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Suchomajcz v. Hummel Chemical Co.

filed: September 24, 1975.

NORMAN I. SUCHOMAJCZ, ADMINISTRATOR OF THE ESTATE OF NORMAN SUCHOMAJCZ, A MINOR, AND NORMAN I. SUCHOMAJCZ AND MARY L. SUCHOMAJCZ, PARENTS AND NATURAL GUARDIANS OF NORMAN SUCHOMAJCZ, A MINOR, DEC'D, AND JOHN SZYMCZYK, ADMINISTRATOR OF THE ESTATE OF RENATA SZYMCZYK AND JOHN SZYMCZYK AND SOPHIE SZYMCZYK, PARENTS AND NATURAL GUARDIANS OF RENATA SZYMCZYK, A MINOR, DEC'D, AND CAROLE SUCHOMAJCZ, A MINOR, BY NORMAN I. SUCHOMAJCZ AND MARY L. SUCHOMAJCZ, HER PARENTS AND GUARDIANS, AND NORMAN I. SUCHOMAJCZ AND MARY L. SUCHOMAJCZ, IN THEIR OWN RIGHT AND SARA HULL, A MINOR, BY NELSON HULL AND LILLIAN HULL, HER PARENTS AND GUARDIANS, AND NELSON HULL AND LILLIAN HULL, IN THEIR OWN RIGHT AND JOSEPH SZYMCZYK, A MINOR, BY JOHN SZYMCZYK AND SOPHIE SZYMCZYK, HIS PARENTS AND NATURAL GUARDIANS, AND JOHN SZYMCZYK AND SOPHIE SZYMCZYK, IN THEIR OWN RIGHT, AND JOHN SZYMCZYK, A MINOR, BY JOHN SZYMCZYK AND SOPHIE SZYMCZYK, HIS PARENTS AND NATURAL GUARDIANS, AND JOHN SZYMCZYK AND SOPHIE SZYMCZYK, IN THEIR OWN RIGHT, APPELLANTS,
v.
HUMMEL CHEMICAL COMPANY, NEWARK, NEW JERSEY, AND MERCH & COMPANY, RAHWAY, NEW JERSEY, AND MALLINCKRODT CHEMICAL CORP., 223 WEST SIDE AVENUE, JERSEY CITY, NEW JERSEY, AND J. T. BAKER CHEMICAL COMPANY, PHILLIPSBURG, NEW JERSEY, AND MATHIESON, COLEMAN & BELL, DANBURY, CONNECTICUT, AND NATIONAL SCIENTIFIC CORP., LOMBARD, ILLINOIS, AND REYNOLDS METAL COMPANY, TEN PRESIDENTIAL BOULEVARD, BALA CYNWYD, PENNSYLVANIA



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 74-1833.

Adams, Rosenn and Hunter, Circuit Judges.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge

The use of firecrackers has its fascinations but also involves serious risks to participants and public. The primary issue raised on this appeal is whether a supplier of a fireworks component, harmless in itself, sustains liability when he sells the component to a fabricator of fireworks assembly kits who he knows sells the kits contrary to law and in violation of a court injunction, and when children are injured by an accidental explosion of a kit abandoned by its purchaser.

Plaintiffs, six minor children, have instituted this wrongful death and survival action in the United States District Court for the Eastern District of Pennsylvania against Hummel Chemical Company (Hummel), a New Jersey manufacturer. Their complaint alleged that Hummel sold some of its chemical products to Edwin C. Christie, Christie Industries, Inc., and Ecco Products (Christie), notwithstanding it knew or had reason to know that Christie would use the chemicals to manufacture and ship firecracker assembly kits in violation of federal law and several federal injunctions forbidding him from shipping the kits through interstate commerce. See United States v. Christie Indus., Inc., 465 F.2d 1002 (3d Cir. 1972).

In 1969, in response to an advertisement in Popular Mechanics, Gregory Kranyak, a minor, ordered a firecracker assembly kit from Christie. Several months later Kranyak ordered a second kit. Both kits were sold by Christie in violation of the injunctions. On July 4, 1970, Kranyak abandoned a portion of the kits in a bottle in a park in Chester, Pennsylvania. Two days later, someone threw a match into the bottle, causing an explosion which killed two of the minor plaintiffs and injured the other four.

In their complaint, plaintiffs contended that Hummel was liable (1) on the ground of common law negligence in that Hummel was reckless and careless in selling hazardous and dangerous materials to Christie, which Hummel knew or should have known were for use in the sale of firecracker assembly kits in violation of the federal injunctions; (2) under section 388 of the Restatement (Second) of Torts for supplying without adequate warning a chattel which Hummel knew was likely to be dangerous for its intended use; and (3) under a theory of strict liability for abnormally hazardous activities. Upon a motion by Hummel for summary judgment, the district court held that the alleged facts did not establish liability on the part of Hummel under any of these theories. 385 F. Supp. 1387 (E.D. Pa. 1974).

With respect to the negligence claim, the court found that plaintiffs were contending in effect "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." Id. at 1390. The court concluded that no such duty exists under Pennsylvania law. The court rejected plaintiffs' claim under section 388 of the Torts Restatement holding that the section applies only to dangerous substances and that Hummel's chemicals were not dangerous in themselves. The court also noted that section 388 imposes liability only if the persons harmed by the use of the chattel were those for whose use the chattel was supplied, and if the chattel was used in the manner intended by the manufacturer. Here, plaintiffs' injuries resulted from a third party throwing a match into a bottle in which the chemicals were abandoned. Finally, the court rejected plaintiffs' theory of strict liability for abnormally dangerous activities on the ground that Pennsylvania does not apply this theory to the discharge of fireworks. Plaintiffs appeal; we reverse the judgment of the district court.

I.

The parties have assumed that Pennsylvania law applies to the instant case. Although we agree, the question warrants brief discussion.

As a diversity court, we must look to Pennsylvania's conflict-of-laws rules to determine which state's substantive law applies. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). The instant situation, in which a New Jersey manufacturer sells a product to a New Jersey fabricator*fn1 knowing the fabricator will use the product as a component in firecracker assembly kits for interstate sales and Pennsylvania domiciliaries thereby are injured in Pennsylvania, has not been the subject of a Pennsylvania decision since the transformation in that state's conflicts law. This transformation dictates that we should apply the law of the predominantly concerned jurisdiction, measuring the depth and breadth of that concern by the relevant contacts each affected jurisdiction had with the specific transaction. The contacts are relevant only if they relate to the "policies and interests underlying the particular issue before the court." Griffith v. United Air Lines, Inc., 416 Pa. 1, 21, 203 A.2d 796, 805 (1964).

This balancing-of-interests test appears to have been modified somewhat when a "true conflict" exists, i.e., when the interests of the different states are of equal weight and truly in conflict. In Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970), the court was confronted with almost the converse situation as the one presented in this case. A Pennsylvania resident was injured in Delaware while riding as a guest in a car registered in Delaware and owned and operated by Delaware residents. Delaware had a guest statute; Pennsylvania did not. The court held that in this "true conflicts" situation Delaware law should be applied since Delaware was the more concerned jurisdiction. The court, however, then noted that

it seems only fair to permit a defendant to rely on his home state law when he is acting within that state. . . . Inhabitants of a state should not be put in jeopardy of liability exceeding that created by their state's laws just because a visitor from a state offering higher protection decides to visit there. This is, of course, a highly territorial approach, but "departures from the territorial view of torts ought not be lightly undertaken." Gordon v. Parker, 83 F. Supp. 40, 42 (D. Mass. 1949). . . . The very use of the term true ...


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