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decided: July 7, 1975.



Kim Darragh, Pittsburgh, for appellant.

Edwin H. Beachler, III, McArdle, Henderson, Caroselli, Laffey & Beachler, Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Mr. Justice Roberts did not participate in the consideration or decision of this case. Mr. Justice Pomeroy filed a concurring opinion.

Author: Jones

[ 463 Pa. Page 14]


Appellant, manufacturer of large over-the-road tractors, was held liable under Section 402A of Restatement (Second) of Torts (1965) for the injuries sustained by the appellee in a one-vehicle accident. The Superior Court affirmed and we granted allocatur limited to the issue of the availability of contributory negligence as a defense to a 402A action.

[ 463 Pa. Page 15]

Appellee was injured while driving a tractor manufactured by appellant. The design of the steering mechanism of the tractor made the vehicle unusually difficult to maneuver. Specifically, twelve to fifteen percent more mechanical effort than that normally expended had to be applied to the steering wheel to accomplish any given turn. Appellee, after driving the vehicle for several hours, stopped for an equipment check on the blacktopped shoulder of the Pennsylvania Turnpike. After completing the inspection the appellee proceeded to re-enter the Turnpike.

Unrelated to any steering difficulty appellee struck a guardrail adjoining the shoulder with the right front tire of the tractor. This collision caused the steering wheel to spin rapidly in the direction opposite to the turn. The spokes of the spinning steering wheel struck appellee's right arm, fracturing his wrist and forearm. Evidence adduced at trial indicated that the force and speed of the steering wheel's counterrotation were directly related to the design of the steering mechanism.

For the purposes of this appeal appellant concedes the defect in the steering system's design, but argues that appellee's contributory negligence in colliding with the guardrail should at least be considered in determining appellee's recovery. We disagree and affirm.

In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), this Court adopted Section 402A of the Restatement and in Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966), permitted the assertion of assumption of the risk as a defense to a 402A action, citing with approval comment n to Section 402A. Today, we complete our acceptance of the principles delineated in comment n*fn1 by rejecting

[ 463 Pa. Page 16]

    contributory negligence as an available defense in 402A cases.*fn2

Appellant's position that contributory negligence should affect 402A liability could have two possible applications. Either contributory negligence should serve to diminish any recovery in an amount adjudged equal to a plaintiff's lack of care, or as in most other tort actions, contributory negligence should be available as a complete defense to liability.

Acceptance of the appellant's first alternative would create a system of comparative assessment of damages for 402A actions. Neither the General Assembly by statute nor this Court by case law has established such a scheme of comparative negligence in other areas of tort law. Without considering the relative merits of comparative negligence, we think it unwise to embrace the theory in the context of an appeal involving Section 402A.*fn3

Adoption of contributory negligence as a complete defense in 402A actions would defeat one theoretical basis for our acceptance of Section 402A.*fn4 "Our courts have determined that a manufacturer by marketing and advertising his products impliedly represents that it is safe for its intended use." Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974). Based on that implied representation is the consumer's assumption that a manufacturer's goods are safe. Recognition of consumer negligence as a defense to a 402A action would

[ 463 Pa. Page 17]

    contradict this normal expectation of product safety. One does not inspect a product for defects or guard against the possibility of product defects when one assumes the item to be safe. The law should not require such inspection or caution when it has accepted as reasonable the consumer's anticipation of safety. We reject contributory negligence as a defense to actions grounded in Section 402A.*fn5

Judgment affirmed.

POMEROY, Justice (concurring).

I agree with the Court that negligence by the plaintiff should not necessarily bar recovery in a products liability action brought pursuant to Section 402A of the Restatement (Second) of Torts; I also agree that McCown's conduct in the instant case -- misjudging whether the tractor he was driving would clear a guard rail as he was leaving the parking area -- should not bar his recovery from the appellant. The purpose of this opinion is to place the Court's decision in what I perceive as its proper perspective.

Contrary to what the opinion of the Court seems to suggest, the answer to the question presented by this appeal is not to be found altogether in the language of Comment to Section 402A. Comment n provides, on the one hand, that the negligent failure to discover a defect in a product or to guard against the possibility of its existence

[ 463 Pa. Page 18]

    is not defense to a strict liability action, and, on the other hand, that assumption of risk is a defense. But the conduct of John McCown, the appellee, fits into neither of the above categories. His negligence, if any, was the manner of his operation of an International Harvester tractor. Although Comment n is silent with regard to the consequences of negligent use of a product, it points to a resolution of the issue by referring to Section 524 of the Restatement (Second) of Torts.*fn1 That section provides that in general "the contributory negligence of the plaintiff is not a defense to the strict liability of one who carries on an abnormally dangerous activity."*fn2 Neither the Comments to Section 524 nor Comment n to Section 402A offer a rationale for the application of this rule in products liability cases, but I am satisfied that the elimination of the defense of plaintiff's negligence is in accord not only with the weight of authority in other jurisdictions*fn3 but also with the policy which underlies the concept of strict liability in tort.

The strict liability of Section 402A is founded in part upon the belief that as between the sellers of products and those who use them, the former are the better able to

[ 463 Pa. Page 19]

    bear the losses caused by defects in the products involved. See Bialek v. Pittsburgh Brewing Company, 430 Pa. 176, 187 n. 2, 242 A.2d 231, 236 n. 2 (1968); Restatement (Second) of Torts § 402A, Comments c & f. This greater loss-bearing capacity is unrelated to negligence in the manufacture or marketing of products. Indeed, retail and wholesale sellers of chattels are themselves often in no position to discover or avoid defects in their inventories, even by the exercise of a high degree of care. Thus, defendants in Section 402A actions are subjected to liability without regard to fault. It is a proper corollary to this principle that the lesser loss-bearing capacity of product users exists independently of their negligence or lack of it. It follows that such negligence should not ordinarily or necessarily operate to preclude recovery in a strict liability case. On the other hand, where assumption of risk is involved, the "loss-bearing" policy underlying Section 402A is outweighed by a countervailing policy, one which refuses recovery to persons who consciously expose themselves to known dangers. This policy is deemed stronger than the one, reflected in the normal law of contributory negligence, which denies recovery to individuals whose conduct is merely lacking in due care under the circumstances.

This is not to say, however, that evidence of ordinary negligence on the part of a plaintiff is never relevant in a Section 402A action; such evidence may bear directly upon the determination of whether the plaintiff has proved all the elements necessary to make out a cause of action. Thus, negligence in the use of a product may tend to show that the plaintiff caused a defect and therefore that the product was not defective when sold. See Comment g to Section 402A. Again, if the negligent use of a product amounts to abnormal use, it may be inferred that the product was not defective at all, for a product is not defective if it is safe for normal handling and use. See Comment h to Section 402A. Similarly, negligence

[ 463 Pa. Page 20]

    in the use of a product may have a bearing on the question whether a defect in a product was the legal cause of the plaintiff's injury. See Restatement (Second) of Torts §§ 5 and 9 and the Comments to these sections.*fn4

What has been said is not intended as an exhaustive listing of the purposes for which evidence of the plaintiff's negligence may be relevant in Section 402A cases. It is intended merely to indicate that, although such negligence is not per se a bar to recovery, it may nevertheless have that effect in a proper case where it negates an essential element of the cause of action. I do not read the opinion of the Court as suggesting anything to the contrary.

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