects in his products. See Restatement (Second) of Torts § 402A, comment, c. We therefore held in Webb v. Zern, supra, that the seller*fn3 of a product would be responsible for injury caused by his defective product even if he had exercised all possible care in its design, manufacture and distribution. We emphasized the principle of liability without fault most recently by stating that the seller is "effectively the guaranter of his product's safety," in Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974).

"Our courts have determined that a manufacturer by marketing and advertising his product impliedly represents that it is safe for its intended use. We have decided that no current societal interest is served by permitting the manufacturer to place a defective article in the stream of commerce and then to avoid responsibility for damages caused by the defect."

Strict liability requires, in substance, only two elements of requisite proof: the need to prove that the product was defective, ...

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